On April 14, 2022 a
Request,Application
was filed
involving a dispute between
Hensley , Joseph,
and
Rodriguez , Madecael,
Xpo Logistics Drayage Llc,
for MOTOR VEHICLE ACCIDENT
in the District Court of Dallas County.
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FILED
2/17/2023 9:46 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Brandon Keys DEPUTY
CAUSE NO. DC-22-04072
Joseph Hensley, § IN THE DISTRICT COURT OF
Plaintifi’, g
V. g DALLAS COUNTY, TEXAS
XPO Logistics Drayage, LLC and g
Madecael Rodriguez; §
Defendants. g 14TH JUDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO DEFENDANTS XPO LOGISTICS DRAYAGE, LLC
AND MADECAEL RODRIGUEZ’S APPLICATION FOR WRIT OF SCIRE FACIAS
Plaintiff Joseph Hensley (“Plaintiff”) requests that this Court deny Defendants XPO
Logistics Drayage, LLC (“XPO”) and Madecael Rodriguez (“Defendants”)’ Application for
Writ of Scire Facias, or alternatively abate said application, because the appointment of an
estate representative is well under way. Plaintiffs’ surviving spouse is working to file an
application to Determine Heirship and for Letters of Administration and the court’s
appointment of an ad litem is pending.
I.
BACKGROUND
This lawsuit arises from the serious personal injuries suffered by Plaintiff as a result of
a motor vehicle accident on March 8, 2022, wherein Defendant Rodriguez, operating an XTO
vehicle, violently rear-ended Plaintiff. Plaintiff filed suit in this Court on April 14, 2022,
bringing claims for negligence, negligence per se, and gross negligence against Defendants.
However, Plaintiff died unexpectedly in November, 2022. Plaintiff’ s counsel notified the court
and requested a 120-day continuance of all setting to sort out complications associated with
Plaintiff’s death. The Court granted the Motion and set this case for trial on August 9, 2023.
Since that time, Plaintiff’s counsel has diligently attended to his estate affairs. An
Application to Determine Heirship and for Letters of Administration is pending. The parties
are waiting on action from the probate court; an ad litem has yet to be appointed and no hearing
has been set by the court. Plaintiffs’ surviving spouse has also had difficulty locating some of
Plaintiffs’ adult children to receive their signatures.
II.
THE COURT SHOULD DENY THE APPLICATION
Rule 151 of the Texas Rules of Civil Procedure provides that if a plaintiff in a lawsuit
dies, the heirs or the administrator or executor may appear in the lawsuit, and after filing a
suggestion of death, may be substituted. Tex. R. Civ. P. 151. The defendant may only seek the
issuance of scire facias requiring the heirs or administrator or executor to appear and prosecute
the suit if a “reasonable time” has passed and no heirs or the administrator or executor has
appeared and filed a suggestion of death. Id.
A reasonable time has not passed here. An Application to Determine Heirship and for
Letters of Administration has been filed. See Ex. A. But the parties are waiting on action from
the probate court who has yet to appoint an ad litem or set the matter for hearing. Plaintiffs’
counsel has been diligent, but reasonably requires more time to complete the necessary probate
tasks.
Plaintiff submits that, upon the agreement of opposing counsel, discovery can proceed
in due course while the appointment of Mrs. Hensley as administrator of Plaintiff’s estate is
pending.
III.
CONCLUSION
For these reasons, the Court should deny Defendants’ application or alternately abate
any decision until an estate administrator can be established.
Respectfully submitted,
ARNOLD & ITKIN LLP
/s/ Cassidv Viser
Jason A. Itkin
Texas State Bar No. 24032461
Caj Boatright
Texas State Bar No. 24036237
Roland Christensen
Texas State Bar No. 24101222
Cassidy Viser
Texas State Bar No. 24130233
6009 Memorial Drive
Houston, Texas 77007
Telephone: (713) 222-3 800
Facsimile: (713) 222—3850
iitkin@ArnoldItkin.com
cboatright@ArnoldItkin.com
rchristensen@AmoldItkin.com
cviser@AmoldItkin.com
eserVice@ArnoldItkin.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was forwarded
to all counsel of record pursuant to the Texas Rules of Civil Procedure on this 17th day of
February 2023.
/s/ Cassidy Viser
Cassidy Viser
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.
Michelle Guillory on behalf of Cassidy Viser
Bar No. 24130233
mguillory@arnolditkin.com
Envelope ID: 72864061
Status as of 2/17/2023 10:16 AM CST
Associated Case Party: JOSEPH HENSLEY
Name BarNumber Email TimestampSubmitted Status
Jason ltkin e-service@arnolditkin.com 2/17/2023 9:46:41 AM SENT
Michelle Guillory mguillory@arnolditkin.com 2/17/2023 9:46:41 AM SENT
Shanelle Stevenson sstevenson@arnolditkin.com 2/17/2023 9:46:41 AM SENT
Cassidy Viser cviser@arnolditkin.com 2/17/2023 9:46:41 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Mark S.Scudder mscudder@qs|wm.com 2/17/2023 9:46:41 AM SENT
Kim Price kprice@qslwm.com 2/17/2023 9:46:41 AM SENT
Ryan Funderburg rfunderburg@qslwm.com 2/17/2023 9:46:41 AM SENT
Clayton Fitzgerald cfitzgerald@qslwm.com 2/17/2023 9:46:41 AM SENT
Document Filed Date
February 17, 2023
Case Filing Date
April 14, 2022
Category
MOTOR VEHICLE ACCIDENT
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FILED 2/17/2023 9:46 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Brandon Keys DEPUTY CAUSE NO. DC-22-04072 Joseph Hensley, § IN THE DISTRICT COURT OF Plaintifi’, g V. g DALLAS COUNTY, TEXAS XPO Logistics Drayage, LLC and g Madecael Rodriguez; § Defendants. g 14TH JUDICIAL DISTRICT PLAINTIFF’S RESPONSE TO DEFENDANTS XPO LOGISTICS DRAYAGE, LLC AND MADECAEL RODRIGUEZ’S APPLICATION FOR WRIT OF SCIRE FACIAS Plaintiff Joseph Hensley (“Plaintiff”) requests that this Court deny Defendants XPO Logistics Drayage, LLC (“XPO”) and Madecael Rodriguez (“Defendants”)’ Application for Writ of Scire Facias, or alternatively abate said application, because the appointment of an estate representative is well under way. Plaintiffs’ surviving spouse is working to file an application to Determine Heirship and for Letters of Administration and the court’s appointment of an ad litem is pending. I. BACKGROUND This lawsuit arises from the serious personal injuries suffered by Plaintiff as a result of a motor vehicle accident on March 8, 2022, wherein Defendant Rodriguez, operating an XTO vehicle, violently rear-ended Plaintiff. Plaintiff filed suit in this Court on April 14, 2022, bringing claims for negligence, negligence per se, and gross negligence against Defendants. However, Plaintiff died unexpectedly in November, 2022. Plaintiff’ s counsel notified the court and requested a 120-day continuance of all setting to sort out complications associated with Plaintiff’s death. The Court granted the Motion and set this case for trial on August 9, 2023. Since that time, Plaintiff’s counsel has diligently attended to his estate affairs. An Application to Determine Heirship and for Letters of Administration is pending. The parties are waiting on action from the probate court; an ad litem has yet to be appointed and no hearing has been set by the court. Plaintiffs’ surviving spouse has also had difficulty locating some of Plaintiffs’ adult children to receive their signatures. II. THE COURT SHOULD DENY THE APPLICATION Rule 151 of the Texas Rules of Civil Procedure provides that if a plaintiff in a lawsuit dies, the heirs or the administrator or executor may appear in the lawsuit, and after filing a suggestion of death, may be substituted. Tex. R. Civ. P. 151. The defendant may only seek the issuance of scire facias requiring the heirs or administrator or executor to appear and prosecute the suit if a “reasonable time” has passed and no heirs or the administrator or executor has appeared and filed a suggestion of death. Id. A reasonable time has not passed here. An Application to Determine Heirship and for Letters of Administration has been filed. See Ex. A. But the parties are waiting on action from the probate court who has yet to appoint an ad litem or set the matter for hearing. Plaintiffs’ counsel has been diligent, but reasonably requires more time to complete the necessary probate tasks. Plaintiff submits that, upon the agreement of opposing counsel, discovery can proceed in due course while the appointment of Mrs. Hensley as administrator of Plaintiff’s estate is pending. III. CONCLUSION For these reasons, the Court should deny Defendants’ application or alternately abate any decision until an estate administrator can be established. Respectfully submitted, ARNOLD & ITKIN LLP /s/ Cassidv Viser Jason A. Itkin Texas State Bar No. 24032461 Caj Boatright Texas State Bar No. 24036237 Roland Christensen Texas State Bar No. 24101222 Cassidy Viser Texas State Bar No. 24130233 6009 Memorial Drive Houston, Texas 77007 Telephone: (713) 222-3 800 Facsimile: (713) 222—3850 iitkin@ArnoldItkin.com cboatright@ArnoldItkin.com rchristensen@AmoldItkin.com cviser@AmoldItkin.com eserVice@ArnoldItkin.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was forwarded to all counsel of record pursuant to the Texas Rules of Civil Procedure on this 17th day of February 2023. /s/ Cassidy Viser Cassidy Viser 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. Michelle Guillory on behalf of Cassidy Viser Bar No. 24130233 mguillory@arnolditkin.com Envelope ID: 72864061 Status as of 2/17/2023 10:16 AM CST Associated Case Party: JOSEPH HENSLEY Name BarNumber Email TimestampSubmitted Status Jason ltkin e-service@arnolditkin.com 2/17/2023 9:46:41 AM SENT Michelle Guillory mguillory@arnolditkin.com 2/17/2023 9:46:41 AM SENT Shanelle Stevenson sstevenson@arnolditkin.com 2/17/2023 9:46:41 AM SENT Cassidy Viser cviser@arnolditkin.com 2/17/2023 9:46:41 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Mark S.Scudder mscudder@qs|wm.com 2/17/2023 9:46:41 AM SENT Kim Price kprice@qslwm.com 2/17/2023 9:46:41 AM SENT Ryan Funderburg rfunderburg@qslwm.com 2/17/2023 9:46:41 AM SENT Clayton Fitzgerald cfitzgerald@qslwm.com 2/17/2023 9:46:41 AM SENT