Preview
LATONYA JORDAN BERGERON, IND. IN THE DISTRICT COURT OF
and a/n/f of J. BERGERON, MINOR,
and CURTIS BERGERON,
Plaintiffs
BEND COUNTY, TEXAS
CORNERSTONE CHRISTIAN
ACADEMY, INC. WANDA AURINI,
Defendants 240th JUDICIAL DISTRICT
S RESPONSE TO DEFENDANT AURINI
MOTION FOR PARTIAL TRADITIONAL SUMMARY JUDGMENT
AND APPEAL AND REQUEST FOR DE NOVO HEARING
Plaintiff , LATONYA JORDAN BERGERON INDIVIDUALLY, NEXT
FRIEND MINOR, BERGERON, AND CURTIS BERGERON, ask the Court
to deny defendant Wanda Aurini’ otion for Partial Traditional Summary
INTRODUCTION
Plaintiff Latonya Jordan Bergeron Dr. Bergeron , and as next friend of
minor, J Bergeron J. Bergeron , and Curtis Bergeron Mr. Bergeron”) (cach, a “Plaintiff,”
and, together the “Plaintiffs , sued defendant FC Cornerstone Christian Academy, Inc.
Cornerstone”) and Wanda Aurini (“Aurini’) (each, a “Defendant,” and, together,
Defendants , for negligence, assault, infliction of bodily injury, offensive physical contact,
intentional infliction of emotional distress, respondeat superior, and injuries and damages
Defendant Aurini answered asserting a general denial and various affirmative defenses
including that minor Plaintiff J. Bergeron’s damages were proximately caused by his own acts
and/or omissions, that Plaintiffs are barred by the applicable statute of limitations, failure to
Page of
mitigate damages, that Plaintiffs’ damages were the sole proximate cause of individuals or
circumstances not under Defendant Aurini’s control.
II. BACKGROUND
1 On or about November 1, 2019, Plaintiff Latonya Bergeron, represented by counsel
Sebastian “Skip” Lanz, originally filed a “Petition for Depositions Before Suit Pursuant to Rule
202 to Vinvestigate (sic) Potential Claim or Suit.” The cause number for this “First Lawsuit”
was 19-DCV-268112. See, Exhibit A. Defendant Comerstone, represented by counsel Lawrence
B. Greer of Greer, Scott & Shropshire, L.L.P., timely filed its Original Answer (“Cornerstone’s
First Original Answer”), which First Original Answer did not provide the name of Defendant
Aurini. See, Exhibit B. Subsequently, on or about June 7, 2021, the 434" District Court of Fort
Bend County entered an Order of Dismissal for Want of Prosecution. See, Exhibit C.
2 During the time the First Lawsuit was pending, Mr. Lanz filed another cause of
action on behalf of Plaintiff Latonya Bergeron, on August 28, 2020 (the “Second Lawsuit”). See,
Exhibit D. The Second Lawsuit included the additional Plaintiffs, Latonya Bergeron a/n/f of J.
Bergeron, minor, and Curtis Bergeron, the minor’s father. It also included the named defendant
“Wanda,” whose last name was unknown to Plaintiffs at that time.
3 Defendant Comerstone timely filed its Original Answer on or about October 23,
2020 (“Cornerstone’s Second Original Answer”). See, Exhibit E. In its Second Original
Answer, Defendant Cornerstone did not provide the full name of Defendant Aurini, which
remained unknown to Plaintiffs. Four months after Mr. Lanz filed the Second Lawsuit, Plaintiffs
retained M. Kevin Powers, of Porter & Powers, with Ms. Nadia A. Barrow as junior counsel.
4 After the retention of Porter & Powers (herein, as later renamed, “the Porter
Firm”), counsel for Plaintiffs sent written discovery requests to Defendant Comerstone in April
Page 2 of 10
2021. Defendant Cornerstone provided responses to Plaintiffs’ written discovery requests,
wherein they provided Defendant Aurini’s employee file, including her full name and address.
These responses were due and provided by or before May 5, 2021.
5. During 2020 and 2021, counsel for Plaintiffs experienced in-office Covid cases, a
firm restructuring and move, and the resignation of Mr. Powers, who effectively withdrew as
counsel by order of the Court entered on December 6, 2021. See, Exhibit F.
6 During the time of the changes to the firm, after Mr. Powers resigned, Ms. Barrow
received instruction from senior counsel at the Porter Firm, Mr. Robert MacNaughton, to draft
and file Plaintiffs’ First Amended Petition and to request a citation in order to have Defendant
Aurini served. Plaintiffs’ First Amended Petition was filed on November 29, 2021. See, Exhibit
G. The citation to be served on Defendant
A urini was issued on or about December 7, 2021. See,
Exhibit H. Ms. Aurini was promptly served on December 9, 2021. See, Exhibit I.
7 One or about April 19, 2022, Ms. Barrow emailed counsel for both Defendants to
request their respective clients’ availability for depositions. See, ExhibitJ. She never received a
Tesponse.
8 On or about May 27, 2022, Ms. Barrow left the Porter Firm foran in-house position.
The Porter Firm chose not to keep the case and subsequently withdrew. See, Exhibit K. Ms.
Barrow informed Plaintiffs of the change and advised that they should seek other counsel. She
also agreed to try to assist them with their search. Ms. Barrow also informed opposing counsel
of her departure from the Porter Firm.
9 During the time between requesting deposition availability and the present time,
Ms. Barrow has continued to try to assist Plaintiffs in their search for alternative counsel.
Page 3 of 10
10. On or about December 22, 2022, about eight months after Ms. Barrow informed
them of her departure from the Porter Firm and requested their respective clients’ deposition
availability, counsel for Defendant Aurini, Mario Martinez of Martinez & McGuire, PLLC,
served Plaintiffs with written discovery requests. Ms. Barrow worked with Plaintiffs to properly
respond, and Plaintiffs spent the months between January and June 2023 working with their
former financial institution(s) to obtain documents for production.
11. On or about December 29, 2022, Defendant Cornerstone, whose law firm also
experienced its own changes due to the long-term effects of the Covid virus on lead counsel,
subsequently designated a new lead counsel, Mr. Christopher M. Ervin, of the same law firm.
See, Exhibit L.
12. On or about April 19, 2023, Mr. Martinez telephoned Ms. Barrow ostensibly to
discuss Plaintiffs’ responses to Defendant Aurini’s written discovery requests. Within a few
minutes of the beginning of the call, Mr. Martinez berated both Mr. Ervin and Ms. Barrow. Ms.
Barrow politely assured Mr. Martinez that she would work with Plaintiffs to file their responses
and Mr. Martinez abruptly ended the call. That same day, Mr. Martinez filed motions to compel
discovery from Plaintiffs and Defendant Comerstone (together, “Motions to Compel
Discovery”). See, Exhibit M. These Motions to Compel Discovery were noticed for in-person
hearing on May 22, 2023. Id.
13. On May 4, 2023, Mr. Martinez, on behalf of Defendant A urini, filed a Motion for
No-Evidence Summary Judgment (see, Exhibit N) and a Motion for Partial Traditional Summary
Judgment (see, Exhibit O) as to adult Plaintiffs (together, the “Motions for Summary
Judgment”). These Motions for Summary Judgment were both noticed for an in-person hearing
on June 26, 2023.
Page 4 of 10
14, On May 22, 2023, the parties’ respective counsels appeared before A ssociate Judge
Williams on the Motions to Compel Discovery. Mr. Martinez, despite requesting in his Motions
to Compel Discovery that Plaintiffs and Defendant Cornerstone be ordered to respond to
Defendant Aurini’s written discovery requests within one month, verbally requested that Judge
Williams set the response deadline for two weeks after that hearing date. As Defendant
Cornerstone’s counsel provided his client’s responses to Defendant Aurini’s requests that day,
Judge Williams granted the Motion to Compel as to Plaintiffs and ordered Plaintiffs to respond
to Defendant Aurini’s written discovery requests by June 21, 2023. See, Exhibit P.
15. The timing of the hearing on the Motions for Summary Judgment required
responses from Plaintiffs on June 20, 2023, the day before June 21, 2023, the date on which
Plaintiffs’ responses to written discovery were due, i.e., before Plaintiffs were required to fully
respond to Defendant Aurini’s written discovery requests. Further, Mr. Martinez never once
responded to Ms. Barrow’s request for his client’s availability for a deposition, nor did he ever
seek to depose any of the Plaintiffs. Accordingly, Ms. Barrow filed a motion for continuance as
to each of the Motions for Summary Judgment (together, the “Motions for Summary J udgment
Continuance”), on the basis that additional discovery was needed. See, Exhibit Q.
16. On or about June 26, 2023, the parties’ respective counsels appeared before Judge
Williams. The Court denied Plaintiffs’ Motions for Summary Judgment Continuance. See,
Exhibit R. The Court also denied Defendant Aurini’s Motions for Summary Judgment. See,
Exhibit S.
17. Mr. Martinez promptly filed “Defendant Wanda Aurini’s appeal and Request for
de novo Hearing” of the Motions for Summary Judgment. See, Exhibit T.
Page 5 of 10
Ill. SUMMARY-J UDGMENT EVIDENCE
18. To support the facts in this response, Plaintiffs include the summary-judgment
evidence attached to Exhibit 1 to this response and incorporates the evidence into this response
by reference.
EXHIBIT TITLE/DESCRIPTION
Petition for Deposition before Suit
Cornerstone’s First Original Answer
Order of Dismissal for Want of Prosecution
Plaintiffs’ Original Petition
Cornerstone’s Second Original Answer
Order Granting Powers’s Motion to Withdraw
Plaintiffs’ First Amended Petition
Citation on Wanda A urini
Return of Service of Wanda Aurini
Correspondence Requesting Defendants’ Availability for Depositions
Order Granting Withdrawal of the Porter Firm
Cornerstone’s Designation of Ervin
Defendant Aurin s Motions to Compel, with attachments
Defendant Aurin s Motion for No-Evidence Summary Judgment
Defendant Aurini’s Motion for Partial Traditional Summary Judgment
Order Granting Defendant Aurini’s Motion to Compel
Plaintiffs’ Motions to Continue Defendant Aurini’s Motions for Summary Judgment
Order Denying Plaintiffs’ Motions to Continue Defendant Aurini’s Motions for
Summary Judgment
Order Denying Defendant Aurini’s Motions for Summary Judgment
Defendant Aurini’s Appeal and Request for de novo Hearing
Iv. RESPONSE TO TRADITIONAL SUMMARY JUDGMENT
Plaintiffs’ Attempts to Serve Defendant Aurini Did Not Constitute a Lack of
Diligence on the Part of Plaintiffs
19. Between the date of Plaintiffs’ retention of the Porter Firm and Defendant
Cornerstone’s responses to Plaintiffs’ written discovery requests — a period of about five months
— Plaintiffs were unaware of Defendant Aurini’s actual last name. See, Exhibit E. This delay was
not due to a lack of diligence on the part of Plaintiffs. Rather, Plaintiffs’ counsel, as well as the
rest of the world, were experiencing the effects of the Covid pandemic on not only the Porter
Firm, but on counsel for Defendant Cornerstone. During 2020-2022, law firms, their clients, and
the courts all experienced delays. None of this was the result of a lack of diligence on the part of
Page 6 of 10
the Plaintiffs. Rather, the global pandemic and its overall effects on the legal process were to
blame. Indeed, Plaintiffs’ actions — retaining new counsel during a global pandemic, and
persisting with this matter despite the resulting delays (including, but not limited to, not knowing
Defendant Aurini’s last name until May of 2021), demonstrate their, and their various counsels’
diligence in the face of circumstances beyond their reasonable control, and warrant relating the
date of service back to the date of filing. See, Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007).
For this reason alone, the Court should deny Defendant Aurini’s Motion for Partial Traditional
Summary Judgment.
B. Defendant Aurini’s Own Delays Warrant Denial of the Motion for Partial
Traditional Summary J udgment in the Interest of J ustice
20. In addition, the Court should deny Defendant Aurini’s Motion for Partial
Traditional Summary Judgment in the interest of justice, as Defendant Aurini’s own delays in this
case contributed to any actual or alleged delays in this matter. Specifically, Aurini, through Mr.
Martinez, did not serve Plaintiffs with discovery requests until more than twelve (12) months after
Defendant Aurini had been served. See, Exhibit 1. Defendant Aurini’s basis for her Motion for
Partial Traditional Summary Judgment — that Plaintiffs delayed simply due to a lack of diligence,
deflects attention from what could be considered Defendant Aurini’s own lack of diligence in
participating in the discovery process. Additionally, the timing of Defendant Aurini’s written
discovery requests — three days before Christmas - further contributed to the difficulty in
Plaintiffs’ ability to respond.
C. No Other Basis to Grant Aurini’s Motion for Partial Traditional Summary
Judgment
Page 7 of 10
21. Defendant Aurini’s procedural reason for granting partial traditional summary
judgment notwithstanding, the Court should deny Defendant Aurini’s Motion for Partial
Traditional Summary Judgment because no other basis exists for granting a traditional motion for
summary judgment were pleaded. Defendant Aurini has not disproven Plaintiffs’ causes of action
(Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018); Sw. Elec. Power Co. v.
Grant, 73 S.W.3d 211, 215 (Tex. 2002)); Plaintiffs have not pleaded facts that negate their causes
of action (Tex. Dep't of Corr. v. Herring, 513 S.W.2d 6, 9 (Tex. 1974)); Plaintiffs have viable
causes of action (Peek v. Equip. Serv. Co., 779 S.W.2d 802, 805 (Tex. 1989)); and Plaintiffs’
pleadings support their causes of action (Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.
1994)).
22. Defendant Aurini has not based her Motion for Partial Traditional Summary
Judgment on any of the foregoing reasons on which traditional summary judgment might be
granted. This omission underscores the fact that, but for delays beyond their reasonable control
and despite their diligence, under circumstances comparable to those in the cases on which
Defendant Aurini relies (specifically, the length of time of the delays), Plaintiffs would likely
prevail against a motion for traditional summary judgment.
23. Defendant A urini filed her Motions to Compel Discovery, and, rather than review
the documents produced by Plaintiffs and Defendant Comerstone and/or request depositions,
seeks to rely on her claim that Plaintiffs’ claims are time-barred, completely ignoring the
circumstances of the global pandemic and its effects on the various parties. In this case, Plaintiffs
have pleaded sufficient facts to support their causes of action, and have produced supporting
evidence to support those claims. In the interest of justice, Plaintiffs should be afforded the
Page 8 of 10
opportunity to pursue and prove their claims against Defendant
A urini for the physical assault she
perpetrated on J. Bergeron.
Vv CONCLUSION
24. The Court should deny Defendant Aurini’s Motion for Partial Traditional Summary
Judgment as to Plaintiffs Dr. Bergeron and Mr. Bergeron because Plaintiffs exercised diligence
in their efforts to pursue their legal remedies for the assault inflicted on their minor son, and
because it was on no fault or omission of their own that Defendant Aurini’s claim for want of
diligence is based.
PRAYER
For these reasons, Plaintiffs respectfully request that the Court deny Defendant A urini’s
Motion for Partial Traditional Summary Judgment. If the Court grants Defendant Aurini’s Motion
for Partial Traditional Summary Judgment, Plaintiffs ask the Court to overrule Plaintiffs’
objections so they will be preserved for appeal.
Respectfully Submitted,
NADIA A. BARROW
/s/ Nadia A. Barrow
NadiaA. Barrow
State Bar No. 24082660
adia@ nadiabarrow.com
2000 West Loop South, Suite 150
Houston, Texas 77027
404-808-9488 Telephone
713-405-2653 Facsimile
ATTORNEY FOR PLAINTIFFS
CERTIFICATE OF SERVICE
Page 9 of 10
A true and correct copy of the foregoing was served pursuant to Texas Rules of Civil
Procedure and Rules 21, and 21a, as follows on July 19, 2023:
Via Electronic Service:
GREER, SCOTT & SHROPSHIRE, L.L.P.
Christopher M. Ervin
6363 Woodway Drive, Suite 810
Houston, TX 77057
Telephone: (713) 223-0175
Facsimile: (713) 223-0174
Attorneys for Defendant FC Cornerstone Christian Academy, Inc.
Via Electronic Service:
MARTINEZ & MCGUIRE, PLLC
Mario A. Martinez
440 Cobia Drive, Suite 2002
Katy, Texas 77494
Telephone: (281) 665-7924
Facsimile: (281) 606-0276
Attorney for Defendant Wanda Aurini
/s/ Nadia A. Barrow —-——
NadiaA. Barrow
Page 10 of 10
EXHIBIT 1
NO. 20-DCV-276248
LATONYA JORDAN BERGERON, IND. , IN THE DISTRICT COURT OF
and a/n/f ofJ. BERGERON, MINOR,
and CURTIS BERGERON, §
Plaintiffs,
vs. FORT BEND COUNTY, TEXAS
FC CORNERSTONE CHRISTIAN
ACADEMY, INC. AND WANDA AURINI,
Defendants. 240th JUDICIAL DISTRICT
AFFIDAVIT OF LATONYA J. BERGERON
STATE OF TEXAS
FORT BEND COUNTY
Before me, the undersigned notary, on this day personally appeared Latonya J. Bergeron,
the affiant, whose identity is known to me. After I administered an oath, affiant testified as follows:
1 “My name is LaTonya J. Bergeron. I am over 18 years of age, of sound mind, and capable of
making this affidavit. The facts stated in this affidavit are within my personal knowledge and
are true and correct.
On or about November 1, 2019, counsel Sebastian “Skip” Lanz, originally filed a “Petition
for Depositions Before Suit Pursuant to Rule 202 to Vinvestigate (sic) Potential Claim or
Suit” on my behalf. The cause number for this “First Lawsuit” was 19-DCV-268112. See,
Exhibit A. Defendant Cornerstone, represented by counsel Lawrence B. Greer of Greer, Scott
& Shropshire, L.L.P.. timely filed its Original Answer (“Cornerstone’s First Original
Answer’), which First Original Answer did not provide the name of Defendant in the present
matter, Wanda Aurini. See, Exhibit B. Subsequently, on or about June 7, 2021, the 434"
District Court of Fort Bend County entered an Order of Dismissal for Want of Prosecution.
See, Exhibit C.
During the time the First Lawsuit was pending, Mr. Lanz filed another cause of action on
behalf of myself, on August 28, 2020 (the “Second Lawsuit”). See, Exhibit D. The Second
Lawsuit included the additional Plaintiffs, Latonya Bergeron a/n/fof J. Bergeron, minor, and
Curtis Bergeron, minor J. Bergeron’s father (together herein, all plaintiffs are “Plaintiffs”).
It also included the named defendant ““Wanda,”” whose last name was unknown to Plaintiffs
at that time.
Page 1 of 4
EXHIBIT 1
Defendant Cornerstone filed its Original Answer on or about October 23, 2020
(“Cornerstone’s Second Original Answer”). See, Exhibit E. In its Second Original Answer,
Defendant Cornerstone did not provide the full name of Defendant Aurini, which remained
unknown to Plaintiffs. Plantiffs were notified by Mr. Lanz he was recusing himself citing
conflict of interest 4 months after Mr. Lanz filed the Second Lawsuit. At such time, Plaintiffs
retained M. Kevin Powers, of Porter & Powers, with Ms. Nadia A. Barrow as junior counsel.
After the retention of Porter & Powers (herein, as later renamed, “the Porter Firm”), the
Porter Firm lawyers sent written discovery requests to Defendant Cornerstone in April 2021.
Defendant Cornerstone provided responses to Plaintiffs’ written discovery requests, wherein
they provided Defendant Aurini’s employee file, including her full name and address. These
responses were due and provided by or before May 5, 2021.
During 2020 and 2021, counsel for Plaintiffs experienced in-office Covid cases, a firm
restructuring and move, and the resignation of Mr. Powers, who effectively withdrew as
counsel by order of the Court entered on December 6, 2021. See, Exhibit F.
During the time of the changes to the firm, after Mr. Powers resigned, Ms. Barrow received
instruction from senior counsel at the Porter Firm, Mr. Robert MacNaughton, to draft and file
Plaintiffs’ First Amended Petition and to request a citation in order to have Defendant Aurini
served. Plaintiffs’ First Amended Petition was filed on November 29, 2021. See, Exhibit G.
The citation to be served on Defendant Aurini was issued on or about December 7, 2021. See,
Exhibit H. Ms. Aurini was promptly served on December 9, 2021. See, Exhibit I.
One or about April 19, 2022, Ms. Barrow emailed counsel for both Defendants to request
their respective clients’ availability for depositions. See, Exhibit J. She never received a
response.
On or about May 27, 2022, Ms. Barrow left the Porter Firm for an in-house position. The
Porter Firm advised us they no longer had personal injury counsel and asked if we planned to
continue representation with Ms. Barrow. Ms. Barrow stated she would continue on as
counsel until such time as the case was remedied and/or new counsel was retained. Ms. See,
Exhibit K.
10. During the time between requesting deposition availability and through the present time, Ms.
Barrow has advised us she has not been able to find counsel to take over this case. The
plantiffs have also actively sought new counsel and have been unsuccessful.
11 On or about December 22, 2022, cight months after Ms. Barrow informed them of her
departure from the Porter Firm and requested their respective clients’ deposition availability,
counsel for Defendant Aurini, Mario Martinez of Martinez & McGuire, PLLC. served
Plaintiffs with written discovery requests. Ms. Barrow worked with Plaintiffs to properly
respond, Plaintiffs submitted multiple requests to the banking institution from January until
June 2023 for these aged documents which were not readily made available to the Plantiffs.
The documents were received June 2023.
12. On or about December 29, 2022 , Defendant Cornerstone, whose law firm also experienced
Page 2 of 4
EXHIBIT 1
its own changes due to long term effects of the Covid virus on lead counsel, subsequently,
designated a new lead counsel, Mr. Christopher M. Ervin, of the same law firm. See, Exhibit
L
13. On or about April 19, 2023, Mr. Martinez telephoned Ms. Barrow ostensibly to discuss
Plaintiffs’ responses to Defendant Aurini’s written discovery requests. Within a few minutes
of the beginning of the call, Mr. Martinez berated both Mr. Ervin and Ms. Barrow. Ms.
Barrow assured Mr. Martinez that she would work with Plaintiffs to file our responses and
Mr. Martinez abruptly ended the call. That same day, Mr. Martinez filed motions to compel
discovery from Plaintiffs and Defendant Cornerstone (together, “Motions to Compel
Discovery”). See, Exhibit M. These Motions to Compel Discovery were noticed for in-
person hearing on May 22, 2023. Id.
14 On May 4, 2023, Mr. Martinez, on behalf of Defendant Aurini, filed a Motion for No-
Evidence Summary Judgment (see, Exhibit N) and a Motion for Partial Traditional Summary
Judgment (see, Exhibit O) as to adult Plaintiffs (together, the “Motions for Summary
Judgment”). These Motions for Summary Judgment were both noticed for an in-person
hearing on June 26, 2023.
15. On May 22, 2023, the Plantiffs and the parties’ respective counsels appeared before Associate
Judge Williams on the Motions to Compel Discovery. As Cornerstone had submitted requests
prior to the hearing, Judge Williams granted the Motion to Compel as to Plaintiffs and ordered
Plaintiffs to respond by June 21, 2023, 30 days from the order. See, Exhibit P.
16. The timing of the hearing on the Motions for Summary Judgment required responses from
Plaintiffs on June 20, 2023, the day before June 21, 2023, the date on which Plaintiffs’
responses to written discovery were due, i.e., before Plaintiffs were required to fully respond
to Defendant Aurini’s written discovery requests. Further, Mr. Martinez never once
responded to Ms. Barrow’s request for his client’s availability for a deposition, nor did he
ever seek to depose any of the Plaintiffs. Accordingly, Ms. Barrow filed a motion as to each
of the Motions for Summary Judgment (together, the “Motions for Summary Judgment
Continuance”), on the basis that additional discovery was needed. See, Exhibit O.
17. On or about June 26, 2023, the Plantiffs and the parties’ respective counsels appeared before
Judge Williams. The Court denied Plaintiff's Motion for Summary Judgment Continuance as
filing errors by the Plantiffs counsel were cited by Mr. Martinez. See, Exhibit R. The Court
also denied Defendant Aurini’s Motions for Summary Judgment. See, Exhibit S.
18 Mr. Martinez then filed “Defendant Wanda Aurini’s Appeal and Request for de novo
Hearing” of the Motions for Summary Judgment. See, Exhibit T.
Page 3 of 4
EXHIBIT 1
LaTonya LB geroh—
Sworn to and subscribed before me by LaTonya J. Bergeron on JULY |4 . 2023.
GUILLERMO RNAS
My Notary 1D # 130158631 Notary Pablictirandtfor the State of Texas
Expires March 18, 2027
epaateial
Page 4 of 4
Filed
EXIHBIT A 10/30/2019 2:36 PM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
9-DCV-268112 Amber England
LATONYA JORDAN BERGERON § IN THE DISTRICT COURT
§
vs. § JUDICIAL DISTRICT
§ Fort Bend County - 434th Judicial District Court
CORNERSTONE CHRISTIAN §
ACADEMY, WANDA LAST NAME §
UNKNOWN, AND GRACIE STELLY § FORT BEND COUNTY, TEXAS
PETITION FOR DEPOSITIONS BEFORE SUIT PURSUANT TO RULE 202
TO VINVESTIGATE POTENTIAL CLAIM OR SUIT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, LATONYA JORDAN BERGERON, Petitioner herein, and file this
Petition for Depositions Before Suit Pursuant to Rule 202 to Investigate Potential Claim
or Suit pursuant to Rule 202 of the Texas Rules of Civil Procedure. In support thereof,
Petitioners would respectfully petition this Honorable Court to enter an order authorizing
the deposing of GRACIE STELLY, by Petitioner. Petitioner, LATONYA JORDAN
BERGERON desires to take the deposition in order to investigate a potential claim or
suit; and in support thereof, Petitioner respectfully show the Court the following:
The last three digits of the LATONYA JORDAN BERGERON’s Social Security
Number is , and Texas Driver’s License Number is
Under Rule 202 of the Texas Rules of Civil Procedure, a person may petition the
court for an order authorizing the taking of a deposition on oral examination or written
questions either: (a) to perpetuate or obtain the person's own testimony or that of any
other person for use in an anticipated suit; or (b) to investigate a potential claim or suit.
LATONYA JORDAN BERGERON, Petitioner anticipates a suit in this matter and
therefore venue is proper in Fort Bend County because the acts and/or failures to act
occurred in Fort Bend County. In addition, potential parties to the litigation reside in Fort
Bend County.
The subject matter of the anticipated suit concerns the assault of LATONYA
JORDAN BERGERON’s minor child by an employee of Cornerstone Christina
Academy. In addition, this suit concerns efforts by Cornerstone Christian Academy and
its agents to disparage and slander the character of the minor child in question.
LATONYA JORDAN BERGERON, Petitioner expects the following person to
have interests adverse to LATONYA JORDAN BERGERON, Petitioner in the
anticipated suit:
GRACIE STELLY, last known to be employed by Cornerstone Christian
Bergeron-Petitioner Page 1 of 6
EXIHBIT A
Academy, located at 2140 First Colony Blvd., Sugar Land, Texas 77479, Telephone
Number 281-980-0842.
Attached hereto and incorporated by reference for all purposes as if set out
herein fully is Exhibit “A”, an affidavit supporting this request. LATONYA JORDAN
BERGERON, Petitioner expects GRACIE STELLY to give evidence regarding the
name, address and contact information of the school employee who assaulted the minor
in question. In addition, it is expected that GRACIE STELLY will give testimony
regarding her actions while communicating with prospective schools regarding the
minor’s character and academic abilities. All questions asked shall touch and concern
those issues.
Allowing LATONYA JORDAN BERGERON, Petitioner to take the above
requested deposition will prevent a failure or delay of justice in an anticipated suit. The
benefit of allowing Petitioner to take the requested deposition to investigate a potential
claim outweighs the burden or expense of the procedure.
WHEREFORE, PREMISES CONSIDERED, Petitioner, LATONYA JORDAN
BERGERON, respectfully prays the Court grant the following:
a. The court set this matter for hearing; and
b. The court enter an order authorizing Petitioner, LATONYA JORDAN
BERGERON, to take the depositions of the persons named above via
stenographic or non-stenographic deposition, including videography;
and to further grant all other and further relief, in law or in equity, to
which Petitioner, TONYA BERGERON, may be justly entitled to
receive.
Respectfully submitted,
LANZ LAW FIRM
/s/ Sebastian F. Lanz
SEBASTIAN F. LANZ
TBA # 24007529
Attorney for LATONYA JORDAN
BERGERON
4008 Vista Road, Suite 201A
Pasadena, Texas 77504
Phone (713) 804-4100
Email: service@lanzlawoffice.com
Bergeron-Petitioner Page 2 of 6
EXIHBIT A
No.
LATONYA JORDAN BERGERON § IN THE DISTRICT COURT
§
vs. § JUDICIAL DISTRICT
CORNERSTONE CHRISTIAN §
ACADEMY, WANDA LAST NAME
UNKNOWN, AND GRACIE STELLY § FORT BEND COUNTY, TEXAS
PETITIONER’S SUPPORTING AFFIDAVIT — EXHIBIT “A”
LATONYA JORDAN BERGERON, appeared in person before me today and
stated under oath:
“My name is Latonya Jordan Bergeron. | am over the age of eighteen years,
and | am fully competent to make this affidavit. The facts stated in this affidavit are
within my personal knowledge and are true and correct. | am the Petitioner in this
matter.”
a
“lam requesting to take the deposition of Gracie Stelly because she has
pertinent information about the assault of my child, , at the
hands of one of Cornerstone Christian Academy's ornerstone’) employees. Gracie
Stelly is an administrator at Cornerstone. As such, she has information about the
employee as well as about her actions and the actions of Cornerstone agents who
engaged in efforts to disparage and slander the character of my son.
“lam resident of Fort Bend. | am a combat Army veteran ending my service time
at the rank of Major. | am currently employed as a staff general dentist at the
Department of Veterans Affairs. My husband, Curtis Bergeron, is also an Army veteran
who retired at the rank of Command Sergeant Major after 23 years of service. He
urrently works as the executive assistant to the Associate Director for the Department
of Veterans Affairs. Cornerstone is a private school located in Fort Bend County,
Texas. was a student at Cornerstone for the 2018-2019 academic year. The
issue began on October 4, 2018, when school employee Wanda (last name unknown)
assaulted . At that time the school claimed that he was being disciplined.
Apparently, along with several other children, had been playing with their food
and mixing various foods items onto one another's food trays. Some beans
inadvertently landed on the table and/or floor which infuriated Wanda. She demanded
clean the beans up. He obeyed her and began cleaning up. When he proceeded
to take the handful of rice to discard in the trash, Wanda beca nraged because she
wanted him to clean the beans first. She forcefully grabbed by the arm pulling
him up on his tippy toes and dragged him back to the table. Upon reaching the table,
she forcefully slammed him into a seated position and yelled for him to get the beans
up. HE lowered his head and began crying. Ms. Wanda then pulled IEE by his
hair leaning him backwards until she could scream into his face for him to get the beans
Bergeron-Petitioner Page 3 of 6
EXIHBIT A
up at which time
Wanda followed rm
pulled away and attempted to flee her. She pursued him. Ms.
out of the lunch room and into the boy’s bathroom. All along
was scared and crying. eventually opened up to us about the event. We
also received emails from concerned families about the incident as several children had
witnessed the assault and reported it to their parents. has been in therapy to
cope with the events of that day. The school’s response and subsequent actions are
also very disturbing. After the incident, we spoke to Gracie Stelly. By the time we spoke
to her on October 5, 2018, she had already given I a verbal reprimand, damning
him to guilt without investigating thoroughly. We also spoke with the Head of School,
Mr. Eric Nicholie on October 5, 2018. We directly informed him of the events that
transpired as we had learned of them. He denied knowledge and told us he would have
Ms. Stelly follow up because she was the elementary school principle and seemed to be
aware of the situation. Ms. Stelly called me, and | placed the call on speaker. Ms.
Lynsay Gaines, was present throughout the duration of the call. Ms. Stelly supported
the actions of Ms. Wanda stating that she had received a different version of events
from Ms. Wanda. | advised Ms. Stelly that not only had the parents whose children
witnessed this assault called me, but they had also called and emailed the school. Two
parents copied me on the emails. | further advised her that if she was refusing to look
into the report of assault even after others had verified the event occurred, | would be
forced to go to the police station and fill out an assault report, and since all | knew was
“Wanda” | would be listing Cornerstone Christian Academy on the report. At that, she
asked that | allow her time to investigate. Obvious! he had not investigated prior to
calling me to reiterate the school’s position that
reprimanding
|
She called later to say they would be
was at fault-nor
placing
prior to
Wanda on
administrative leave until they could complete their investigation. The outcome of that
investigation was never made known to us.
“We decided to pull him out of Cornerstone for his safety and mental well-being.
Cornerstone then notified us, via email, that we would have to pay the full years tuition
or they would not release his transcripts. This meant that we would not be able to enroll
him into any other school, public or private, immediately as additional testing and
placement decisions would have to be completed. We even met with FBISD and
completed enrollment paperwork. However, since it had been almost three years since
he was last in public schoo! and it was outside of their district, his previous academic
records could not easily be accessed. Even so, they would only confirm promotion to
third grade. We were not willingly to withdraw our son from school without the ability to
continue his education on grade level nor were we willingly to be extorted by
cornerstone. We put a safety plan in place with who was in constant fear of
further harm from adults at Cornerstone and decided we will leave as soon as his
transcript became available.
“Even more disturbingly, once Cornerstone learned we would not be returning
after | opted out of auto-enrollment, this Christian School engaged in a concerted effort
to bad-mouth my son and deny him the ability to attend other private schools in the
area. We believe that school administrator Nancy Burnett wrote false and negative
comments in “letters of recommendation” that were requested by other private schools.
Bergeron-Petitioner Page 4 of 6
EXIHBIT A
All the schools we applied to seemed enthusiastic to have our child enroll, but after
receiving communications from Nancy Burnett, they had a different tone and ultimately
did not allow our son to attend. This may have been an effort to excuse the assault of
my son. We have requested a copy of the communication but have been denied
access.
“lam asking the court to allow a pre-suit deposition of Gracie Stelly so we can
( ary LL.
address the assault of our child and ensuing trave: justice. Further, Affiant sayeth
not.”
2
LATONYA JORDAN BERGERON
Signed on this the Zu day of Ober. _, 2019.
TlNoarytePublic, Ce, Cramer
State of 7¢xas
JANA ASHLEY CHAMBERS
Notary Public, State of Texas|
Comm. Expires 05-21-2020
po NONOY ID1D 126996112
128996112
Bergeron-Petitioner Page 5 of 6
EXHIBIT B
CAUSE NO. 19-DCV-268112
LATONYA JORDAN BERGERON § IN THE DISTRICT COURT
v § 434" JUDICIAL DISTRICT
CORNERSTONE CHRISTIAN ACADEMY. §
WANDA LAST NAME UNKNOWN, AND §
GRACIE STELLY § FORT BEND COUNTY, TEXAS
DEFENDANTS’ ORIGINAL ANSWER
NOW COMES DEFENDANTS CORNERSTONE CHRISTIAN ACADEMY and
GRACIE STELLY, and makes this Original Answer to Plaintiff LATONYA JORDAN
BERGERON’S Petition for Depositions Before Suit on file herein, and for such answer would
respectfully show unto the Court as follows:
I
Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants deny each and
every, all and singular, the material allegations contained in Plaintiffs pleadings filed herein, and
demands strict proof hereof, as required by the laws of this state, of persons or entities who bring
suit as the Plaintiff does in the instant case.
WHEREFORE, PREMISES CONSIDERED, Defendants CORNERSTONE CHRISTIAN
ACADEMY and GRACIE STELLY pray that the Plaintiff LATONYA JORDAN BERGERON
take nothing by reason of this suit against them and they be discharged with their costs without
delay, and for such other and further relief, both general and special, at law and in equity, to which
they may show themselves to be justly entitled.
BERGERON V. CORNERSTONE
Defendants’ Original Answer Page 1
a
EXHIBIT B
Respectfully submitted,
GREER, SCOTT & SHR‘ SHI e, L.L.P.
. GREER
fats Bar No. 0 18417350
6363 ‘oodway Drive, Suite 810
Hetiston, Texas 77057
Telephone: (713) 223-0175
Facsimile: (713) 223-0174
Igreer@greerscottlaw.com
ATTORNEYS FOR DEFENDANTS
CORNERSTONE CHRISTIAN ACADEMY
AND GRACIE STELLY
CERTIFICATE OF SERVICE
I do hereby certify that on this 26"" day of November, 2019, a true and correct copy of the
foregoing was sent or delivered to all parties through counsel of record pursuant to Rule 21a,
TRC.
Sebastian F. Lanz
Lanz Law Firm
4008 Vista Road, Suite 201A
Pasadena, Texas 77504
Oe
TAWR CE B. GREER
BERGERON V. CORNERSTONE
Defendants’ Original Answer Page 2
Filed
06/11/2021 15:19:46
EXHIBIT C Beverley McGrew Walker
District Clerk
Preview
LATONYA JORDAN BERGERON, IND. IN THE DISTRICT COURT OF and a/n/f of J. BERGERON, MINOR, and CURTIS BERGERON, Plaintiffs BEND COUNTY, TEXAS CORNERSTONE CHRISTIAN ACADEMY, INC. WANDA AURINI, Defendants 240th JUDICIAL DISTRICT S RESPONSE TO DEFENDANT AURINI MOTION FOR PARTIAL TRADITIONAL SUMMARY JUDGMENT AND APPEAL AND REQUEST FOR DE NOVO HEARING Plaintiff , LATONYA JORDAN BERGERON INDIVIDUALLY, NEXT FRIEND MINOR, BERGERON, AND CURTIS BERGERON, ask the Court to deny defendant Wanda Aurini’ otion for Partial Traditional Summary INTRODUCTION Plaintiff Latonya Jordan Bergeron Dr. Bergeron , and as next friend of minor, J Bergeron J. Bergeron , and Curtis Bergeron Mr. Bergeron”) (cach, a “Plaintiff,” and, together the “Plaintiffs , sued defendant FC Cornerstone Christian Academy, Inc. Cornerstone”) and Wanda Aurini (“Aurini’) (each, a “Defendant,” and, together, Defendants , for negligence, assault, infliction of bodily injury, offensive physical contact, intentional infliction of emotional distress, respondeat superior, and injuries and damages Defendant Aurini answered asserting a general denial and various affirmative defenses including that minor Plaintiff J. Bergeron’s damages were proximately caused by his own acts and/or omissions, that Plaintiffs are barred by the applicable statute of limitations, failure to Page of mitigate damages, that Plaintiffs’ damages were the sole proximate cause of individuals or circumstances not under Defendant Aurini’s control. II. BACKGROUND 1 On or about November 1, 2019, Plaintiff Latonya Bergeron, represented by counsel Sebastian “Skip” Lanz, originally filed a “Petition for Depositions Before Suit Pursuant to Rule 202 to Vinvestigate (sic) Potential Claim or Suit.” The cause number for this “First Lawsuit” was 19-DCV-268112. See, Exhibit A. Defendant Comerstone, represented by counsel Lawrence B. Greer of Greer, Scott & Shropshire, L.L.P., timely filed its Original Answer (“Cornerstone’s First Original Answer”), which First Original Answer did not provide the name of Defendant Aurini. See, Exhibit B. Subsequently, on or about June 7, 2021, the 434" District Court of Fort Bend County entered an Order of Dismissal for Want of Prosecution. See, Exhibit C. 2 During the time the First Lawsuit was pending, Mr. Lanz filed another cause of action on behalf of Plaintiff Latonya Bergeron, on August 28, 2020 (the “Second Lawsuit”). See, Exhibit D. The Second Lawsuit included the additional Plaintiffs, Latonya Bergeron a/n/f of J. Bergeron, minor, and Curtis Bergeron, the minor’s father. It also included the named defendant “Wanda,” whose last name was unknown to Plaintiffs at that time. 3 Defendant Comerstone timely filed its Original Answer on or about October 23, 2020 (“Cornerstone’s Second Original Answer”). See, Exhibit E. In its Second Original Answer, Defendant Cornerstone did not provide the full name of Defendant Aurini, which remained unknown to Plaintiffs. Four months after Mr. Lanz filed the Second Lawsuit, Plaintiffs retained M. Kevin Powers, of Porter & Powers, with Ms. Nadia A. Barrow as junior counsel. 4 After the retention of Porter & Powers (herein, as later renamed, “the Porter Firm”), counsel for Plaintiffs sent written discovery requests to Defendant Comerstone in April Page 2 of 10 2021. Defendant Cornerstone provided responses to Plaintiffs’ written discovery requests, wherein they provided Defendant Aurini’s employee file, including her full name and address. These responses were due and provided by or before May 5, 2021. 5. During 2020 and 2021, counsel for Plaintiffs experienced in-office Covid cases, a firm restructuring and move, and the resignation of Mr. Powers, who effectively withdrew as counsel by order of the Court entered on December 6, 2021. See, Exhibit F. 6 During the time of the changes to the firm, after Mr. Powers resigned, Ms. Barrow received instruction from senior counsel at the Porter Firm, Mr. Robert MacNaughton, to draft and file Plaintiffs’ First Amended Petition and to request a citation in order to have Defendant Aurini served. Plaintiffs’ First Amended Petition was filed on November 29, 2021. See, Exhibit G. The citation to be served on Defendant A urini was issued on or about December 7, 2021. See, Exhibit H. Ms. Aurini was promptly served on December 9, 2021. See, Exhibit I. 7 One or about April 19, 2022, Ms. Barrow emailed counsel for both Defendants to request their respective clients’ availability for depositions. See, ExhibitJ. She never received a Tesponse. 8 On or about May 27, 2022, Ms. Barrow left the Porter Firm foran in-house position. The Porter Firm chose not to keep the case and subsequently withdrew. See, Exhibit K. Ms. Barrow informed Plaintiffs of the change and advised that they should seek other counsel. She also agreed to try to assist them with their search. Ms. Barrow also informed opposing counsel of her departure from the Porter Firm. 9 During the time between requesting deposition availability and the present time, Ms. Barrow has continued to try to assist Plaintiffs in their search for alternative counsel. Page 3 of 10 10. On or about December 22, 2022, about eight months after Ms. Barrow informed them of her departure from the Porter Firm and requested their respective clients’ deposition availability, counsel for Defendant Aurini, Mario Martinez of Martinez & McGuire, PLLC, served Plaintiffs with written discovery requests. Ms. Barrow worked with Plaintiffs to properly respond, and Plaintiffs spent the months between January and June 2023 working with their former financial institution(s) to obtain documents for production. 11. On or about December 29, 2022, Defendant Cornerstone, whose law firm also experienced its own changes due to the long-term effects of the Covid virus on lead counsel, subsequently designated a new lead counsel, Mr. Christopher M. Ervin, of the same law firm. See, Exhibit L. 12. On or about April 19, 2023, Mr. Martinez telephoned Ms. Barrow ostensibly to discuss Plaintiffs’ responses to Defendant Aurini’s written discovery requests. Within a few minutes of the beginning of the call, Mr. Martinez berated both Mr. Ervin and Ms. Barrow. Ms. Barrow politely assured Mr. Martinez that she would work with Plaintiffs to file their responses and Mr. Martinez abruptly ended the call. That same day, Mr. Martinez filed motions to compel discovery from Plaintiffs and Defendant Comerstone (together, “Motions to Compel Discovery”). See, Exhibit M. These Motions to Compel Discovery were noticed for in-person hearing on May 22, 2023. Id. 13. On May 4, 2023, Mr. Martinez, on behalf of Defendant A urini, filed a Motion for No-Evidence Summary Judgment (see, Exhibit N) and a Motion for Partial Traditional Summary Judgment (see, Exhibit O) as to adult Plaintiffs (together, the “Motions for Summary Judgment”). These Motions for Summary Judgment were both noticed for an in-person hearing on June 26, 2023. Page 4 of 10 14, On May 22, 2023, the parties’ respective counsels appeared before A ssociate Judge Williams on the Motions to Compel Discovery. Mr. Martinez, despite requesting in his Motions to Compel Discovery that Plaintiffs and Defendant Cornerstone be ordered to respond to Defendant Aurini’s written discovery requests within one month, verbally requested that Judge Williams set the response deadline for two weeks after that hearing date. As Defendant Cornerstone’s counsel provided his client’s responses to Defendant Aurini’s requests that day, Judge Williams granted the Motion to Compel as to Plaintiffs and ordered Plaintiffs to respond to Defendant Aurini’s written discovery requests by June 21, 2023. See, Exhibit P. 15. The timing of the hearing on the Motions for Summary Judgment required responses from Plaintiffs on June 20, 2023, the day before June 21, 2023, the date on which Plaintiffs’ responses to written discovery were due, i.e., before Plaintiffs were required to fully respond to Defendant Aurini’s written discovery requests. Further, Mr. Martinez never once responded to Ms. Barrow’s request for his client’s availability for a deposition, nor did he ever seek to depose any of the Plaintiffs. Accordingly, Ms. Barrow filed a motion for continuance as to each of the Motions for Summary Judgment (together, the “Motions for Summary J udgment Continuance”), on the basis that additional discovery was needed. See, Exhibit Q. 16. On or about June 26, 2023, the parties’ respective counsels appeared before Judge Williams. The Court denied Plaintiffs’ Motions for Summary Judgment Continuance. See, Exhibit R. The Court also denied Defendant Aurini’s Motions for Summary Judgment. See, Exhibit S. 17. Mr. Martinez promptly filed “Defendant Wanda Aurini’s appeal and Request for de novo Hearing” of the Motions for Summary Judgment. See, Exhibit T. Page 5 of 10 Ill. SUMMARY-J UDGMENT EVIDENCE 18. To support the facts in this response, Plaintiffs include the summary-judgment evidence attached to Exhibit 1 to this response and incorporates the evidence into this response by reference. EXHIBIT TITLE/DESCRIPTION Petition for Deposition before Suit Cornerstone’s First Original Answer Order of Dismissal for Want of Prosecution Plaintiffs’ Original Petition Cornerstone’s Second Original Answer Order Granting Powers’s Motion to Withdraw Plaintiffs’ First Amended Petition Citation on Wanda A urini Return of Service of Wanda Aurini Correspondence Requesting Defendants’ Availability for Depositions Order Granting Withdrawal of the Porter Firm Cornerstone’s Designation of Ervin Defendant Aurin s Motions to Compel, with attachments Defendant Aurin s Motion for No-Evidence Summary Judgment Defendant Aurini’s Motion for Partial Traditional Summary Judgment Order Granting Defendant Aurini’s Motion to Compel Plaintiffs’ Motions to Continue Defendant Aurini’s Motions for Summary Judgment Order Denying Plaintiffs’ Motions to Continue Defendant Aurini’s Motions for Summary Judgment Order Denying Defendant Aurini’s Motions for Summary Judgment Defendant Aurini’s Appeal and Request for de novo Hearing Iv. RESPONSE TO TRADITIONAL SUMMARY JUDGMENT Plaintiffs’ Attempts to Serve Defendant Aurini Did Not Constitute a Lack of Diligence on the Part of Plaintiffs 19. Between the date of Plaintiffs’ retention of the Porter Firm and Defendant Cornerstone’s responses to Plaintiffs’ written discovery requests — a period of about five months — Plaintiffs were unaware of Defendant Aurini’s actual last name. See, Exhibit E. This delay was not due to a lack of diligence on the part of Plaintiffs. Rather, Plaintiffs’ counsel, as well as the rest of the world, were experiencing the effects of the Covid pandemic on not only the Porter Firm, but on counsel for Defendant Cornerstone. During 2020-2022, law firms, their clients, and the courts all experienced delays. None of this was the result of a lack of diligence on the part of Page 6 of 10 the Plaintiffs. Rather, the global pandemic and its overall effects on the legal process were to blame. Indeed, Plaintiffs’ actions — retaining new counsel during a global pandemic, and persisting with this matter despite the resulting delays (including, but not limited to, not knowing Defendant Aurini’s last name until May of 2021), demonstrate their, and their various counsels’ diligence in the face of circumstances beyond their reasonable control, and warrant relating the date of service back to the date of filing. See, Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). For this reason alone, the Court should deny Defendant Aurini’s Motion for Partial Traditional Summary Judgment. B. Defendant Aurini’s Own Delays Warrant Denial of the Motion for Partial Traditional Summary J udgment in the Interest of J ustice 20. In addition, the Court should deny Defendant Aurini’s Motion for Partial Traditional Summary Judgment in the interest of justice, as Defendant Aurini’s own delays in this case contributed to any actual or alleged delays in this matter. Specifically, Aurini, through Mr. Martinez, did not serve Plaintiffs with discovery requests until more than twelve (12) months after Defendant Aurini had been served. See, Exhibit 1. Defendant Aurini’s basis for her Motion for Partial Traditional Summary Judgment — that Plaintiffs delayed simply due to a lack of diligence, deflects attention from what could be considered Defendant Aurini’s own lack of diligence in participating in the discovery process. Additionally, the timing of Defendant Aurini’s written discovery requests — three days before Christmas - further contributed to the difficulty in Plaintiffs’ ability to respond. C. No Other Basis to Grant Aurini’s Motion for Partial Traditional Summary Judgment Page 7 of 10 21. Defendant Aurini’s procedural reason for granting partial traditional summary judgment notwithstanding, the Court should deny Defendant Aurini’s Motion for Partial Traditional Summary Judgment because no other basis exists for granting a traditional motion for summary judgment were pleaded. Defendant Aurini has not disproven Plaintiffs’ causes of action (Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002)); Plaintiffs have not pleaded facts that negate their causes of action (Tex. Dep't of Corr. v. Herring, 513 S.W.2d 6, 9 (Tex. 1974)); Plaintiffs have viable causes of action (Peek v. Equip. Serv. Co., 779 S.W.2d 802, 805 (Tex. 1989)); and Plaintiffs’ pleadings support their causes of action (Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994)). 22. Defendant Aurini has not based her Motion for Partial Traditional Summary Judgment on any of the foregoing reasons on which traditional summary judgment might be granted. This omission underscores the fact that, but for delays beyond their reasonable control and despite their diligence, under circumstances comparable to those in the cases on which Defendant Aurini relies (specifically, the length of time of the delays), Plaintiffs would likely prevail against a motion for traditional summary judgment. 23. Defendant A urini filed her Motions to Compel Discovery, and, rather than review the documents produced by Plaintiffs and Defendant Comerstone and/or request depositions, seeks to rely on her claim that Plaintiffs’ claims are time-barred, completely ignoring the circumstances of the global pandemic and its effects on the various parties. In this case, Plaintiffs have pleaded sufficient facts to support their causes of action, and have produced supporting evidence to support those claims. In the interest of justice, Plaintiffs should be afforded the Page 8 of 10 opportunity to pursue and prove their claims against Defendant A urini for the physical assault she perpetrated on J. Bergeron. Vv CONCLUSION 24. The Court should deny Defendant Aurini’s Motion for Partial Traditional Summary Judgment as to Plaintiffs Dr. Bergeron and Mr. Bergeron because Plaintiffs exercised diligence in their efforts to pursue their legal remedies for the assault inflicted on their minor son, and because it was on no fault or omission of their own that Defendant Aurini’s claim for want of diligence is based. PRAYER For these reasons, Plaintiffs respectfully request that the Court deny Defendant A urini’s Motion for Partial Traditional Summary Judgment. If the Court grants Defendant Aurini’s Motion for Partial Traditional Summary Judgment, Plaintiffs ask the Court to overrule Plaintiffs’ objections so they will be preserved for appeal. Respectfully Submitted, NADIA A. BARROW /s/ Nadia A. Barrow NadiaA. Barrow State Bar No. 24082660 adia@ nadiabarrow.com 2000 West Loop South, Suite 150 Houston, Texas 77027 404-808-9488 Telephone 713-405-2653 Facsimile ATTORNEY FOR PLAINTIFFS CERTIFICATE OF SERVICE Page 9 of 10 A true and correct copy of the foregoing was served pursuant to Texas Rules of Civil Procedure and Rules 21, and 21a, as follows on July 19, 2023: Via Electronic Service: GREER, SCOTT & SHROPSHIRE, L.L.P. Christopher M. Ervin 6363 Woodway Drive, Suite 810 Houston, TX 77057 Telephone: (713) 223-0175 Facsimile: (713) 223-0174 Attorneys for Defendant FC Cornerstone Christian Academy, Inc. Via Electronic Service: MARTINEZ & MCGUIRE, PLLC Mario A. Martinez 440 Cobia Drive, Suite 2002 Katy, Texas 77494 Telephone: (281) 665-7924 Facsimile: (281) 606-0276 Attorney for Defendant Wanda Aurini /s/ Nadia A. Barrow —-—— NadiaA. Barrow Page 10 of 10 EXHIBIT 1 NO. 20-DCV-276248 LATONYA JORDAN BERGERON, IND. , IN THE DISTRICT COURT OF and a/n/f ofJ. BERGERON, MINOR, and CURTIS BERGERON, § Plaintiffs, vs. FORT BEND COUNTY, TEXAS FC CORNERSTONE CHRISTIAN ACADEMY, INC. AND WANDA AURINI, Defendants. 240th JUDICIAL DISTRICT AFFIDAVIT OF LATONYA J. BERGERON STATE OF TEXAS FORT BEND COUNTY Before me, the undersigned notary, on this day personally appeared Latonya J. Bergeron, the affiant, whose identity is known to me. After I administered an oath, affiant testified as follows: 1 “My name is LaTonya J. Bergeron. I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. On or about November 1, 2019, counsel Sebastian “Skip” Lanz, originally filed a “Petition for Depositions Before Suit Pursuant to Rule 202 to Vinvestigate (sic) Potential Claim or Suit” on my behalf. The cause number for this “First Lawsuit” was 19-DCV-268112. See, Exhibit A. Defendant Cornerstone, represented by counsel Lawrence B. Greer of Greer, Scott & Shropshire, L.L.P.. timely filed its Original Answer (“Cornerstone’s First Original Answer’), which First Original Answer did not provide the name of Defendant in the present matter, Wanda Aurini. See, Exhibit B. Subsequently, on or about June 7, 2021, the 434" District Court of Fort Bend County entered an Order of Dismissal for Want of Prosecution. See, Exhibit C. During the time the First Lawsuit was pending, Mr. Lanz filed another cause of action on behalf of myself, on August 28, 2020 (the “Second Lawsuit”). See, Exhibit D. The Second Lawsuit included the additional Plaintiffs, Latonya Bergeron a/n/fof J. Bergeron, minor, and Curtis Bergeron, minor J. Bergeron’s father (together herein, all plaintiffs are “Plaintiffs”). It also included the named defendant ““Wanda,”” whose last name was unknown to Plaintiffs at that time. Page 1 of 4 EXHIBIT 1 Defendant Cornerstone filed its Original Answer on or about October 23, 2020 (“Cornerstone’s Second Original Answer”). See, Exhibit E. In its Second Original Answer, Defendant Cornerstone did not provide the full name of Defendant Aurini, which remained unknown to Plaintiffs. Plantiffs were notified by Mr. Lanz he was recusing himself citing conflict of interest 4 months after Mr. Lanz filed the Second Lawsuit. At such time, Plaintiffs retained M. Kevin Powers, of Porter & Powers, with Ms. Nadia A. Barrow as junior counsel. After the retention of Porter & Powers (herein, as later renamed, “the Porter Firm”), the Porter Firm lawyers sent written discovery requests to Defendant Cornerstone in April 2021. Defendant Cornerstone provided responses to Plaintiffs’ written discovery requests, wherein they provided Defendant Aurini’s employee file, including her full name and address. These responses were due and provided by or before May 5, 2021. During 2020 and 2021, counsel for Plaintiffs experienced in-office Covid cases, a firm restructuring and move, and the resignation of Mr. Powers, who effectively withdrew as counsel by order of the Court entered on December 6, 2021. See, Exhibit F. During the time of the changes to the firm, after Mr. Powers resigned, Ms. Barrow received instruction from senior counsel at the Porter Firm, Mr. Robert MacNaughton, to draft and file Plaintiffs’ First Amended Petition and to request a citation in order to have Defendant Aurini served. Plaintiffs’ First Amended Petition was filed on November 29, 2021. See, Exhibit G. The citation to be served on Defendant Aurini was issued on or about December 7, 2021. See, Exhibit H. Ms. Aurini was promptly served on December 9, 2021. See, Exhibit I. One or about April 19, 2022, Ms. Barrow emailed counsel for both Defendants to request their respective clients’ availability for depositions. See, Exhibit J. She never received a response. On or about May 27, 2022, Ms. Barrow left the Porter Firm for an in-house position. The Porter Firm advised us they no longer had personal injury counsel and asked if we planned to continue representation with Ms. Barrow. Ms. Barrow stated she would continue on as counsel until such time as the case was remedied and/or new counsel was retained. Ms. See, Exhibit K. 10. During the time between requesting deposition availability and through the present time, Ms. Barrow has advised us she has not been able to find counsel to take over this case. The plantiffs have also actively sought new counsel and have been unsuccessful. 11 On or about December 22, 2022, cight months after Ms. Barrow informed them of her departure from the Porter Firm and requested their respective clients’ deposition availability, counsel for Defendant Aurini, Mario Martinez of Martinez & McGuire, PLLC. served Plaintiffs with written discovery requests. Ms. Barrow worked with Plaintiffs to properly respond, Plaintiffs submitted multiple requests to the banking institution from January until June 2023 for these aged documents which were not readily made available to the Plantiffs. The documents were received June 2023. 12. On or about December 29, 2022 , Defendant Cornerstone, whose law firm also experienced Page 2 of 4 EXHIBIT 1 its own changes due to long term effects of the Covid virus on lead counsel, subsequently, designated a new lead counsel, Mr. Christopher M. Ervin, of the same law firm. See, Exhibit L 13. On or about April 19, 2023, Mr. Martinez telephoned Ms. Barrow ostensibly to discuss Plaintiffs’ responses to Defendant Aurini’s written discovery requests. Within a few minutes of the beginning of the call, Mr. Martinez berated both Mr. Ervin and Ms. Barrow. Ms. Barrow assured Mr. Martinez that she would work with Plaintiffs to file our responses and Mr. Martinez abruptly ended the call. That same day, Mr. Martinez filed motions to compel discovery from Plaintiffs and Defendant Cornerstone (together, “Motions to Compel Discovery”). See, Exhibit M. These Motions to Compel Discovery were noticed for in- person hearing on May 22, 2023. Id. 14 On May 4, 2023, Mr. Martinez, on behalf of Defendant Aurini, filed a Motion for No- Evidence Summary Judgment (see, Exhibit N) and a Motion for Partial Traditional Summary Judgment (see, Exhibit O) as to adult Plaintiffs (together, the “Motions for Summary Judgment”). These Motions for Summary Judgment were both noticed for an in-person hearing on June 26, 2023. 15. On May 22, 2023, the Plantiffs and the parties’ respective counsels appeared before Associate Judge Williams on the Motions to Compel Discovery. As Cornerstone had submitted requests prior to the hearing, Judge Williams granted the Motion to Compel as to Plaintiffs and ordered Plaintiffs to respond by June 21, 2023, 30 days from the order. See, Exhibit P. 16. The timing of the hearing on the Motions for Summary Judgment required responses from Plaintiffs on June 20, 2023, the day before June 21, 2023, the date on which Plaintiffs’ responses to written discovery were due, i.e., before Plaintiffs were required to fully respond to Defendant Aurini’s written discovery requests. Further, Mr. Martinez never once responded to Ms. Barrow’s request for his client’s availability for a deposition, nor did he ever seek to depose any of the Plaintiffs. Accordingly, Ms. Barrow filed a motion as to each of the Motions for Summary Judgment (together, the “Motions for Summary Judgment Continuance”), on the basis that additional discovery was needed. See, Exhibit O. 17. On or about June 26, 2023, the Plantiffs and the parties’ respective counsels appeared before Judge Williams. The Court denied Plaintiff's Motion for Summary Judgment Continuance as filing errors by the Plantiffs counsel were cited by Mr. Martinez. See, Exhibit R. The Court also denied Defendant Aurini’s Motions for Summary Judgment. See, Exhibit S. 18 Mr. Martinez then filed “Defendant Wanda Aurini’s Appeal and Request for de novo Hearing” of the Motions for Summary Judgment. See, Exhibit T. Page 3 of 4 EXHIBIT 1 LaTonya LB geroh— Sworn to and subscribed before me by LaTonya J. Bergeron on JULY |4 . 2023. GUILLERMO RNAS My Notary 1D # 130158631 Notary Pablictirandtfor the State of Texas Expires March 18, 2027 epaateial Page 4 of 4 Filed EXIHBIT A 10/30/2019 2:36 PM Beverley McGrew Walker District Clerk Fort Bend County, Texas 9-DCV-268112 Amber England LATONYA JORDAN BERGERON § IN THE DISTRICT COURT § vs. § JUDICIAL DISTRICT § Fort Bend County - 434th Judicial District Court CORNERSTONE CHRISTIAN § ACADEMY, WANDA LAST NAME § UNKNOWN, AND GRACIE STELLY § FORT BEND COUNTY, TEXAS PETITION FOR DEPOSITIONS BEFORE SUIT PURSUANT TO RULE 202 TO VINVESTIGATE POTENTIAL CLAIM OR SUIT TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, LATONYA JORDAN BERGERON, Petitioner herein, and file this Petition for Depositions Before Suit Pursuant to Rule 202 to Investigate Potential Claim or Suit pursuant to Rule 202 of the Texas Rules of Civil Procedure. In support thereof, Petitioners would respectfully petition this Honorable Court to enter an order authorizing the deposing of GRACIE STELLY, by Petitioner. Petitioner, LATONYA JORDAN BERGERON desires to take the deposition in order to investigate a potential claim or suit; and in support thereof, Petitioner respectfully show the Court the following: The last three digits of the LATONYA JORDAN BERGERON’s Social Security Number is , and Texas Driver’s License Number is Under Rule 202 of the Texas Rules of Civil Procedure, a person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either: (a) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or (b) to investigate a potential claim or suit. LATONYA JORDAN BERGERON, Petitioner anticipates a suit in this matter and therefore venue is proper in Fort Bend County because the acts and/or failures to act occurred in Fort Bend County. In addition, potential parties to the litigation reside in Fort Bend County. The subject matter of the anticipated suit concerns the assault of LATONYA JORDAN BERGERON’s minor child by an employee of Cornerstone Christina Academy. In addition, this suit concerns efforts by Cornerstone Christian Academy and its agents to disparage and slander the character of the minor child in question. LATONYA JORDAN BERGERON, Petitioner expects the following person to have interests adverse to LATONYA JORDAN BERGERON, Petitioner in the anticipated suit: GRACIE STELLY, last known to be employed by Cornerstone Christian Bergeron-Petitioner Page 1 of 6 EXIHBIT A Academy, located at 2140 First Colony Blvd., Sugar Land, Texas 77479, Telephone Number 281-980-0842. Attached hereto and incorporated by reference for all purposes as if set out herein fully is Exhibit “A”, an affidavit supporting this request. LATONYA JORDAN BERGERON, Petitioner expects GRACIE STELLY to give evidence regarding the name, address and contact information of the school employee who assaulted the minor in question. In addition, it is expected that GRACIE STELLY will give testimony regarding her actions while communicating with prospective schools regarding the minor’s character and academic abilities. All questions asked shall touch and concern those issues. Allowing LATONYA JORDAN BERGERON, Petitioner to take the above requested deposition will prevent a failure or delay of justice in an anticipated suit. The benefit of allowing Petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure. WHEREFORE, PREMISES CONSIDERED, Petitioner, LATONYA JORDAN BERGERON, respectfully prays the Court grant the following: a. The court set this matter for hearing; and b. The court enter an order authorizing Petitioner, LATONYA JORDAN BERGERON, to take the depositions of the persons named above via stenographic or non-stenographic deposition, including videography; and to further grant all other and further relief, in law or in equity, to which Petitioner, TONYA BERGERON, may be justly entitled to receive. Respectfully submitted, LANZ LAW FIRM /s/ Sebastian F. Lanz SEBASTIAN F. LANZ TBA # 24007529 Attorney for LATONYA JORDAN BERGERON 4008 Vista Road, Suite 201A Pasadena, Texas 77504 Phone (713) 804-4100 Email: service@lanzlawoffice.com Bergeron-Petitioner Page 2 of 6 EXIHBIT A No. LATONYA JORDAN BERGERON § IN THE DISTRICT COURT § vs. § JUDICIAL DISTRICT CORNERSTONE CHRISTIAN § ACADEMY, WANDA LAST NAME UNKNOWN, AND GRACIE STELLY § FORT BEND COUNTY, TEXAS PETITIONER’S SUPPORTING AFFIDAVIT — EXHIBIT “A” LATONYA JORDAN BERGERON, appeared in person before me today and stated under oath: “My name is Latonya Jordan Bergeron. | am over the age of eighteen years, and | am fully competent to make this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. | am the Petitioner in this matter.” a “lam requesting to take the deposition of Gracie Stelly because she has pertinent information about the assault of my child, , at the hands of one of Cornerstone Christian Academy's ornerstone’) employees. Gracie Stelly is an administrator at Cornerstone. As such, she has information about the employee as well as about her actions and the actions of Cornerstone agents who engaged in efforts to disparage and slander the character of my son. “lam resident of Fort Bend. | am a combat Army veteran ending my service time at the rank of Major. | am currently employed as a staff general dentist at the Department of Veterans Affairs. My husband, Curtis Bergeron, is also an Army veteran who retired at the rank of Command Sergeant Major after 23 years of service. He urrently works as the executive assistant to the Associate Director for the Department of Veterans Affairs. Cornerstone is a private school located in Fort Bend County, Texas. was a student at Cornerstone for the 2018-2019 academic year. The issue began on October 4, 2018, when school employee Wanda (last name unknown) assaulted . At that time the school claimed that he was being disciplined. Apparently, along with several other children, had been playing with their food and mixing various foods items onto one another's food trays. Some beans inadvertently landed on the table and/or floor which infuriated Wanda. She demanded clean the beans up. He obeyed her and began cleaning up. When he proceeded to take the handful of rice to discard in the trash, Wanda beca nraged because she wanted him to clean the beans first. She forcefully grabbed by the arm pulling him up on his tippy toes and dragged him back to the table. Upon reaching the table, she forcefully slammed him into a seated position and yelled for him to get the beans up. HE lowered his head and began crying. Ms. Wanda then pulled IEE by his hair leaning him backwards until she could scream into his face for him to get the beans Bergeron-Petitioner Page 3 of 6 EXIHBIT A up at which time Wanda followed rm pulled away and attempted to flee her. She pursued him. Ms. out of the lunch room and into the boy’s bathroom. All along was scared and crying. eventually opened up to us about the event. We also received emails from concerned families about the incident as several children had witnessed the assault and reported it to their parents. has been in therapy to cope with the events of that day. The school’s response and subsequent actions are also very disturbing. After the incident, we spoke to Gracie Stelly. By the time we spoke to her on October 5, 2018, she had already given I a verbal reprimand, damning him to guilt without investigating thoroughly. We also spoke with the Head of School, Mr. Eric Nicholie on October 5, 2018. We directly informed him of the events that transpired as we had learned of them. He denied knowledge and told us he would have Ms. Stelly follow up because she was the elementary school principle and seemed to be aware of the situation. Ms. Stelly called me, and | placed the call on speaker. Ms. Lynsay Gaines, was present throughout the duration of the call. Ms. Stelly supported the actions of Ms. Wanda stating that she had received a different version of events from Ms. Wanda. | advised Ms. Stelly that not only had the parents whose children witnessed this assault called me, but they had also called and emailed the school. Two parents copied me on the emails. | further advised her that if she was refusing to look into the report of assault even after others had verified the event occurred, | would be forced to go to the police station and fill out an assault report, and since all | knew was “Wanda” | would be listing Cornerstone Christian Academy on the report. At that, she asked that | allow her time to investigate. Obvious! he had not investigated prior to calling me to reiterate the school’s position that reprimanding | She called later to say they would be was at fault-nor placing prior to Wanda on administrative leave until they could complete their investigation. The outcome of that investigation was never made known to us. “We decided to pull him out of Cornerstone for his safety and mental well-being. Cornerstone then notified us, via email, that we would have to pay the full years tuition or they would not release his transcripts. This meant that we would not be able to enroll him into any other school, public or private, immediately as additional testing and placement decisions would have to be completed. We even met with FBISD and completed enrollment paperwork. However, since it had been almost three years since he was last in public schoo! and it was outside of their district, his previous academic records could not easily be accessed. Even so, they would only confirm promotion to third grade. We were not willingly to withdraw our son from school without the ability to continue his education on grade level nor were we willingly to be extorted by cornerstone. We put a safety plan in place with who was in constant fear of further harm from adults at Cornerstone and decided we will leave as soon as his transcript became available. “Even more disturbingly, once Cornerstone learned we would not be returning after | opted out of auto-enrollment, this Christian School engaged in a concerted effort to bad-mouth my son and deny him the ability to attend other private schools in the area. We believe that school administrator Nancy Burnett wrote false and negative comments in “letters of recommendation” that were requested by other private schools. Bergeron-Petitioner Page 4 of 6 EXIHBIT A All the schools we applied to seemed enthusiastic to have our child enroll, but after receiving communications from Nancy Burnett, they had a different tone and ultimately did not allow our son to attend. This may have been an effort to excuse the assault of my son. We have requested a copy of the communication but have been denied access. “lam asking the court to allow a pre-suit deposition of Gracie Stelly so we can ( ary LL. address the assault of our child and ensuing trave: justice. Further, Affiant sayeth not.” 2 LATONYA JORDAN BERGERON Signed on this the Zu day of Ober. _, 2019. TlNoarytePublic, Ce, Cramer State of 7¢xas JANA ASHLEY CHAMBERS Notary Public, State of Texas| Comm. Expires 05-21-2020 po NONOY ID1D 126996112 128996112 Bergeron-Petitioner Page 5 of 6 EXHIBIT B CAUSE NO. 19-DCV-268112 LATONYA JORDAN BERGERON § IN THE DISTRICT COURT v § 434" JUDICIAL DISTRICT CORNERSTONE CHRISTIAN ACADEMY. § WANDA LAST NAME UNKNOWN, AND § GRACIE STELLY § FORT BEND COUNTY, TEXAS DEFENDANTS’ ORIGINAL ANSWER NOW COMES DEFENDANTS CORNERSTONE CHRISTIAN ACADEMY and GRACIE STELLY, and makes this Original Answer to Plaintiff LATONYA JORDAN BERGERON’S Petition for Depositions Before Suit on file herein, and for such answer would respectfully show unto the Court as follows: I Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants deny each and every, all and singular, the material allegations contained in Plaintiffs pleadings filed herein, and demands strict proof hereof, as required by the laws of this state, of persons or entities who bring suit as the Plaintiff does in the instant case. WHEREFORE, PREMISES CONSIDERED, Defendants CORNERSTONE CHRISTIAN ACADEMY and GRACIE STELLY pray that the Plaintiff LATONYA JORDAN BERGERON take nothing by reason of this suit against them and they be discharged with their costs without delay, and for such other and further relief, both general and special, at law and in equity, to which they may show themselves to be justly entitled. BERGERON V. CORNERSTONE Defendants’ Original Answer Page 1 a EXHIBIT B Respectfully submitted, GREER, SCOTT & SHR‘ SHI e, L.L.P. . GREER fats Bar No. 0 18417350 6363 ‘oodway Drive, Suite 810 Hetiston, Texas 77057 Telephone: (713) 223-0175 Facsimile: (713) 223-0174 Igreer@greerscottlaw.com ATTORNEYS FOR DEFENDANTS CORNERSTONE CHRISTIAN ACADEMY AND GRACIE STELLY CERTIFICATE OF SERVICE I do hereby certify that on this 26"" day of November, 2019, a true and correct copy of the foregoing was sent or delivered to all parties through counsel of record pursuant to Rule 21a, TRC. Sebastian F. Lanz Lanz Law Firm 4008 Vista Road, Suite 201A Pasadena, Texas 77504 Oe TAWR CE B. GREER BERGERON V. CORNERSTONE Defendants’ Original Answer Page 2 Filed 06/11/2021 15:19:46 EXHIBIT C Beverley McGrew Walker District Clerk