Preview
FILED
3/6/2023 7:40 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Martin Reyes DEPUTY
CAUSE NO. DC-22-04487
JEROME RUDOLPH FOITEK, IN THE DISTRICT COURT
§§§§§§§§§§§§
INDIVIDUALLY AND AS NEXT
FRIEND OF MARY FOITEK, AN
ADULT
Plaintiffs,
VS. 1931“) JUDICIAL DISTRICT
BRINKER INTERNATIONAL, INC.
D/B/A CHILI’S #854
Defendant. DALLAS COUNTY, TEXAS
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Jerome Rudolph Foitek, Individually, and as Next Friend of Mary Foitek,
an Adult, hereinafter called Plaintiffs, file their Response to Defendants’ Motion to Transfer
Venue, and for cause of action show unto the Court the following:
I.
1. Plaintiff, Jerome Rudolph Foitek as Next Friend of Mary Foitek brings suit to
recover damages for personal injuries Mary Foitek sustained as a result of a trip and fall. The fall
occurred on or about February 1, 2021 on the premises of the Chili’s restaurant located at 1006
East Ennis Avenue, Ennis, Texas 75119.
2. On or about February 1, 2021, Plaintiffs were invitees on Defendant’s premises.
While walking to her parked car, Mary Foitek tripped over an elevated concrete portion of the
walking path that was not marked or otherwise distinguishable from the surrounding concrete
surface.
3. Plaintiffs sued Defendant, Brinker International, Inc. D/B/A Chili’s #854, alleging
injuries resulting premises liability negligence. Brinker International’s principal place of business
is in Dallas County.
4. By amended petition, Plaintiffs sued Defendants, Emersons Commercial
Management US and Sweetwater Investment Group, LLC alleging negligence. Both Defendants
answered and Defendant, Sweetwater Investment Group, LLC filed a Cross Claim against
Defendant Brinker International, Inc. asking the Court to enforce certain lease provisions.
Defendant claims this is the basis for venue.
5. However, Plaintiff s claims against Defendants is not “arising under a lease” as
contemplated by the venue statute. As such, the Court should deny Defendants’ Motion to Transfer
Venue.
II.
ARGUMENT & AUTHORITIES
6. A plaintiff is not required to file a response to a motion to transfer unless proof is
necessary. TRCP 86(4). Once a venue fact has been specifically denied, the party pleading the
venue fact has the burden to make prima facie proof of that fact. GeoChem Tech v. Versckes, 962
S.W.2d 541, 543 (Tex. 1998). The Texas Supreme Court defines prima facie evidence as “the
minimum quantum of evidence necessary to support a rational inference that the allegation of fact
is true.” In re E.I. Dupont deNemours, 136 S.W.3d 218, 228 (Tex. 2004). Generally, prima facie
proof is not subject to rebuttal, cross-examination, impeachment, or disproof. Ruiz v. Conoco, Ina,
868 S.W.2d 752, 757 (Tex. 1993). The court should not weigh the credibility of the affiants when
evaluating the venue proof. Humphrey v. May, 804 S.W.2d 328, 329 (Tex.App.-Austin 1991, writ
denied).
A. Dallas County is a county of proper venue.
7. The Plaintiffs have the first choice to fix venue in a proper county, which is done
by filing suit in the county of choice, and is ordinarily bound by this choice. Chiriboga v. State
Farm Mut. Auto. Ins. C0., 96 S.W.3d 673, 677 (Tex. App.--Austin 2003, no pet). Plaintiffs have
the right to choose venue first; as long as suit is initially filed in county of proper venue. Plaintiffs
venue choice cannot be disturbed. Id.; In re Pepsico, Ina, 87 S.W.3d 787, 789 (Tex. App.--
Texarkana 2002, orig. proceeding).
8. The general venue rule provides that all lawsuits must be brought in one of the
following counties:
1. The county in which all or a substantial part of events or omissions giving rise to
the claim occurred.
2. The county of the defendant’s residence at the time the cause of action accrued, if
the defendant is natural person.
3. The county of the defendant’s “principal office” in Texas, if the defendant is
not a natural person.
4. The county in which the plaintiff resided at the time of accrual of the cause of
action, if the rules in paragraphs (1), (2), and (3), above, do not apply.
C.P.R.C. § 15 .002(a) (emphasis added)(West 2005).
9. Venue is proper as to Defendant, Brinker International, Inc. In a suit in which the
Plaintiffs have established proper venue against one Defendant, the court also has venue of a_ll
the defendants in all claims or actions arising out of the same transaction, occurrence, or
series of transactions or occurrences. C.P.R.C., § 15.005. Venue is therefore proper as to all
Defendants.
B. The Mandatory Venue Provision does not apply
10. Defendant’s motion to transfer venue from Dallas County to Ellis County is based
on C.P.R.C., §15.0115 entitled “Landlord-Tenant” and provides:
(a) Except as provided by another statute prescribing mandatory venue, a suit
between a landlord and a tenant arising under a lease shall be brought in the
county in which all or a part of the real property is located.
(b) In this section, “lease” means any written or oral agreement between a
landlord and a tenant that establishes or modifies the terms, conditions, or other
provisions relating to the use and occupancy of the real property that is the
subject of the agreement.
11. Here, Plaintiffs’ allegations against Defendants involve allegations of negligence.
Plaintiffs’ live pleadings do not assert, much less even mention, anything about a lease. There is
nothing about Plaintiffs’ claims that “arise under a lease” nor do their claims “...establishes or
modifies the terms, conditions, or other provisions relating to the use and occupancy of the real
property that is the subject of the agreement.” As such, this venue provision is inapplicable and
the Court should deny Defendants’ motion to transfer venue.
C. Defendants Motion Provides No Supporting Affidavit or Evidence
12. While the defendant may, it is not required to support the motion with affidavits
when the motion is filed. TRCP 86(3) (last paragraph); GeoChem Tech, 962 S.W.2d at 543.
However, once the plaintiff responds to the motion and denies the defendant’s venue facts, the
defendant must provide proof as required by TRCP 87(3). See TRCP 87(2). Defendants’ Motion,
the most recent live pleadings on file with this Court, provide absolutely no proof or evidence to
support their motion.
D. There is N0 Injustice in Dallas County.
l3. Having selected a county of proper venue, Plaintiffs’ choice should prevail unless
Defendants can establish an “injustice.” By focusing on the actual legal standards at issue here, it
becomes clear that there really is no legal basis for Defendants’ Motion. A court may only transfer
an action from a county of proper venue to any other county of proper venue upon a judicial finding
that “the convenience of the parties and witnesses and the interest of justice” mandates such a
transfer. C.P.R.C. § 15 .002(b). To order the transfer, the couIt must make all of the following
findings:
1. Maintenance of the action in the county of suit would work an injustice to the
movant considering the movant's economic and personal hardship.
2. The balance of interests of all the parties predominates in favor of the action being
brought in the other county.
3. The transfer would not work an injustice to any other party.
C.P.R.C. § 15.002(b)(emphasis added).
12. There is no evidence before the Court that the Defendants would be prejudiced
economically by traveling to Dallas County more so than they would be in traveling to Ellis
County. There is simply no economic impetus or hardship to this Motion.
E. Defendants have waived their venue arguments
l3. “The law in Texas has long been that any party to a lawsuit may expressly or
impliedly waive rights conferred upon him by a venue statute. The matter of venue is a personal
privilege which may be waived. Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306,
309-310 (Tex.App.-Fort Worth 1988, writ denied) (citing Mooney Aircraft, Inc. v. Adams, 377
S.W.2d 123, 125 (Tex.Civ.App.--Dallas 1964, no writ)). The accomplishment of a waiver of the
venue privilege may be either expressed or implied. Id. An express waiver is shown by clear overt
5
acts evidencing an intent to waive, and an implied waiver occurs when a party, often inadvertently,
takes some action inconsistent with his position upon the venue issue and therefore is held to have
waived his rights thereon. Id. “It has been conclusively established that the inconsistent action
resulting in waiver is one which invokes the generaljurisdiction of the court without reservation
of rights asserted by the filing of the plea of privilege." Id. The Grozz'er court cited a number of
cases which have held that when a party does not first seek a ruling on its plea of privilege, its
benefits may be waived by submitting matters for the courts determination. Id.
l4. In this case, Defendants have waived their venue arguments by invoking the general
jurisdiction of this Court without reservation of rights. Defendants invoked the general jurisdiction
of this Court by asking for relief. Specifically, Defendants asked for a continuance in this case.
Even more, Defendants did not seek a continuance “subject to” its motion to transfer venue. Thus,
Defendants have waived their venue arguments and the Court should deny their motion to transfer
venue.
IH.
CONCLUSION
Plaintiffs therefore respectfully request that any request to transfer this action to Ellis
County be DENIED, and for any and all further relief to which Plaintiffs may show to be justly
entitled.
Respectfully submitted,
HERNANDEZ SUNOSKY, LLP
By: /s/ Jimmy Sunosky
Ian C. Hernandez
Texas Bar No. 24036763
ihernandez@hsinjuryattorney.com
Jimmy Sunosky
Texas Bar No. 24033372
jsunosky@hsinjuryattorney.com
2929 Allen Parkway, Suite 200
Houston, Texas 77019
Tel. (713) 981-4100
Fax. (713) 981-4133
A TTORNE YS FOR PLAINTIFFS, JEROME
RUDOLPH FOITEK, INDIVIDUALLY AND AS
NEXT FRIEND OF MARY FOITEK, AN
ADULT
Pursuant to Rule 2 la of the Texas Rules of Civil Procedure, I hereby certify that a true and
correct copy of the foregoing has been served upon all known counsel of record, by electronic
means, on this the 6th day of March, 2023.
/s/Jimmy Sunosky
Jimmy Sunosky
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
James Sunosky on behalf of James Sunosky
Bar No. 24033372
firm@hsinjuryattorney.com
Envelope ID: 73395840
Status as of 3/7/2023 1:52 PM CST
Associated Case Party: JEROME RUDOLPH FOITEK
Name BarNumber Email TimestampSubmitted Status
JAMES TSUNOSKY jsunosky@hrslawyers.com 3/6/2023 7:40:16 PM SENT
Associated Case Party: BRINKER INTERNATIONAL, INC.
Name BarNumber Email TimestampSubmitted Status
Bill Templeton bill@doyleseelbach.com 3/6/2023 7:40:16 PM SENT
Joshua Bolduc josh@doyleseelbach.com 3/6/2023 7:40:16 PM SENT
Jonathan Pena jonathan@doyleseelbach.com 3/6/2023 7:40:16 PM SENT
Associated Case Party: EMERSON COMMERCIAL MANAGEMENT US, LLC
Name BarNumber Email TimestampSubmitted Status
Eugene Y.Kim kime11@nationwide.com 3/6/2023 7:40:16 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Ian C.Hernandez ihernandez@hsinjuryattorney.com 3/6/2023 7:40:16 PM SENT
Jimmy Sunosky jsunosky@hsinjuryattorney.com 3/6/2023 7:40:16 PM SENT
Preview
FILED 3/6/2023 7:40 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Martin Reyes DEPUTY CAUSE NO. DC-22-04487 JEROME RUDOLPH FOITEK, IN THE DISTRICT COURT §§§§§§§§§§§§ INDIVIDUALLY AND AS NEXT FRIEND OF MARY FOITEK, AN ADULT Plaintiffs, VS. 1931“) JUDICIAL DISTRICT BRINKER INTERNATIONAL, INC. D/B/A CHILI’S #854 Defendant. DALLAS COUNTY, TEXAS PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Jerome Rudolph Foitek, Individually, and as Next Friend of Mary Foitek, an Adult, hereinafter called Plaintiffs, file their Response to Defendants’ Motion to Transfer Venue, and for cause of action show unto the Court the following: I. 1. Plaintiff, Jerome Rudolph Foitek as Next Friend of Mary Foitek brings suit to recover damages for personal injuries Mary Foitek sustained as a result of a trip and fall. The fall occurred on or about February 1, 2021 on the premises of the Chili’s restaurant located at 1006 East Ennis Avenue, Ennis, Texas 75119. 2. On or about February 1, 2021, Plaintiffs were invitees on Defendant’s premises. While walking to her parked car, Mary Foitek tripped over an elevated concrete portion of the walking path that was not marked or otherwise distinguishable from the surrounding concrete surface. 3. Plaintiffs sued Defendant, Brinker International, Inc. D/B/A Chili’s #854, alleging injuries resulting premises liability negligence. Brinker International’s principal place of business is in Dallas County. 4. By amended petition, Plaintiffs sued Defendants, Emersons Commercial Management US and Sweetwater Investment Group, LLC alleging negligence. Both Defendants answered and Defendant, Sweetwater Investment Group, LLC filed a Cross Claim against Defendant Brinker International, Inc. asking the Court to enforce certain lease provisions. Defendant claims this is the basis for venue. 5. However, Plaintiff s claims against Defendants is not “arising under a lease” as contemplated by the venue statute. As such, the Court should deny Defendants’ Motion to Transfer Venue. II. ARGUMENT & AUTHORITIES 6. A plaintiff is not required to file a response to a motion to transfer unless proof is necessary. TRCP 86(4). Once a venue fact has been specifically denied, the party pleading the venue fact has the burden to make prima facie proof of that fact. GeoChem Tech v. Versckes, 962 S.W.2d 541, 543 (Tex. 1998). The Texas Supreme Court defines prima facie evidence as “the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” In re E.I. Dupont deNemours, 136 S.W.3d 218, 228 (Tex. 2004). Generally, prima facie proof is not subject to rebuttal, cross-examination, impeachment, or disproof. Ruiz v. Conoco, Ina, 868 S.W.2d 752, 757 (Tex. 1993). The court should not weigh the credibility of the affiants when evaluating the venue proof. Humphrey v. May, 804 S.W.2d 328, 329 (Tex.App.-Austin 1991, writ denied). A. Dallas County is a county of proper venue. 7. The Plaintiffs have the first choice to fix venue in a proper county, which is done by filing suit in the county of choice, and is ordinarily bound by this choice. Chiriboga v. State Farm Mut. Auto. Ins. C0., 96 S.W.3d 673, 677 (Tex. App.--Austin 2003, no pet). Plaintiffs have the right to choose venue first; as long as suit is initially filed in county of proper venue. Plaintiffs venue choice cannot be disturbed. Id.; In re Pepsico, Ina, 87 S.W.3d 787, 789 (Tex. App.-- Texarkana 2002, orig. proceeding). 8. The general venue rule provides that all lawsuits must be brought in one of the following counties: 1. The county in which all or a substantial part of events or omissions giving rise to the claim occurred. 2. The county of the defendant’s residence at the time the cause of action accrued, if the defendant is natural person. 3. The county of the defendant’s “principal office” in Texas, if the defendant is not a natural person. 4. The county in which the plaintiff resided at the time of accrual of the cause of action, if the rules in paragraphs (1), (2), and (3), above, do not apply. C.P.R.C. § 15 .002(a) (emphasis added)(West 2005). 9. Venue is proper as to Defendant, Brinker International, Inc. In a suit in which the Plaintiffs have established proper venue against one Defendant, the court also has venue of a_ll the defendants in all claims or actions arising out of the same transaction, occurrence, or series of transactions or occurrences. C.P.R.C., § 15.005. Venue is therefore proper as to all Defendants. B. The Mandatory Venue Provision does not apply 10. Defendant’s motion to transfer venue from Dallas County to Ellis County is based on C.P.R.C., §15.0115 entitled “Landlord-Tenant” and provides: (a) Except as provided by another statute prescribing mandatory venue, a suit between a landlord and a tenant arising under a lease shall be brought in the county in which all or a part of the real property is located. (b) In this section, “lease” means any written or oral agreement between a landlord and a tenant that establishes or modifies the terms, conditions, or other provisions relating to the use and occupancy of the real property that is the subject of the agreement. 11. Here, Plaintiffs’ allegations against Defendants involve allegations of negligence. Plaintiffs’ live pleadings do not assert, much less even mention, anything about a lease. There is nothing about Plaintiffs’ claims that “arise under a lease” nor do their claims “...establishes or modifies the terms, conditions, or other provisions relating to the use and occupancy of the real property that is the subject of the agreement.” As such, this venue provision is inapplicable and the Court should deny Defendants’ motion to transfer venue. C. Defendants Motion Provides No Supporting Affidavit or Evidence 12. While the defendant may, it is not required to support the motion with affidavits when the motion is filed. TRCP 86(3) (last paragraph); GeoChem Tech, 962 S.W.2d at 543. However, once the plaintiff responds to the motion and denies the defendant’s venue facts, the defendant must provide proof as required by TRCP 87(3). See TRCP 87(2). Defendants’ Motion, the most recent live pleadings on file with this Court, provide absolutely no proof or evidence to support their motion. D. There is N0 Injustice in Dallas County. l3. Having selected a county of proper venue, Plaintiffs’ choice should prevail unless Defendants can establish an “injustice.” By focusing on the actual legal standards at issue here, it becomes clear that there really is no legal basis for Defendants’ Motion. A court may only transfer an action from a county of proper venue to any other county of proper venue upon a judicial finding that “the convenience of the parties and witnesses and the interest of justice” mandates such a transfer. C.P.R.C. § 15 .002(b). To order the transfer, the couIt must make all of the following findings: 1. Maintenance of the action in the county of suit would work an injustice to the movant considering the movant's economic and personal hardship. 2. The balance of interests of all the parties predominates in favor of the action being brought in the other county. 3. The transfer would not work an injustice to any other party. C.P.R.C. § 15.002(b)(emphasis added). 12. There is no evidence before the Court that the Defendants would be prejudiced economically by traveling to Dallas County more so than they would be in traveling to Ellis County. There is simply no economic impetus or hardship to this Motion. E. Defendants have waived their venue arguments l3. “The law in Texas has long been that any party to a lawsuit may expressly or impliedly waive rights conferred upon him by a venue statute. The matter of venue is a personal privilege which may be waived. Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306, 309-310 (Tex.App.-Fort Worth 1988, writ denied) (citing Mooney Aircraft, Inc. v. Adams, 377 S.W.2d 123, 125 (Tex.Civ.App.--Dallas 1964, no writ)). The accomplishment of a waiver of the venue privilege may be either expressed or implied. Id. An express waiver is shown by clear overt 5 acts evidencing an intent to waive, and an implied waiver occurs when a party, often inadvertently, takes some action inconsistent with his position upon the venue issue and therefore is held to have waived his rights thereon. Id. “It has been conclusively established that the inconsistent action resulting in waiver is one which invokes the generaljurisdiction of the court without reservation of rights asserted by the filing of the plea of privilege." Id. The Grozz'er court cited a number of cases which have held that when a party does not first seek a ruling on its plea of privilege, its benefits may be waived by submitting matters for the courts determination. Id. l4. In this case, Defendants have waived their venue arguments by invoking the general jurisdiction of this Court without reservation of rights. Defendants invoked the general jurisdiction of this Court by asking for relief. Specifically, Defendants asked for a continuance in this case. Even more, Defendants did not seek a continuance “subject to” its motion to transfer venue. Thus, Defendants have waived their venue arguments and the Court should deny their motion to transfer venue. IH. CONCLUSION Plaintiffs therefore respectfully request that any request to transfer this action to Ellis County be DENIED, and for any and all further relief to which Plaintiffs may show to be justly entitled. Respectfully submitted, HERNANDEZ SUNOSKY, LLP By: /s/ Jimmy Sunosky Ian C. Hernandez Texas Bar No. 24036763 ihernandez@hsinjuryattorney.com Jimmy Sunosky Texas Bar No. 24033372 jsunosky@hsinjuryattorney.com 2929 Allen Parkway, Suite 200 Houston, Texas 77019 Tel. (713) 981-4100 Fax. (713) 981-4133 A TTORNE YS FOR PLAINTIFFS, JEROME RUDOLPH FOITEK, INDIVIDUALLY AND AS NEXT FRIEND OF MARY FOITEK, AN ADULT Pursuant to Rule 2 la of the Texas Rules of Civil Procedure, I hereby certify that a true and correct copy of the foregoing has been served upon all known counsel of record, by electronic means, on this the 6th day of March, 2023. /s/Jimmy Sunosky Jimmy Sunosky Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. James Sunosky on behalf of James Sunosky Bar No. 24033372 firm@hsinjuryattorney.com Envelope ID: 73395840 Status as of 3/7/2023 1:52 PM CST Associated Case Party: JEROME RUDOLPH FOITEK Name BarNumber Email TimestampSubmitted Status JAMES TSUNOSKY jsunosky@hrslawyers.com 3/6/2023 7:40:16 PM SENT Associated Case Party: BRINKER INTERNATIONAL, INC. Name BarNumber Email TimestampSubmitted Status Bill Templeton bill@doyleseelbach.com 3/6/2023 7:40:16 PM SENT Joshua Bolduc josh@doyleseelbach.com 3/6/2023 7:40:16 PM SENT Jonathan Pena jonathan@doyleseelbach.com 3/6/2023 7:40:16 PM SENT Associated Case Party: EMERSON COMMERCIAL MANAGEMENT US, LLC Name BarNumber Email TimestampSubmitted Status Eugene Y.Kim kime11@nationwide.com 3/6/2023 7:40:16 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Ian C.Hernandez ihernandez@hsinjuryattorney.com 3/6/2023 7:40:16 PM SENT Jimmy Sunosky jsunosky@hsinjuryattorney.com 3/6/2023 7:40:16 PM SENT