Preview
Certified Document Number: 100733319 - Page | of 18
3/7/2022 8:36 AM
Marilyn Burgess - District Clerk Harris County
Envelope No. 62339812
By: Tiffany Jefferson
Filed: 3/7/2022 8:36 AM
Cause No. 2021-22525
HUMBERTO NOVOA
ADRIAN ZAMARRIPA and
LA ENERGIA NORTENA LLC
IN THE DISTRICT COURT
§
§ | HARRIS COUNTY, TEXAS
v. §
§
§
MOISES CUEVAS 61st JUDICIAL DISTRICT
PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S REPLY
AND SUR REPLY TO DEFENDANT’S TARDY REPLY TO
PLAINTIFFS’ RESPONSE TO
DEFENDANT’S MOTION TO TRANSFER VENUE
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiffs HUMBERTO NOVOA, ADRIAN ZAMARRIPA and LA
ENERGIA NORTENA LLC, file this their PLAINTIFFS’ MOTION TO STRIKE
DEFENDANT’S REPLY AND RESPONSE TO DEFENDANT'S TARDY REPLY
TO PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO TRANSFER
VENUE, and would respectfully show unto the Court as follows:
I.
PRELIMINARY STATEMENT
Plaintiffs offer prima facie proof that Harris County is a proper venue.
Defendant filed an untimely reply and evidence that should be struck. He makes
improper evidence attacks on Plaintiffs’ supporting affidavit and cites the Federal
Rules of Evidence as a basis. Defendant also improperly asserts convenience as a
basis for his motion for the first time in his reply in an attempt to take away Plaintiffs
opportunity to contest this basis. Defendant’s evidence is false regarding the status
of La Energia Nortena’s company status as it is a viable Texas LLC. Further,Certified Document Number: 100733319 - Page 2 of 18
Defendant placing his counsel as a fact witness is wholly improper and should be
disregarded. Defendant’s argument regarding concert venues in Dallas County
outnumbering Harris County is uncreditable as the provided list reveals 19 tour dates
for the Houston area and only 11 for the Dallas area. Lastly, even if this Court
considered Defendant’s newly asserted convenience grounds, Defendant’s motion still
fails as the public and private interest factors favor Plaintiffs. For all these reasons,
this Court should deny Defendant’s motion to transfer venue.
I.
ARGUMENTS AND AUTHORITIES
A. PLAINTIFFS PROFFER PRIMA FACIE PROOF OF HARRIS COUNTY
VENUE.
Plaintiffs filed this lawsuit in Harris County, because some of the Defendant’s
offensive behavior and misconduct occurred in Harris County. Defendant filed his
motion to change venue, asserting one and only one ground: Plaintiffs’ cause of
action did not accrue in Harris County. In response, Plaintiffs timely filed a response,
explaining their right to choose venue under Texas law, and attaching the affidavit
of Plaintiff Humberto Novoa to establish their prima facie proof as required by Tex.
R. Civ. P. 87:
It was reported to me by several witnesses who reside in
Harris County, such as Francisco Banda, Danny Guerra,
Mariana Escamilla, and Cyrus, who are (venue managers,
stagehands, consumers, patrons) that Mr. Cuevas openly
brandished a handgun in concert venues in Houston at
which LEN! was performing. He also openly carried and
brandished handguns on the LEN tour bus at
inappropriate times. Mr. Cuevas also apparently abuses
alcohol and has appeared to be intoxicated at numerous
'Plaintiff La Energia Nortefia.Certified Document Number: 100733319 - Page 3 of 18
LEN events, including those in Harris County. His
intoxicated state and his belligerent attitude caused
problems for LEN with law enforcement officials in Harris
County.
bobo Mr. Cuevas was also reportedly aggressive with
his co-workers, and they had also been some issues of him
behaving inappropriate with someof the female fans that
would attend events, including those in Houston, Harris
County, Texas by touching them inappropriately while he
was apparently intoxicated.
These problems with law enforcement caused problems for
those venues that contracted with LEN and for those
seeking to work with LEN in any capacity. These venues
included those in Houston, Harris County, Texas.
Among the matters asserted in the lawsuit filed in this
Court is the request LEN’s operations be wound down and
its assets liquidated. One of the LEN’s biggest assets is its
custom tour bus. Houston, Harris County Texas is known
as an area with a large resale market for such custom tour
buses.
(See Pls.’ Response to Def.’s Mot. to Transfer Venue, attached as Ex. 1.)
“(If the plaintiff offers prima facie proof through pleadings and affidavits that
venue is proper, the inquiry is over”. Sazy v. J.R. Birdwell Construction and
Restoration, LLC, 2021 WL 1220122, *3 (Tex. App.—Dallas 2021, pet. denied)
(emphasis added).
B. THE COURT SHOULD STRIKE DEFENDANT’S TARDY REPLY AND
PROFFERED DOCUMENTS.
Having rejected Defendant’s request for oral argument, this Court set this
matter for submission on March 7, 2022.
Pursuant to Tex. R. Civ. P. 87, the deadline for Defendant to reply to Plaintiffs’Certified Document Number: 100733319 - Page 4 of 18
venue response was February 28, 2022, seven days before the date for submission.
Tex. R. Civ. P. 87.1.
On Friday, March 4, 2022, at approximately 3:00 p.m., Defendant filed his
reply, with approximately 85 pages in exhibits. Defendant failed to file a motion for
leave and supporting affidavit; indeed, the sole purpose of such tardy filing appears
to be an attempt to preclude Plaintiffs from preparing a timely sur-reply, pointing
out the numerous legal errors contained therein.
In order for a tardily filed document to be considered, a litigant must file a
motion for leave, supported by an affidavit containing why the deadline was missed.
Defendant has failed to satisfy these obligations. Therefore, this Court cannot
consider his response. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.
1996).
Ignoring Defendant’s reply and the attached evidence is also justified on
substantive grounds.
First, Defendant’s proffer of documents and other exhibits that are improper
and should be stricken. Under Texas law, venue is not determined by a trial by
affidavit, wherein the trial court reviews all the evidence presented and determines
the most credible. Instead, the plaintiff's evidence must be presumed true.
Furthermore, “The plaintiff's prima facie proof is not subject to rebuttal,
cross-examination, impeachment, or disproof.” In re Missouri Pacific R. Co., 998
S.W.2d 212, 216 (Tex. 1999) (emphasis added); accord, Sustainable Texas Oyster
Resource Management L.L.C. v. Hannah Reef, Inc., 491 S.W.3d 96, 106 (Tex. App.—Certified Document Number: 100733319 - Page 5 of 18
Houston [1st Dist.] 2016, pet. denied); Duran v. Entrust, Inc., 2010 WL 1241093, *6
(Tex. App.—Houston [1st Dist.] 2010, pet. denied). Improper venue cannot be found
merely because “[t]he evidence as a whole may well show that prima facie proof was
misleading or wrong.” Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993).
Accordingly, this Court should ignore Defendant’s 85 pages of exhibits.
He VENUE ISSUES ARE NOT DETERMINED VIA AN
EVIDENTIARY HEARING.
Defendant repeatedly faults Plaintiffs for failing to provide information
concerning venue. Plaintiffs are not required to plead their evidence including their
venue evidence. Rodriguez v. Yenawine, 556 S.W.2d 410, 414 (Tex. Civ. App.—Austin
1977, no writ) (“The Rules of pleading uniformly condemn forcing a plaintiff to plead
the evidence upon which plaintiff relies to prove the allegations of the pleadings.”).
They are consequently permitted to conclusory plead their venue allegations. See
Scott Law Offices v. Quinney Holdings, LLC, 2020 WL 4006438, *4 (Tex. App.—
Houston [1st Dist.] 2020, no pet.).
Defendant claims that Plaintiffs’ supporting affidavit is hearsay because Mr.
Novoa is not testifying in open court. Tex. R. Civ. P. 87.3(b) does not authorize live
testimony to determine venue.?. Defendant fails to cite any legal authority that
supports his position. Allowing consideration of affidavits in this circumstance is
consistent with the principle that when a statute or rule authorizes the use of
affidavits, such affidavits cannot be excluded as hearsay. See e.g., D & M Marine,
2If this Court believed that a plaintiff was required to present live testimony to prove venue, it would
have set this matter for a zoom hearing, instead of an adjudication by submission.
5Certified Document Number: 100733319 - Page 6 of 18
Inc. v. Turner, 409 S.W.3d 693, 699 (Tex. App.—Houston [1st Dist.] 2013, pet. denied);
Hong v. Bennett, 209 S.W.3d 795, 800 (Tex. App.—Fort Worth 2006, no pet.)
(affidavits under Tex. Civ. Prac. & Rem. Code §18.001).
Defendant selects snippets out from Mr. Novoa’s affidavit and claims the
statements constitute hearsay. In making such objections, Defendant is attempting
to require Plaintiffs to prove their cause of action. Yet, Plaintiffs are not required to
prove their cause of action in order to establish venue. Tex. R. Civ. P. 87.2(a) (“It
shall not be necessary for a claimant to prove the merits of a cause of action, but the
existence of a cause of action.”). Thus, Plaintiffs can establish their prima facie case
with affidavit evidence.
2. FEDERAL RULES OF EVIDENCE ARE NOT APPLIED IN A
TEXAS STATE DISTRICT COURT.
Next, Defendant’s reply states “[Defendant] objects to Plaintiffs’ use of
Humberto Novoa’s Affidavit as irrelevant and inadmissible under Rules 401 and 402
of the Federal Rules of Evidence.” (See Def.’s Reply to Pls.’ Resp. to Def.’s Mot. to
Transfer Venue, p. 11.) The Federal Rules of Evidence do not apply in this Court.
Ignoring the inapplicability of the Federal Rules of Evidence before this Court,
Defendant’s substantive objection fares no better. Texas Rule of Evidence 401
provides that evidence is relevant if it “has any tendency to make a fact more or less
probable than it would be without” and “the fact is of consequence.” The fact in
consequence for purposes of this motion is whether Defendant committed misconduct
in Harris County; and it is more likely that Defendant committed misconduct in
Houston if Houston constitutes La Energia Nortefia’s primary market. DefendantCertified Document Number: 100733319 - Page 7 of 18
argues that a witness is not more competent because of his choice in listening
preferences; Plaintiff never asserted that witnesses’ credibility depends on their
choice in music.
Defendant claims that Mr. Novoa’s affidavit must be excluded because it is
wrong. Again, such argument ignores the fact Plaintiff's proof is not subject to
rebuttal, cross-examination, impeachment, or disproof,? In re Missouri Pacific R. Co.,
supra; Sustainable Texas Oyster Resource Management L.L.C. v. Hannah Reef, Inc.,
supra; Duran v. Entrust, Inc., supra, and therefore Defendant cannot prevail.
3. PLAINTIFFS ARE ENTITLED TO DETERMINE THE CAUSES
OF ACTION THEY CHOOSE TO ASSERT IN A PLEADING.
Defendant also claims venue is mandatory because Plaintiffs mention libelous
statements. As explained in more detail infra, this ground was not mentioned in
Defendant’s original motion to transfer venue, and therefore cannot be considered by
this Court. But more importantly, Plaintiffs have never alleged either libel or
slander as a cause of action. Plaintiffs are masters of their own complaint, and
therefore are free to avoid asserting causes of action including those that possess
mandatory venue. Hatridge v. Day & Zimmermann, Inc., 789 S.W.2d 654, 656 (Tex.
App.—Texarkana 1990, no writ); see also In re B.A.C., 144 S.W.3d 8, 15 (Tex. App.—
Waco 2004, no pet.).4 Defendant is not free to rewrite Plaintiffs’ petition to force a
transfer of venue.
’Defendant has also failed to provide any authority for his position that felons cannot testify.
4Even assuming that Plaintiffs were asserting a mandatory venue provision, they waived it by filing
suit herein. Robinson v. National Bank of Commerce of Dallas, 515 S.W.2d 166, 167-68 (Tex. Civ.
App.—Fort Worth 1974, no pet.). Tex. Civ. Prac. & Rem. Code § 15.017 is for the benefit of plaintiffs
and they should be free to waive it.Certified Document Number: 100733319 - Page 8 of 18
4. DEFENDANT NEVER ALLEGED CONVENIENCE AS A
GROUND FOR A CHANGE OR TRANSFER OF VENUE, MUCH
LESS PRODUCED EVIDENCE ON THE SUBJECT.
Defendant then asserts a litany of reasons why venue may be more convenient
in Dallas County than Harris County. But Defendant never asserted
convenience of the parties as grounds for transfer of venue. Indeed, lawsuits
are rarely “convenient” for a defendant. Motions must stand or fall on the grounds
contained therein, see McConnell v. Southside Independent School Dist., 858 S.W.2d
337, 340 (Tex. 1993), and cannot be granted on grounds unasserted. See e.g., Johnson
v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204-05 (Tex. 2002). Therefore,
Defendant’s detailed discussion, and any evidence which supports it, concerning
convenience must be summarily ignored.
Moreover, consideration of this ground denies Plaintiffs due process. As a
matter of constitutional due process, Plaintiffs are entitled to reasonable notice, in
order to be able to intelligently respond and present evidence. Doston v. Duffy, 732
F. Supp. 857, 871 (N.D. Ill. 1988); Mayhew v. Cohen, 604 F. Supp. 850, 858 (E.D. Pa.
1984). By failing to include such ground in the motion to transfer venue, Defendant
attempts to deprive of their due process right to adequate notice.
5. DEFENDANT’S COUNSEL ROLE AS A FACT WITNESS
CANNOT PREEMPT PLAINTIFFS’ VALID CHOICE OF
PROPER VENUE.
If this Court decides to examine this issue, it will find Defendant’s evidence
incompetent, much less sufficient to hold the day. For example, to prop up his motion,
Defendant’s counsel highlights his role as a witness in this business dispute andCertified Document Number: 100733319 - Page 9 of 18
himself avers to purported facts concerning La Energia Nortefia’s operations. (See
Def.’s Reply to Pls.’ Resp. to Def.’s Mot. to Transfer Venue, Ex. F.) Such affidavit
must be summarily disregarded as incompetent. Aghili v. Banks, 63 S.W.3d 812, 818
(Tex. App.—Houston [14th Dist.] 2001, pet. denied). “The practice of attorneys
furnishing from their own lips and on their own oaths the controlling testimony of
their client is one not to be condoned by judicial silence .... nothing short of actual
corruption can more surely discredit the profession.” Reliance Capital, Inc. v. G.R.
Hmaidan, Inc., 2006 WL 1389539, *4 (Tex. App.—Houston [14 Dist.] 2006, no pet.).
Likewise, Plaintiffs object to the consideration of the affidavit of Defendant. A
witness’s affidavit is conclusory if it fails to explain the basis of the witness’s
statements to link his conclusions to the facts. Earle v. Ratliff, 998 S.W.2d 882, 890
(Tex. 1999). Conclusory affidavits are incompetent. Ryland Group, Inc. v. Hood, 924
$.W.2d 120, 122 (Tex. 1996). In the case at bar, Defendant repeatedly fails to link
his conclusions to any particular facts which support them. As a result, his affidavit
fails to properly support his contention.
6. DEFENDANT’S EVIDENCE IS FALSE; LA ENERGIA
NORTENA IS A VALIDLY FORMED AND VIABLE TEXAS
LIMITED LIABILITY COMPANY.
Plaintiffs would also point out that Defendant’s evidence is false. For example,
Defendant claims that La Energia Nortefia is no longer a viable company due to
failure to comply with state tax obligations. This is actually false; had Defendant
researched the Secretary of State records, he would have discovered the truth. (See
Ex. 2.)Certified Document Number: 100733319 - Page 10 of 18
7. DEFENDANT’S PROFFERED ‘EVIDENCE’ PROVES THAT
HARRIS COUNTY IS A MUCH MORE FREQUENT PLACE OF
BUSINESS THAN DALLAS COUNTY.
Likewise, after improperly listing various concert venues, Defendant claims La
Energia Nortefia only performed in Harris County once or twice a year (if any). Yet,
a casual counting of the proffered list reveals that La Energia Nortefia played 19 tour
dates for Houston and surrounding areas but only 11 tour dates for Dallas and
surrounding areas, their alleged home.
8. CONVENIENCE IS NOT A PROPER GROUNDS FOR
IGNORING PLAINTIFFS’ CHOICE OF VENUE IN THIS CASE.
Finally, Plaintiffs unequivocally reject Defendant’s assertion that transfer
should be granted on convenience. As previously mentioned, Defendant failed to
assert this ground in his initial motion to transfer venue, and thus cannot present it
now. McConnell v. Southside Independent School Dist., supra. Likewise, he cannot
present such ground for the first time in a reply filed one business day before the
submission date. Tex. R. Civ. P. 87.1. But in any event, Defendant is wrong legally.
The Texas convenience statute, Tex. Civ. Prac. & Rem. Code § 15.002, was
modeled after the federal convenience statute, 28 U.S.C. § 1404(a). Accordingly, the
various authorities decided under the federal convenience venue statute are
persuasive. Eckerdt v. Frostex Foods, Inc., 802 5.W.2d 70, 72 (Tex. App.—Austin
1990, no writ); U.S. Fidelity & Guaranty Co. v. Henderson County, 253 S.W. 835, 839
(Tex. Civ. App.—Beaumont 1923), affd, 276 5.W. 203 (Tex. Comm'n App. 1925,
10Certified Document Number: 100733319 - Page 11 of 18
judgmt adopted).5
In order to determine whether a case should be transferred to another venue
due to convenience, courts consider private interest and public interest factors. The
private interest factors to be considered by this Court include:
1) the plaintiff 's choice of forum;
2) the convenience of parties and witnesses;
3) the cost of attendance of witnesses and other trial
expenses;
4) the availability of compulsory process;
5) the relative ease of access to sources of proof;
6) the place of the alleged wrong; and
7) the possibility of delay and prejudice.
The public interest factors to be considered by this Court include:
1) the administrative difficulties flowing from court
congestion;
2) the local interest in having localized interests
decided at home;
3) the familiarity of the forum with the law that will
govern the case; and
4) the avoidance of unnecessary conflict of law
problems.
In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004). Obviously, not all these
considerations apply herein, but several do.
>“Having adopted the federal statute, the construction given it by the federal courts should be
persuasive, if not conclusive, of the proper construction of our statute.”
11Certified Document Number: 100733319 - Page 12 of 18
“The convenience of the witnesses is probably the single most important factor
in a transfer analysis. Indeed, when the distance between an existing venue for trial
of a matter and a proposed venue under § 1404(a) is more than 100 miles, the factor
of inconvenience to witnesses increases in direct relationship to the additional
distance to be traveled.” In re Genentech, Inc., 566 F.3d 1338, 1342, 1343 (Fed. Cir.
2009). “Moreover, it is the convenience of non-party witnesses, rather than that
of party witnesses, that is the more important factor and is accorded greater weight
in a transfer of venue analysis.” State Street Capital Corp. v. Dente, 855 F. Supp 192,
198 (S.D. Tex. 1994) (emphasis added); accord, Watson v. Fieldwood Energy Offshore,
LLC, 181 F. Supp.3d 402, 410 (S.D. Tex. 2016).
As applied to the case in this court, the most important witnesses will be the
testimony of the women whom Defendant allegedly harassed. It is doubtful these
women would be willing to travel, which according to Defendant is “239.2 miles with
an average travel time by personal vehicle of 3 and % hours one-way or 7 hours round
trip”, Def.’s Reply to Pls.’ Resp. to Def.’s Mot. to Transfer Venue, p. 16, to testify
concerning such a private and traumatic moment. While potentially not as
embarrassing, the same principle applies to the witnesses to and the law enforcement
officials involved with Defendant’s gun brandishing incident. (See Pls.’ Resp. to Def.’s
Mot. to Transfer Venue as Ex. 1 at {| 12, 13.) Such witnesses would not be available
by compulsory process. Non-retained expert witnesses from the music industry could
more easily reach Houston than Dallas. (See Pls.’ Resp. to Def.’s Mot. to Transfer
Venue as Ex. 1 at { 18.)
12Certified Document Number: 100733319 - Page 13 of 18
Moreover, because of the popularity of regional Latino music in Houston, the
market for La Energia Nortefia’s primary asset, its tour bus, is greater in Harris
County than in Dallas. All these considerations warrant retention of this matter
here. Payne v. Kristofferson, 631 F. Supp. 39, 44 (N.D. Ga. 1985).
Furthermore, the place of the alleged wrong is of primary importance in the
Court’s venue determination. Lemery v. Ford Motor Co., 244 F. Supp.2d 720, 732
(S.D. Tex. 2002). As shown by the affidavit supporting Plaintiffs’ response to
Defendant’s motion to transfer venue, some of the underlying conduct which gave rise
to this lawsuit occurred in Harris County. Accordingly, this warrants retention of
this matter under any convenience analysis.
Without identifying the specific documents, Defendant asserts that the
location of documents in Dallas County warrants transfer. However, “[R]ecent
technological advances reduce weight given to the location of books, records and other
evidence in the transfer analysis. See e.g., Network-1 Sec. Solutions, Inc. v. D-Link
Corp., 433 F. Supp.2d 795, 799 (E.D. Tex. 2006) (location of documents not significant
in transfer analysis where documents can, and likely will, be exchanged
electronically).” All Access Today, L.P. v. Aderra Inc., 2008 WL 11334091, *8 (W.D.
Tex. 2008). Defendant has failed to present any evidence which demonstrates that
any requests for production will not be exchanged electronically.
This Court has already entered a docket control order in this matter.
Defendant has failed to present any evidence whether this matter would be resolved
more quickly in Dallas.
13Certified Document Number: 100733319 - Page 14 of 18
Harris County provides a major market for La Energia Nortefia. Likewise,
some of Defendant’s alleged misconduct occurred herein. Accordingly, Harris County
possesses a legitimate interest in the resolution of this controversy. Apparel
Production Services Inc. v. Transportes De Carga Fema, S.A. de C.V., 546 F. Supp.2d
451, 455 (S.D. Tex. 2008).
Despite his frequent travel to Houston, Pls.’ Resp. to Def. Mot. to Transfer
Venue at 419, the real purpose of Defendant’s convenience transfer is to render
prosecution more difficult for Plaintiffs, and ease Defendant’s ability to defend. Yet,
such considerations do not warrant transfer. Bennett v. Moran Towing Towing Corp.,
181 F. Supp.3d 393, 397 (S.D. Tex. 2016). A court should not transfer any case “where
the only practical effect is a shift of inconveniences from the non-moving party to the
moving party.” Mid-Continent Cas. Co. v. Petroleum Solutions, Inc., 629 F. Supp.2d
759, 762 (S.D. Tex. 2009).
Under Texas law, a plaintiff is entitled to choose venue, and is not required to
file in the “best” venue. Wilson v. Tex. Parks & Wildlife Dep’t, 866 S.W.2d 259, 260
(Tex. 1994). As shown herein, Plaintiffs possessed legitimate reasons for filing their
claims in Houston. Defendant should not be able to transfer, merely by claiming
Plaintiffs choice inconveniences him.
Iv.
CONCLUSION AND PRAYER
Prior to the current venue system, Texas maintained a plea of privilege system,
whereby the parties would testify, the court would determine credibility with venue
assessed accordingly. Because Plaintiffs have established venue in Harris County
14Certified Document Number: 100733319 - Page 15 of 18
under the current rules, Defendant wishes to return to the plea of privilege system,
whereby this Court conducts a trial by affidavit and determines venue. The plea of
privilege system is a relic of the past. Rather, Defendant’s implicit concession, i.e.
Plaintiffs satisfied their venue burden, requires that this Court should maintain
venue.
WHEREFORE PREMISES CONSIDERED, Plaintiffs HUMBERTO NOVOA,
ADRIAN ZAMARRIPA and LA ENERGIA NORTENA LLC, request that
Defendant’s reply be stricken, that its evidence not be considered, Defendant’s motion
to transfer venue be denied, and for general relief.
(signature on following page)
15Certified Document Number: 100733319 - Page 16 of 18
Respectfully submitted,
CHAMBERLAIN, HRDLICKA, WHITE,
WILLIAMS &AUGHTRY, P.C.
By: _/s/ David N. Calvillo
David N. Calvillo
State Bar No.: 03673000
david.calvillo@chamberlainlaw.com
Lauren N. Herrera
State Bar No.: 24092720
lauren.herrera@chamberlainLaw.com
1200 Smith Street, Suite 1400
Houston, TX 77002
Telephone: (713) 658-1818
Facsimile: (713) 658-2553
THE LAW OFFICE OF ANGEL MATA
By: _/s/ Angel V. Mata
Angel V. Mata
State Bar No. 24063940
attorney@angelmatalaw.com
512 S. Fitzhugh Avenue
Dallas, Texas 7223-2120
Telephone: 972.357.4956
16Certified Document Number: 100733319 - Page 17 of 18
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing pleading has been served on counsel of
record on March 7, 2022 in accordance with Rule 21a of the Texas Rules of Civil
Procedure.
David Chase LanCarte
LANCARTE Law, PLLC
2817 West End Ave., Suite 126-276
Nashville, Tennessee 37203
chase@lancartelaw.com
Marcus C. Marsden, Jr.
THE COLANERI FIRM, P.C.
524 E. Lamar Blvd., Suite 280
Arlington, Texas 76011
marcus@colanerifirm.com
/s/ David N. Calvillo
David N. Calvillo
4419754.v1
17Certified Document Number: 100733319 - Page 18 of 18
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Armando Huereca on behalf of David Calvillo
Bar No. 3673000
armando.huereca@chamberlainlaw.com
Envelope ID: 62339812
Status as of 3/7/2022 9:33 AM CST
Case Contacts
Name BarNumber | Email TimestampSubmitted | Status
Marcus C. Marsden | 13014200 marcus@colanerifirm.com 3/7/2022 8:36:32 AM SENT
David LanCarte 24082464 chase@lancartelaw.com 3/7/2022 8:36:32 AM SENT
David N.Calvillo david.calvillo@chamberlainlaw.com 3/7/2022 8:36:32 AM SENT
Eliana De La Rosa eliana.delarosa@chamberlainiaw.com 3/7/2022 8:36:32 AM SENT
Judy AnnRochna judy.rochna@chamberlainlaw.com 3/7/2022 8:36:32 AM SENT
Angel Mata attorney@angelmatalaw.com 3/7/2022 8:36:32 AM SENT
Lauren Herrera lauren.herrera@chamberlainlaw.com 3/7/2022 8:36:32 AM SENT
Armando Huereca armando.huereca@chamberlainlaw.com | 3/7/2022 8:36:32 AM SENTI, Marilyn Burgess, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
tecorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this March 21, 2022
Certified Document Number: 100733319 Total Pages: 18
vib Burge
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- Page | of 15
Certified Document Number: 100733321
3/7/2022 8:36:32 AM
Marilyn Burgess - DistdctoGleskem
Mdapri8iGgeuntpistrict Clerk Harris County
Envelope No: 6236984 Blo. 61472876
By: JEFFERSON, IFRFANY!Serson
Filed: 3/7/2022 8186:89'20K# 5:43 PM
CAUSE NO. 2021-22525
LA ENERGIA NORTENA, LLC,
ADRIAN ZAMARRIPA, and
HUMBERTO NOVOA
Plaintiffs,
IN THE DISTRICT COURT
VS. OF HARRIS COUNTY, TEXAS
MOISES CUEVAS, JR.
Defendant.
OR OP 07 607 LO? LOD LOD LO COD
61ST JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDANT'S
MOTION TO TRANSFER VENUE
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiffs, La Energia Nortefia, LLC, Humberto Novoa, and Adrian Zamarripa
(“Plaintiffs”), file Response to Defendant’s Motion to Transfer Venue, and would
respectfully show unto the Court as follows:
I.
SUMMARY OF THE ARGUMENT
This is a breach of fiduciary duty/business divorce case. Plaintiff, La Energia
Nortefia LLC, is a musical group whose primary market is Houston, Harris County.
A substantial part of the events giving rise to Plaintiffs’ claims occurred in Harris
County. Additionally, witnesses to those events are Harris County residents.
Therefore, venue is proper in Harris County.
Ii.
UNDERLYING FACTS
Plaintiff La Energia Nortefia LLC (“LEN”) is a musical group, specializing in
Nortefio music.! (See Aff. of Humberto Novoa, attached as Ex. 1 at { 2.) Its primary
' This is a form of regional Latin American music.- Page 2 of 15
Certified Document Number: 100733321
market is Houston and South Texas. (See Ex. 1 at | 5.) Likewise, Defendant is alleged
to have appeared at concerts drunk in Harris County, and has burnished a gun at
several band events in Harris County. (See Ex. 1 at { 13.) Those actions by Defendant
have adversely impacted the value of the business. Houston has over 400,000 more
listeners than Dallas. (See Ex. 1 at | 4-11.) The Houston-Galveston market is the top
market in the United States. (See Ex. 1 at | 9.) Because of the large market, many
live concerts take place in Houston, Harris County, Texas. (See Ex. 1 at § 5, 16.)
On numerous occasions while playing in Houston, Harris County, Plaintiff,
Humberto Novoa, was informed that Defendant, Moises Cuevas, was intoxicated and
causing a scene. (See Ex. 1 at { 12.) These actions in Houston, Harris County, by
Defendant adversely affected the reputation of LEN. (See Ex. 1 at { 13, 16.) Several
Harris County residents witnessed Defendant’s behavior and informed Plaintiff,
Novoa. (See Ex. 1 at § 12.) These Harris County witnesses were venue managers,
stagehands, and fans. (See Ex. 1 at | 12.) These witnesses told me that Defendant
openly brandished a handgun at multiple venues in Houston, Harris County. (See
Ex. 1 at J 12.) Additionally, Defendant appeared intoxicated at multiple venues in
Houston, Harris County. (See Ex. 1 at § 12.) Defendant’s co-workers informed
Plaintiff, Novoa, that Defendant acted aggressively towards his coworkers and issues
arose with female fans in Houston, Harris County, where Defendant would
inappropriately touch them. (See Ex. 1 {| 13.) Defendant’s actions warranted the
attention from Harris County law enforcement. (See Ex. 1 at 4 12, 14.)- Page 3 of 15
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Plaintiffs properly filed suit on April 15, 2021 requesting a business
dissolution. Plaintiffs properly filed their petition with this Court, as venue belongs
in Harris County based upon the numerous actions by Defendant leading to the
dissolution of LEN while Defendant was in Harris County.
After a series of futile procedural machinations in the federal courts by the
Defendant, Plaintiffs can now seek justice in this Honorable Court. However, on
September 2, 2021, Defendant’s motion is based solely on the primary residences of
Plaintiffs and Defendant, and requested this Court transfer venue to Dallas County,
Texas. Defendant’s position regarding venue is incomplete. Although the parties may
reside in Dallas County, the majority of Defendant’s actions resulting in this lawsuit
occurred in Harris County. This Court should deny Defendant’s Motion to Transfer
Venue.
Il.
ARGUMENT AND AUTHORITIES
“Plaintiffs are accorded the right to choose venue first.” Duran v. Entrust, Inc.,
No. 01-08-00589-CV, 2010 WL 1241093, at *5 (Tex. App.—Houston [1st Dist.] Mar.
25, 2010, pet. denied) (citing Wilson v. Tex. Parks & Wildlife Dept, 866 S.W.2d 259,
260 (Tex. 1994); Highland Capital Mgmt., L.P. v. Ryder Scott Co., 212 S.W.3d 522,
534 (Tex. App.—Houston [1st Dist.] 2006, pet denied)). As the Texas Supreme Court
explained in Wilson v. Texas Parks & Wildlife Department:
Venue may be proper in many counties under general, mandatory, or
permissive venue rules. See Tex. Civ. Prac. & Rem. Code §§ 15.001—
15.040. The plaintiff is given the first choice in the filing of the lawsuit.
See Tieuel v. Southern Pac. Transp. Co., 654 S.W.2d 771, 775 (Tex.
App.—Houston [14th Dist.] 1983, no writ).- Page 4 of 15
Certified Document Nimber: 100733321
886 S.W.2d 259, 260.
“Therefore, if the plaintiff chooses a county of proper venue, and this is
supported by proof as required by Rule 87, no other county can be a proper venue in
that case.” Jd. at 261. “This rule gives effect to the plaintiffs right to select a proper
venue.” Jd. (citing Maranatha Temple, Inc. v. Enter. Prod. Co., 833 S.W.2d 736, 741
Tex. App.—Houston [1* Dist.] 1992, writ denied). According to Texas Rule of Civil
Procedure:
If a claimant has adequately pleaded and made prima facie proof that
venue is proper in the county of suit as provided in subdivision (a) of
paragraph 3, then the cause shall not be transferred but shall be
retained in the county of suit, unless the motion to transfer is based on
the grounds that an impartial trial cannot be had in the county where
the action is pending as provided in Rules 257—259 or on an established
ground of mandatory venue.
Tex. R. Civ. P. 87(¢).
Harris County is the proper venue under the Texas Civil Practice & Remedies
Code section 15.002(a) because Harris County is where the events leading to the
dissolution of the business took place and is the primary market effected by
Defendant’s actions impacting Plaintiffs’ damages. (See Ex. 1 at {{ 18-15.) Since
Harris County is a permissible venue, the Court’s inquiry stops there. Cf. Wilson and
Maranatha Temple, 833 S.W.2d at 741. “[I]f a plaintiff files suit in a county of proper
venue, it is reversible error to transfer venue ... even if the county of transfer would
have been proper if originally chosen by the plaintiff.” Tex. Parks & Wildlife Dep’,
886 S.W.2d at 261.- Page 5 of 15
Certified Document Nimber: 100733321
Under the Texas general venue provision, venue is proper in “the county in
which all or a substantial part of the events or omissions giving rise to the claim
occurred.” Tex. Civ. Prac. & Rem. Code § 15.002(a)(1). The court, however, is not
required to determine the “best” venue or where substantially more events occurred.
See Siemens Corp. v. Bartek, 03-04-00613, 2006 WL 11262219, at *4 (Tex. App.—
Austin Apr. 28, 2006, no pet.). Rather, several different counties may be proper so
long as a “substantial part of the events” giving rise to the claim occurred in each
county. Id. As shown below and the proof attached as Exhibit 1, venue is proper in
Harris County and Defendant’s motion should be denied.
In order to determine whether a substantial part of the events giving rise to
Plaintiffs’ claim occurred in Harris County, the Court should review the essential
elements of Plaintiffs’ claims. See Prime Income Asset Mgmt., Inc. v. Marcus &
Millichap Real Estate Inv. Servs. of Tex., Inc., 2014 WL 7473801, at *6 (Tex. App.—
Houston [14th Dist. Dec. 30, 2014, no pet.) (citing Chiriboga v. State Farm Mut. Auto.
Ins. Co., 96 8.W.3d 673, 681 (Tex. App.—Austin, 2003, no pet.)). Plaintiff need not
“prove the merits of a cause of action, but the existence of a cause of action, when
pleaded properly, shall be taken as established as alleged by the pleadings.” Tex. R.
Civ. P. 87(2)(b). Therefore, Plaintiffs’ only need to show by prima facie proof that the
venue facts show “that a substantial part of the events or omissions giving rise to the
claim occurred” in Harris County. See Tex. Civ. Prac. & Rem. Code § 15.002(a)(1).
Once plaintiff has satisfied his burden, “the trial court must maintain venue” in that
venue unless defendant “brings forth ‘conclusive evidence’ that ‘destroy[s]’ the- Page 6 of 15
Certified Document Nimber: 100733321
plaintiff's prima face proof. See Movefforfree.com, Inc. v. David Hetrick, Inc., 288
S.W.3d 539, 541 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
Defendant’s behavior ultimately causing the dissolution of LEN occurred in
Houston, Harris County. (See Ex. 1 at §] 138-15.) Houston, Harris County is LEN’s
primary market and Defendant’s actions directly affected LEN’s reputation and
business. (See Ex. 1 at 4] 5.) There are numerous witnesses in Houston, Harris
County who potentially will testify in this case. (See Ex. 1 at {] 13-14.) Further,
Defendant’s actions underlying Plaintiffs’ claim implicated Harris County law
enforcement. (See Ex. 1 at §§ 13-15.) Defendant claims that venue should be
transferred to Dallas County solely based on the parties’ residences. However, when
permissive venue applies Plaintiffs are entitled to choose their venue and Plaintiffs
chose to file their claim in Harris County where a substantial part of Defendant’s
actions occurred and where witnesses to his actions live.
For these reasons, a substantial part of the events giving rise to Plaintiffs’
claims occurred in Harris County because Defendant’s behavior in Houston, Harris
County ultimately resulted in the dissolution of LEN and this lawsuit. As a result,
Harris County is proper venue under Texas Civil Practice & Remedies Code Section
15.002.
CONCLUSION
In light of these facts that show Harris County is a proper venue for Plaintiffs’
action, it is clear the Court should deny Defendant’s Motion to Transfer Venue.- Page 7 of 15
Certified Document Number: 100733321
WHEREFORE PREMISES CONSIDERED, Plaintiffs request that the court
deny Defendant’s Motion to Transfer Venue and for general relief.
Respectfully submitted,
CHAMBERLAIN, HRDLICKA, WHITE,
WILLIAMS &AUGHTRY, P.C.
By: _/s/ David N. Calvillo
David N. Calvillo
State Bar No.: 03673000
david.calvillo@chamberlainlaw.com
Lauren N. Herrera
State Bar No.: 24092720
lauren. herrera@chamberlainLaw.com
1200 Smith Street, Suite 1400
Houston, TX 77002
Telephone: (713) 658-1818
Facsimile: (713) 658-2553
ATTORNEYS FOR PLAINTIFFS,
LA ENERGIA NORTENA, LLC AND
ADRIAN ZAMARRIPA
THE LAW OFFICE OF ANGEL MATA
By: _/s/ Angel V. Mata
Angel V. Mata
State Bar No. 24063940
attorney@angelmatalaw.com
512 S. Fitzhugh Avenue
Dallas, Texas 7223-2120
Telephone: 972.357.4956
ATTORNEY FOR PLAINTIFF,
HUMBERTO NOVOA- Page 8 of 15
Certified Document Nimber: 100733321
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing pleading has been served on counsel of
record on February 4, 2022 in accordance with Rule 21a of the Texas Rules of Civil
Procedure.
David Chase LanCarte
LANCARTE LAw, PLLC
2817 West End Ave., Suite 126-276
Nashville, Tennessee 37203
chase@lancartelaw.com
Marcus C. Marsden, Jr.
THE COLANERI Fir, P.C.
524 E. Lamar Blvd., Suite 280
Arlington, Texas 76011
marcus@colanerifirm.com
/s/ David N. Calvillo
David N. Calvillo- Page 9 of 15
Certified Document Number: 100733321
LA ENERGIA NORTENA, LLC,
ADRIAN ZAMARRIPA, and
HUMBERTO NOVOA
VS.
MOISES CUEVAS, JR.
CAUSE NO. 2021-22525
IN THE DISTRICT COURT
Plaintiffs,
OF HARRIS COUNTY, TEXAS
OR 00? 07 607 LO LO UO WO? COD
Defendant. 61ST JUDICIAL DISTRICT
AFFIDAVIT OF HUMBERTO NOVOA
STATE OF TEXAS §
§
COUNTY OF DALLAS §
BEFORE ME, the undersigned notary, on this day personally appeared Humberto
Novoa, who, after being duly sworn upon his oath, stated as follows:
1.
My name is Humberto Novoa, and I am a resident of the State of Texas. lam
over 21 years of age, have personal knowledge of the facts below and am
competent and authorized to make this Affidavit. I have never been convicted
of a felony or a crime involving moral turpitude.
La Energia Nortena (“LEN”), as a musical group, performs and records a
musical format or musical category called “Regional Mexican.” Regional
Mexican music is comprised of a number of genres associated with the
various parts of Mexico, including the “Nortefio” genre from which LEN
derives its name and the Tejano genre which rose to popularity among Latin
music fans in the mid-90’s due to musical acts like Selena and La Mafia.
This lawsuit was brought in part to dissolve LEN as a Texas Limited Liability
Company and to seek the court’s help in arriving at a value of Defendant’s
interest in LEN.
As a talent agent, talent manager, and operator of a record label, I am aware
of the importance of various listening and promotional markets for LEN’s
music. The Houston market is one of the most important for LEN for several
reasons, not the least of which is that the fan base for LEN’s music is larger
in Houston than in any other market. According to publicly-available data
from Nielsen, the media ratings agency, while the Houston-Galveston and
EXHIBIT
1Certified Document Nimber: 100733321 - Page 10 of 15
Dallas-Fort Worth radio markets are ranked #6 and #5 in the United States,
respectively, Houston has a Hispanic population that is more than 400,000
listeners larger than Dallas. A true and correct copy of the Nielsen
“Bluebook” Radio Market Survey Population, Rankings & Information
published for Spring 2021 is attached hereto as Exhibit 1 and incorporated
by reference for all purposes.
Harris County, Texas, indeed the entire South Texas area, including Laredo,
the Rio Grande Valley, and Corpus Christi represent a large musical market
for LEN and thus a significant portion of LEN’s value as an ongoing
enterprise derives from its reputation and from musical performances. A
significant number of LEN’s revenues are earned from live musical
performances and, in particular, in Houston, Harris County, Texas and
throughout South Texas.
The difference in the Hispanic listening markets between Houston-Galveston
and Dallas-Fort Worth is further demonstrated by the publicly available
ratings Nielsen reports on the Regional Mexican format radio stations in
each market. Nielsen rates participating radio station listener share by
tracking the number of listeners every quarter-hour, dividing it by the total
listeners in a survey population, and multiplying it by 100, giving each radio
station a rating that is an estimated percent of the total market.
Comparing Houston-Galveston Regional Mexican format radio to Dallas-Fort
Worth in the same format, Houston’s KLTN-FM radio station has
consistently realized a substantially higher percentage of its Designated
Market Area than any Dallas-Fort Worth station in the same format. A true
and correct copy of the May through June 2021 Nielsen Radio Ratings
reported by online trade publication Radio Online for both the Houston-
Galveston and the Dallas-Fort Worth markets is attached hereto as Exhibits
2 and 8, and incorporated herein by reference for all purposes.
In fact, Houston’s KLTN-FM ratings have been higher from May through
August than any other Regional Mexican format radio station in the United
States, including in Los Angeles and New York. A true and correct copy of
the May through June 2021 Nielsen Radio Ratings reported by online trade
publication Radio Online for the Los Angeles and New York markets is
attached hereto as Exhibit 4 and 5, and incorporated herein by reference for
all purposes.
While the Houston-Galveston market is the top market in the United States
for fans of Regional Mexican music like LEN’s, the Houston Designated
Market Area does not include other smaller markets in the South Texas
Region which carry the Regional Mexican music format. These radio stationsCertified Document Nimber: 100733321 - Page 11 of 15
include, but are not limited to KERB-FM in McAllen, KCZO-FM in McAllen,
KZSP-FM in McAllen, KESO-FM in McAllen, Mas Chingon Radio in Cotulla,
KHMC-FM in Corpus Christi, KMJR-FM in Corpus Christi, KUNO-AM in
Corpus Christi, KBFM-FM in Weslaco, KBIC-FM in Weslaco, KTAM-AM in
Bryan, and KMZZ-FM in Alice. The Office of the Governor maintains a
directory of Regional Mexican format radio stations with the Texas Music
Office, which is available online at
https://gov.texas.gov/Apps/Music/Directory/radio-
station/all/genre/regionalmexican/p1. All of those are located in the South
Texas market and impact the value of LEN.
10. In today’s music industry, and especially in the last two years during the
pandemic, online music streaming through services like Spotify, and
livestreaming concerts is an important source of revenue for LEN. Like radio,
these services allow LEN to fluidly support markets without the need to
appear in person for live performances. I am aware that a substantial
number of LEN’s online listener share comes from the Houston market. As
an example, Spotify reports that of the 669,079 listeners who stream LEN’s
music each month, 39,415 are specifically from Houston, Texas.
11. LEN performed at numerous events in Houston, Harris County over the last
several years. Specifically, LEN performed in “Escapade 2001” and “Plaza
Garibaldi,” “Plaza San Miguel,” and other ”radio Festivals” venues located in
Harris County, Texas. These performances were the subject of contracts
entered into and performed in Harris County, Texas.
12. On numerous occasions when LEN performed in musical events in Harris
County, I, as the manager for LEN, was informed that Moises Cuevas was
causing the reputation of LEN to be severely affected by his unwholesome
activities. It was reported to me by several witnesses who reside in Harris
County, such as Francisco Banda, Danny Guerra, Mariana Escamilla, and
Cyrus!, who are (venue managers, stagehands, consumers, patrons) that Mr.
Cuevas openly brandished a handgun in concert venues in Houston at which
LEN was performing. He also openly carried and brandished handguns on
the LEN tour bus at inappropriate times. Mr. Cuevas also apparently abuses
alcohol and has appeared to be intoxicated at numerous LEN events,
including those in Harris County. His intoxicated state and his belligerent
attitude caused problems for LEN with law enforcement officials in Harris
County.
13. I was told by Mr. Cuevas’ wife how aggressive Mr. Cuevas would get when
intoxicated. Mr. Cuevas was also reportedly aggressive with his co-workers,
and they had also been some issues of him behaving inappropriate with some
1 Mr. Cyrus’ last name is unknown to me but I know he works and resides in the Houston area.
3Certified Document Nimber: 100733321 - Page 12 of 15
14,
15.
16.
17.
18.
19.
20.
of the female fans that would attend events, including those in Houston,
Harris County, Texas by touching them inappropriately while he was
apparently intoxicated.
These problems with law enforcement caused problems for those venues that
contracted with LEN and for those seeking to work with LEN in any capacity.
These venues included those in Houston, Harris County, Texas.
Mr. Cuevas also posted numerous disparaging remarks about LEN and those
affiliated with it on social media platforms. We have been told by residents
of Harris County that they saw those social media posts and formed an
opinion about LEN in Harris County.
One of the issues in the pending litigation that seeks to be resolved is the
value of LEN. That value will consider any positive or negative goodwill that
LEN may enjoy in its primary markets. One of LEN’s primary markets is
Houston, Harris County. Mr. Cuevas’ actions reflect poorly on LEN and his
disparagement comments and inappropriate behavior have severely
impacted its market value in Harris County.
Among the matters asserted in the lawsuit filed in this Court is the request
that LEN’s operations be wound down and its assets liquidated. One of the
LEN’s biggest assets is its custom tour bus. Houston, Harris County, Texas
is known as an area with a large resale market for such custom tour buses.
There may be other industry witnesses that may be able to shed some light
on issues that relate to the valuation of LEN’s valuation as a going concern.
Houston, Harris County is a convenient forum given that travel to and from
Houston is relatively easy. Two international public and numerous private
airports are located minutes away from downtown Houston, Harris County,
Texas. Harris County is also a convenient location for LEN and the individual
plaintiffs because it is not difficult to travel here from any part of the country.
Harris County should not be an inconvenient location for Defendant Cuevas
because he travels here frequently. In particular, I know that Mr. Cuevas
travelled few times in his private vehicle for several shows in Harris County
and declined to travel together with the band. Harris County is not an
inconvenient forum for Mr. Moises Cuevas because he frequently travels to
Houston, Harris County, Texas—in fact, to areas within the geographic
boundaries of the Southern District of Texas such as the Rio Grande Valley,
Laredo, and Corpus Christi.
For all these reasons, the underlying state court lawsuit was filed in Houston,
Harris County, Texas as opposed to any other locale.Certified Document Nimber: 100733321 - Page 13 of 15
FURTHER AFFIANT SAYETH NOT \
x
Humberto Novoa
an
SUBSCRIBED and SWORN TO before me on this the 4Y day of February
2022 to certify my hand and official seal.
JUDY ANN ROCHNA ff
Notary ID #841964-1
My Commission Expires
August 14, 2022
My commission
expires: g WY \ ZZ
#377145.v1Certified Document Nimber: 100733321 - Page 14 of 15
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Debbie Kennedy on behalf of David Calvillo
Bar No. 3673000
debbie.kennedy@chamberlainlaw.com
Envelope ID: 61472876
Status as of 2/7/2022 8:04 AM CST
Case Contacts
Name BarNumber | Email TimestampSubmitted | Status
Marcus C. Marsden | 13014200 marcus@colanerifirm.com 2/4/2022 5:43:15 PM SENT
David LanCarte 24082464 chase@lancartelaw.com 2/4/2022 5:43:15 PM SENT
David N.Calvillo david.calvillo@chamberlainlaw.com 2/4/2022 5:43:15 PM SENT
Eliana De La Rosa eliana.delarosa@chamberlainlaw.com | 2/4/2022 5:43:15 PM SENT
Judy AnnRochna judy.rochna@chamberlainiaw.com 2/4/2022 5:43:15PM | SEN
Preview
Certified Document Number: 100733319 - Page | of 18 3/7/2022 8:36 AM Marilyn Burgess - District Clerk Harris County Envelope No. 62339812 By: Tiffany Jefferson Filed: 3/7/2022 8:36 AM Cause No. 2021-22525 HUMBERTO NOVOA ADRIAN ZAMARRIPA and LA ENERGIA NORTENA LLC IN THE DISTRICT COURT § § | HARRIS COUNTY, TEXAS v. § § § MOISES CUEVAS 61st JUDICIAL DISTRICT PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S REPLY AND SUR REPLY TO DEFENDANT’S TARDY REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO TRANSFER VENUE TO THE HONORABLE JUDGE OF SAID COURT: Plaintiffs HUMBERTO NOVOA, ADRIAN ZAMARRIPA and LA ENERGIA NORTENA LLC, file this their PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S REPLY AND RESPONSE TO DEFENDANT'S TARDY REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO TRANSFER VENUE, and would respectfully show unto the Court as follows: I. PRELIMINARY STATEMENT Plaintiffs offer prima facie proof that Harris County is a proper venue. Defendant filed an untimely reply and evidence that should be struck. He makes improper evidence attacks on Plaintiffs’ supporting affidavit and cites the Federal Rules of Evidence as a basis. Defendant also improperly asserts convenience as a basis for his motion for the first time in his reply in an attempt to take away Plaintiffs opportunity to contest this basis. Defendant’s evidence is false regarding the status of La Energia Nortena’s company status as it is a viable Texas LLC. Further,Certified Document Number: 100733319 - Page 2 of 18 Defendant placing his counsel as a fact witness is wholly improper and should be disregarded. Defendant’s argument regarding concert venues in Dallas County outnumbering Harris County is uncreditable as the provided list reveals 19 tour dates for the Houston area and only 11 for the Dallas area. Lastly, even if this Court considered Defendant’s newly asserted convenience grounds, Defendant’s motion still fails as the public and private interest factors favor Plaintiffs. For all these reasons, this Court should deny Defendant’s motion to transfer venue. I. ARGUMENTS AND AUTHORITIES A. PLAINTIFFS PROFFER PRIMA FACIE PROOF OF HARRIS COUNTY VENUE. Plaintiffs filed this lawsuit in Harris County, because some of the Defendant’s offensive behavior and misconduct occurred in Harris County. Defendant filed his motion to change venue, asserting one and only one ground: Plaintiffs’ cause of action did not accrue in Harris County. In response, Plaintiffs timely filed a response, explaining their right to choose venue under Texas law, and attaching the affidavit of Plaintiff Humberto Novoa to establish their prima facie proof as required by Tex. R. Civ. P. 87: It was reported to me by several witnesses who reside in Harris County, such as Francisco Banda, Danny Guerra, Mariana Escamilla, and Cyrus, who are (venue managers, stagehands, consumers, patrons) that Mr. Cuevas openly brandished a handgun in concert venues in Houston at which LEN! was performing. He also openly carried and brandished handguns on the LEN tour bus at inappropriate times. Mr. Cuevas also apparently abuses alcohol and has appeared to be intoxicated at numerous 'Plaintiff La Energia Nortefia.Certified Document Number: 100733319 - Page 3 of 18 LEN events, including those in Harris County. His intoxicated state and his belligerent attitude caused problems for LEN with law enforcement officials in Harris County. bobo Mr. Cuevas was also reportedly aggressive with his co-workers, and they had also been some issues of him behaving inappropriate with someof the female fans that would attend events, including those in Houston, Harris County, Texas by touching them inappropriately while he was apparently intoxicated. These problems with law enforcement caused problems for those venues that contracted with LEN and for those seeking to work with LEN in any capacity. These venues included those in Houston, Harris County, Texas. Among the matters asserted in the lawsuit filed in this Court is the request LEN’s operations be wound down and its assets liquidated. One of the LEN’s biggest assets is its custom tour bus. Houston, Harris County Texas is known as an area with a large resale market for such custom tour buses. (See Pls.’ Response to Def.’s Mot. to Transfer Venue, attached as Ex. 1.) “(If the plaintiff offers prima facie proof through pleadings and affidavits that venue is proper, the inquiry is over”. Sazy v. J.R. Birdwell Construction and Restoration, LLC, 2021 WL 1220122, *3 (Tex. App.—Dallas 2021, pet. denied) (emphasis added). B. THE COURT SHOULD STRIKE DEFENDANT’S TARDY REPLY AND PROFFERED DOCUMENTS. Having rejected Defendant’s request for oral argument, this Court set this matter for submission on March 7, 2022. Pursuant to Tex. R. Civ. P. 87, the deadline for Defendant to reply to Plaintiffs’Certified Document Number: 100733319 - Page 4 of 18 venue response was February 28, 2022, seven days before the date for submission. Tex. R. Civ. P. 87.1. On Friday, March 4, 2022, at approximately 3:00 p.m., Defendant filed his reply, with approximately 85 pages in exhibits. Defendant failed to file a motion for leave and supporting affidavit; indeed, the sole purpose of such tardy filing appears to be an attempt to preclude Plaintiffs from preparing a timely sur-reply, pointing out the numerous legal errors contained therein. In order for a tardily filed document to be considered, a litigant must file a motion for leave, supported by an affidavit containing why the deadline was missed. Defendant has failed to satisfy these obligations. Therefore, this Court cannot consider his response. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). Ignoring Defendant’s reply and the attached evidence is also justified on substantive grounds. First, Defendant’s proffer of documents and other exhibits that are improper and should be stricken. Under Texas law, venue is not determined by a trial by affidavit, wherein the trial court reviews all the evidence presented and determines the most credible. Instead, the plaintiff's evidence must be presumed true. Furthermore, “The plaintiff's prima facie proof is not subject to rebuttal, cross-examination, impeachment, or disproof.” In re Missouri Pacific R. Co., 998 S.W.2d 212, 216 (Tex. 1999) (emphasis added); accord, Sustainable Texas Oyster Resource Management L.L.C. v. Hannah Reef, Inc., 491 S.W.3d 96, 106 (Tex. App.—Certified Document Number: 100733319 - Page 5 of 18 Houston [1st Dist.] 2016, pet. denied); Duran v. Entrust, Inc., 2010 WL 1241093, *6 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Improper venue cannot be found merely because “[t]he evidence as a whole may well show that prima facie proof was misleading or wrong.” Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993). Accordingly, this Court should ignore Defendant’s 85 pages of exhibits. He VENUE ISSUES ARE NOT DETERMINED VIA AN EVIDENTIARY HEARING. Defendant repeatedly faults Plaintiffs for failing to provide information concerning venue. Plaintiffs are not required to plead their evidence including their venue evidence. Rodriguez v. Yenawine, 556 S.W.2d 410, 414 (Tex. Civ. App.—Austin 1977, no writ) (“The Rules of pleading uniformly condemn forcing a plaintiff to plead the evidence upon which plaintiff relies to prove the allegations of the pleadings.”). They are consequently permitted to conclusory plead their venue allegations. See Scott Law Offices v. Quinney Holdings, LLC, 2020 WL 4006438, *4 (Tex. App.— Houston [1st Dist.] 2020, no pet.). Defendant claims that Plaintiffs’ supporting affidavit is hearsay because Mr. Novoa is not testifying in open court. Tex. R. Civ. P. 87.3(b) does not authorize live testimony to determine venue.?. Defendant fails to cite any legal authority that supports his position. Allowing consideration of affidavits in this circumstance is consistent with the principle that when a statute or rule authorizes the use of affidavits, such affidavits cannot be excluded as hearsay. See e.g., D & M Marine, 2If this Court believed that a plaintiff was required to present live testimony to prove venue, it would have set this matter for a zoom hearing, instead of an adjudication by submission. 5Certified Document Number: 100733319 - Page 6 of 18 Inc. v. Turner, 409 S.W.3d 693, 699 (Tex. App.—Houston [1st Dist.] 2013, pet. denied); Hong v. Bennett, 209 S.W.3d 795, 800 (Tex. App.—Fort Worth 2006, no pet.) (affidavits under Tex. Civ. Prac. & Rem. Code §18.001). Defendant selects snippets out from Mr. Novoa’s affidavit and claims the statements constitute hearsay. In making such objections, Defendant is attempting to require Plaintiffs to prove their cause of action. Yet, Plaintiffs are not required to prove their cause of action in order to establish venue. Tex. R. Civ. P. 87.2(a) (“It shall not be necessary for a claimant to prove the merits of a cause of action, but the existence of a cause of action.”). Thus, Plaintiffs can establish their prima facie case with affidavit evidence. 2. FEDERAL RULES OF EVIDENCE ARE NOT APPLIED IN A TEXAS STATE DISTRICT COURT. Next, Defendant’s reply states “[Defendant] objects to Plaintiffs’ use of Humberto Novoa’s Affidavit as irrelevant and inadmissible under Rules 401 and 402 of the Federal Rules of Evidence.” (See Def.’s Reply to Pls.’ Resp. to Def.’s Mot. to Transfer Venue, p. 11.) The Federal Rules of Evidence do not apply in this Court. Ignoring the inapplicability of the Federal Rules of Evidence before this Court, Defendant’s substantive objection fares no better. Texas Rule of Evidence 401 provides that evidence is relevant if it “has any tendency to make a fact more or less probable than it would be without” and “the fact is of consequence.” The fact in consequence for purposes of this motion is whether Defendant committed misconduct in Harris County; and it is more likely that Defendant committed misconduct in Houston if Houston constitutes La Energia Nortefia’s primary market. DefendantCertified Document Number: 100733319 - Page 7 of 18 argues that a witness is not more competent because of his choice in listening preferences; Plaintiff never asserted that witnesses’ credibility depends on their choice in music. Defendant claims that Mr. Novoa’s affidavit must be excluded because it is wrong. Again, such argument ignores the fact Plaintiff's proof is not subject to rebuttal, cross-examination, impeachment, or disproof,? In re Missouri Pacific R. Co., supra; Sustainable Texas Oyster Resource Management L.L.C. v. Hannah Reef, Inc., supra; Duran v. Entrust, Inc., supra, and therefore Defendant cannot prevail. 3. PLAINTIFFS ARE ENTITLED TO DETERMINE THE CAUSES OF ACTION THEY CHOOSE TO ASSERT IN A PLEADING. Defendant also claims venue is mandatory because Plaintiffs mention libelous statements. As explained in more detail infra, this ground was not mentioned in Defendant’s original motion to transfer venue, and therefore cannot be considered by this Court. But more importantly, Plaintiffs have never alleged either libel or slander as a cause of action. Plaintiffs are masters of their own complaint, and therefore are free to avoid asserting causes of action including those that possess mandatory venue. Hatridge v. Day & Zimmermann, Inc., 789 S.W.2d 654, 656 (Tex. App.—Texarkana 1990, no writ); see also In re B.A.C., 144 S.W.3d 8, 15 (Tex. App.— Waco 2004, no pet.).4 Defendant is not free to rewrite Plaintiffs’ petition to force a transfer of venue. ’Defendant has also failed to provide any authority for his position that felons cannot testify. 4Even assuming that Plaintiffs were asserting a mandatory venue provision, they waived it by filing suit herein. Robinson v. National Bank of Commerce of Dallas, 515 S.W.2d 166, 167-68 (Tex. Civ. App.—Fort Worth 1974, no pet.). Tex. Civ. Prac. & Rem. Code § 15.017 is for the benefit of plaintiffs and they should be free to waive it.Certified Document Number: 100733319 - Page 8 of 18 4. DEFENDANT NEVER ALLEGED CONVENIENCE AS A GROUND FOR A CHANGE OR TRANSFER OF VENUE, MUCH LESS PRODUCED EVIDENCE ON THE SUBJECT. Defendant then asserts a litany of reasons why venue may be more convenient in Dallas County than Harris County. But Defendant never asserted convenience of the parties as grounds for transfer of venue. Indeed, lawsuits are rarely “convenient” for a defendant. Motions must stand or fall on the grounds contained therein, see McConnell v. Southside Independent School Dist., 858 S.W.2d 337, 340 (Tex. 1993), and cannot be granted on grounds unasserted. See e.g., Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204-05 (Tex. 2002). Therefore, Defendant’s detailed discussion, and any evidence which supports it, concerning convenience must be summarily ignored. Moreover, consideration of this ground denies Plaintiffs due process. As a matter of constitutional due process, Plaintiffs are entitled to reasonable notice, in order to be able to intelligently respond and present evidence. Doston v. Duffy, 732 F. Supp. 857, 871 (N.D. Ill. 1988); Mayhew v. Cohen, 604 F. Supp. 850, 858 (E.D. Pa. 1984). By failing to include such ground in the motion to transfer venue, Defendant attempts to deprive of their due process right to adequate notice. 5. DEFENDANT’S COUNSEL ROLE AS A FACT WITNESS CANNOT PREEMPT PLAINTIFFS’ VALID CHOICE OF PROPER VENUE. If this Court decides to examine this issue, it will find Defendant’s evidence incompetent, much less sufficient to hold the day. For example, to prop up his motion, Defendant’s counsel highlights his role as a witness in this business dispute andCertified Document Number: 100733319 - Page 9 of 18 himself avers to purported facts concerning La Energia Nortefia’s operations. (See Def.’s Reply to Pls.’ Resp. to Def.’s Mot. to Transfer Venue, Ex. F.) Such affidavit must be summarily disregarded as incompetent. Aghili v. Banks, 63 S.W.3d 812, 818 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). “The practice of attorneys furnishing from their own lips and on their own oaths the controlling testimony of their client is one not to be condoned by judicial silence .... nothing short of actual corruption can more surely discredit the profession.” Reliance Capital, Inc. v. G.R. Hmaidan, Inc., 2006 WL 1389539, *4 (Tex. App.—Houston [14 Dist.] 2006, no pet.). Likewise, Plaintiffs object to the consideration of the affidavit of Defendant. A witness’s affidavit is conclusory if it fails to explain the basis of the witness’s statements to link his conclusions to the facts. Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). Conclusory affidavits are incompetent. Ryland Group, Inc. v. Hood, 924 $.W.2d 120, 122 (Tex. 1996). In the case at bar, Defendant repeatedly fails to link his conclusions to any particular facts which support them. As a result, his affidavit fails to properly support his contention. 6. DEFENDANT’S EVIDENCE IS FALSE; LA ENERGIA NORTENA IS A VALIDLY FORMED AND VIABLE TEXAS LIMITED LIABILITY COMPANY. Plaintiffs would also point out that Defendant’s evidence is false. For example, Defendant claims that La Energia Nortefia is no longer a viable company due to failure to comply with state tax obligations. This is actually false; had Defendant researched the Secretary of State records, he would have discovered the truth. (See Ex. 2.)Certified Document Number: 100733319 - Page 10 of 18 7. DEFENDANT’S PROFFERED ‘EVIDENCE’ PROVES THAT HARRIS COUNTY IS A MUCH MORE FREQUENT PLACE OF BUSINESS THAN DALLAS COUNTY. Likewise, after improperly listing various concert venues, Defendant claims La Energia Nortefia only performed in Harris County once or twice a year (if any). Yet, a casual counting of the proffered list reveals that La Energia Nortefia played 19 tour dates for Houston and surrounding areas but only 11 tour dates for Dallas and surrounding areas, their alleged home. 8. CONVENIENCE IS NOT A PROPER GROUNDS FOR IGNORING PLAINTIFFS’ CHOICE OF VENUE IN THIS CASE. Finally, Plaintiffs unequivocally reject Defendant’s assertion that transfer should be granted on convenience. As previously mentioned, Defendant failed to assert this ground in his initial motion to transfer venue, and thus cannot present it now. McConnell v. Southside Independent School Dist., supra. Likewise, he cannot present such ground for the first time in a reply filed one business day before the submission date. Tex. R. Civ. P. 87.1. But in any event, Defendant is wrong legally. The Texas convenience statute, Tex. Civ. Prac. & Rem. Code § 15.002, was modeled after the federal convenience statute, 28 U.S.C. § 1404(a). Accordingly, the various authorities decided under the federal convenience venue statute are persuasive. Eckerdt v. Frostex Foods, Inc., 802 5.W.2d 70, 72 (Tex. App.—Austin 1990, no writ); U.S. Fidelity & Guaranty Co. v. Henderson County, 253 S.W. 835, 839 (Tex. Civ. App.—Beaumont 1923), affd, 276 5.W. 203 (Tex. Comm'n App. 1925, 10Certified Document Number: 100733319 - Page 11 of 18 judgmt adopted).5 In order to determine whether a case should be transferred to another venue due to convenience, courts consider private interest and public interest factors. The private interest factors to be considered by this Court include: 1) the plaintiff 's choice of forum; 2) the convenience of parties and witnesses; 3) the cost of attendance of witnesses and other trial expenses; 4) the availability of compulsory process; 5) the relative ease of access to sources of proof; 6) the place of the alleged wrong; and 7) the possibility of delay and prejudice. The public interest factors to be considered by this Court include: 1) the administrative difficulties flowing from court congestion; 2) the local interest in having localized interests decided at home; 3) the familiarity of the forum with the law that will govern the case; and 4) the avoidance of unnecessary conflict of law problems. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004). Obviously, not all these considerations apply herein, but several do. >“Having adopted the federal statute, the construction given it by the federal courts should be persuasive, if not conclusive, of the proper construction of our statute.” 11Certified Document Number: 100733319 - Page 12 of 18 “The convenience of the witnesses is probably the single most important factor in a transfer analysis. Indeed, when the distance between an existing venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases in direct relationship to the additional distance to be traveled.” In re Genentech, Inc., 566 F.3d 1338, 1342, 1343 (Fed. Cir. 2009). “Moreover, it is the convenience of non-party witnesses, rather than that of party witnesses, that is the more important factor and is accorded greater weight in a transfer of venue analysis.” State Street Capital Corp. v. Dente, 855 F. Supp 192, 198 (S.D. Tex. 1994) (emphasis added); accord, Watson v. Fieldwood Energy Offshore, LLC, 181 F. Supp.3d 402, 410 (S.D. Tex. 2016). As applied to the case in this court, the most important witnesses will be the testimony of the women whom Defendant allegedly harassed. It is doubtful these women would be willing to travel, which according to Defendant is “239.2 miles with an average travel time by personal vehicle of 3 and % hours one-way or 7 hours round trip”, Def.’s Reply to Pls.’ Resp. to Def.’s Mot. to Transfer Venue, p. 16, to testify concerning such a private and traumatic moment. While potentially not as embarrassing, the same principle applies to the witnesses to and the law enforcement officials involved with Defendant’s gun brandishing incident. (See Pls.’ Resp. to Def.’s Mot. to Transfer Venue as Ex. 1 at {| 12, 13.) Such witnesses would not be available by compulsory process. Non-retained expert witnesses from the music industry could more easily reach Houston than Dallas. (See Pls.’ Resp. to Def.’s Mot. to Transfer Venue as Ex. 1 at { 18.) 12Certified Document Number: 100733319 - Page 13 of 18 Moreover, because of the popularity of regional Latino music in Houston, the market for La Energia Nortefia’s primary asset, its tour bus, is greater in Harris County than in Dallas. All these considerations warrant retention of this matter here. Payne v. Kristofferson, 631 F. Supp. 39, 44 (N.D. Ga. 1985). Furthermore, the place of the alleged wrong is of primary importance in the Court’s venue determination. Lemery v. Ford Motor Co., 244 F. Supp.2d 720, 732 (S.D. Tex. 2002). As shown by the affidavit supporting Plaintiffs’ response to Defendant’s motion to transfer venue, some of the underlying conduct which gave rise to this lawsuit occurred in Harris County. Accordingly, this warrants retention of this matter under any convenience analysis. Without identifying the specific documents, Defendant asserts that the location of documents in Dallas County warrants transfer. However, “[R]ecent technological advances reduce weight given to the location of books, records and other evidence in the transfer analysis. See e.g., Network-1 Sec. Solutions, Inc. v. D-Link Corp., 433 F. Supp.2d 795, 799 (E.D. Tex. 2006) (location of documents not significant in transfer analysis where documents can, and likely will, be exchanged electronically).” All Access Today, L.P. v. Aderra Inc., 2008 WL 11334091, *8 (W.D. Tex. 2008). Defendant has failed to present any evidence which demonstrates that any requests for production will not be exchanged electronically. This Court has already entered a docket control order in this matter. Defendant has failed to present any evidence whether this matter would be resolved more quickly in Dallas. 13Certified Document Number: 100733319 - Page 14 of 18 Harris County provides a major market for La Energia Nortefia. Likewise, some of Defendant’s alleged misconduct occurred herein. Accordingly, Harris County possesses a legitimate interest in the resolution of this controversy. Apparel Production Services Inc. v. Transportes De Carga Fema, S.A. de C.V., 546 F. Supp.2d 451, 455 (S.D. Tex. 2008). Despite his frequent travel to Houston, Pls.’ Resp. to Def. Mot. to Transfer Venue at 419, the real purpose of Defendant’s convenience transfer is to render prosecution more difficult for Plaintiffs, and ease Defendant’s ability to defend. Yet, such considerations do not warrant transfer. Bennett v. Moran Towing Towing Corp., 181 F. Supp.3d 393, 397 (S.D. Tex. 2016). A court should not transfer any case “where the only practical effect is a shift of inconveniences from the non-moving party to the moving party.” Mid-Continent Cas. Co. v. Petroleum Solutions, Inc., 629 F. Supp.2d 759, 762 (S.D. Tex. 2009). Under Texas law, a plaintiff is entitled to choose venue, and is not required to file in the “best” venue. Wilson v. Tex. Parks & Wildlife Dep’t, 866 S.W.2d 259, 260 (Tex. 1994). As shown herein, Plaintiffs possessed legitimate reasons for filing their claims in Houston. Defendant should not be able to transfer, merely by claiming Plaintiffs choice inconveniences him. Iv. CONCLUSION AND PRAYER Prior to the current venue system, Texas maintained a plea of privilege system, whereby the parties would testify, the court would determine credibility with venue assessed accordingly. Because Plaintiffs have established venue in Harris County 14Certified Document Number: 100733319 - Page 15 of 18 under the current rules, Defendant wishes to return to the plea of privilege system, whereby this Court conducts a trial by affidavit and determines venue. The plea of privilege system is a relic of the past. Rather, Defendant’s implicit concession, i.e. Plaintiffs satisfied their venue burden, requires that this Court should maintain venue. WHEREFORE PREMISES CONSIDERED, Plaintiffs HUMBERTO NOVOA, ADRIAN ZAMARRIPA and LA ENERGIA NORTENA LLC, request that Defendant’s reply be stricken, that its evidence not be considered, Defendant’s motion to transfer venue be denied, and for general relief. (signature on following page) 15Certified Document Number: 100733319 - Page 16 of 18 Respectfully submitted, CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS &AUGHTRY, P.C. By: _/s/ David N. Calvillo David N. Calvillo State Bar No.: 03673000 david.calvillo@chamberlainlaw.com Lauren N. Herrera State Bar No.: 24092720 lauren.herrera@chamberlainLaw.com 1200 Smith Street, Suite 1400 Houston, TX 77002 Telephone: (713) 658-1818 Facsimile: (713) 658-2553 THE LAW OFFICE OF ANGEL MATA By: _/s/ Angel V. Mata Angel V. Mata State Bar No. 24063940 attorney@angelmatalaw.com 512 S. Fitzhugh Avenue Dallas, Texas 7223-2120 Telephone: 972.357.4956 16Certified Document Number: 100733319 - Page 17 of 18 CERTIFICATE OF SERVICE A true and correct copy of the foregoing pleading has been served on counsel of record on March 7, 2022 in accordance with Rule 21a of the Texas Rules of Civil Procedure. David Chase LanCarte LANCARTE Law, PLLC 2817 West End Ave., Suite 126-276 Nashville, Tennessee 37203 chase@lancartelaw.com Marcus C. Marsden, Jr. THE COLANERI FIRM, P.C. 524 E. Lamar Blvd., Suite 280 Arlington, Texas 76011 marcus@colanerifirm.com /s/ David N. Calvillo David N. Calvillo 4419754.v1 17Certified Document Number: 100733319 - Page 18 of 18 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Armando Huereca on behalf of David Calvillo Bar No. 3673000 armando.huereca@chamberlainlaw.com Envelope ID: 62339812 Status as of 3/7/2022 9:33 AM CST Case Contacts Name BarNumber | Email TimestampSubmitted | Status Marcus C. Marsden | 13014200 marcus@colanerifirm.com 3/7/2022 8:36:32 AM SENT David LanCarte 24082464 chase@lancartelaw.com 3/7/2022 8:36:32 AM SENT David N.Calvillo david.calvillo@chamberlainlaw.com 3/7/2022 8:36:32 AM SENT Eliana De La Rosa eliana.delarosa@chamberlainiaw.com 3/7/2022 8:36:32 AM SENT Judy AnnRochna judy.rochna@chamberlainlaw.com 3/7/2022 8:36:32 AM SENT Angel Mata attorney@angelmatalaw.com 3/7/2022 8:36:32 AM SENT Lauren Herrera lauren.herrera@chamberlainlaw.com 3/7/2022 8:36:32 AM SENT Armando Huereca armando.huereca@chamberlainlaw.com | 3/7/2022 8:36:32 AM SENTI, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or tecorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this March 21, 2022 Certified Document Number: 100733319 Total Pages: 18 vib Burge 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- Page | of 15 Certified Document Number: 100733321 3/7/2022 8:36:32 AM Marilyn Burgess - DistdctoGleskem Mdapri8iGgeuntpistrict Clerk Harris County Envelope No: 6236984 Blo. 61472876 By: JEFFERSON, IFRFANY!Serson Filed: 3/7/2022 8186:89'20K# 5:43 PM CAUSE NO. 2021-22525 LA ENERGIA NORTENA, LLC, ADRIAN ZAMARRIPA, and HUMBERTO NOVOA Plaintiffs, IN THE DISTRICT COURT VS. OF HARRIS COUNTY, TEXAS MOISES CUEVAS, JR. Defendant. OR OP 07 607 LO? LOD LOD LO COD 61ST JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE TO DEFENDANT'S MOTION TO TRANSFER VENUE TO THE HONORABLE JUDGE OF SAID COURT: Plaintiffs, La Energia Nortefia, LLC, Humberto Novoa, and Adrian Zamarripa (“Plaintiffs”), file Response to Defendant’s Motion to Transfer Venue, and would respectfully show unto the Court as follows: I. SUMMARY OF THE ARGUMENT This is a breach of fiduciary duty/business divorce case. Plaintiff, La Energia Nortefia LLC, is a musical group whose primary market is Houston, Harris County. A substantial part of the events giving rise to Plaintiffs’ claims occurred in Harris County. Additionally, witnesses to those events are Harris County residents. Therefore, venue is proper in Harris County. Ii. UNDERLYING FACTS Plaintiff La Energia Nortefia LLC (“LEN”) is a musical group, specializing in Nortefio music.! (See Aff. of Humberto Novoa, attached as Ex. 1 at { 2.) Its primary ' This is a form of regional Latin American music.- Page 2 of 15 Certified Document Number: 100733321 market is Houston and South Texas. (See Ex. 1 at | 5.) Likewise, Defendant is alleged to have appeared at concerts drunk in Harris County, and has burnished a gun at several band events in Harris County. (See Ex. 1 at { 13.) Those actions by Defendant have adversely impacted the value of the business. Houston has over 400,000 more listeners than Dallas. (See Ex. 1 at | 4-11.) The Houston-Galveston market is the top market in the United States. (See Ex. 1 at | 9.) Because of the large market, many live concerts take place in Houston, Harris County, Texas. (See Ex. 1 at § 5, 16.) On numerous occasions while playing in Houston, Harris County, Plaintiff, Humberto Novoa, was informed that Defendant, Moises Cuevas, was intoxicated and causing a scene. (See Ex. 1 at { 12.) These actions in Houston, Harris County, by Defendant adversely affected the reputation of LEN. (See Ex. 1 at { 13, 16.) Several Harris County residents witnessed Defendant’s behavior and informed Plaintiff, Novoa. (See Ex. 1 at § 12.) These Harris County witnesses were venue managers, stagehands, and fans. (See Ex. 1 at | 12.) These witnesses told me that Defendant openly brandished a handgun at multiple venues in Houston, Harris County. (See Ex. 1 at J 12.) Additionally, Defendant appeared intoxicated at multiple venues in Houston, Harris County. (See Ex. 1 at § 12.) Defendant’s co-workers informed Plaintiff, Novoa, that Defendant acted aggressively towards his coworkers and issues arose with female fans in Houston, Harris County, where Defendant would inappropriately touch them. (See Ex. 1 {| 13.) Defendant’s actions warranted the attention from Harris County law enforcement. (See Ex. 1 at 4 12, 14.)- Page 3 of 15 Certified Document Nimber: 100733321 Plaintiffs properly filed suit on April 15, 2021 requesting a business dissolution. Plaintiffs properly filed their petition with this Court, as venue belongs in Harris County based upon the numerous actions by Defendant leading to the dissolution of LEN while Defendant was in Harris County. After a series of futile procedural machinations in the federal courts by the Defendant, Plaintiffs can now seek justice in this Honorable Court. However, on September 2, 2021, Defendant’s motion is based solely on the primary residences of Plaintiffs and Defendant, and requested this Court transfer venue to Dallas County, Texas. Defendant’s position regarding venue is incomplete. Although the parties may reside in Dallas County, the majority of Defendant’s actions resulting in this lawsuit occurred in Harris County. This Court should deny Defendant’s Motion to Transfer Venue. Il. ARGUMENT AND AUTHORITIES “Plaintiffs are accorded the right to choose venue first.” Duran v. Entrust, Inc., No. 01-08-00589-CV, 2010 WL 1241093, at *5 (Tex. App.—Houston [1st Dist.] Mar. 25, 2010, pet. denied) (citing Wilson v. Tex. Parks & Wildlife Dept, 866 S.W.2d 259, 260 (Tex. 1994); Highland Capital Mgmt., L.P. v. Ryder Scott Co., 212 S.W.3d 522, 534 (Tex. App.—Houston [1st Dist.] 2006, pet denied)). As the Texas Supreme Court explained in Wilson v. Texas Parks & Wildlife Department: Venue may be proper in many counties under general, mandatory, or permissive venue rules. See Tex. Civ. Prac. & Rem. Code §§ 15.001— 15.040. The plaintiff is given the first choice in the filing of the lawsuit. See Tieuel v. Southern Pac. Transp. Co., 654 S.W.2d 771, 775 (Tex. App.—Houston [14th Dist.] 1983, no writ).- Page 4 of 15 Certified Document Nimber: 100733321 886 S.W.2d 259, 260. “Therefore, if the plaintiff chooses a county of proper venue, and this is supported by proof as required by Rule 87, no other county can be a proper venue in that case.” Jd. at 261. “This rule gives effect to the plaintiffs right to select a proper venue.” Jd. (citing Maranatha Temple, Inc. v. Enter. Prod. Co., 833 S.W.2d 736, 741 Tex. App.—Houston [1* Dist.] 1992, writ denied). According to Texas Rule of Civil Procedure: If a claimant has adequately pleaded and made prima facie proof that venue is proper in the county of suit as provided in subdivision (a) of paragraph 3, then the cause shall not be transferred but shall be retained in the county of suit, unless the motion to transfer is based on the grounds that an impartial trial cannot be had in the county where the action is pending as provided in Rules 257—259 or on an established ground of mandatory venue. Tex. R. Civ. P. 87(¢). Harris County is the proper venue under the Texas Civil Practice & Remedies Code section 15.002(a) because Harris County is where the events leading to the dissolution of the business took place and is the primary market effected by Defendant’s actions impacting Plaintiffs’ damages. (See Ex. 1 at {{ 18-15.) Since Harris County is a permissible venue, the Court’s inquiry stops there. Cf. Wilson and Maranatha Temple, 833 S.W.2d at 741. “[I]f a plaintiff files suit in a county of proper venue, it is reversible error to transfer venue ... even if the county of transfer would have been proper if originally chosen by the plaintiff.” Tex. Parks & Wildlife Dep’, 886 S.W.2d at 261.- Page 5 of 15 Certified Document Nimber: 100733321 Under the Texas general venue provision, venue is proper in “the county in which all or a substantial part of the events or omissions giving rise to the claim occurred.” Tex. Civ. Prac. & Rem. Code § 15.002(a)(1). The court, however, is not required to determine the “best” venue or where substantially more events occurred. See Siemens Corp. v. Bartek, 03-04-00613, 2006 WL 11262219, at *4 (Tex. App.— Austin Apr. 28, 2006, no pet.). Rather, several different counties may be proper so long as a “substantial part of the events” giving rise to the claim occurred in each county. Id. As shown below and the proof attached as Exhibit 1, venue is proper in Harris County and Defendant’s motion should be denied. In order to determine whether a substantial part of the events giving rise to Plaintiffs’ claim occurred in Harris County, the Court should review the essential elements of Plaintiffs’ claims. See Prime Income Asset Mgmt., Inc. v. Marcus & Millichap Real Estate Inv. Servs. of Tex., Inc., 2014 WL 7473801, at *6 (Tex. App.— Houston [14th Dist. Dec. 30, 2014, no pet.) (citing Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 8.W.3d 673, 681 (Tex. App.—Austin, 2003, no pet.)). Plaintiff need not “prove the merits of a cause of action, but the existence of a cause of action, when pleaded properly, shall be taken as established as alleged by the pleadings.” Tex. R. Civ. P. 87(2)(b). Therefore, Plaintiffs’ only need to show by prima facie proof that the venue facts show “that a substantial part of the events or omissions giving rise to the claim occurred” in Harris County. See Tex. Civ. Prac. & Rem. Code § 15.002(a)(1). Once plaintiff has satisfied his burden, “the trial court must maintain venue” in that venue unless defendant “brings forth ‘conclusive evidence’ that ‘destroy[s]’ the- Page 6 of 15 Certified Document Nimber: 100733321 plaintiff's prima face proof. See Movefforfree.com, Inc. v. David Hetrick, Inc., 288 S.W.3d 539, 541 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Defendant’s behavior ultimately causing the dissolution of LEN occurred in Houston, Harris County. (See Ex. 1 at §] 138-15.) Houston, Harris County is LEN’s primary market and Defendant’s actions directly affected LEN’s reputation and business. (See Ex. 1 at 4] 5.) There are numerous witnesses in Houston, Harris County who potentially will testify in this case. (See Ex. 1 at {] 13-14.) Further, Defendant’s actions underlying Plaintiffs’ claim implicated Harris County law enforcement. (See Ex. 1 at §§ 13-15.) Defendant claims that venue should be transferred to Dallas County solely based on the parties’ residences. However, when permissive venue applies Plaintiffs are entitled to choose their venue and Plaintiffs chose to file their claim in Harris County where a substantial part of Defendant’s actions occurred and where witnesses to his actions live. For these reasons, a substantial part of the events giving rise to Plaintiffs’ claims occurred in Harris County because Defendant’s behavior in Houston, Harris County ultimately resulted in the dissolution of LEN and this lawsuit. As a result, Harris County is proper venue under Texas Civil Practice & Remedies Code Section 15.002. CONCLUSION In light of these facts that show Harris County is a proper venue for Plaintiffs’ action, it is clear the Court should deny Defendant’s Motion to Transfer Venue.- Page 7 of 15 Certified Document Number: 100733321 WHEREFORE PREMISES CONSIDERED, Plaintiffs request that the court deny Defendant’s Motion to Transfer Venue and for general relief. Respectfully submitted, CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS &AUGHTRY, P.C. By: _/s/ David N. Calvillo David N. Calvillo State Bar No.: 03673000 david.calvillo@chamberlainlaw.com Lauren N. Herrera State Bar No.: 24092720 lauren. herrera@chamberlainLaw.com 1200 Smith Street, Suite 1400 Houston, TX 77002 Telephone: (713) 658-1818 Facsimile: (713) 658-2553 ATTORNEYS FOR PLAINTIFFS, LA ENERGIA NORTENA, LLC AND ADRIAN ZAMARRIPA THE LAW OFFICE OF ANGEL MATA By: _/s/ Angel V. Mata Angel V. Mata State Bar No. 24063940 attorney@angelmatalaw.com 512 S. Fitzhugh Avenue Dallas, Texas 7223-2120 Telephone: 972.357.4956 ATTORNEY FOR PLAINTIFF, HUMBERTO NOVOA- Page 8 of 15 Certified Document Nimber: 100733321 CERTIFICATE OF SERVICE A true and correct copy of the foregoing pleading has been served on counsel of record on February 4, 2022 in accordance with Rule 21a of the Texas Rules of Civil Procedure. David Chase LanCarte LANCARTE LAw, PLLC 2817 West End Ave., Suite 126-276 Nashville, Tennessee 37203 chase@lancartelaw.com Marcus C. Marsden, Jr. THE COLANERI Fir, P.C. 524 E. Lamar Blvd., Suite 280 Arlington, Texas 76011 marcus@colanerifirm.com /s/ David N. Calvillo David N. Calvillo- Page 9 of 15 Certified Document Number: 100733321 LA ENERGIA NORTENA, LLC, ADRIAN ZAMARRIPA, and HUMBERTO NOVOA VS. MOISES CUEVAS, JR. CAUSE NO. 2021-22525 IN THE DISTRICT COURT Plaintiffs, OF HARRIS COUNTY, TEXAS OR 00? 07 607 LO LO UO WO? COD Defendant. 61ST JUDICIAL DISTRICT AFFIDAVIT OF HUMBERTO NOVOA STATE OF TEXAS § § COUNTY OF DALLAS § BEFORE ME, the undersigned notary, on this day personally appeared Humberto Novoa, who, after being duly sworn upon his oath, stated as follows: 1. My name is Humberto Novoa, and I am a resident of the State of Texas. lam over 21 years of age, have personal knowledge of the facts below and am competent and authorized to make this Affidavit. I have never been convicted of a felony or a crime involving moral turpitude. La Energia Nortena (“LEN”), as a musical group, performs and records a musical format or musical category called “Regional Mexican.” Regional Mexican music is comprised of a number of genres associated with the various parts of Mexico, including the “Nortefio” genre from which LEN derives its name and the Tejano genre which rose to popularity among Latin music fans in the mid-90’s due to musical acts like Selena and La Mafia. This lawsuit was brought in part to dissolve LEN as a Texas Limited Liability Company and to seek the court’s help in arriving at a value of Defendant’s interest in LEN. As a talent agent, talent manager, and operator of a record label, I am aware of the importance of various listening and promotional markets for LEN’s music. The Houston market is one of the most important for LEN for several reasons, not the least of which is that the fan base for LEN’s music is larger in Houston than in any other market. According to publicly-available data from Nielsen, the media ratings agency, while the Houston-Galveston and EXHIBIT 1Certified Document Nimber: 100733321 - Page 10 of 15 Dallas-Fort Worth radio markets are ranked #6 and #5 in the United States, respectively, Houston has a Hispanic population that is more than 400,000 listeners larger than Dallas. A true and correct copy of the Nielsen “Bluebook” Radio Market Survey Population, Rankings & Information published for Spring 2021 is attached hereto as Exhibit 1 and incorporated by reference for all purposes. Harris County, Texas, indeed the entire South Texas area, including Laredo, the Rio Grande Valley, and Corpus Christi represent a large musical market for LEN and thus a significant portion of LEN’s value as an ongoing enterprise derives from its reputation and from musical performances. A significant number of LEN’s revenues are earned from live musical performances and, in particular, in Houston, Harris County, Texas and throughout South Texas. The difference in the Hispanic listening markets between Houston-Galveston and Dallas-Fort Worth is further demonstrated by the publicly available ratings Nielsen reports on the Regional Mexican format radio stations in each market. Nielsen rates participating radio station listener share by tracking the number of listeners every quarter-hour, dividing it by the total listeners in a survey population, and multiplying it by 100, giving each radio station a rating that is an estimated percent of the total market. Comparing Houston-Galveston Regional Mexican format radio to Dallas-Fort Worth in the same format, Houston’s KLTN-FM radio station has consistently realized a substantially higher percentage of its Designated Market Area than any Dallas-Fort Worth station in the same format. A true and correct copy of the May through June 2021 Nielsen Radio Ratings reported by online trade publication Radio Online for both the Houston- Galveston and the Dallas-Fort Worth markets is attached hereto as Exhibits 2 and 8, and incorporated herein by reference for all purposes. In fact, Houston’s KLTN-FM ratings have been higher from May through August than any other Regional Mexican format radio station in the United States, including in Los Angeles and New York. A true and correct copy of the May through June 2021 Nielsen Radio Ratings reported by online trade publication Radio Online for the Los Angeles and New York markets is attached hereto as Exhibit 4 and 5, and incorporated herein by reference for all purposes. While the Houston-Galveston market is the top market in the United States for fans of Regional Mexican music like LEN’s, the Houston Designated Market Area does not include other smaller markets in the South Texas Region which carry the Regional Mexican music format. These radio stationsCertified Document Nimber: 100733321 - Page 11 of 15 include, but are not limited to KERB-FM in McAllen, KCZO-FM in McAllen, KZSP-FM in McAllen, KESO-FM in McAllen, Mas Chingon Radio in Cotulla, KHMC-FM in Corpus Christi, KMJR-FM in Corpus Christi, KUNO-AM in Corpus Christi, KBFM-FM in Weslaco, KBIC-FM in Weslaco, KTAM-AM in Bryan, and KMZZ-FM in Alice. The Office of the Governor maintains a directory of Regional Mexican format radio stations with the Texas Music Office, which is available online at https://gov.texas.gov/Apps/Music/Directory/radio- station/all/genre/regionalmexican/p1. All of those are located in the South Texas market and impact the value of LEN. 10. In today’s music industry, and especially in the last two years during the pandemic, online music streaming through services like Spotify, and livestreaming concerts is an important source of revenue for LEN. Like radio, these services allow LEN to fluidly support markets without the need to appear in person for live performances. I am aware that a substantial number of LEN’s online listener share comes from the Houston market. As an example, Spotify reports that of the 669,079 listeners who stream LEN’s music each month, 39,415 are specifically from Houston, Texas. 11. LEN performed at numerous events in Houston, Harris County over the last several years. Specifically, LEN performed in “Escapade 2001” and “Plaza Garibaldi,” “Plaza San Miguel,” and other ”radio Festivals” venues located in Harris County, Texas. These performances were the subject of contracts entered into and performed in Harris County, Texas. 12. On numerous occasions when LEN performed in musical events in Harris County, I, as the manager for LEN, was informed that Moises Cuevas was causing the reputation of LEN to be severely affected by his unwholesome activities. It was reported to me by several witnesses who reside in Harris County, such as Francisco Banda, Danny Guerra, Mariana Escamilla, and Cyrus!, who are (venue managers, stagehands, consumers, patrons) that Mr. Cuevas openly brandished a handgun in concert venues in Houston at which LEN was performing. He also openly carried and brandished handguns on the LEN tour bus at inappropriate times. Mr. Cuevas also apparently abuses alcohol and has appeared to be intoxicated at numerous LEN events, including those in Harris County. His intoxicated state and his belligerent attitude caused problems for LEN with law enforcement officials in Harris County. 13. I was told by Mr. Cuevas’ wife how aggressive Mr. Cuevas would get when intoxicated. Mr. Cuevas was also reportedly aggressive with his co-workers, and they had also been some issues of him behaving inappropriate with some 1 Mr. Cyrus’ last name is unknown to me but I know he works and resides in the Houston area. 3Certified Document Nimber: 100733321 - Page 12 of 15 14, 15. 16. 17. 18. 19. 20. of the female fans that would attend events, including those in Houston, Harris County, Texas by touching them inappropriately while he was apparently intoxicated. These problems with law enforcement caused problems for those venues that contracted with LEN and for those seeking to work with LEN in any capacity. These venues included those in Houston, Harris County, Texas. Mr. Cuevas also posted numerous disparaging remarks about LEN and those affiliated with it on social media platforms. We have been told by residents of Harris County that they saw those social media posts and formed an opinion about LEN in Harris County. One of the issues in the pending litigation that seeks to be resolved is the value of LEN. That value will consider any positive or negative goodwill that LEN may enjoy in its primary markets. One of LEN’s primary markets is Houston, Harris County. Mr. Cuevas’ actions reflect poorly on LEN and his disparagement comments and inappropriate behavior have severely impacted its market value in Harris County. Among the matters asserted in the lawsuit filed in this Court is the request that LEN’s operations be wound down and its assets liquidated. One of the LEN’s biggest assets is its custom tour bus. Houston, Harris County, Texas is known as an area with a large resale market for such custom tour buses. There may be other industry witnesses that may be able to shed some light on issues that relate to the valuation of LEN’s valuation as a going concern. Houston, Harris County is a convenient forum given that travel to and from Houston is relatively easy. Two international public and numerous private airports are located minutes away from downtown Houston, Harris County, Texas. Harris County is also a convenient location for LEN and the individual plaintiffs because it is not difficult to travel here from any part of the country. Harris County should not be an inconvenient location for Defendant Cuevas because he travels here frequently. In particular, I know that Mr. Cuevas travelled few times in his private vehicle for several shows in Harris County and declined to travel together with the band. Harris County is not an inconvenient forum for Mr. Moises Cuevas because he frequently travels to Houston, Harris County, Texas—in fact, to areas within the geographic boundaries of the Southern District of Texas such as the Rio Grande Valley, Laredo, and Corpus Christi. For all these reasons, the underlying state court lawsuit was filed in Houston, Harris County, Texas as opposed to any other locale.Certified Document Nimber: 100733321 - Page 13 of 15 FURTHER AFFIANT SAYETH NOT \ x Humberto Novoa an SUBSCRIBED and SWORN TO before me on this the 4Y day of February 2022 to certify my hand and official seal. JUDY ANN ROCHNA ff Notary ID #841964-1 My Commission Expires August 14, 2022 My commission expires: g WY \ ZZ #377145.v1Certified Document Nimber: 100733321 - Page 14 of 15 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Debbie Kennedy on behalf of David Calvillo Bar No. 3673000 debbie.kennedy@chamberlainlaw.com Envelope ID: 61472876 Status as of 2/7/2022 8:04 AM CST Case Contacts Name BarNumber | Email TimestampSubmitted | Status Marcus C. Marsden | 13014200 marcus@colanerifirm.com 2/4/2022 5:43:15 PM SENT David LanCarte 24082464 chase@lancartelaw.com 2/4/2022 5:43:15 PM SENT David N.Calvillo david.calvillo@chamberlainlaw.com 2/4/2022 5:43:15 PM SENT Eliana De La Rosa eliana.delarosa@chamberlainlaw.com | 2/4/2022 5:43:15 PM SENT Judy AnnRochna judy.rochna@chamberlainiaw.com 2/4/2022 5:43:15PM | SEN