Preview
CAUSE NO. 2016
FIRST BANK IN THE DISTRICT COURT OF
HARRIS COUNTY, TEXAS
KOPPER FUNDING CORPORATION and
NICOLAS M. BAZAN, P.C. 165TH JUDICIAL DISTRICT
DEFENDANT OPPOSED MOTION FOR LEAV TO FILE
DEFENDANTS MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendants KOPPER FUNDING CORPORATION, NICOLAS M.
BAZAN, P.C. and NICOLAS M. BAZAN, individually by and through BRENDA W. BAZAN
in her capacity as Heir, Representative, Administrator or Executor of the Estate of Nicolas M. Bazan,
in the above entitled and numbered cause, and file this pposed Motion for Leave to File
Defendants Motion to Dismiss with Prejudice Plaintiff’s claims against the Estate of Nicolas M.
Bazan and respectfully state to the Court the following:
Defend ts have previously filed their Motion to Dismiss with Prejudice Plaintiff’s
claims against the Estate of Nicolas M. Bazan However, as the only controlling Docket Control
Order identified October 1, 2018 as the deadline by which the parties were to file d tive
moti absent this Court granting Defendants leave to file their Motion to Dismiss, Defendants
be procedurally barred from having their Motion considered by this Court. Accordingly,
Defendants are filing this Motion so as to have their Motion to Dismiss properly before this Court
for co ideration in the interest
FACTUAL BACKGROUND
Nicolas M. Bazan, previous attorney for Defendants, in addition to being a named
individual Defendant, died on May 11, 2019. On May 14, 2019, the undersigned filed a Suggestion
of Death with this Court. At this time, while a probate proceeding has been opened, there has been
no administrator or executor of his estate appointed by court order. On February 19, 2020, 270
days after the Suggestion of Death was filed, Plaintiff filed its Application for Scire Facias
Substitution, seeking to have Mr. Bazan’s widow, Mrs. Brenda Bazan, served to come forward
and defend this lawsuit as heir to Mr. Bazan.
BASIS FOR MOTION
3. As this Court is well aware, Mr. Bazan had been terminally ill for some time which
illness necessitated the filing and granting of several continuances. This terminal illness eventually
led to Mr. Bazan’s passing in May of last year. However, before such time, the parties filed an
Agreed Amended Docket Control Order on April 28, 2019, which was not signed by this Court.
Consequently, the October 1, 2018 as the deadline for the parties to have heard any dispositive
motions remained in place. What was also in place to this day was the May 7, 2018 deadline for
joining parties. Consequently, when Plaintiff finally got around to filing its Application for Scire
Facias in February of this year, it too was well outside the deadline for adding Mr. Bazan’s widow
as a substitute party.
4. A scheduling order as envisioned by the Texas Rules of Civil Procedure is to
establish discovery control plans. See TEX.R. CIV. P. 166a(c), 190.4. A trial court's enforcement
of a scheduling order is reviewed for an abuse of discretion. Gunn v. Fuqua, 397 S.W.3d 358, 377
(Tex.App.-Dallas 2013, pet. denied). A trial court therefore abuses its discretion when it renders
an arbitrary and unreasonable decision lacking support in the facts or circumstances of the case.
Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). Similarly, a trial court abuses its discretion
when it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles.
Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996) (citing Downer v.
2
Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985)). A court has the discretion to on
the motion of a party showing good cause, extend the time limits for filing or serving motions,
responses, or reports. Union Carbide Corp. v. Synatzske, 386 S.W.3d 278, 291 (Tex.App.-
Houston [1st Dist.] 2012), reversed on other grounds, 438 S.W.3d 39 (Tex. 2014). Additionally,
Rule 5 provides, in relevant part, as follows:
When by these rules or by a notice given thereunder or by order of the court an act
is required or allowed to be done at or within a specified time, the court for cause
shown may, at any time in its discretion ... (b) upon motion permit the act to be
done after the expiration of the specified period where good cause is shown for the
failure to act.
TEX.R. CIV. P. 5 (emphasis added). If a party files a pleading late, Rule 5(b) authorizes the trial
court upon motion to permit the late filing, if the movant shows good cause for the failure to act.
Woods v. Woods, 193 S.W.3d 720, 722 (Tex. App.—Beaumont 2006, pet. denied); see also
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685–88 (Tex. 2002) (relied upon
by Woods; discussing rule 5 and what constitutes good cause in context of motion for leave to file
untimely response, after party had filed motion for leave to file untimely response with proposed
response attached).
5. At the time this Court issued its April 2018 Docket Control Order, no one could
have rightly predicted that Mr. Bazan’s condition would worsen to the point it did, ultimately
causing his death. This Court had also considered Plaintiff’s Motion for Summary Judgment past
the October 1, 2018 deadline because of the facts and circumstances that existed at that time. In
this matter, while gravely ill, no one could know if and when Mr. Bazan would pass away.
Consequently, the need for Plaintiff to file its Application for Scire Facias and to name his widow
3
would not arise until such time that he passed away. Conversely, the need for Defendants to contest
the timing of Plaintiff filing its Application would also not arise until such time that Mr. Bazan
would die and the basis for the Application to exist.
6. Given the unique set of facts that exist in the instant situation, just as when
Plaintiff’s Motion for Summary Judgment was allowed to be considered past the very same
dispositive motion deadline based on its set of fact, good cause exists for this Court to allow
Defendants leave to file their Motion to Dismiss so that the issue of Plaintiff’s timeliness in filing
its Application for Scire Facias can be considered.
WHEREFORE, PREMISES CONSIDERED, Defendants KOPPER FUNDING
CORPORATION, NICOLAS M. BAZAN, P.C. and NICOLAS M. BAZAN, individually by
and through BRENDA W. BAZAN in her capacity as Heir, Representative, Administrator or
Executor of the Estate of Nicolas M. Bazan pray that this Court grant their Motion for Leave to File
Defendants’ Motion to Dismiss with Prejudice Plaintiff’s claims against the Estate of Nicolas M.
Bazan and to further grant them whatever relief, both at law and in equity, to which they may be justly
entitled.
Respectfully submitted,
LAW OFFICES OF KEVIN R. MICHAELS,
P.C.
By: /s/ Kevin R. Michaels
Kevin R. Michaels
State Bar No.: 00784598
16000 Barkers Point Lane, Suite 208
Houston, Texas 77079
Telephone: 281-496-9889
Facsimile: 281-496-4211
kmichaels@michaelslaw.net
ATTORNEY FOR DEFENDANTS/COUNTER-
PLAINTIFFS
4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
upon all counsel of record by facsimile/email/electronic filing on the 7th day of April 2020.
/s/ Kevin R. Michaels
Kevin R. Michaels
CERTIFICATE OF CONFERENCE
I hereby certify that I have discussed this Motion with Plaintiff’s counsel who has indicated
that she is opposed to it.
/s/ Kevin R. Michaels
Kevin R. Michaels
5
Preview
CAUSE NO. 2016 FIRST BANK IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS KOPPER FUNDING CORPORATION and NICOLAS M. BAZAN, P.C. 165TH JUDICIAL DISTRICT DEFENDANT OPPOSED MOTION FOR LEAV TO FILE DEFENDANTS MOTION TO DISMISS TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Defendants KOPPER FUNDING CORPORATION, NICOLAS M. BAZAN, P.C. and NICOLAS M. BAZAN, individually by and through BRENDA W. BAZAN in her capacity as Heir, Representative, Administrator or Executor of the Estate of Nicolas M. Bazan, in the above entitled and numbered cause, and file this pposed Motion for Leave to File Defendants Motion to Dismiss with Prejudice Plaintiff’s claims against the Estate of Nicolas M. Bazan and respectfully state to the Court the following: Defend ts have previously filed their Motion to Dismiss with Prejudice Plaintiff’s claims against the Estate of Nicolas M. Bazan However, as the only controlling Docket Control Order identified October 1, 2018 as the deadline by which the parties were to file d tive moti absent this Court granting Defendants leave to file their Motion to Dismiss, Defendants be procedurally barred from having their Motion considered by this Court. Accordingly, Defendants are filing this Motion so as to have their Motion to Dismiss properly before this Court for co ideration in the interest FACTUAL BACKGROUND Nicolas M. Bazan, previous attorney for Defendants, in addition to being a named individual Defendant, died on May 11, 2019. On May 14, 2019, the undersigned filed a Suggestion of Death with this Court. At this time, while a probate proceeding has been opened, there has been no administrator or executor of his estate appointed by court order. On February 19, 2020, 270 days after the Suggestion of Death was filed, Plaintiff filed its Application for Scire Facias Substitution, seeking to have Mr. Bazan’s widow, Mrs. Brenda Bazan, served to come forward and defend this lawsuit as heir to Mr. Bazan. BASIS FOR MOTION 3. As this Court is well aware, Mr. Bazan had been terminally ill for some time which illness necessitated the filing and granting of several continuances. This terminal illness eventually led to Mr. Bazan’s passing in May of last year. However, before such time, the parties filed an Agreed Amended Docket Control Order on April 28, 2019, which was not signed by this Court. Consequently, the October 1, 2018 as the deadline for the parties to have heard any dispositive motions remained in place. What was also in place to this day was the May 7, 2018 deadline for joining parties. Consequently, when Plaintiff finally got around to filing its Application for Scire Facias in February of this year, it too was well outside the deadline for adding Mr. Bazan’s widow as a substitute party. 4. A scheduling order as envisioned by the Texas Rules of Civil Procedure is to establish discovery control plans. See TEX.R. CIV. P. 166a(c), 190.4. A trial court's enforcement of a scheduling order is reviewed for an abuse of discretion. Gunn v. Fuqua, 397 S.W.3d 358, 377 (Tex.App.-Dallas 2013, pet. denied). A trial court therefore abuses its discretion when it renders an arbitrary and unreasonable decision lacking support in the facts or circumstances of the case. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). Similarly, a trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996) (citing Downer v. 2 Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985)). A court has the discretion to on the motion of a party showing good cause, extend the time limits for filing or serving motions, responses, or reports. Union Carbide Corp. v. Synatzske, 386 S.W.3d 278, 291 (Tex.App.- Houston [1st Dist.] 2012), reversed on other grounds, 438 S.W.3d 39 (Tex. 2014). Additionally, Rule 5 provides, in relevant part, as follows: When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion ... (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act. TEX.R. CIV. P. 5 (emphasis added). If a party files a pleading late, Rule 5(b) authorizes the trial court upon motion to permit the late filing, if the movant shows good cause for the failure to act. Woods v. Woods, 193 S.W.3d 720, 722 (Tex. App.—Beaumont 2006, pet. denied); see also Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685–88 (Tex. 2002) (relied upon by Woods; discussing rule 5 and what constitutes good cause in context of motion for leave to file untimely response, after party had filed motion for leave to file untimely response with proposed response attached). 5. At the time this Court issued its April 2018 Docket Control Order, no one could have rightly predicted that Mr. Bazan’s condition would worsen to the point it did, ultimately causing his death. This Court had also considered Plaintiff’s Motion for Summary Judgment past the October 1, 2018 deadline because of the facts and circumstances that existed at that time. In this matter, while gravely ill, no one could know if and when Mr. Bazan would pass away. Consequently, the need for Plaintiff to file its Application for Scire Facias and to name his widow 3 would not arise until such time that he passed away. Conversely, the need for Defendants to contest the timing of Plaintiff filing its Application would also not arise until such time that Mr. Bazan would die and the basis for the Application to exist. 6. Given the unique set of facts that exist in the instant situation, just as when Plaintiff’s Motion for Summary Judgment was allowed to be considered past the very same dispositive motion deadline based on its set of fact, good cause exists for this Court to allow Defendants leave to file their Motion to Dismiss so that the issue of Plaintiff’s timeliness in filing its Application for Scire Facias can be considered. WHEREFORE, PREMISES CONSIDERED, Defendants KOPPER FUNDING CORPORATION, NICOLAS M. BAZAN, P.C. and NICOLAS M. BAZAN, individually by and through BRENDA W. BAZAN in her capacity as Heir, Representative, Administrator or Executor of the Estate of Nicolas M. Bazan pray that this Court grant their Motion for Leave to File Defendants’ Motion to Dismiss with Prejudice Plaintiff’s claims against the Estate of Nicolas M. Bazan and to further grant them whatever relief, both at law and in equity, to which they may be justly entitled. Respectfully submitted, LAW OFFICES OF KEVIN R. MICHAELS, P.C. By: /s/ Kevin R. Michaels Kevin R. Michaels State Bar No.: 00784598 16000 Barkers Point Lane, Suite 208 Houston, Texas 77079 Telephone: 281-496-9889 Facsimile: 281-496-4211 kmichaels@michaelslaw.net ATTORNEY FOR DEFENDANTS/COUNTER- PLAINTIFFS 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served upon all counsel of record by facsimile/email/electronic filing on the 7th day of April 2020. /s/ Kevin R. Michaels Kevin R. Michaels CERTIFICATE OF CONFERENCE I hereby certify that I have discussed this Motion with Plaintiff’s counsel who has indicated that she is opposed to it. /s/ Kevin R. Michaels Kevin R. Michaels 5