On April 23, 2013 a
Motion,Ex Parte
was filed
involving a dispute between
and
in the District Court of Tarrant County.
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348-265537-13 FILED
TARRANT COUNTY
6/15/2016 11:33:42 AM
THOMAS A. WILDER
NO. 348-265537-13 DISTRICT CLERK
EDUARDO MEJIA § IN THE DISTRICT COURT
§
§
V. § OF TARRANT COUNTY, TEXAS
§
JESUS GONZALEZ, LAMAR ACCUTECH §
ROOFING, INC. AND ACCUTECH §
ROOFING, LLC § 348TH JUDICIAL DISTRICT
LAMAR ACCUTECH ROOFING. INC.’S RESPONSE AND OBJECTIONS TO
PLAINTIFF’S MOTION FOR REHEARING, MOTION TO REOPEN EVIDENCE AND
MOTION FOR LEAVE TO LATE FILE SUMMARY JUDGMENT EVIDENCE
Defendant Lamar Accutech Roofing, Inc. files this Response and Objections to Plaintiff’s
Motion for Rehearing, Motion to Reopen Evidence and Motion for Leave as follows:
The Court should deny Plaintiff’s requests in their entirety and sanction Plaintiff and award
Defendant its reasonable and necessary attorneys’ fees for the following reasons:
1. First, the Court granted Defendant’s No-Evidence Motion for Summary Judgment
on September 22, 2014. Plaintiff has waited approximately a year and one-half to file and set these
Motions. It is a gross understatement that Plaintiff’s Motions are untimely and Defendant is highly
prejudiced by Plaintiff’s attempt to reopen or re-litigate issues when trial is set for June 27, 2016.
2. Second, Plaintiff offers the same affidavits from approximately two years ago and
Defendant incorporates its previously-filed objections and reply to Plaintiff’s Motions herein for
all purposes as if set forth fully. Rule 166a specifically requires that Plaintiff serve opposing
affidavits or other written response seven days prior to the hearing. Plaintiff is asking the Court to
allow him to file additional evidence 633 days (September 22, 2014 – June 16, 2016) after the
Court signed a final judgment with respect to Defendant Lamar Accutech Roofing, Inc. Defendant
objects to Plaintiff’s request for leave as it unbelievably untimely and the rules and procedures do
not allow for Plaintiff’s requested relief. The Court should deny the request for leave and strike
RESPONSE TO PLAINTIFF’S MOTION TO RECONSIDER OR REOPEN OR FOR LEAVE - PAGE 1
from consideration Plaintiff’s attempt to present any evidence other than that attached to his
Response served on Defendant on August 21, 2014.
3. Third, Plaintiff’s Motions are merely an inappropriate attempt to reargue the same
response from over a year and half ago (approximately 22 months) under the auspices of
“additional new evidence that was not available at the time of the response.” Plaintiff, however,
uses his same September 21, 2014 Affidavit, and the only “new” information is an Affidavit from
another Defendant, Jesus Gonzalez that is replete with inadmissible factual and legal conclusions
as well as hearsay, to which Defendant objects and asks the Court to strike from consideration. It
is important to point out that the Affidavit was notarized over a year ago on June 8, 2015.
4. Fourth, Plaintiff attempts to use Rule 166a(c), which is not applicable and
misapplies Rule 270 with respect to “reopening” evidence since Rule 166a(i) is the applicable
summary judgment rule. Rule 270 does not apply to the present situation. To note, Rule 270 is
found under Section 11 of TRCP – Trial of Causes. Plaintiff failed in August of 2014 to satisfy his
burden under 166a(i) and he fails now. His requests should be denied.
5. Fifth, Plaintiff’s complaints about discovery were dealt with by the Court in its
denial of Plaintiff’s Second Motion for Continuance. Defendant responded to Plaintiff’s
allegations and grounds then, and incorporates its Response to Plaintiff’s Motion for Continuance
herein for all purposes as if set forth fully.
6. Lastly, Defendant seeks recovery of its reasonable expenses under TRCP 166a(h).
Plaintiff has on the eve of a trial setting and after an incredible amount of time, filed an Affidavit
of another Defendant, Jesus Gonzalez. This Affidavit is notarized on June 8, 2015 – over one year
ago. Clearly, Mr. Gonzalez’s affidavit testimony is completely conclusory and filed in bad faith
RESPONSE TO PLAINTIFF’S MOTION TO RECONSIDER OR REOPEN OR FOR LEAVE - PAGE 2
on the eve of trial. As such, Defendant asks the Court to award its expenses, including attorneys’
fees in the amount of $825 under TRCP 166a(h).
PRAYER FOR RELIEF
7. Accordingly, Lamar Accutech Roofing, Inc. respectfully requests that this Court
deny Plaintiff’s Motions in their entirety and award Defendant its reasonable expenses and
attorneys’ fees under TRCP 166a(h) and grant such other and further relief to which it may be
justly entitled.
Respectfully submitted,
POOLE SNEAD, PLLC
/s/ Olyn Poole
By: _______________________________________
Olyn Poole
State Bar No. 24037292
916 Bryan Avenue
Fort Worth, Texas 76104
(817) 348-9060 - Telephone
(817) 348-9070 – Facsimile
olyn@poole-lawfirm.com
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
On this 15 day of June, 2016, I hereby certify that a true and correct copy of the foregoing
document was sent via TRCP 21 and 21a to all parties and counsel of record.
/s/ Olyn Poole
____________________________________
Olyn Poole
RESPONSE TO PLAINTIFF’S MOTION TO RECONSIDER OR REOPEN OR FOR LEAVE - PAGE 3
Document Filed Date
June 15, 2016
Case Filing Date
April 23, 2013
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348-265537-13 FILED TARRANT COUNTY 6/15/2016 11:33:42 AM THOMAS A. WILDER NO. 348-265537-13 DISTRICT CLERK EDUARDO MEJIA § IN THE DISTRICT COURT § § V. § OF TARRANT COUNTY, TEXAS § JESUS GONZALEZ, LAMAR ACCUTECH § ROOFING, INC. AND ACCUTECH § ROOFING, LLC § 348TH JUDICIAL DISTRICT LAMAR ACCUTECH ROOFING. INC.’S RESPONSE AND OBJECTIONS TO PLAINTIFF’S MOTION FOR REHEARING, MOTION TO REOPEN EVIDENCE AND MOTION FOR LEAVE TO LATE FILE SUMMARY JUDGMENT EVIDENCE Defendant Lamar Accutech Roofing, Inc. files this Response and Objections to Plaintiff’s Motion for Rehearing, Motion to Reopen Evidence and Motion for Leave as follows: The Court should deny Plaintiff’s requests in their entirety and sanction Plaintiff and award Defendant its reasonable and necessary attorneys’ fees for the following reasons: 1. First, the Court granted Defendant’s No-Evidence Motion for Summary Judgment on September 22, 2014. Plaintiff has waited approximately a year and one-half to file and set these Motions. It is a gross understatement that Plaintiff’s Motions are untimely and Defendant is highly prejudiced by Plaintiff’s attempt to reopen or re-litigate issues when trial is set for June 27, 2016. 2. Second, Plaintiff offers the same affidavits from approximately two years ago and Defendant incorporates its previously-filed objections and reply to Plaintiff’s Motions herein for all purposes as if set forth fully. Rule 166a specifically requires that Plaintiff serve opposing affidavits or other written response seven days prior to the hearing. Plaintiff is asking the Court to allow him to file additional evidence 633 days (September 22, 2014 – June 16, 2016) after the Court signed a final judgment with respect to Defendant Lamar Accutech Roofing, Inc. Defendant objects to Plaintiff’s request for leave as it unbelievably untimely and the rules and procedures do not allow for Plaintiff’s requested relief. The Court should deny the request for leave and strike RESPONSE TO PLAINTIFF’S MOTION TO RECONSIDER OR REOPEN OR FOR LEAVE - PAGE 1 from consideration Plaintiff’s attempt to present any evidence other than that attached to his Response served on Defendant on August 21, 2014. 3. Third, Plaintiff’s Motions are merely an inappropriate attempt to reargue the same response from over a year and half ago (approximately 22 months) under the auspices of “additional new evidence that was not available at the time of the response.” Plaintiff, however, uses his same September 21, 2014 Affidavit, and the only “new” information is an Affidavit from another Defendant, Jesus Gonzalez that is replete with inadmissible factual and legal conclusions as well as hearsay, to which Defendant objects and asks the Court to strike from consideration. It is important to point out that the Affidavit was notarized over a year ago on June 8, 2015. 4. Fourth, Plaintiff attempts to use Rule 166a(c), which is not applicable and misapplies Rule 270 with respect to “reopening” evidence since Rule 166a(i) is the applicable summary judgment rule. Rule 270 does not apply to the present situation. To note, Rule 270 is found under Section 11 of TRCP – Trial of Causes. Plaintiff failed in August of 2014 to satisfy his burden under 166a(i) and he fails now. His requests should be denied. 5. Fifth, Plaintiff’s complaints about discovery were dealt with by the Court in its denial of Plaintiff’s Second Motion for Continuance. Defendant responded to Plaintiff’s allegations and grounds then, and incorporates its Response to Plaintiff’s Motion for Continuance herein for all purposes as if set forth fully. 6. Lastly, Defendant seeks recovery of its reasonable expenses under TRCP 166a(h). Plaintiff has on the eve of a trial setting and after an incredible amount of time, filed an Affidavit of another Defendant, Jesus Gonzalez. This Affidavit is notarized on June 8, 2015 – over one year ago. Clearly, Mr. Gonzalez’s affidavit testimony is completely conclusory and filed in bad faith RESPONSE TO PLAINTIFF’S MOTION TO RECONSIDER OR REOPEN OR FOR LEAVE - PAGE 2 on the eve of trial. As such, Defendant asks the Court to award its expenses, including attorneys’ fees in the amount of $825 under TRCP 166a(h). PRAYER FOR RELIEF 7. Accordingly, Lamar Accutech Roofing, Inc. respectfully requests that this Court deny Plaintiff’s Motions in their entirety and award Defendant its reasonable expenses and attorneys’ fees under TRCP 166a(h) and grant such other and further relief to which it may be justly entitled. Respectfully submitted, POOLE SNEAD, PLLC /s/ Olyn Poole By: _______________________________________ Olyn Poole State Bar No. 24037292 916 Bryan Avenue Fort Worth, Texas 76104 (817) 348-9060 - Telephone (817) 348-9070 – Facsimile olyn@poole-lawfirm.com ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE On this 15 day of June, 2016, I hereby certify that a true and correct copy of the foregoing document was sent via TRCP 21 and 21a to all parties and counsel of record. /s/ Olyn Poole ____________________________________ Olyn Poole RESPONSE TO PLAINTIFF’S MOTION TO RECONSIDER OR REOPEN OR FOR LEAVE - PAGE 3