Preview
CAUSE NO. 153-232668-08
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VIRGINIA 0. KINSEL, ET AL. § IN THE DISTRICT COURr(JE> \'-·, '., ..
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§
v. § TARRANT COUNTY, TEXAS <~~I
§
JANE 0. LINDSEY, ET AL. § 153rd JUDICIAL DISTRICT Qit
DEFENDANTS JANE LINDSEY AND ROBERT OLIVER'S
SUPPLEMENTAL MOTION IN LIMINE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME JANE 0. LINDSEY, Individually and as Co-Trustee of the
Lesey B. Kinsel Trust, and ROBERT N. OLIVER, Defendants, (collectively
"Movants") and file their Supplemental Motion in Limine and would
respectfully show the Court as follows:
Movants request the Court to enter an order, prior to the voir dire
examination of the jury panel, instructing opposing counsel and all witnesses to
refrain from any mention, or any interrogation, directly or indirectly, in any
manner, including the offering of documentary evidence, concerning the matters
set out in this Motion.
Movants request the Court to instruct opposing counsel and all witnesses
that, before making any mention, interrogation, or offer of proof or evidence
MOTION IN LIMINE Page 1
concerning the matters set out in this Motion, opposing counsel first request a
ruling from the Court, outside the presence and hearing of all prospective jurors,
or jurors ultimately selected in this case, concerning the propriety and
admissibility of these matters. Movants further request that the Court instruct
opposing counsel to advise each prospective witness of the contents of this
Motion and the Court's order concerning this Motion. This will insure that any
order is not inadvertently violated by a witness.
The matters set out in this Motion are inadmissible in evidence for any
purpose, on proper and timely objection, because they have no bearing on any
issue in this case or the rights of the parties to this case. These matters will also
only tend to prejudice or confuse the jury.
Permitting interrogation of witnesses, comments to jurors, or prospective
jurors, or offers of evidence concerning any of the matters in this Motion will
confuse and prejudice the jury. Sustaining objections to these questions,
statements, or evidence introduced or attempted to be introduced by counsel or
witnesses will not prevent prejudice, but will reinforce the development of
questionable and improper evidence. Movants assert that if opposing counsel
attempts to introduce or otherwise bring these matters to the attention of the
MOTION IN LIMINE
M~>·. KINSEL\PLEADI~GS\MOTIO:'II
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Page 2
__,.----
.
Jurors, this will cause Movants irreparable prejudice because of the
reinforcement to the jurors of these improper or inadmissible matters.
Movants request that the Court prohibit all parties, their attorneys, and
witnesses, in limine, from doing any of the following:
1. Eliciting any testimony regarding statements by Lesey Kinsel that
she did not know or could not remember what she had signed on any particular
prior occasion, as that information is not relevant to the issues to be tried and
will only serve to confuse the jury. The only pertinent issue is whether Lesey
Kinsel knew what she was doing at the time she signed each document in
question in this lawsuit. See McDaniel v. Householder, No. 11-09-00307-CV,
2011 WL 3793326 (Tex. App.- Eastland Aug. 25,2011, no pet.).
Granted: Overruled: -----
2. Eliciting any testimony regarding Lesey Kinsel's mental status on
any date other than dates on which she signed the documents in question in this
lawsuit, to wit: February 23, 2007, July 24, 2008, and August 12, 2008, as that
information is not relevant to the issues to be tried and will only serve to
confuse the jury. The only pertinent issue is whether Lesey Kinsel knew what
she was doing at the time she signed each document in question in this lawsuit.
MOTION IN LIMINE
G:\Klckm•n\Jl'IJA\FII.~:S\IJ~IlSF.Y ~dv_
KINSEl\I'LEADINGS\1'1-IOTION 1."1 LJMI:"E.wpJ
Page 3
See Mandell & Wrightv. Thomas, 441 S.W.2d 841, 845 (Tex. 1969); McDaniel
v. Householder, No. 11-09-00307-CV, 2011 WL 3793326 (Tex. App.-Eastland
Aug. 25, 2011, no pet.).
Granted: Overruled: -----
3. Eliciting any testimony regarding pain killers and other medications
prescribed for Lesey Kinsel, particularly without any evidence tying it to the
relevant dates in question when the subject instruments were executed, as there
is no evidence that such medications affected her behavior in any manner that
would be pertinent to the issues to be decided in this case. See McDaniel v.
Householder, No. 11-09-00307-CV, 2011 WL 3793326 (Tex. App.- Eastland
Aug. 25, 2011, no pet.).
Granted: Overruled: - - - - -
4. Eliciting any testimony regarding the inability ofLesey Kinsel to
sign her name or to sign legibly or to do more than place her initials on any
document, as such testimony does not rise above mere suspicion that she might
have been incapacitated. See McKeehan v. McKeehan, No. 03-1 0-00025-CV,
2011 WL 2706962* 12 (Tex. App.- Austin July 6, 2011, pet. dism'd).
Granted: -----
Overruled: - - - - - - -
MOTION IN LIMINE Page 4
G'\Klrkm•n\JIIIJA\FIL~;.~\LIND~EY LIMI~E.WJ>ll
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cause, unless it be shown outside the jury that such witness was within the
control ofMovants and was not equally available to all parties.
Granted: Overruled: -----
11. Making any reference to the Court's rulings on any of the pre-trial
motions or matters previously or subsequently filed herein, or oral motions
made in open court.
Granted: Overruled: -----
12. Mentioning or stating to the jury the personal beliefs of counsel or
any party (as opposed to stating what the facts will show or arguing the facts in
evidence) concerning the justice of the Plaintiffs' case and/or the right to
recover damages in this case.
Granted: Overruled: -----
13. Referring to the existence of or offering and/or introducing at trial
any documents not timely furnished to Movants in response to their requests for
production or requests for disclosure.
Granted: Overruled: - - - - -
14. Making any reference to any facts or theories of liability or theories
of recovery or damages not included in the active pleadings or on which
MOTION IN LIMINE Page 7
summary judgment has been granted as such facts or theories of liability or
recovery will constitute surprise and be highly prejudicial and bring up matters
as to which Movants are not prepared to go to trial.
Granted: Overruled: - - - - -
15. Making any reference to or offer or tender evidence to make any
argument or suggestion that Movants have in any way delayed the trial in this
case.
Granted: Overruled: - - - - -
16. Stating or implying that Movants are wealthy or any of the other
parties are poor in comparison to other parties. Carter v. Exxon Corp., 842
S.W.2d 393 (Tex. App.- Eastland 1992, writ denied); First Nat'! Bank of
Marshall v. Beavers, 619 S.W.2d 288 (Tex. App.- Texarkana 1981, writ ref'd
n.r.e.).
Granted: Overruled: -----
17. Introducing any evidence or calling any witness not properly
designated in response to a discovery request propounded by any other party in
the case. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 395 (Tex. 1989).
Granted: - - - - - Overruled: - - - - - -
MOTION IN LIMINE
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Page 8
18. Making any reference to any opinions or conclusions expressed by
a person who has not been qualified as an expert witness with the proper
expertise and qualifications to express the opinions or conclusions in question
and who has not been designated as a testifying expert in a timely manner and
in timely response to the parties' interrogatories and/or requests for disclosure.
Granted: Overruled: -----
19. Introducing the statement of Mayra Castillo dated May 19, 2010,
which was produced by Plaintiffs on December 14,2011. Tex. R. Civ. P. 193.5;
193.6; Alvadado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992).
Granted: Overruled: - - - - -
20. Introducing the audio recording of an alleged phone message lett by
Lesey Kinsel at some unknown time and date on the answering machine of
Plaintiff J. Frank Kinsel, Jr., which was produced by Plaintiffs on December 14,
2011. Tex. R. Civ. P. 193.5; 193.6; Alvadado v. Farah Mfg. Co., 830 S.W.2d
911,914 (Tex. 1992).
Granted: -----
Overruled: - - - - - -
21. Introducing the audio recording of an alleged phone message left
by Phyllis in Dr. Cole's office on the answering machine of J. Frank Kinsel, Jr.
MOTION IN LIMINE
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Respectfully submitted,
BOURLAND & KIRKMAN, L.L.P.
By: w~,···
State Bar No. 11518700
Susanna Johnson
State Bar No. 22136550
201 Main Street, Suite 1400
Fort Worth, Texas 76102
Telephone: (817) 336-2800
Facsimile: (817) 877-1863
ATTORNEYS FOR DEFENDANTS
JANE 0. LINDSEY, INDIVIDUALLY
AND AS CO-TRUSTEE OF THE LESEY
B. KINSEL TRUST, AND
ROBERT N. OLIVER
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 22,2012, a true and correct copy
of the foregoing was sent via e-mail (unless otherwise indicated) to:
Messrs. J. Lyndell Kirkley,
Kelly B. Gibbons, and B. Dan Berryman
Kirkley & Berryman, L.L.P.
100 N. Forest Park Blvd., Suite 220
Fort Worth, Texas 76102
MOTION IN LIMINE Page II
Ms. Alison H. Moore
Thompson, Coe, Cousins & Irons, L.L.P.
700 North Pearl Street
1
25 h Floor- Plaza of the Americas
Dallas, Texas 75201
Ms. Frances Garza
5435 FM 541
McCoy, Texas 78113
VIA FIRST-CLASS MAIL
Ms. Ida Castillo
5437 FM 541
McCoy, Texas 78113
VIA FIRST-CLASS MAIL
Mr. Lindy Jones
Jones, Allen & Fuquay, L.L.P.
8828 Greenville A venue
Dallas, Texas 76243-7143
VIA FIRST-CLASS MAIL
Mr. Scott C. Kinsel
Scott C. Kinsel, P.C.
8708 South Congress
Suite B200
Austin, Texas 78745
VIA FIRST-CLASS MAIL
MOTION IN LIMINE Page 12
Messrs. Marshall M. Searcy, Jr.
and Frank P. Greenhaw IV
Kelly Hart & Hallman LLP
201 Main Street, Suite 2500
Fort Worth, Texas 76102
MOTION IN LIMINE Page 13
< ;:\Kicknll-(I
ATTORNEYS AND COUNSELORS
--:-~?
201MAIN STREET, SUITE 1400 ._.A•x-\
~\--""
FORT WORTH, TEXAS 76102
,..-, ,_,
817-336-2800
METRO 429-0747
-~--
FACSIMILE 817-877-1863
RICHARD L BOURLAND, PC.
WILLIAML.KIRKMAN
SUSANNA E. JOHNSON
ELIZABETH K BOURLAND
February 22, 2012
Ms. Sharon Byrd BY HAND
Administrative Clerk
153rct District Court
Seventh Floor- East
Tim Curry Justice Center
401 West Belknap Street
Fort Worth, Texas 76196
Dear Ms. Byrd:
Re: Cause No. 153-232668-08
Virginia 0. Kinsel, et al. v. Jane 0. Lindsey, et aL
Enclosed please find an original and one copy of Defendants Jane
Lindsey and Robert Oliver's Supplemental Motion in Limine for filing in
connection with the captioned matter. Please return a file-marked copy to our
couner.
Thank you for your courtesy and cooperation.
William L. Kirkman
·~~.
G'IKltkm•n\JliLIA\FILI':S\LINDSEY
I
Preview
CAUSE NO. 153-232668-08 ,/'' VIRGINIA 0. KINSEL, ET AL. § IN THE DISTRICT COURr(JE> \'-·, '., .. ·\ § v. § TARRANT COUNTY, TEXAS <~~I § JANE 0. LINDSEY, ET AL. § 153rd JUDICIAL DISTRICT Qit DEFENDANTS JANE LINDSEY AND ROBERT OLIVER'S SUPPLEMENTAL MOTION IN LIMINE TO THE HONORABLE JUDGE OF SAID COURT: NOW COME JANE 0. LINDSEY, Individually and as Co-Trustee of the Lesey B. Kinsel Trust, and ROBERT N. OLIVER, Defendants, (collectively "Movants") and file their Supplemental Motion in Limine and would respectfully show the Court as follows: Movants request the Court to enter an order, prior to the voir dire examination of the jury panel, instructing opposing counsel and all witnesses to refrain from any mention, or any interrogation, directly or indirectly, in any manner, including the offering of documentary evidence, concerning the matters set out in this Motion. Movants request the Court to instruct opposing counsel and all witnesses that, before making any mention, interrogation, or offer of proof or evidence MOTION IN LIMINE Page 1 concerning the matters set out in this Motion, opposing counsel first request a ruling from the Court, outside the presence and hearing of all prospective jurors, or jurors ultimately selected in this case, concerning the propriety and admissibility of these matters. Movants further request that the Court instruct opposing counsel to advise each prospective witness of the contents of this Motion and the Court's order concerning this Motion. This will insure that any order is not inadvertently violated by a witness. The matters set out in this Motion are inadmissible in evidence for any purpose, on proper and timely objection, because they have no bearing on any issue in this case or the rights of the parties to this case. These matters will also only tend to prejudice or confuse the jury. Permitting interrogation of witnesses, comments to jurors, or prospective jurors, or offers of evidence concerning any of the matters in this Motion will confuse and prejudice the jury. Sustaining objections to these questions, statements, or evidence introduced or attempted to be introduced by counsel or witnesses will not prevent prejudice, but will reinforce the development of questionable and improper evidence. Movants assert that if opposing counsel attempts to introduce or otherwise bring these matters to the attention of the MOTION IN LIMINE M~>·. KINSEL\PLEADI~GS\MOTIO:'II 1:>1 UMll'iE."1>"USICY Page 2 __,.---- . Jurors, this will cause Movants irreparable prejudice because of the reinforcement to the jurors of these improper or inadmissible matters. Movants request that the Court prohibit all parties, their attorneys, and witnesses, in limine, from doing any of the following: 1. Eliciting any testimony regarding statements by Lesey Kinsel that she did not know or could not remember what she had signed on any particular prior occasion, as that information is not relevant to the issues to be tried and will only serve to confuse the jury. The only pertinent issue is whether Lesey Kinsel knew what she was doing at the time she signed each document in question in this lawsuit. See McDaniel v. Householder, No. 11-09-00307-CV, 2011 WL 3793326 (Tex. App.- Eastland Aug. 25,2011, no pet.). Granted: Overruled: ----- 2. Eliciting any testimony regarding Lesey Kinsel's mental status on any date other than dates on which she signed the documents in question in this lawsuit, to wit: February 23, 2007, July 24, 2008, and August 12, 2008, as that information is not relevant to the issues to be tried and will only serve to confuse the jury. The only pertinent issue is whether Lesey Kinsel knew what she was doing at the time she signed each document in question in this lawsuit. MOTION IN LIMINE G:\Klckm•n\Jl'IJA\FII.~:S\IJ~IlSF.Y ~dv_ KINSEl\I'LEADINGS\1'1-IOTION 1."1 LJMI:"E.wpJ Page 3 See Mandell & Wrightv. Thomas, 441 S.W.2d 841, 845 (Tex. 1969); McDaniel v. Householder, No. 11-09-00307-CV, 2011 WL 3793326 (Tex. App.-Eastland Aug. 25, 2011, no pet.). Granted: Overruled: ----- 3. Eliciting any testimony regarding pain killers and other medications prescribed for Lesey Kinsel, particularly without any evidence tying it to the relevant dates in question when the subject instruments were executed, as there is no evidence that such medications affected her behavior in any manner that would be pertinent to the issues to be decided in this case. See McDaniel v. Householder, No. 11-09-00307-CV, 2011 WL 3793326 (Tex. App.- Eastland Aug. 25, 2011, no pet.). Granted: Overruled: - - - - - 4. Eliciting any testimony regarding the inability ofLesey Kinsel to sign her name or to sign legibly or to do more than place her initials on any document, as such testimony does not rise above mere suspicion that she might have been incapacitated. See McKeehan v. McKeehan, No. 03-1 0-00025-CV, 2011 WL 2706962* 12 (Tex. App.- Austin July 6, 2011, pet. dism'd). Granted: ----- Overruled: - - - - - - - MOTION IN LIMINE Page 4 G'\Klrkm•n\JIIIJA\FIL~;.~\LIND~EY LIMI~E.WJ>ll n:\KirkmwnUl'LJAII'ILE!.~LINDSEY ~dv. I~ cause, unless it be shown outside the jury that such witness was within the control ofMovants and was not equally available to all parties. Granted: Overruled: ----- 11. Making any reference to the Court's rulings on any of the pre-trial motions or matters previously or subsequently filed herein, or oral motions made in open court. Granted: Overruled: ----- 12. Mentioning or stating to the jury the personal beliefs of counsel or any party (as opposed to stating what the facts will show or arguing the facts in evidence) concerning the justice of the Plaintiffs' case and/or the right to recover damages in this case. Granted: Overruled: ----- 13. Referring to the existence of or offering and/or introducing at trial any documents not timely furnished to Movants in response to their requests for production or requests for disclosure. Granted: Overruled: - - - - - 14. Making any reference to any facts or theories of liability or theories of recovery or damages not included in the active pleadings or on which MOTION IN LIMINE Page 7 summary judgment has been granted as such facts or theories of liability or recovery will constitute surprise and be highly prejudicial and bring up matters as to which Movants are not prepared to go to trial. Granted: Overruled: - - - - - 15. Making any reference to or offer or tender evidence to make any argument or suggestion that Movants have in any way delayed the trial in this case. Granted: Overruled: - - - - - 16. Stating or implying that Movants are wealthy or any of the other parties are poor in comparison to other parties. Carter v. Exxon Corp., 842 S.W.2d 393 (Tex. App.- Eastland 1992, writ denied); First Nat'! Bank of Marshall v. Beavers, 619 S.W.2d 288 (Tex. App.- Texarkana 1981, writ ref'd n.r.e.). Granted: Overruled: ----- 17. Introducing any evidence or calling any witness not properly designated in response to a discovery request propounded by any other party in the case. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 395 (Tex. 1989). Granted: - - - - - Overruled: - - - - - - MOTION IN LIMINE "~'·· Kl~SEL\I'LJo:ADII'iGSI:\IOTIOI'i 1~· (;;\K•rkm•nUL'I.JAIFILESIU!\"DsrY J.l:\JINE.WJ><.l Page 8 18. Making any reference to any opinions or conclusions expressed by a person who has not been qualified as an expert witness with the proper expertise and qualifications to express the opinions or conclusions in question and who has not been designated as a testifying expert in a timely manner and in timely response to the parties' interrogatories and/or requests for disclosure. Granted: Overruled: ----- 19. Introducing the statement of Mayra Castillo dated May 19, 2010, which was produced by Plaintiffs on December 14,2011. Tex. R. Civ. P. 193.5; 193.6; Alvadado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992). Granted: Overruled: - - - - - 20. Introducing the audio recording of an alleged phone message lett by Lesey Kinsel at some unknown time and date on the answering machine of Plaintiff J. Frank Kinsel, Jr., which was produced by Plaintiffs on December 14, 2011. Tex. R. Civ. P. 193.5; 193.6; Alvadado v. Farah Mfg. Co., 830 S.W.2d 911,914 (Tex. 1992). Granted: ----- Overruled: - - - - - - 21. Introducing the audio recording of an alleged phone message left by Phyllis in Dr. Cole's office on the answering machine of J. Frank Kinsel, Jr. MOTION IN LIMINE K~>·. KI:>ISEI-Il'LEAI.lli\'GS\:\IOTION It\ U"IINE.wi>o.l t;:\Ntkn .. u'-.ll'LIAWILJ,:S\LI~US£Y a~\'. KI.~SI!:L\PL£AUJM;S\MOTIOI'i Respectfully submitted, BOURLAND & KIRKMAN, L.L.P. By: w~,··· State Bar No. 11518700 Susanna Johnson State Bar No. 22136550 201 Main Street, Suite 1400 Fort Worth, Texas 76102 Telephone: (817) 336-2800 Facsimile: (817) 877-1863 ATTORNEYS FOR DEFENDANTS JANE 0. LINDSEY, INDIVIDUALLY AND AS CO-TRUSTEE OF THE LESEY B. KINSEL TRUST, AND ROBERT N. OLIVER CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 22,2012, a true and correct copy of the foregoing was sent via e-mail (unless otherwise indicated) to: Messrs. J. Lyndell Kirkley, Kelly B. Gibbons, and B. Dan Berryman Kirkley & Berryman, L.L.P. 100 N. Forest Park Blvd., Suite 220 Fort Worth, Texas 76102 MOTION IN LIMINE Page II Ms. Alison H. Moore Thompson, Coe, Cousins & Irons, L.L.P. 700 North Pearl Street 1 25 h Floor- Plaza of the Americas Dallas, Texas 75201 Ms. Frances Garza 5435 FM 541 McCoy, Texas 78113 VIA FIRST-CLASS MAIL Ms. Ida Castillo 5437 FM 541 McCoy, Texas 78113 VIA FIRST-CLASS MAIL Mr. Lindy Jones Jones, Allen & Fuquay, L.L.P. 8828 Greenville A venue Dallas, Texas 76243-7143 VIA FIRST-CLASS MAIL Mr. Scott C. Kinsel Scott C. Kinsel, P.C. 8708 South Congress Suite B200 Austin, Texas 78745 VIA FIRST-CLASS MAIL MOTION IN LIMINE Page 12 Messrs. Marshall M. Searcy, Jr. and Frank P. Greenhaw IV Kelly Hart & Hallman LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 MOTION IN LIMINE Page 13 < ;:\Kicknll-(I ATTORNEYS AND COUNSELORS --:-~? 201MAIN STREET, SUITE 1400 ._.A•x-\ ~\--"" FORT WORTH, TEXAS 76102 ,..-, ,_, 817-336-2800 METRO 429-0747 -~-- FACSIMILE 817-877-1863 RICHARD L BOURLAND, PC. WILLIAML.KIRKMAN SUSANNA E. JOHNSON ELIZABETH K BOURLAND February 22, 2012 Ms. Sharon Byrd BY HAND Administrative Clerk 153rct District Court Seventh Floor- East Tim Curry Justice Center 401 West Belknap Street Fort Worth, Texas 76196 Dear Ms. Byrd: Re: Cause No. 153-232668-08 Virginia 0. Kinsel, et al. v. Jane 0. Lindsey, et aL Enclosed please find an original and one copy of Defendants Jane Lindsey and Robert Oliver's Supplemental Motion in Limine for filing in connection with the captioned matter. Please return a file-marked copy to our couner. Thank you for your courtesy and cooperation. William L. Kirkman ·~~. G'IKltkm•n\JliLIA\FILI':S\LINDSEY I