Preview
Electronically Filed
10/25/2017
10/25/2017 4:42 PM
Hidalgo County District Clerks
Reviewed By:
By: Jesse Castillo
CAUSE NO. T-1007—15-F
HIDALGO COUNTY, SANTA CRUZ § IN THE DISTRICT COURT
IRRIGATION DISTRICT #15, §
HIDALGO COUNTY DRAINAGE §
DISTRICT #01, HIDALGO COUNTY §
EMERGENCY SERVICES DISTRICT §
#03, AND SOUTH TEXAS COLLEGE, §
ET AL §
§
VS. § 332ND JUDICIAL DISTRICT
§
BLUE CACTUS PROPERTIES, LLC § HIDALGO COUNTY, TEXAS
PLAINTIFFS’ OBJECTION AND RESPONSE TO DEFENDANT BLUE CACTUS
PROPERTIES, LLC’S MOTION FOR NEW TRIAL AND MOTION FOR CONTEMPT
NOW COME, HIDALGO COUNTY, SANTA CRUZ IRRIGATION DISTRICT #15,
HIDALGO COUNTY DRAINAGE DISTRICT #01, HIDALGO COUNTY EMERGENCY
SERVICES DISTRICT #03, SOUTH TEXAS COLLEGE, AND SOUTH TEXAS
INDEPENDENT SCHOOL DISTRICT, Plaintiffs, in the above styled and numbered cause, and
ask the Court to deny Defendant Blue Cactus Properties, LLC’s motion for sanctions for failure to
serve, made under Texas Rule of Civil Procedure 21b.
BACKGROUND
1. On or about October 27, 2016, Defendant filed its Original Answer, in which Defendant
certifies: “this document was electronically filed, the email address of the party or attomey to be
served is on file with the electronic filing manager, and pursuant to Rule 21a(a)(1) of the Texas
Rules of Civil Procedure service of a copy thereof must be served through that electronic filing
manager.” See Defendant’s Original Answer, filed October 27, 2016.
2. Although the Certificate of Service in Defendant’s Original Answer does not specify the
email address of the party or attorney served with the Original Answer, the envelope details
retrieved from the Hidalgo County District Clerk’s office Show that Defendant attempted to serve
PLAINTIFFS’ OBJECTION AND RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL AND MOTION FOR SANCTIONS PAGE -1
Electronically Filed
10/25/2017
10/25/2017 4:42 PM
Hidalgo County District Clerks
Reviewed By:
By: Jesse Castillo
Plaintiffs Via email at shann0n.01‘tiz@lgbs.com. See Exhibit “A.” The email transmitting
Defendant’s Original Answer has not been opened by shannon.0rtiz@lgbs.com or any
representative of Plaintiffs. See Exhibit “A.”
3. On or about June 7, 2016, Plaintiffs filed a Motion for Pamial Nonsuit as to Carlos Rene
Pacheco and Robert Alexander Pacheco and a Motion to Change the Style of the Suit to include
Defendant as the sole remaining party to the suit.
4. On September 8, 2016, Plaintiffs filed Plaintiffs’ Second Amended Petition, including
Defendant as the sole remaining Defendant to the suit.
5. On or about July 28, 2017, Defendant was served with notice of the September 22, 2017
final hearing. See Exhibit “B” and “C.”
6. On or about September 25, 2017, this Court entered a default judgment against Defendant,
without mention of Defendant’s previously filed Original Answer.
7. On or about September 25, 2017, Defendant filed its Motion for New Trial and Motion for
Contempt, which was sewed via email to edinburglitigationcom and shannon.ortiz@lgbs.com. See
Exhibit “D.”
8. With every filing on file with the court on behalf of Plaintiffs in this case, Plaintiffs clearly
indicate in the attorney signature block and the certificate of service signature block that the attorney
email for sewice is edinburg.litigati0n@lgbs.com. See Court’s file and Exhibit “E” and “F.”
9. Although the default judgment failed to include the attorney for Defendant in the judgment
and attorney for Defendant did not receive notice of the hearing, Plaintiffs” failure for same was not
intentional. See Exhibit “E” and “F.”
ARGUMENT & AUTHORITIES
10. The purpose of sanctions is to secure compliance with the rules and to deter filture violations
of the rules. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). If a party can
demonstrate good cause for its failure to comply with discovery mles, a coun should not impose
sanctions. See Tex. R. Civ. P. 193.6(a). That same reasoning should apply to imposing sanctions
PLAINTIFFS’ OBJECTION AND RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL AND MOTION FOR SANCTIONS PAGE - 2
Electronically Filed
10/25/2017
10/25/2017 4:42 PM
Hidalgo County District Clerks
Reviewed By:
By: Jesse Castillo
under Rule 21b. There must be a direct relationship between the alleged offensive conduct and the
sanctions, and the sanctions must not be excessive. See Nath v. Tex. Children ’5 Hosp, 446 S.W.3d
355, 363 (Tex. 214); Am. FloodResearch, Inc. v.Jones, 192 S.W.3d 581, 583 (Tex. 2006).
11. Regarding Defendant’s argument it had “no notice of the case having been called or to be
called” and “proof of an answer,” Plaintiffs would show that Defendant did not properly serve
Plaintiffs with Defendant’s Original Answer. A certificate by a party or an attorney of record is
prima facie evidence of the fact of service. Miller v. Prosperity Bank, NA, 239 S.W.3d 440, 442
(Tex.App.-Dallas 2007, no pet). As noted by the supreme court, “notice properly sent pursuant
to Rule 21a raises a presumption that notice was received.” Mathis v. Lockwood, 166 S.W.3d
743, 745 (Tex. 2005). However, the opposing party may rebut this presumption by offering proof
that the notice or document was not received. Cliff v. Huggins, 724 S.W.2d 780. The
presumption may be rebutted by an offer of proof of nonreceipt. Id.
12. In this case, the certificate of service in Defendant’s Original Answer does not specify the
email address of the party or attorney served with the Original Answer. The envelope details
retrieved from the Hidalgo County District Clerk’s office show that Defendant attempted to serve
Plaintiffs Via email at shannon.ot’tiz@lgbs.com. See Exhibit “A.” Further, the envelope details
retrieved show that as of the date of the filing of Plaintiffs’ Objection and Response to Defendant’s
Motion for New Trial and Motion for Contempt, the email transmitting Defendant’s Original
Answer has not been opened by shannon.0rtiz@lgbs.com or any representative of Plaintiffs. See
Exhibit “A.”
13. Upon review of the envelope details on this case, it is clear that Defendant’s Original
Answer was not received by Plaintiffs. Prior to judgment in this case, defense counsel did not file
any other legal documents other than Defendant's Original Answer. Therefore, Plaintiffs did not
have notice that Defendant’s counsel answered or otherwise appeared, and entitled to notice of
proceedings within the case.
PLAINTIFFS‘ OBJECTION AND RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL AND MOTION FOR SANCTIONS PAGE - 3
Electronically Filed
10/25/2017
10/25/2017 4:42 PM
Hidalgo County District Clerks
Reviewed By:
By: Jesse Castillo
Regarding Defendant’s claim that Plaintiffs’ judicially admitted non-ownership 0n the part
of Defendant, it is quite clear that no such admission occurred. On the same date that Plaintiffs filed
their Motion to Change Style of Suit, Plaintiffs also filed a Motion for Partial Nonsuit as to Carlos
Rene Pacheco and Robert Alexander Pacheco and a First Amended Petition naming Defendant as
the sole remaining defendant in the suit.
The Court should deny the motion for sanctions because the sanctions Defendant requested
are unjust. Specifically, they are excessive, in that they are more severe than necessary to promote
full compliance with Texas Rule of Civil Procedure 21b.
CONCLUSION
For these reasons, Plaintiffs ask the Court, afier hearing, to deny Defendant’s motion for
sanctions.
Respectfully submitted,
LINEBARGER GOGGAN BLAIR &
SAMPSON, LLP
205 SOUTH PIN OAK AVENUE
EDINBURG, TEXAS 78539
(956) 383—4500
(956) 383-7820
Lucy G. Canales
State Bar No. 08123075
Michael G. Cano
State Bar No. 24047724
Kelly Rivera Salazar
State Bar No. 24041785
Attorney for Plaintiffs
PLAINTIFFS' OBJECTION AND RESPONSE TO DEFENDANT‘S MOTION FOR NE“ TRIAL AND AVIOTION FOR SAXCTIONS PAGE <4
Electronically Filed
10/25/2017
10/25/2017 4:42 PM
Hidalgo County District Clerks
Reviewed By:
By: Jesse Castillo
CERTIFICATE OF CONFERENCE
I,certify that on October 16, 2017, I contacted and conferred with attorney for Defendant
'
in an attempt to resolve the dispute without the necessity of court ention, and the effort
failed.
Kelly RWaZF
CERTIFICATE OF SERVICE
I, certify that on thiszcday of October, 2017 a true and correct copy of Plaintiffs’
Objection and Response to Defendant’s Motion for New Trial and Motion for Sanctions has been
served to the following parties in accordance with the Texas Rules of Civil Procedure:
Charles W. Hury Via Email: I1urvlaw@bizrgv.rr.c0m
PO. Box 5906
McAllen, Texas 78502-5906
H
PLAINTIFFs’ OBJECTION AND RESPONSE To DEFENDANT’S MOTION FOR NEW TRIAL AND MOTION FOR SANCTIONS PAGE - 5
Preview
Electronically Filed 10/25/2017 10/25/2017 4:42 PM Hidalgo County District Clerks Reviewed By: By: Jesse Castillo CAUSE NO. T-1007—15-F HIDALGO COUNTY, SANTA CRUZ § IN THE DISTRICT COURT IRRIGATION DISTRICT #15, § HIDALGO COUNTY DRAINAGE § DISTRICT #01, HIDALGO COUNTY § EMERGENCY SERVICES DISTRICT § #03, AND SOUTH TEXAS COLLEGE, § ET AL § § VS. § 332ND JUDICIAL DISTRICT § BLUE CACTUS PROPERTIES, LLC § HIDALGO COUNTY, TEXAS PLAINTIFFS’ OBJECTION AND RESPONSE TO DEFENDANT BLUE CACTUS PROPERTIES, LLC’S MOTION FOR NEW TRIAL AND MOTION FOR CONTEMPT NOW COME, HIDALGO COUNTY, SANTA CRUZ IRRIGATION DISTRICT #15, HIDALGO COUNTY DRAINAGE DISTRICT #01, HIDALGO COUNTY EMERGENCY SERVICES DISTRICT #03, SOUTH TEXAS COLLEGE, AND SOUTH TEXAS INDEPENDENT SCHOOL DISTRICT, Plaintiffs, in the above styled and numbered cause, and ask the Court to deny Defendant Blue Cactus Properties, LLC’s motion for sanctions for failure to serve, made under Texas Rule of Civil Procedure 21b. BACKGROUND 1. On or about October 27, 2016, Defendant filed its Original Answer, in which Defendant certifies: “this document was electronically filed, the email address of the party or attomey to be served is on file with the electronic filing manager, and pursuant to Rule 21a(a)(1) of the Texas Rules of Civil Procedure service of a copy thereof must be served through that electronic filing manager.” See Defendant’s Original Answer, filed October 27, 2016. 2. Although the Certificate of Service in Defendant’s Original Answer does not specify the email address of the party or attorney served with the Original Answer, the envelope details retrieved from the Hidalgo County District Clerk’s office Show that Defendant attempted to serve PLAINTIFFS’ OBJECTION AND RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL AND MOTION FOR SANCTIONS PAGE -1 Electronically Filed 10/25/2017 10/25/2017 4:42 PM Hidalgo County District Clerks Reviewed By: By: Jesse Castillo Plaintiffs Via email at shann0n.01‘tiz@lgbs.com. See Exhibit “A.” The email transmitting Defendant’s Original Answer has not been opened by shannon.0rtiz@lgbs.com or any representative of Plaintiffs. See Exhibit “A.” 3. On or about June 7, 2016, Plaintiffs filed a Motion for Pamial Nonsuit as to Carlos Rene Pacheco and Robert Alexander Pacheco and a Motion to Change the Style of the Suit to include Defendant as the sole remaining party to the suit. 4. On September 8, 2016, Plaintiffs filed Plaintiffs’ Second Amended Petition, including Defendant as the sole remaining Defendant to the suit. 5. On or about July 28, 2017, Defendant was served with notice of the September 22, 2017 final hearing. See Exhibit “B” and “C.” 6. On or about September 25, 2017, this Court entered a default judgment against Defendant, without mention of Defendant’s previously filed Original Answer. 7. On or about September 25, 2017, Defendant filed its Motion for New Trial and Motion for Contempt, which was sewed via email to edinburglitigationcom and shannon.ortiz@lgbs.com. See Exhibit “D.” 8. With every filing on file with the court on behalf of Plaintiffs in this case, Plaintiffs clearly indicate in the attorney signature block and the certificate of service signature block that the attorney email for sewice is edinburg.litigati0n@lgbs.com. See Court’s file and Exhibit “E” and “F.” 9. Although the default judgment failed to include the attorney for Defendant in the judgment and attorney for Defendant did not receive notice of the hearing, Plaintiffs” failure for same was not intentional. See Exhibit “E” and “F.” ARGUMENT & AUTHORITIES 10. The purpose of sanctions is to secure compliance with the rules and to deter filture violations of the rules. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). If a party can demonstrate good cause for its failure to comply with discovery mles, a coun should not impose sanctions. See Tex. R. Civ. P. 193.6(a). That same reasoning should apply to imposing sanctions PLAINTIFFS’ OBJECTION AND RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL AND MOTION FOR SANCTIONS PAGE - 2 Electronically Filed 10/25/2017 10/25/2017 4:42 PM Hidalgo County District Clerks Reviewed By: By: Jesse Castillo under Rule 21b. There must be a direct relationship between the alleged offensive conduct and the sanctions, and the sanctions must not be excessive. See Nath v. Tex. Children ’5 Hosp, 446 S.W.3d 355, 363 (Tex. 214); Am. FloodResearch, Inc. v.Jones, 192 S.W.3d 581, 583 (Tex. 2006). 11. Regarding Defendant’s argument it had “no notice of the case having been called or to be called” and “proof of an answer,” Plaintiffs would show that Defendant did not properly serve Plaintiffs with Defendant’s Original Answer. A certificate by a party or an attorney of record is prima facie evidence of the fact of service. Miller v. Prosperity Bank, NA, 239 S.W.3d 440, 442 (Tex.App.-Dallas 2007, no pet). As noted by the supreme court, “notice properly sent pursuant to Rule 21a raises a presumption that notice was received.” Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005). However, the opposing party may rebut this presumption by offering proof that the notice or document was not received. Cliff v. Huggins, 724 S.W.2d 780. The presumption may be rebutted by an offer of proof of nonreceipt. Id. 12. In this case, the certificate of service in Defendant’s Original Answer does not specify the email address of the party or attorney served with the Original Answer. The envelope details retrieved from the Hidalgo County District Clerk’s office show that Defendant attempted to serve Plaintiffs Via email at shannon.ot’tiz@lgbs.com. See Exhibit “A.” Further, the envelope details retrieved show that as of the date of the filing of Plaintiffs’ Objection and Response to Defendant’s Motion for New Trial and Motion for Contempt, the email transmitting Defendant’s Original Answer has not been opened by shannon.0rtiz@lgbs.com or any representative of Plaintiffs. See Exhibit “A.” 13. Upon review of the envelope details on this case, it is clear that Defendant’s Original Answer was not received by Plaintiffs. Prior to judgment in this case, defense counsel did not file any other legal documents other than Defendant's Original Answer. Therefore, Plaintiffs did not have notice that Defendant’s counsel answered or otherwise appeared, and entitled to notice of proceedings within the case. PLAINTIFFS‘ OBJECTION AND RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL AND MOTION FOR SANCTIONS PAGE - 3 Electronically Filed 10/25/2017 10/25/2017 4:42 PM Hidalgo County District Clerks Reviewed By: By: Jesse Castillo Regarding Defendant’s claim that Plaintiffs’ judicially admitted non-ownership 0n the part of Defendant, it is quite clear that no such admission occurred. On the same date that Plaintiffs filed their Motion to Change Style of Suit, Plaintiffs also filed a Motion for Partial Nonsuit as to Carlos Rene Pacheco and Robert Alexander Pacheco and a First Amended Petition naming Defendant as the sole remaining defendant in the suit. The Court should deny the motion for sanctions because the sanctions Defendant requested are unjust. Specifically, they are excessive, in that they are more severe than necessary to promote full compliance with Texas Rule of Civil Procedure 21b. CONCLUSION For these reasons, Plaintiffs ask the Court, afier hearing, to deny Defendant’s motion for sanctions. Respectfully submitted, LINEBARGER GOGGAN BLAIR & SAMPSON, LLP 205 SOUTH PIN OAK AVENUE EDINBURG, TEXAS 78539 (956) 383—4500 (956) 383-7820 Lucy G. Canales State Bar No. 08123075 Michael G. Cano State Bar No. 24047724 Kelly Rivera Salazar State Bar No. 24041785 Attorney for Plaintiffs PLAINTIFFS' OBJECTION AND RESPONSE TO DEFENDANT‘S MOTION FOR NE“ TRIAL AND AVIOTION FOR SAXCTIONS PAGE <4 Electronically Filed 10/25/2017 10/25/2017 4:42 PM Hidalgo County District Clerks Reviewed By: By: Jesse Castillo CERTIFICATE OF CONFERENCE I,certify that on October 16, 2017, I contacted and conferred with attorney for Defendant ' in an attempt to resolve the dispute without the necessity of court ention, and the effort failed. Kelly RWaZF CERTIFICATE OF SERVICE I, certify that on thiszcday of October, 2017 a true and correct copy of Plaintiffs’ Objection and Response to Defendant’s Motion for New Trial and Motion for Sanctions has been served to the following parties in accordance with the Texas Rules of Civil Procedure: Charles W. Hury Via Email: I1urvlaw@bizrgv.rr.c0m PO. Box 5906 McAllen, Texas 78502-5906 H PLAINTIFFs’ OBJECTION AND RESPONSE To DEFENDANT’S MOTION FOR NEW TRIAL AND MOTION FOR SANCTIONS PAGE - 5