On November 16, 2005 a
Complaint,Petition
was filed
involving a dispute between
Clark, Carolyn,
Flitsch, James,
and
Clark, Diane M,
Clark, Kevin J,
Earl, Steven C.,
Graham, James E,
Guardino, Leonard,
Seigel, Lisa R,
Stilwell, Earl & Apostolakis, Llp,
Wilkinson, Kristen Diane,
Wilkinson, Kristin Diane Wilkinson-Guardino, Kristin,
for Other Civil Case >$100,000 but <$200,000
in the District Court of Montgomery County.
Preview
CAUSE NO. 19-06-07875
IN RE THE CAROLYN S. CLARK § IN THE DISTRICT COURT OF
§
IRREVOCABLE LIVING TRUST § MONTGOMERY COUNTY, TEXAS
U/T/A JULY 28, 2017 § 457th JUDICIAL DISTRICT
AMENDED MOTION FOR LEAVE TO CONSIDER NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT AND MOTION TO SEVER
COME NOW Nikki Davis and Courtney Lyssy, Interim Trustees of the Carolyn S. Clark
Irrevocable Living Trust U/T/A July 28, 2017 (the “Trustees”) and file this Amended Motion for
Leave to Consider No Evidence Motion for Summary Judgment and Motion to Sever (“Amended
Motion”), and respectfully show the Court the following:
Factual Background
This case began as a petition for declaratory judgment and claims brought under
the Texas Theft Liability Act and Texas common law against Kristin Wilkinson Guardino. Then,
on May 5, 2021, Ms. Wilkinson Guardino and Leonard Guardino (the “Guardinos”) filed claims
against the Trustees under Section 18 U.S.C § 1962, otherwise known as the RICO statute.
However, since that time, the Guardinos have not done any meaningful investigation into or
conducted any discovery to support their RICO claims against the Trustees.
As such, the Trustees filed a Motion for No Evidence Summary Judgment on the
Guardinos RICO claims on July 25, 2023.
On July 28, 2023, the undersigned counsel filed a Motion to Withdraw and
Substitute, which was granted on the same day.
In order to have the Trustees’ No Evidence Motion for Summary Judgment heard,
the Trustees present this Amended Motion to the Court seeking leave to hear their No-Evidence
Motion for Summary Judgment and to sever the Guardinos’ RICO claims against the Trustees into
a separate cause.
Motion to Sever
A trial court has broad discretion in deciding whether to grant a severance, and a
court of appeals will reverse a trial court’s determination regarding severance only if an abuse of
discretion is found. In re Koehn, 86 S.W.3d 363, 366 (Tex. App.Texarkana 2002, orig.
proceeding). claim is severable if all of the following conditions exist:
The controversy involves more than one cause of action;
The severed claim would be the proper subject of a lawsuit if it were asserted
independently; and
The claim to be severed is not so interwoven with the remaining claims that two
trials will involve the same facts and legal issues.
Guaranty Federal v. Horseshoe Operating, 793 S.W.2d 652, 658 (Tex. 1990).
The Guardinos’ RICO claims against the Trustees meet these standards and should
be severed from the trial proceeding before the Court on September 18, 2023.
Severance has been found proper in instances where the disposition of a claim
would not have any effect on another party’s rights or claims. Jack R. Allen & Co. v. Wyler Textiles,
Ltd., 371 S.W.2d 728 (Tex. Civ. App.Dallas 1963, no writ). Here, the disposition of the RICO
claims asserted against the Trustees by the Guardinos will have no effect on the other pending
claims before the Court, and are easily susceptible to a no evidence motion for summary judgment
or a directed verdict. As an initial matter, the claims themselves have no merit, and secondly, the
Guardinos have conducted no discovery on these claims to meet their burden to prove the Trustees
violated the RICO statute in any way.
The Guardinos’ RICO claims against the Trustees are the only pending claims
against the Trustees. There are no counterclaims asserted by the Trustees against the Guardinos.
The other pending claims in this matter would be the proper subject of a lawsuit if they were
serted independently. The Guardinos’ RICO claims against the Trustees are not so interwoven
with the other claims asserted by the Guardinos or the other parties in this matter that an
adjudication of the remaining claims will involve the same facts or legal issues.
Therefore, all of the conditions exist in this case for the Guardinos’ RICO claims
against the Trustees to be severed, and the Trustees’ No Evidence Motion for Summary Judgment
heard thereon, to result in a final judgment and fully and finally resolve all claims asserted by the
Guardinos against the Trustees.
Motion for Leave
Under Rule 5 of the Texas Rules of Civil Procedure, a court may, upon motion,
permit an act that is required to be done within a specified time to be done after the expiration of
the specified period where good cause is shown for the failure to act. See
Here, good cause exists because the No Evidence Motion for Summary Judgment
(“Motion”) was only recently filed and the undersigned counsel was substituted into this case on
July 28, 2023. Per the terms of the Court’s docket control order, August 4, 2023 was the last day
that the Motion could be set on the submission docket, which would not have afforded the
Guardinos the statutory twenty one days’ notice of the Motion under Texas law. See
. 166a.
Although setting the Motion for submission closer to the September 18, 2023 trial
date may give the Guardinos fewer than twenty one days’ notice of the hearing or submission date
pursuant to the Texas Rules of Civil Procedure, the Guardinos have failed to conduct discovery on
these claims for which they have the burden of proof. The RICO claims are the last remaining
claims against the Trustees. As such, if the Trustees prevail on their No Evidence Motion for
Summary Judgment, trial will be simplified as the Trustees will no longer be required to participate
and the Guardinos will have fewer claims to present or defend against at trial.
Thus, good cause exists to grant the Trustees’ Amended Motion to consider their
Evidence Motion for Summary Judgment.
Conclusion and Prayer
For all these reasons Interim Trustees Nikki Davis and Courtney Lyssy respectfully pray
that the Court grant their motion to sever the Guardinos’ RICO claims against them into a separate
cause, grant the Trustees’ Motion for Leave to consider their Evidence Motion for Summary
Judgment, and for such other and further relief to which they may show themselves justly entitled.
Respectfully submitted,
OYAR ILLER
By:_______________________________
CHRISTOPHER C. BURT
cburt@boyarmiller.com
State Bar No.
MOLLY HUST
mhust@boyarmiller.com
State Bar No. 24097767
2925 Richmond Ave., 14th Floor
Houston, Texas 770
1758 (Fax)
Attorneys for Nikki Davis and Courtney Lyssy,
nterim rustees of the Carolyn . Clark
rrevocable iving rust July 28, 2017
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was served in
accordance with the Texas Rules of Civil Procedure on the day of August 202, to all
attorneys of record.
CHRISTOPHER BURT
Preview
CAUSE NO. 19-06-07875 IN RE THE CAROLYN S. CLARK § IN THE DISTRICT COURT OF § IRREVOCABLE LIVING TRUST § MONTGOMERY COUNTY, TEXAS U/T/A JULY 28, 2017 § 457th JUDICIAL DISTRICT AMENDED MOTION FOR LEAVE TO CONSIDER NO EVIDENCE MOTION FOR SUMMARY JUDGMENT AND MOTION TO SEVER COME NOW Nikki Davis and Courtney Lyssy, Interim Trustees of the Carolyn S. Clark Irrevocable Living Trust U/T/A July 28, 2017 (the “Trustees”) and file this Amended Motion for Leave to Consider No Evidence Motion for Summary Judgment and Motion to Sever (“Amended Motion”), and respectfully show the Court the following: Factual Background This case began as a petition for declaratory judgment and claims brought under the Texas Theft Liability Act and Texas common law against Kristin Wilkinson Guardino. Then, on May 5, 2021, Ms. Wilkinson Guardino and Leonard Guardino (the “Guardinos”) filed claims against the Trustees under Section 18 U.S.C § 1962, otherwise known as the RICO statute. However, since that time, the Guardinos have not done any meaningful investigation into or conducted any discovery to support their RICO claims against the Trustees. As such, the Trustees filed a Motion for No Evidence Summary Judgment on the Guardinos RICO claims on July 25, 2023. On July 28, 2023, the undersigned counsel filed a Motion to Withdraw and Substitute, which was granted on the same day. In order to have the Trustees’ No Evidence Motion for Summary Judgment heard, the Trustees present this Amended Motion to the Court seeking leave to hear their No-Evidence Motion for Summary Judgment and to sever the Guardinos’ RICO claims against the Trustees into a separate cause. Motion to Sever A trial court has broad discretion in deciding whether to grant a severance, and a court of appeals will reverse a trial court’s determination regarding severance only if an abuse of discretion is found. In re Koehn, 86 S.W.3d 363, 366 (Tex. App.Texarkana 2002, orig. proceeding). claim is severable if all of the following conditions exist: The controversy involves more than one cause of action; The severed claim would be the proper subject of a lawsuit if it were asserted independently; and The claim to be severed is not so interwoven with the remaining claims that two trials will involve the same facts and legal issues. Guaranty Federal v. Horseshoe Operating, 793 S.W.2d 652, 658 (Tex. 1990). The Guardinos’ RICO claims against the Trustees meet these standards and should be severed from the trial proceeding before the Court on September 18, 2023. Severance has been found proper in instances where the disposition of a claim would not have any effect on another party’s rights or claims. Jack R. Allen & Co. v. Wyler Textiles, Ltd., 371 S.W.2d 728 (Tex. Civ. App.Dallas 1963, no writ). Here, the disposition of the RICO claims asserted against the Trustees by the Guardinos will have no effect on the other pending claims before the Court, and are easily susceptible to a no evidence motion for summary judgment or a directed verdict. As an initial matter, the claims themselves have no merit, and secondly, the Guardinos have conducted no discovery on these claims to meet their burden to prove the Trustees violated the RICO statute in any way. The Guardinos’ RICO claims against the Trustees are the only pending claims against the Trustees. There are no counterclaims asserted by the Trustees against the Guardinos. The other pending claims in this matter would be the proper subject of a lawsuit if they were serted independently. The Guardinos’ RICO claims against the Trustees are not so interwoven with the other claims asserted by the Guardinos or the other parties in this matter that an adjudication of the remaining claims will involve the same facts or legal issues. Therefore, all of the conditions exist in this case for the Guardinos’ RICO claims against the Trustees to be severed, and the Trustees’ No Evidence Motion for Summary Judgment heard thereon, to result in a final judgment and fully and finally resolve all claims asserted by the Guardinos against the Trustees. Motion for Leave Under Rule 5 of the Texas Rules of Civil Procedure, a court may, upon motion, permit an act that is required to be done within a specified time to be done after the expiration of the specified period where good cause is shown for the failure to act. See Here, good cause exists because the No Evidence Motion for Summary Judgment (“Motion”) was only recently filed and the undersigned counsel was substituted into this case on July 28, 2023. Per the terms of the Court’s docket control order, August 4, 2023 was the last day that the Motion could be set on the submission docket, which would not have afforded the Guardinos the statutory twenty one days’ notice of the Motion under Texas law. See . 166a. Although setting the Motion for submission closer to the September 18, 2023 trial date may give the Guardinos fewer than twenty one days’ notice of the hearing or submission date pursuant to the Texas Rules of Civil Procedure, the Guardinos have failed to conduct discovery on these claims for which they have the burden of proof. The RICO claims are the last remaining claims against the Trustees. As such, if the Trustees prevail on their No Evidence Motion for Summary Judgment, trial will be simplified as the Trustees will no longer be required to participate and the Guardinos will have fewer claims to present or defend against at trial. Thus, good cause exists to grant the Trustees’ Amended Motion to consider their Evidence Motion for Summary Judgment. Conclusion and Prayer For all these reasons Interim Trustees Nikki Davis and Courtney Lyssy respectfully pray that the Court grant their motion to sever the Guardinos’ RICO claims against them into a separate cause, grant the Trustees’ Motion for Leave to consider their Evidence Motion for Summary Judgment, and for such other and further relief to which they may show themselves justly entitled. Respectfully submitted, OYAR ILLER By:_______________________________ CHRISTOPHER C. BURT cburt@boyarmiller.com State Bar No. MOLLY HUST mhust@boyarmiller.com State Bar No. 24097767 2925 Richmond Ave., 14th Floor Houston, Texas 770 1758 (Fax) Attorneys for Nikki Davis and Courtney Lyssy, nterim rustees of the Carolyn . Clark rrevocable iving rust July 28, 2017 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served in accordance with the Texas Rules of Civil Procedure on the day of August 202, to all attorneys of record. CHRISTOPHER BURT