Preview
FILED
TARRANT COUNTY 141-316441-20 7/15/2019 5:18 PM
4/14/2020 9:38 AM Marilyn Burgess - District Clerk Harris County
THOMAS A. WILDER Envelope No. 35141336
DISTRICT CLERK 2019-24888a / Court: 157 By: LISA COOPER
Filed: 7/15/2019 5:18 PM
CAUSE NO. 2019-24888
KRISTINA GRAY, § IN THE DISTRICT COURT OF
§
PLAINTIFF, §
§
VS. §
HARRIS COUNTY, TEXAS
§
PSE CONSTRUCTION, §
MIRANDAS TRANSPORT LLC, §
AND TOTAL LIME §
§
DEFENDANTS. § 157TH JUDICIAL DISTRICT
PLAINTIFF’S MOTION FOR CONTINUANCE
OF DEFENDANT’S MOTION TO TRANSFER VENUE AND SEVER
COMES NOW, KRISTINA GRAY, Plaintiff, in the above-styled and numbered cause,
and files this Motion for Continuance of the Hearing on Venue and Sever filed by Defendant
Michael Kurmes to enable Plaintiff to conduct reasonable discovery in support of her opposition
to Defendant’s Motion to Transfer Venue and Motion to Sever (“Kurmes’s Motion”). In support
thereof, Plaintiff would respectfully show the Court as follows:
I. BACKGROUND
Plaintiff filed this lawsuit on April 8, 2019 based on injuries to her upper body and arms
she received from Defendant Michael Kurmes’s dog and in a later vehicle collision involving the
other defendants. See Pl.’s Orig. Pet. Because the injuries are to the same parts of her body,
CertifiedDocumentNumber:89734612-Page1of7
Plaintiff joined all Defendants in this same suit, to prevent them from blaming the “empty chair”
of non-present defendants were Plaintiff to have filed two lawsuits. On June 18, 2019, Defendant
Michael Kurmes filed a Motion to Transfer Venue and Motion to Sever in his Answer, arguing
that venue should be transferred out of Harris County and to Tarrant County where he lives. He
set the hearing on his Motion to Transfer Venue and Sever for August 16, 2019.
PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S
MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 1
According to Texas Rule of Civil Procedure 87(1), Plaintiff’s response is therefore due
on July 17, 2019, which is thirty-days prior to that hearing date. However, Plaintiff seeks a
continuance of this hearing to allow her to obtain discovery on Defendants regarding the venue
issue. Specifically, Plaintiff seeks answers and responses to her requests for admission and
interrogatories from Defendants regarding whether they will blame each other for her injuries.
Thus, Plaintiff is today serving on Defendants venue-focused discovery requests. She needs the
additional time to include Defendants’ responses to these questions in her response to Kurmes’s
Motion. Were Defendants to establish that Plaintiff’s injuries are not indivisible, so that there
would not be two trials focused on the same facts and same injuries, and agree to not designate
each other as responsible third parties, then Plaintiff could agree to sever and transfer the case
against Kurmes to Tarrant County for his convenience. But absent these admissions, Plaintiff is
confident that Defendants will seek to blame each other for what she faces: a continuous,
indivisible set of injuries to her upper body and arms due to an interwoven set of facts and issues,
with each particular Defendant certain to blame the others for her injuries.
II. GROUNDS FOR CONTINUANCE
Rule 87 governing motions to transfer provides that “Except on leave of court, any
response or opposing affidavits shall be filed at least 30 days prior to the hearing of the motion to
transfer.” TEX. R. CIV. P. 87(1). A party, like Plaintiff, seeking to oppose a motion to transfer
CertifiedDocumentNumber:89734612-Page2of7
“must make prima facie proof” of any venue facts that have been specifically denied. Id. at
(3)(a). “Prima facie proof is made when the venue facts are properly pleaded and an affidavit,
and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the
facts supporting such pleading.” Id. Then the court shall determine the motion based on “the
pleadings, any stipulations made by and between the parties and such affidavits and attachments
PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S
MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 2
as may be filed by the parties[.]” Id. at (b). Thus, while expedited, Rule 87 provides that the
parties should file the proof they have available regarding all matters important to the venue
determination.
The key consideration of whether there is proper venue over multiple defendants in a suit
is whether the “claims or actions aris[e] out of the same transaction, occurrence, or series of
transactions or occurrences.” TEX. CIV. PRAC. & REM. CODE § 15.005. At least one court of
appeals has held (in a decision denied review by the Supreme Court of Texas) that ifa party’s
claim involves “an indivisible injury” in which each defendant, were the case to be severed and
transferred, “would be able to present evidence that the defendants on trial in the other suit were
responsible,” then the action arises out of the “same transaction, occurrence, or series of
transactions or occurrences.” Santos v. Holzman, No. 13-02-662-CV, 2005 WL 167309, at *3
(Tex. App.—Corpus Christi Jan. 27, 2005, pet. denied). “[T]wo trials focused on the same facts
and same injury … could potentially lead to undue repetition, confusion and prejudice to the
interests of both the plaintiffs (who could be either over or under compensated) and the
defendants (who could face unduly low or high fractional shares of the total liability for
damages).” Id.
Based on these rules and precedent, Plaintiff needs to show at the Kurmes’s Motion
hearing that her injuries are indeed “indivisible” and therefore that her claims arise out of the
CertifiedDocumentNumber:89734612-Page3of7
same series of occurrences supporting venue over all Defendants in Harris County. See TEX. CIV.
PRAC. & REM. CODE § 15.005. To support this response to Kurmes’s Motion, Plaintiff seeks to
introduce Defendants’ responses to her venue discovery that they will in fact treat her injuries as
indivisible themselves (or will stipulate that they will not) and further responses about their
intended defenses and medical evidence, all of which will bear on the “indivisible injury” and
PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S
MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 3
“series of occurrences” venue issues. Stated simply, Defendants’ discovery responses will show
that the claims and issues in this case are the same for both Kurmes and the other defendants.
Moreover, Rule 258 supports that Plaintiff is entitled to a continuance to conduct such
discovery. Rule 258 provides that reasonable discovery shall be allowed in support of and in
opposition to a motion to transfer venue. See Tex. R. Civ. P. 258; Union Carbide Corp. v. Moye,
798 S.W.2d 792, 793 (Tex. 1990). While specifically applying to motions to transfer venue
under Rule 257, courts of appeal have held it has relevance to Rule 87 transfers as well. See
Beard v. Gonzalez, 924 S.W.2d 763, 765 (Tex. App.—El Paso 1996, no writ). Rule 258 provides
that “reasonable discovery” on the motion “shall be permitted,” and the Supreme Court of Texas
has held that when such reasonably discovery is not permitted, such as by holding the hearing
before discovery products are available, it is an abuse of the trial court’s discretion. Moye, 798
S.W.2d at 793. Likewise here, Plaintiff’s request for continuance seeks only reasonable time for
discovery responses to be incorporated into her response to Kurmes’s Motion, and show seeks an
extension of 30 days or more to accomplish that end.
III. PRAYER
Accordingly, Plaintiff respectfully prays that the Court continue the hearing on Defendant
Kurmes’s Motion to Transfer Venue and Motion to Sever for at least 30 days to allow her
adequate time to incorporate discovery responses on venue issues into her response. Plaintiff
CertifiedDocumentNumber:89734612-Page4of7
further prays that the Court grant her any and all other relief, general or special, at law or in
equity, to which she may be justly entitled.
[SIGNATURE BLOCK FOLLOWS]
PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S
MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 4
Respectfully submitted,
JIM S. ADLER & ASSOCIATES
By: /s/ Langdon “Trey” Smith
Langdon “Trey” Smith
Texas Bar No.: 00797456
lsmith@jimadler.com
Michael Gomez
Texas Bar No.: 24029578
mgomez@jimadler.com
1900 West Loop South, 20th Fl.
Houston, Texas 77027
T: (713) 735-2114
F: (713) 781-2514
ATTORNEYS FOR PLAINTIFF
CertifiedDocumentNumber:89734612-Page5of7
PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S
MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 5
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing instrument
has been forwarded to all known counsel of record, as listed below, pursuant to the Texas Rules
of Civil Procedure on this 15th day of July, 2019.
Via e-Service Via e-Service
E-Service@lewisandwilliams.com thammock@hammocklawfirm.com
Wade Williams kristin@hammocklawfirm.com
LEWIS & WILLIAMS R. Talmadge Hammock
1014 Hercules Avenue Kristin F. Munkittrick
Houston, Texas 77058 HAMMOCK LAW FIRM, PLLC
Attorney for Defendants, 1002 Gemini, Suite 100
Mirandas Transport, LLC and Houston, Texas 77058
Total Lime Attorneys for Defendant, James Wood
Via e-Service
Todd Taylor
SBN: 00785087
Johanson & Fairless, L.L.P.
1456 First Colony Boulevard
Sugar Land, Texas 77479
Tel: (281) 313-5000
Email: ttaylor@jandflaw.com
Attorney for Michael Kurmes
/s/ Langdon “Trey” Smith
Langdon “Trey” Smith
CertifiedDocumentNumber:89734612-Page6of7
PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S
MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 6
STATE OF TEXAS §
§
COUNTY OF HARRIS §
I, Langdon Smith, swear or affirm I am requesting this continuance because discovery
from Defendants regarding their contentions is necessary to adetfuately respond t Motion to
Transfer Venue filed by Defendant Kurmes.
SUBSCRIBED and SWORN TO BEFORE ME, on
certify which, witness my hand and seal of office.
LANGDON SIV
this the
^ tfH
I *? 1
day of July, 2019, to
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MARIA T . HERRERA
.
Notary PublicState of Texas
.£?/ Comm , Expires 12-06- 2020
Notary ID 124213323
NOTARY PUBLIC
The State of Texas ^ n and for
CertifiedDocumentNumber:89734612-Page7of7
PLAINTIFF S MOTION FOR CONTINUANCE OF DEFENDANT S
MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 7
I, Marilyn Burgess, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this April 9, 2020
Certified Document Number: 89734612 Total Pages: 7
Marilyn Burgess, DISTRICT CLERK
HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
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FILED TARRANT COUNTY 141-316441-20 7/15/2019 5:18 PM 4/14/2020 9:38 AM Marilyn Burgess - District Clerk Harris County THOMAS A. WILDER Envelope No. 35141336 DISTRICT CLERK 2019-24888a / Court: 157 By: LISA COOPER Filed: 7/15/2019 5:18 PM CAUSE NO. 2019-24888 KRISTINA GRAY, § IN THE DISTRICT COURT OF § PLAINTIFF, § § VS. § HARRIS COUNTY, TEXAS § PSE CONSTRUCTION, § MIRANDAS TRANSPORT LLC, § AND TOTAL LIME § § DEFENDANTS. § 157TH JUDICIAL DISTRICT PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S MOTION TO TRANSFER VENUE AND SEVER COMES NOW, KRISTINA GRAY, Plaintiff, in the above-styled and numbered cause, and files this Motion for Continuance of the Hearing on Venue and Sever filed by Defendant Michael Kurmes to enable Plaintiff to conduct reasonable discovery in support of her opposition to Defendant’s Motion to Transfer Venue and Motion to Sever (“Kurmes’s Motion”). In support thereof, Plaintiff would respectfully show the Court as follows: I. BACKGROUND Plaintiff filed this lawsuit on April 8, 2019 based on injuries to her upper body and arms she received from Defendant Michael Kurmes’s dog and in a later vehicle collision involving the other defendants. See Pl.’s Orig. Pet. Because the injuries are to the same parts of her body, CertifiedDocumentNumber:89734612-Page1of7 Plaintiff joined all Defendants in this same suit, to prevent them from blaming the “empty chair” of non-present defendants were Plaintiff to have filed two lawsuits. On June 18, 2019, Defendant Michael Kurmes filed a Motion to Transfer Venue and Motion to Sever in his Answer, arguing that venue should be transferred out of Harris County and to Tarrant County where he lives. He set the hearing on his Motion to Transfer Venue and Sever for August 16, 2019. PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 1 According to Texas Rule of Civil Procedure 87(1), Plaintiff’s response is therefore due on July 17, 2019, which is thirty-days prior to that hearing date. However, Plaintiff seeks a continuance of this hearing to allow her to obtain discovery on Defendants regarding the venue issue. Specifically, Plaintiff seeks answers and responses to her requests for admission and interrogatories from Defendants regarding whether they will blame each other for her injuries. Thus, Plaintiff is today serving on Defendants venue-focused discovery requests. She needs the additional time to include Defendants’ responses to these questions in her response to Kurmes’s Motion. Were Defendants to establish that Plaintiff’s injuries are not indivisible, so that there would not be two trials focused on the same facts and same injuries, and agree to not designate each other as responsible third parties, then Plaintiff could agree to sever and transfer the case against Kurmes to Tarrant County for his convenience. But absent these admissions, Plaintiff is confident that Defendants will seek to blame each other for what she faces: a continuous, indivisible set of injuries to her upper body and arms due to an interwoven set of facts and issues, with each particular Defendant certain to blame the others for her injuries. II. GROUNDS FOR CONTINUANCE Rule 87 governing motions to transfer provides that “Except on leave of court, any response or opposing affidavits shall be filed at least 30 days prior to the hearing of the motion to transfer.” TEX. R. CIV. P. 87(1). A party, like Plaintiff, seeking to oppose a motion to transfer CertifiedDocumentNumber:89734612-Page2of7 “must make prima facie proof” of any venue facts that have been specifically denied. Id. at (3)(a). “Prima facie proof is made when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such pleading.” Id. Then the court shall determine the motion based on “the pleadings, any stipulations made by and between the parties and such affidavits and attachments PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 2 as may be filed by the parties[.]” Id. at (b). Thus, while expedited, Rule 87 provides that the parties should file the proof they have available regarding all matters important to the venue determination. The key consideration of whether there is proper venue over multiple defendants in a suit is whether the “claims or actions aris[e] out of the same transaction, occurrence, or series of transactions or occurrences.” TEX. CIV. PRAC. & REM. CODE § 15.005. At least one court of appeals has held (in a decision denied review by the Supreme Court of Texas) that ifa party’s claim involves “an indivisible injury” in which each defendant, were the case to be severed and transferred, “would be able to present evidence that the defendants on trial in the other suit were responsible,” then the action arises out of the “same transaction, occurrence, or series of transactions or occurrences.” Santos v. Holzman, No. 13-02-662-CV, 2005 WL 167309, at *3 (Tex. App.—Corpus Christi Jan. 27, 2005, pet. denied). “[T]wo trials focused on the same facts and same injury … could potentially lead to undue repetition, confusion and prejudice to the interests of both the plaintiffs (who could be either over or under compensated) and the defendants (who could face unduly low or high fractional shares of the total liability for damages).” Id. Based on these rules and precedent, Plaintiff needs to show at the Kurmes’s Motion hearing that her injuries are indeed “indivisible” and therefore that her claims arise out of the CertifiedDocumentNumber:89734612-Page3of7 same series of occurrences supporting venue over all Defendants in Harris County. See TEX. CIV. PRAC. & REM. CODE § 15.005. To support this response to Kurmes’s Motion, Plaintiff seeks to introduce Defendants’ responses to her venue discovery that they will in fact treat her injuries as indivisible themselves (or will stipulate that they will not) and further responses about their intended defenses and medical evidence, all of which will bear on the “indivisible injury” and PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 3 “series of occurrences” venue issues. Stated simply, Defendants’ discovery responses will show that the claims and issues in this case are the same for both Kurmes and the other defendants. Moreover, Rule 258 supports that Plaintiff is entitled to a continuance to conduct such discovery. Rule 258 provides that reasonable discovery shall be allowed in support of and in opposition to a motion to transfer venue. See Tex. R. Civ. P. 258; Union Carbide Corp. v. Moye, 798 S.W.2d 792, 793 (Tex. 1990). While specifically applying to motions to transfer venue under Rule 257, courts of appeal have held it has relevance to Rule 87 transfers as well. See Beard v. Gonzalez, 924 S.W.2d 763, 765 (Tex. App.—El Paso 1996, no writ). Rule 258 provides that “reasonable discovery” on the motion “shall be permitted,” and the Supreme Court of Texas has held that when such reasonably discovery is not permitted, such as by holding the hearing before discovery products are available, it is an abuse of the trial court’s discretion. Moye, 798 S.W.2d at 793. Likewise here, Plaintiff’s request for continuance seeks only reasonable time for discovery responses to be incorporated into her response to Kurmes’s Motion, and show seeks an extension of 30 days or more to accomplish that end. III. PRAYER Accordingly, Plaintiff respectfully prays that the Court continue the hearing on Defendant Kurmes’s Motion to Transfer Venue and Motion to Sever for at least 30 days to allow her adequate time to incorporate discovery responses on venue issues into her response. Plaintiff CertifiedDocumentNumber:89734612-Page4of7 further prays that the Court grant her any and all other relief, general or special, at law or in equity, to which she may be justly entitled. [SIGNATURE BLOCK FOLLOWS] PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 4 Respectfully submitted, JIM S. ADLER & ASSOCIATES By: /s/ Langdon “Trey” Smith Langdon “Trey” Smith Texas Bar No.: 00797456 lsmith@jimadler.com Michael Gomez Texas Bar No.: 24029578 mgomez@jimadler.com 1900 West Loop South, 20th Fl. Houston, Texas 77027 T: (713) 735-2114 F: (713) 781-2514 ATTORNEYS FOR PLAINTIFF CertifiedDocumentNumber:89734612-Page5of7 PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 5 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing instrument has been forwarded to all known counsel of record, as listed below, pursuant to the Texas Rules of Civil Procedure on this 15th day of July, 2019. Via e-Service Via e-Service E-Service@lewisandwilliams.com thammock@hammocklawfirm.com Wade Williams kristin@hammocklawfirm.com LEWIS & WILLIAMS R. Talmadge Hammock 1014 Hercules Avenue Kristin F. Munkittrick Houston, Texas 77058 HAMMOCK LAW FIRM, PLLC Attorney for Defendants, 1002 Gemini, Suite 100 Mirandas Transport, LLC and Houston, Texas 77058 Total Lime Attorneys for Defendant, James Wood Via e-Service Todd Taylor SBN: 00785087 Johanson & Fairless, L.L.P. 1456 First Colony Boulevard Sugar Land, Texas 77479 Tel: (281) 313-5000 Email: ttaylor@jandflaw.com Attorney for Michael Kurmes /s/ Langdon “Trey” Smith Langdon “Trey” Smith CertifiedDocumentNumber:89734612-Page6of7 PLAINTIFF’S MOTION FOR CONTINUANCE OF DEFENDANT’S MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 6 STATE OF TEXAS § § COUNTY OF HARRIS § I, Langdon Smith, swear or affirm I am requesting this continuance because discovery from Defendants regarding their contentions is necessary to adetfuately respond t Motion to Transfer Venue filed by Defendant Kurmes. SUBSCRIBED and SWORN TO BEFORE ME, on certify which, witness my hand and seal of office. LANGDON SIV this the ^ tfH I *? 1 day of July, 2019, to UYvnud 5 fg *p MARIA T . HERRERA . Notary PublicState of Texas .£?/ Comm , Expires 12-06- 2020 Notary ID 124213323 NOTARY PUBLIC The State of Texas ^ n and for CertifiedDocumentNumber:89734612-Page7of7 PLAINTIFF S MOTION FOR CONTINUANCE OF DEFENDANT S MOTION TO TRANSFER VENUE AND MOTION TO SEVER HEARING Page 7 I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 9, 2020 Certified Document Number: 89734612 Total Pages: 7 Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com