Legal Document: Sara Betancur VS. Sandra Betancur, Individually, and as Administrator of The Estate of Juan Betancur; L. Lee Thweatt, Individually, Terry & Thweatt, P.C.; Guerra & Farah, PLLC; Farah Law Group, PLLC; and George K. Farah, Individually

On June 02, 2022 a Plaintiff's Response in Opposition to Defendants' Motion to Transfer Venue - Answer/Contest/Response/Waiver Index # 21 was filed involving a dispute between Betancur, Sara, and Betancur, Sandra, Farah, George K., Farah Law Group, Pllc, Guerra & Farah, Pllc, Terry & Thweatt P.C., Thweatt, L. Lee, for Other Civil in the District Court of Fort Bend County.

Preview
CAUSE NO. -293925

SARA BETANCUR, IN THE DISTRICT COURT OF

Plaintiff,
VS.

SANDRA BETANCUR, INDIVIDUALLY,
AND AS ADMINISTRATOR OF THE ESTATE §
OF JUAN BETANCUR; L. LEE THWEATT, §
INDIVIDUALLY, TERRY & THWEATT, P.C.; §
GUERRA & FARAH, PLLC; § FT. BEND COUNTY, TEXAS
FARAH LAW GROUPPLLC ; §
GEORGE K. FARAH, INDIVIDUALLY,
§
Defendants. § JUDICIAL DISTRICT

PLAINTIFF RESPONSE IN OPPOSITION
DEFENDANTS’ MOTION TO TRASFER VENUE

COMES NOW, Plaintiff SARA BETANCUR (hereinafter “Plaintiff” or “Sara”) and files

her response in opposition to Thweatt and all other Defendants’ Motion to Transfer Venue

(Motion) and in support of such, respectfully show the following:

INTRODUCTION

This is a case against the Executor of the Estate of Juan Betancur (Plaintiffs

common law husband) a Plaintiff's former lawyers for negligence, conspiracy, breach of

fiduciary duties, and other claims related to the settlement and disbursement of funds from an

underlying personal injury case.

Venue is proper in Fort Bend County, Texas because one of the defendants resides

inF t Bend County. The law is clear that Plaintiff can file suit where any defendant resides. See

Tex. Civ. Prac. Rem. Code Ann. § 15.005. Sandra Betancur resides in Ft Bend County, Texas

and therefore venue is absolutely proper and appropriate here.

Page of
Thweatt Defendants (with joinder by the other Defendants) seek to now transfer

venue of this case to Harris County where Plaintiff originally tried to file it, and Defendants

objected. These defendants previously opposed and objected to Plaintiff's attempts to bring these

claims in that Harris County awsuit and now ignore the fact that the Judge in the Harris County

case specifically ordered that Plaintiff should file a separate lawsuit, which she did, this lawsuit!

Defendants got what they asked for and now want to complain about it. They convinced the Harris

County Court to disallow this proceeding to be heard in the same case. Plaintiffs counsel notified

the court and opposing counsel that the statute of limitations on these claims had not yet expired

and therefore, if the court denied Plaintiff the right to pursue all these related claims in the same

court, Plaintiff would be force to file a separate suitThe court even discussed options with

Plaintiff's counsel on where to file suit: 1) in the county where the probate matter was handled

(Collin County); 2) in the county where Defendant Sandra Betancur resides (Fort Bend County);

3) as a new case in Harris County; or 4) As a severed or sub file of the pending Harris County

case. Plaintiff argued that judicial economy and convenience should mandate that the claims be

ried together in the same Harris County case, because of the similarity of claims and witnesses

and the fact that all claims arise out of the same set of facts. However, the Lawyer Defendants,

led by Defendant Thweatt vigorously opposed Plaintiff's motion and asked the Judge to dismiss

Plaintiff's new/timely claims from the case, knowing, that based on statements from Plaintiffs

counsel and the comments from the court, that a new lawsuit would have to be filed, and 2 of the

3 possible counties were NOT Harris County. These same Defendants now beg this court to send

the case back to where Plaintiff tried to file it to begin with. This reminds one of the old adage

“be careful what you ask for”. The Defendants were happy to win the immediate battle but id

not think about how that would affect them in the war. Now that the very thing Plaintiff's

Page of
counsel warned them would happen, has happened and now they want to try to forum shop the

case and dictate where Plaintiff must file the new case that they forced Plaintiff to file. The law

does not work that way and the law does not permit Defendants to do that.

ARGUMENT & AUTHORITIES

PLAINTIFF’S CHOICE OF VENUE, IF PROPER, CANNOT BE
DISTURBED

laintiff chooses venue by deciding where to file a lawsuit. See In re Team

Rocket, 256 S.W.3d 257, 259 (Tex. 2008). Texas statutes makes that clear. Tex. Civ. Pac. Rem.

Code Ann. § 15.002 The statutes also make it clear that in a suit in which the plaintiff has

established proper venue against a defendant, the court also has venue of all the defendants in all

claims or actions arising out of the same transaction, occurrence, or series of transactions or

occurrences. See Tex. Civ. Prac. Rem. Code Ann. § 15.005.

Additionally, i ore than one county would be appropriate venue choices, the

plaintiff's choice controls. See Moveforfree.com, Inc. v. David Hetrick, Inc., 288 S.W.3d 539, 542

(Tex.App.—Houston [14 Dist.] 2009, no pet.). See also Velasco v. Texas Kenworth Co., 144

S.W.3d 632, 635 (Tex.App.—Dallas 2004, pet. denied).

Venue may be proper in more than one county under the venue rules. In general,

plaintiffs are allowed to choose venue first, and the plaintiff's choice of venue cannot be disturbed

as long as the suit is initially filed in a county of proper venue. See Jn re Henry, 274 S.W.3d 185,

190 (Tex.App.—Houston [1 Dist.] 2008, orig. proceeding).

In this case, Plaintiff's venue choice was proper in Fort Bend County because

efendant Sandra Betancur resides there. is more convenient for Defendant Sandra Betancur,

Page of
who lives there. Therefore, because this suit was filed in a county of proper venue, Plaintiffs

choice of venue in Fort Bend County cannot be disturbed. Jd.

THWEATT’S REQUEST TO TRANSFER THIS LAWSUIT HARRIS
COUNTY IS MISLEADING AND DISENGENOUS

Pending in Harris County, Texas, is a lawsuit involving the Plaintiff and only the

Lawyer Defendants from this case. See Cause No. 2020 39035; Sara Betancur vs Guerra &

Farrah, PLLC, et al; In the 157 Judicial District Court (the “Harris County Lawsuit”) Mr.

Thweatt’s attempts to focus the Court on the Harris County Lawsuit as a proper Court for venue

are misplaced.

Plaintiff attempted to add Defendant Sandra Betancur to the Harris County Lawsuit

Ex. A Plaintiff attempted to do the very thing that Defendants now ask for, and Defendants

objected and won. See Ex. B Court denied Plaintiff's motion for leave to add these new

claims See Ex. G, 4/4/22 Order) The statute of limitations for Plaintiff's claims against Ms.

Betancur and Mr. Thweatt have not expired so Plaintiff is absolutely within her rights to file this

lawsuit.

The very claims that are now pending in this honorable court in Fort Bend County

are the same claims that Plaintiff attempted to add to the pending case in Harris County. The

Defendants and the court said Plaintiff should be forced to file a separate suit and they have done

that. The 3 county/venueoptions as listed above were Collin County (too far and not convenient

to either party); Harris County or Fort Bend County (where defendant Sandra Betancur lives).

Pursuant to the rules, Plaintiff, NOT the defendant gets to choose the venue. Plaintiff chose an

appropriate venue that is convenient to Plaintiff and the Defendant Sandra Betancur. As stated

above, the Harris County court, based on these same Defendant’s objections, ruled that Plaintiff

must file these claims separately from the Harris County pending matter and Ex.

Page of
stated above, over the course of numerous hearings, when the subject of these

Fort Bend County claims arose, counsel for Plaintiff advised the Court that the statute of

limitations had not expired on Plaintiff’s claims against these Defendants and advised that if those

cla ms were not included or allowed in the pending Harris County case then they would have to

be brought in a separate lawsuit. (See Sears Affidavit)

he Court advised counsel for Plaintiff to file a separate lawsuit wherever he

thought appropriate. At an oral hearing on May 16, 2022, for which there was no transcript, the

Court told Plaintiff's Counsel in front of the movants/attorneys the following:

“Counsel you can file a separate lawsuit containing these issues, in Collin County, or
wherever the probate matter proceeded, the county where Sandra Betancur lives, or
you can file it as a sub matter in this Court, but given my previous rulings, you may
ot want me to be the person hearing that case. It is entirely up to you, but I’m not
going to allow those issues in this pending case. I’ll let you decide how you want to
handle that.” (See , Sears Affidavit)

The Court determined that filing a separate lawsuit was the appropriate course of

action. On June 1, 2022, the Court in the Harris County Lawsuit issued an order for a status hearing

the claims at issue in this Fort Bend County case and stated as follows:

“
On April 4, 2022, the Court granted a motion for summary judgment in part and
held that duties at issue in this case terminated on July 26, 216. After that order,
Plaintiff filed her 5 and 6 amended petitions. In those petitions, the Plaintiff
continues to assert that Post 2016 Conduct serves as the basis for additional legal
malpractice and/or fiduciary duty claims. Despite the Court’s request that such
claims be filed in a separate lawsuit, or a case severed from this one, no such action
has taken place (that the Court is aware of) ... It is the Court’s belief that
the Post 2016 Claims belong in a separate laws specifically because they are
prejudicial and confusing as to the 2016 claims...” (See , 6/1/22 Order)

In accordance with the Court’s June 1 Order, Plaintiff filed this lawsuit in Ft. Bend

County, where defendant Sandra Betancurresides .

On June 6, 2022, Plaintiffs counsel sent an email to the court advising that this

Fort Bend County case had been filed making the court’s requirement for status conference moot.

Page of
See Ex. E) In response to this notice, the court passed the status conference as it was no longer an

issue for the court to address.

Mr. Thweatt should not be allowed to object in Harris County that the adding of

party and trying ese issues in the Harris County Lawsuit would be improper

before the Harris County Court and then come before this Court and take a

completely opposite position.

THWEATT’S MOTION CONTAINS BASELESS ARGUMENTS IN
SUPPORT OF HIS DEFENSE AND LITTLE ON THE MERITS OF THE
ACTUAL REQUEST TO TRANSVER VENUE

Defendant Thweatt spends the vast majority of his motion to transfer venue arguing

his defense of the case (in a false and misleading light) and only two paragraphs, specifically

addressing venue None of his arguments change the law on Venue or the rules on which party

selects the location of the filing of the case.

Importantly, in his seventeen (17) page Motion, even with all of the photos and

graphics inserted that provide zero support on the issue of venue, Mr. Thweatt neglected to inform

this Court of the Harris County Judge’s position that she believes Plaintiff should file a separate

lawsuit and that she told Plaintiff's Counsel to file it in any appropriate county. (See Ex. , Sears

Affidavit and Ex. D, 6/1/22 Order). So much for candor with the Court.

Plaintiff advised the Harris County Court and all parties, including Mr. Thweatt

that Plaintiff would have to file a new/separate ca if she was not allowed to include her claims

in the Harris County suit See Ex. Sears Affidavit) Mr. Thweatt was present for every hearing

and had the opportunity to tell the Harris County Judge the same thing he is now telling this Court.

Instead, he chose to oppose every motion and cause the parties to incur additional time and money,

Page of
forcing Plaintiffto file this new suit and now wants to complain because it is inconvenient to him.

tion at pp. 12-13)

Mr. Thweatt may not like defending two lawsuits simultaneously, but he was

amed of this eventuality, and he still opposed Plaintiff's motions and supported severance of the

claims. Essentially what Thweatt and his lawyer co defendants are saying is that even though they

chose to fight for and forced Plaintiff to file two separate lawsuits, they now want to complain that

it is inconvenient and hope to try to convince this court to ignore the venue laws. A separate lawsuit

is what he wanted and what resulted from his own actions before the Harris County Court. Venue

is appropriate in Fort Bend County and the plaintiff's choice of venue cannot be disturbed as long

as the suit is initially filed in a county of proper venue, which it was. See In re Henry, 274 S.W.3d

185, 190 (Tex.App.—Houston [1 Dist.] 2008, orig. proceeding).

Additionally, the distance between Harris County and Fort Bend County

courthouses is negligible. In fact, Defendant Thweatt has handled 8 cases in Fort Bend County

over the past 10 years. His house is 25.8 miles from the Fort Bend County Justice Center, and his

office is miles from Fort Bend County Justice Center.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants’ Motion to

Transfer Venue be denied in its entirety, and all other and further relief, general and special, at law

and in equity, to which Plaintiff may show h_ self justly entitled.

Respectfully submitted,

EARS RAWFORD L.L.P.

By: /s/ Ross A. Sears, II
Ross A. Sears, IT
State Bar No. 17960011

Page of
1200 Rothwell Street
Houston, Texas 77002
Email: ross@searscrawford.com
Telephone (713) 223-3333
Facsimile (713) 223-3331

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

Thereby certify that a true and correct copy of the foregoing instrument was served pursuant
to the Texas Rules of Civil Procedure on the following on July 13, 2022:

Ross A. Sears, I
Ross A. Sears, IT

Page of
SARA BETANCUR, § IN THE DISTRICT COURT OF

Plaintiff,

vs.

GUERRA & FARAH, PLLC; HARRIS COUNTY, TEXAS
TERRY & THWEATT, P.C.;
FARAH LAW GROUP, PLLC;

JOSEPH D. TERRY, INDIVIDUALLY;
AND L. LEE THWEATT, INDIVIDUALLY,

Defendants. 157th JUDICIAL DISTRICT

’S MOTION FOR LEAVE TO

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiff, Sara Betancur, and files this Motion for Leave to A dd Parties and

in support of such, respectfully shows the Court thefollowing:

I. Introduction

1 Plaintiff filed suit in this case on June 30, 2020. The Court recently issued a new

Scheduling and Docket Control Order with trial set for August 22, 2022. New deadlines were

issued for discovery, dispositive motions and pleadings, etc. but no new deadline was issued for

2 Plaintiff seeks leave to add Sandra Betancur who is the ex-wife of Decedent Juan

Betancur. Sandra Betancur is also the Administrator of the Estate of Juan Carlos Betancur.

Plaintiff has claims against Sandra Betancur, Individually, and as Administrator of the Estate. As

a beneficiary, Plaintiff has standing to bring claims against Sandra Betancur as the court appointed

Administrator of the Estate.

Page
3 Sandra Betancur is a necessary party to this proceeding and is subject to service of

process. Plaintiff's causes of action against Sandra Betancur involve the same facts and similar

evidence as against Defendants and neither is unusually complex. Plaintiff contends that Sandra

Betancur acted and conspired with her lawyers to favor one class of beneficiary over another.

Plaintiff also has claims against Sandra Betancur for tortious interference with a contract, breach

of contract, breach of fiduciary duty, common law fraud, fraud by non-disclosure and conversion.

Plaintiff's claims against Sandra Betancur arise from the same facts and circumstances as her

claims against her lawyers in this case.

4 Alternatively, if leave is not granted to join Sandra Betancur in this proceeding,

Plaintiff will have to file a separate lawsuit which will likely be consolidated with this proceeding.

The statute of limitations has not expired on Plaintiff’ s claims against Sandra B etancur and judicial

economy would be served by allowing joinder of Sandra Betancur.

5. There is noprejudice to Defendants to add Sandra Betancur to this proceeding.

II. Argument & Authorities

6 Texas Rule of Civil Procedure 39 provides for joinder in mandatory terms if a

trial court determines an absent person falls within the provision of the rule, the court has a duty

to effect the person’s joinder. Under Rule 39, a person who is subject to service of process shall

be joined as a party in the action if in his absence complete relief cannot be accorded among those

already parties. SeeTex. R. Civ. P. 39 (a).

7 The Court should grant leave to add necessary party, Sandra Betancur, because

good cause for the amendment outweighs any alleged claims of prejudice to Defendants.

8 Joinder of Sandra Betancur is necessary to properly present the case and comports

with the evidence and testimony in this case.
9 This Motion is not for delay but so that justice may be served.

10. Defendants have indicated that they are opposed to this Motion.

Ill. PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays for an order granting her

Motion to allow Plaintiff to add Defendant Sandra Betancur, Individually, and as Administrator of

the Estate of Juan Carlos Betancur as a party to this proceeding, and any and all other and further

relief, general and special, at law and in equity, to which Plaintiff may show herself justly entitled.

RAWFORD

Ross A. Sears, II
State Bar No. 17960011
Cyndi M. Rusnak
State Bar No. 24007964
1200 Rothwell Street
Houston, Texas 77002
ross@ searscrawford.com
yndi@ searscrawford.com
Telephone (713) 223-3333
Facsimile (713) 223-3331

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF CONFERENCE

The undersigned counsel for Plaintiff conferred with counsel for Defendants who has indicated they

are opposed to Plaintiff s Motion for Leave to Add Parties.

/s/ RossA. Sears, IT
Ross A. Sears, Il
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was forwarded
pursuant to the Texas Rules of Civil Procedure on the following on March 24, 2022:

L. Lee Thweatt Nathan E. Inurria
Ithweatt@ terrythweat.com
Joseph D. Terry George K. Farah
jterry@ terrythweat.com gk@ gflawoffices.com
Terry & Thweat, P.C. Farah Law Group, PLLC
114 Byme Street 1211 Hyde Park Blvd.

Attomeys
for Defendants Attomeys for Defendants
L.Lee Thweait, and Farah Law Group, PLLC and
George K Farah, Individually

Ross A. Sears, II
CAUSEN = 2020-39035

SARA BETANCUR INT DISTRICTC RT

VS.

ERRA FARA _ PLLC; TERRY RRISC NTY, TEXAS
HWEATT, P.C.; FARA LAW GROUP,
PLLC; G ORGE FARA INDIVIDUALLY;§
AND J EP D. TERRY, INDIVIDUALLY 157 JUDICIAL DISTRICT

PLAINTIFF’S F RT NDED PETITI

co S NO SARA BETANCUR, Plaintiff, and files Plaintiff's Fourth nded

Petition against GUERRA FARAH, PLLC; FARAH LA GROUP, PLLC; TERRY

TH ATT, P.C.; GEORGE K. FARAH, INDIVIDUALLY :33 and L. LEE TH’ ATT,

INDIVIDUALLY, Defendants herein, and in support of such, respectfully show the following:

I
DISC ERY C TR PLAN

1 rsuant to the provisions of Texas Rule of Civil Procedure 190.4, Plaintiff proposes to

conduct discovery according to Discovery Control Plan Level 3, and therefore requests

that the Court enter a scheduling order which includes a discovery deadline and deadlines

for designating experts.

e netary relief sough sought in this case exceeds $100,000.00 but at this early date

is not anticipated to exceed $1,000,000.00. Plaintiff reserves the right to ask the Court or

jury for re ney if the evidence and facts developed during discovery support such

relief. This tter is not subject to Texas Rules of Civil Procedure 169 and it is not an

Expedited Action.

Plaintiff's Fourth Amended Petition
II.
ARTIES

aintiff, SARA BETANCUR, is an individual who resides in Harris County, Texas.

efendant, GUERRA FARAH, PLLC is a law fir practicing law and doing business

in the State of Texas who has been served and filed an answer.

efendant, FARAHLA GROUP, PLLC isa law fir practicing law and doing business

in the State of Texas who has been served and filed an answer.

efendant, TERRY TH ATT, P.C. is a law fir practicing law and doing business

in the State of Texas who has been served and filed an answer.

EORGE K. FARAH is an individual practicing law and doing business in the State of

Texas who has been served and filed an answer.

LEE TH = ATT is an individual practicing law and doing business in the State of

Texas who has been served and filed an answer.

III.
VENUE

enue is proper in Harris County, Texas, because st, if not all of the legal malpractice

related to this tter occurred in Harris County, Texas, and the acts or 0 ssions giving

rise to the causes of action accrued in Harris County, Texas. Additionally, and re

specifically, the underlying case was filed in and pending in Harris County, Texas.

Therefore, venue is proper under 15.002 of the Texas Civil Practices and Re ies Code.

IV.
FACTS

10. Plaintiff retained Defendants to pursue clai on her behalf against Fitness International,

LLC d/b/a LA Fitness and A-S 101 Beltway 8- st Road, LP (hereinafter “LA Fitness”)

related to the death of her husband, Juan Betancur, which occurred on Nove er 20, 2014.
Plaintiff's Fourth Amended Petition
After representing Plaintiff for al st two (2) years, Defendants ter nated the contract

with Plaintiff on July 26, 2016 (four nths prior to the expiration of the statute of

limitations) without advising Plaintiff of the quickly approaching statute of li tations or

that she needed to seek alternative legal counsel as soon as possible if she wanted to pursue

her clai . In fact, Defendants led Plaintiff to believe that she had no viable clai

Plaintiff later learned that the reason Defendants told her she had no clai and failed to

notify her of her pending statute of li tations, was because Defendants chose to drop her

case and instead represent the co eting interests of her husband’s children fro a prior

arriage.

11 Prior to receiving Defendants’ contract ter nation letter, Plaintiff assisted Defendants in

co nicating with her husband’s nor children and their ther (Juan Betancur’s ex-

ife) regarding clai they y have had related to the death of their father. Defendants

ulti tely entered into a contract with Sandra Betancur, the nor children’s mother, to

represent the in their wrongful death/survival clai , and filed a lawsuit on their behalf,

against LA Fitness on August 11, 2016.

12. As a result of Defendants’ breach of fiduciary duty of dropping Plaintiff in the grease in

favor of the re sy athetic children’s clai , and Defendants’ failure to advise

Plaintiff of the quickly approaching statute of li tations related to her clai , Plaintiff

as unable to file suit prior to the expiration of the two-year statute of li tations on her

clai

13 On January 29, 2019, Plaintiff entered into an agree nt with Sandra Betancur and her

attorneys in the Probate tter whereby Sara Betancur is to receive 20 of the proceeds

of all survival clai brought on behalf of Decedent, Juan Betancur’s estate.

Plaintiff's Fourth Amended Petition
14, On January 7, 2020, Defendants filed a letter in the underlying case (Cause No. 2016-

53441; In the 55" Judicial District Court of Harris County, Texas) advising the court that

the case had settled. At no ti was Plaintiff de aware of such settl nt by

efendants.

15 As a result of Defendants’ breach of fiduciary duty and/or negligent acts and/or 0 ssions,

Plaintiff's da ge clai and causes of action against LA Fitness were barred by the

statute of li tations, two years after the death of her husband.

16. Further, on or about April 1, 2016, Plaintiff and Defendants executed a Consent to Refer

gree nt, in which Defendants failed to disclose the a unt or share of the attorney’s

fee(s) that each lawyer or law fir would receive, as required by the Texas Disciplinary

ules of Professional Conduct §1.04. As such, Defendants violated the Texas Disciplinary

ules of Professional Conduct §1.04, and the Defendants should forfeit any and all

attorney’s fees paid to the pursuant to the underlying case.

Vv.
BREAC FIDUCIARY DUTY

17. It is undisputed that Defendants represented Plaintiff long before they signed up the

conflicting clai of the nor children. Once Defendants locked in the easier, re

sy athetic clai ofthe children, Defendants dropped Plaintiff without any guidance or

aid on how to preserve her clai , and in fact, specifically told her that she had no clai

Such acts/conduct clearly put Defendants’ interests ahead of their client’s interest.

efendants also failed to disclose known conflicts of interest, intentionally srepresented

the facts and law related to Plaintiff's clai ; failed to disclose the statute of li tations,

and placed their own interests and those of third parties ahead of Plaintiff, wrongfully

Plaintiff's Fourth Amended Petition
deducted legal fees fro Plaintiff's settle nt recovery, and paid Plaintiff's settle nt

ney to Sandra instead of Sara.

VI.
NE NCE AND SNE NCE

18. Further, incorporating the allegations contained herein above as if fully set forth herein, if

the Court or jury believes Defendants’ conduct was not a breach of fiduciary duty, then

efendants were negligent and grossly negligent under a duty to exercise reasonable care

in their legal representation of Plaintiff. Defendants’ breach of duty owed to Plaintiff

constitutes negligence and gross negligence which proxi tely caused Plaintiff to suffer

da ges in ana unt in excess of the ni jurisdictional li ts of this Court.

efendants’ negligence includes but is not li ted to the following:

ailure to properly nitor the file on behalfof Plaintiff;
ailure to ti ly and properly file suit and request issuance of citation and service
against LA Fitness and any other defendants prior to the expiration of the applicable
statute of li tations;
ailure to ti ly and properly advise Plaintiff of any upco ng statute of
li tations related to her clai regarding the death of her husband, Juan Betancur;
ailure to ti ly and properly advise Plaintiff to seek alternative counsel prior to
the expiration of the applicable statute of li tations;
ailure to fully and zealously represent Plaintiff;
ailure to act as a reasonable and prudent attorney;
llowing the Statute ofLi tations to run on Plaintiff's clai and causes of action;
iving Plaintiff false advice about the viability of her clai as com n-law
spouse; and
1 ailure to disclose the a unt or share of the attorney’s fee(s) that Defendant would
teceive, as required by the Texas Disciplinary Rules of Professional Conduct §1.04.

19. Each of the above and foregoing negligent and grossly negligent acts and o sions, and

other not listed above, when taken singularly or in any co ination, fell below the

standard of care for attorneys in the State of Texas and _ proxi tely caused the da ges

suffered by Plaintiff set forth herein.

Plaintiff's Fourth Amended Petition
20. Defendants engaged in acts and/or 0 ssions which, when viewed objectively fro their

standpoints at the ti of their occurrences, involve an extre degree of risk, considering

the probability and gnitude of potential har to others and of which each had actual,

subjective awareness of the risk involved, but nevertheless proceeded with conscious

indifference to the right, safety, or welfare of Plaintiffs, users of Defendants’ services and

the public at large.

VIL.
DA S

21 Plaintiffis entitled to each of the following ele nts of da ges:

a. he loss of the value of Plaintiff's underlying case through settle t or trial,
including but not li ted to: Past and future pain and suffering, and past and
future ntal anguish, as well as all other da ges allowed at law and in equity
for her wrongful death clai , Bystander clai and her legal share of any
survival clai 3
ull fee forfeiture of attorney’s fees, if any, paid to Defendants in the handling
of the underlying case and any unconscionable fees, include but are not li ted
to those deducted fro her settle nt proceeds;
Cc ll costs of court; and
d Il pre-judg nt and post-judg nt interest;
e ny and all other da ges allowed at law and in equity.

22. All of the above da ges exceed the ni 1 jurisdictional li ts of this court. Plaintiff

ill rely on the evidence and the jury or fact finder to deter ne the reasonable a unt of

such da ges.

VI.
EXE LARY DA Ss

23 Plaintiff also seeks exe lary da ges for injuries and da ges caused by Defendants’

gross negligence under Texas Civil Practice Re dies Code section 41.003(a), as

defined by Section 41.001(11). Plaintiff also seeks exe lary da ges under any and

all other statutes, acts, or law providing for such da ges.
Plaintiff's Fourth Amended Petition
IX.
INTEREST

24. Plaintiff is entitled to recover all prejudg nt and post-judg nt interest which has and

ill accrue in accordance with the law. Thus, Plaintiff hereby seeks recovery of all pre-

judg nt and post-judg nt interest at the xi interest rate allowed by law.

x.
DITI Ss PRECEDENT

25 All conditions precedent to Plaintiff's clai for relief have been perfor or have

occurred before the filing of this case.

XI.
JURY TRIAL

26. Plaintiff has requested a jury trial in this tter and tendered the appropriate jury fee.

XII.
STATUTE LI TATI Ss

27 Plaintiff would show and incorporate all of the facts that are discussed and set forth herein.

28, Plaintiff would show that there are no applicable bars to her case based upon any statute

of li tations. First, Plaintiff would show that the statute of li tations has not run on any

causes of action asserted herein. Plaintiff also hereby pleads the Discovery Rule and/or

the Hughes Rule. Plaintiff has two (2) years fro the period of ti that she discovered

the Defendants negligent acts to bring suit and this suit is ti ly. Plaintiff would also

plead the benefit of any tolling ofthe statute of li tations, including any tolling of statute

of li tations regarding the ti period during which any Defendants were out of the State

of Texas, and for any agree nts whereby the parties agreed to toll the statute of

limitations, pending settle nt discussions.

Plaintiff's Fourth Amended Petition
29. In addition, Plaintiff would show that any statute of li tations would be tolled and/or

would not run during the period of ti that Defendants had an attorney/client relationship

that was ongoing with Plaintiff, and/or during the ti that the legal actions were pending.

30. Additionally, Plaintiff hereby pleads the Hughes rule, as cited by the Texas Supre Court

in Hughes v. haney Higgins, 821 S. 2d 154 (Tex. 1991). Under the Hughes

doctrine, the statute of li tations is tolled until Plaintiff
has exhausted all appeals in the

underlying tter. Until then, the cause of action does not accrue. Plaintiff therefore

hereby asserts each of these rules and exceptions to the tolling of the statute of | tations

to support her ti ly filing of the Plaintiff's Original Petition in this tter.

31 Fraudulent conceal nt due to the fact that Defendants intentionally told Plaintiff that she

had no clai o her statute of li tations would run. Plaintiff did not learn of this

deception until after the probate tter co nced.

32 Plaintiff pleads any tolling provisions set forth by the Texas Supre Court, the Governor

of the State of Texas, and any other rules or statutes related to the current COVID-19

situation.

XI.
RESP DEAT SUPERI

33 Plaintiff would show that at all ti s relevant to the underlying tter de the basis of

this lawsuit, any acts that were co tted by e loyees, servants, and/or agents of

efendants were acting within the course and scope of their e loy nt with Defendants.

Therefore, Defendants are vicariously liable for all of the acts and/or o ssions of any of

their e loyees, servants, and/or agents which were co tted within the course and

scope of their e loy nt with Defendants.

Plaintiff's Fourth Amended Petition
EREFORE, PRE SES CONSIDERED, Plaintiff prays that citation and notice be issued

in accordance with law and that upon final trial or hearing hereof that she receives judg nt against

Defendants, jointly and severally, including actual da ges, prejudg nt and post-judg nt

interest at the xi interest rate allowed by law, statutory da ges, costs of court, and all

other and further relief, general and special, at law and in equity, to which Plaintiff may show

herself justly entitled.

Respectfully sub tted,

EARS RAWF L.L.P.

By: s/ RossA. Sears, II
Ross A. Sears, II
State Bar No. 17960011
yndi Rusnak
tate Bar No. 24007964
1200 Rothwell Street
Houston, Texas 77002
il: ross earscrawford.com
il: cyndi earscrawford.co
Telephone (713) 223-3333
Facsi le (713) 223-3331
ATT NEYSF PLAINTIFF

Plaintiff's Fourth Amended Petition
CERTIFICATE SERVICE

I hereby certify that a true and correct copy of the foregoing instru nt was forwarded
pursuant to the Texas Rules of Civil Procedure on the following on rch 3, 2022:

L. Lee Thweatt Nathan E. Inurria
Ithweatt__ errythweat.com nei flawoffices.com
Joseph D. Terry George K. Farah
jterry@terrythweat.com gk flawoffices.com
Terry Thweat, P.C. Farah Law Group, PLLC
114 Byrne Street 1211 Hyde Park Blvd.
Houston, TX 77009 Houston, TX 77006
Attorneys for Defendants Attorneys for Defendants
Joseph D. Terry, L.Lee Thweatt, and Farah Law Group, PLLC and
Terry Thweat, P.C. George K. Farah, Individually

/s/ Ross A. Sears, II
oss A. Sears, II

Plaintiff's Fourth Amended Petition
4/1/2022 1:59 PM
rilyn Burgess - District Clerk Harris County
Envelope No. 63189285
By: LISAC ER
Filed: 4/1/2022 1:59 PM

CAUS 2020-39035

ARA BETANCUR, HE ST COURT

Plaintiff,
Vv.

GUERRA ARAH,
ERRY HWEATT, 3 HARRIS COUNTY, TEXAS
ARA AW GROUP, GEORGE
F AH,T DUALLY;
TERRY INDI DUALLY,
AND .L HWEATT,
NDI DUALLY,

Defendants. 157T DIST

DEFENDANTS’ RESP SET PLAINTIFF’S
MOT F LEAVE T_ADD PARTIES

co NO Defendants, Terry Thweatt, P.C. and L. Lee Thweatt, and file this

Response to Plaintiff's tion for Leave to Add Parties, respectfully showing the Court as follows:

BACKGROUND

1 This case has been on file for nearly two years. The parties have all been deposed.

Lengthy oral hearings concerning summary judg nt and expert challenges occurred in January

2022 and March 2022, respectively, and rulings on those issues are now pending fro he Court.

In lieu of dis ssal via summary judg nt or successful Robinson challenges, there is a trial setting

scheduled just five nths fro now in August 2022.

2. Nonetheless, while dispositive tions and expert challenges are pending, and a

full year beyond the applicable joinder deadline, the Plaintiff seeks now leave to join a new party

into this case of alleged legal Ipractice. o is the party which Plaintiff seeks to join now? Is

it another lawyer? Is it another law fir Not at all nstead, the proposed party is the mother of

Juan Betancur’s two nor children, Sandra Betancur.

Page 1 of 9
3 he Plaintiff's tion for leave should be seen for what it is: a rather desperate

atte tto so how keep the Plaintiff’s clai alive in this case. It is procedurally unti ly and

substantively titless. For the reasons set forth below, it should be denied in all things.

PR__EDURAL ST Y

4 The first docket control order (DCO) issued in this case is dated 9/15/2020. That

DCO set a joinder deadline of 3/22/2021.

5 The second DCO issued in this case is dated 7/29/2021. That DCO did not include

any new joinder deadline, presu bly because the 3/22/2021 joinder deadline had already passed

when the second DCO was issued.

6. The third DCO issued in this case is dated 3/1/2022. The third DCO also did not

include any new joinder deadline. Again, the reason is clear: the joiner deadline expired on

3/22/2021.

RULE 39(a) IS N APPLICABLE

7 The indisputable fact here is that the joinder deadline expired over a year ago in

this case. The Plaintiff's tion for leave sails past that fact and instead urges that the joinder here

is ndatory under Tex. R. Civ. P. 39(a). It is not.

8 Rule 39(a) conte lates “Persons to be Joined if Feasible”. It states that:

“A person who is subject to service of process shall be joined as a party if:
(1) in his absence co lete relief cannot be accorded a ng those already parties, or
(2) he clai

Case Info

Case No.

(Subscribe to View)

Document Filed Date

July 13, 2022

Case Filing Date

June 02, 2022

County

Parties

Betancur, Sandra Defendant
Betancur, Sara Plaintiff
Farah, George K. Defendant
Farah Law Group, PLLC Defendant
George K Farah Attorney for the Defendant
Guerra & Farah, PLLC Defendant
I Ray Kerlick Attorney for the Defendant
L. Lee Thweatt Attorney for the Defendant
Ross A Sears, II Attorney for the Plaintiff
Terry & Thweatt P.C. Defendant
Thweatt, L. Lee Defendant
Larry Thweatt Attorney
Joseph Terry Attorney
Cindy Rusnak Attorneys for Plaintiffs

For full print and download access, please subscribe at https://www.trellis.law/.

Document for Sara Betancur VS. Sandra Betancur, Individually, and as Administrator of The Estate of Juan Betancur; L. Lee Thweatt, Individually, Terry & Thweatt, P.C.; Guerra & Farah, PLLC; Farah Law Group, PLLC; and George K. Farah, Individually

Preview

Related Topics

Case Info

Parties