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20-CV—1564
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CAUSE NO. 2020-3 1023
ROBERT L. MOODY, JR. § IN THE DISTRICT cogRT 0F
§ chORHND
§ HARRIS COUNTY TExggo‘E"W150
g
mow“02 02”
v. §
55th JUDIC WTEWRLQT
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§ Tens
GREER, HERZ, & ADAMS, LLP, §
IRWIN “BUDDY” HERZ, JR. and §
Ross RANKIN MOODY § JURY TRIAL DEMANDED
I
PLAINTIFF’S BENCH BRIEF REGARDING DEFENDANTS’ MOTIONS T0
TRANSFER VENUE
I. It is undisputed that venue is mandatory under Texas Property Code § 115.002 in the
county where a trustee resides.
Texas Property Code § 115.002 requires that a suit “by or against a trustee and all
proceedings concerning trusts” “shall be brought in the county in which” “the trustee resides or
has resided at any time during the four-year pen'od preceding the date the action is filed.“
Defendants and Plaintiff agree 0n this and such is not ifi dispute?
Thus, if Trustee Herz resides in Plaintiff’s choice of venue (Harris County), venue is
mandatory in Harris County.
II. It isundisputed that an individual Defendant can have more than one residence for
purposes 0f venue.
‘
4 The lead cases are Snyder v. Pills and Mijares v. Paez, attached. A party can have more
of
l
than one residence for venue purposesf and residence is different than domicilefi where a person
Page
-
has only one domicile but can have multiple residencess
92600089
1
TEX. PROP. CODE § 115.002(b).
Ross Moody’s Motion at 2-3; Herz Motion at 9-15: GHA Motion at 3-4; Plaintiff’s First Amended Petition. p. 5.
Number:
2
3Sm2der v. Pitts, 241 S.W.2d 136. 140 (Tex. 1951); Rosales v. HliButl Groceifv C0., 905 S.W.2d 745, 747
(Tex.App.—San Antonio, 1995. no motion for r‘hearing denied).
4
Document
Snyder, 241 S.W.2d at 140.
5
Shyder, 241 S.W.2d at 140; Afljares v. Paez, 534 S.W.2d 435. 436 (Tex. Civ. App.——Amarillo 1976, n0 writ).
Certified
Ill. It is undisputed that three elements decide whether Herz resides in Harris County.
The Parties agree“ that three factors determine whether Herz resides in Harris County:
1. A fixed place of abode within the possession of the defendant,
2. Occupied opintended to be occupied consistently over a substantial
period of time, and
3. Which is permanent rather than temporary.7
IV. Herz is a resident of Harris County because his condo satisfies Texas’s three-part test.
o Herz admits he owns a condominium in Harris County.8 Herz’s wife testified in her
that
recent deposition that Herz and her have “lived there for 19 vears.”9 Herz’s Houston
10
condominium qualifies as a residence under the Supreme Court’s test.
o A fixed place of abode within the possession of the defendant. Herz’s owns his
condominium, which is located at Four Leaf Towers, Unit 234, Building E, 5100 San
” So it is a fixed place of abode within Herz’s possession.
Felipe, Houston, Texas 77056.
o Occupied or intended be occupied consistently over a substantial period of time.
t0
Herz and his wife stay at the Houston condominium “two or three times a month, one or
12
two times in each weekend.” They have stayed at the Houston condominium that often
‘3 14
since at least 2015. Herz bought his Houston condominium in 2001 for $346,000. So
it has been occupied consistently over a substantial period of time.
o Which is permanent rather than temporary. Herz has owned the Houston condominium
15
since 2001. Herz’s wife testified that she and Herz have “lived there for 19 years.” Herz
and his wife bought the Houston condominium to stay there when they visit their children
They use the Houston condominium as “a respite” where they can
‘6
and grandchildren.
“slow down and just enjoy our family there.” 17 Herz has made improvements to the condo,
18
indicating an intent to occupy it permanently. They keeps a stock of food there, bathroom
6
Herz Motion at p. 12 (joined in by Ross Moody and GHA); Plaintiff’s Response at p. 23.
4 7
Snyder. 241 S.W.2d at 140.
of 3
Herz Discovery Responses, attached to Plaintiff’s Resp. as Ex. A at 7; Herz Motion at 12 (“It is true that Trustee
2 Herz owns property in both places he owns a one-and-a-half bedroom condominium in Harris County”): Herz
Page
Motion, Ex. 7 (Herz Declaration) (“In 2001. I purchased a one-and-a-half bedroom condominium in Houston").
9
-
Plaintist Resp. Ex. C at 19.
1°
Snyder, 241 S.W.2d at 140; Plaintiff’s Resp, Ex. B.
” Plaintiff’s Resp., Ex. A at 7.
92600089 13
Plaintiff’s Resp. as Ex. C, at 8; see also Plaintiff’s Resp. Ex. A at 8 (Herz admitted he “typically spends one or two
weekends a month sleeping at the Houston Condo”).
13
Plaintiffs Rcsp.. Ex. C at 9.
Number:
‘4
Plaintiffs Resp. Ex. A at 7.
15
Plaintiff’s Resp. Ex. C at 19.
‘6
Plaintiff’s Resp, Ex. C at 9, 17.
17
Plaintiffs Resp. Ex. C at 21.
13
Document
Plaintiffs Resp. Ex. C at 18.
Certified
supplies, and toys for his grandkids,” have a landline telephone there,” grocery shop and
cook there, go to Houston restaurants, and attend Rice football, basketball, and baseball
2‘
games from there. So Herz’s use ofthe condominium is permanent rather than temporary.
Because Herz’s condo satisfies the three requirements for venue purposes, Herz is a Harris
County resident, and therefore, there is mandatory venue in Ham's County.
Respectfully submitted,
THE BUZBEE LAW FIRM
By: /s/ Anthony G. Buzbee
Anthony G. Buzbee
State Bar No. 24001 820
tbuzltstzeG-Etxatturnavscorn
David L. Bergen
State Bar No. 24097371
{E’it-eargem’eiitxaitamevs.Com
Bn'ttany C. Ifejika
State Bar No. 241 1 1011
Bi {sis \sjixai‘s'iomey s 13:33::
J.P. Morgan Chase Tower
600 Travis, Suite 7300
Houston, Texas 77002
Telephone: (713) 223-5393
Facsimile: (713) 223-5909
WWW.txafiornc:y3.cmn.
ATTORNEYS FOR PLAINTIFF
ROBERT L. MOODY, JR.
4
of
3
Page
-
92600089
Number:
19
Plaintiff’s Resp. Ex. C al 15.
3°
Plaintist Resp. Ex. C at 15.
31
Document
Plaintist Resp. Ex. C at 17.
Certified
CERTIFICATE OF SERVICE
I certify that this document has been furnished to the attorneys below in accordance with
Texas Rule of Civil Procedure 21 and 21a by the Court’s electronic filing system on October 13,
2020.
Robin C. Gibbs, David J. Beck
Tex. Bar No. 07853000 Tex. Bar No. 00000070
rgibbsfwihh‘sbmns.cam dhccixztffibeckredden.atom
Samuel W. Cruse, III B.D. Daniel
State Bar No. 24036423 Tex. Bar No. 05362200
scmsefigibbshmnscom bdda:1iei@beckredden.com
Ross M. MacDonald Allison Standish Miller
State Bar No. 24087956 Tex. Bar No. 24046440
i'macdmmid(tbqibbsbmns.c0m am} i Ee;(&§beci~:redcien .com
Gibbs & Bruns, LLP, Beck Redden, LLP
1100 Louisiana, Suite 5300, Houston Office
Houston, Texas 77002 1221 McKinney Street
Tel: 713.751/5217 Suite 4500
Fax: 713.750.0903 Houston, Texas 77010
Tel: 713.951.6209
COUNSEL FOR DEFENDANT Fax: 713.951.3720
IRWIN “BUDDY” HERZ, JR.
COUNSEL FOR DEFENDANT
Harry M. Reasoner GREER, HERZ & ADAMS, LLP
Tex. Bar No. 16642000
hreasonerfi: val aw. com
Stacey Neumann Vu
Tex. Bar No. 24047047
swfifivclawcom
Page Robinson
Tex. Bar No. 24093053
probinganfa‘v'e}awcom
4 Shelby Hart-Armstrong
of Tex. Bar No. 241 16490
4 Shanuarmstrmmfyvelaw.com
Page
Vinson & Elkins, LLP ’s'
Anthony G. Buzbee
-
1001 Fannin Street Anthony G. Buzbee
Suite2500
92600089
Houston, Texas 77002
Tel: 713.758.2358
Fax: 713.615.5173
Number:
COUNSEL FOR DEFENDANT
ROSS RANKIN MOODY
Document
Certified
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I: Mariiyn Burgess: District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the originai record filed and or
recorded in my office: efiectronicafly or hard
copy, as it. appears on this date.
Witness my official hand and seal of office
this October 19- 2020
Certified Document Numb er: 92600089
Um 46m?»
Marilyn Burgess, DISTRICT CLERK
HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronicaily transmitted authenticated
documents are valid‘ If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerkmom
Caution
As of: October 12, 2020 10:35 PM Z
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Supreme Court of Texas
June 27, 1951, Decided
No. A-3046
Reporter
150 Tex. 407 241 S.W.2d 136 **;
*; 1951 Tex. LEXIS 424
Overview
Cecil Snyder et al v. E. L. Pitts, Chief Justice et al.
The court noted that Art. 1995 used the word "domicile"
but meant that an be sued in the
inhabitant should
county of residence. The court found that the elements
of domicile included an actual residence and the intent
Subsequent History: [***1] Rehearing Overruled July
to make the permanent home, but that permanence
it
25, 1951.
was not necessary to the establishment of a second
residence away from the domicile. A person could have
one domicile but two or more residences. The court
noted that the presence of a wife living in a second
place was evidence of a second residence away from
Disposition: Mandamus denied.
the domicile but was not dispositive. The court found
that a rented room could be evidence of residence. The
court found that a seCond residence had to include a
fixed place of abode within the possession of the
person, occupied consistently over a substantial period
Core Terms of time, which was permanent rather than temporary.
The court found that an action in the second county was
domicile, permanent, abode, sentence, temporary, no inconvenience to the builder because he spent so
spending, inhabitant, married, rented, spent, venue much time there. The court did not find a conflict
between the decision and earlier cases on the issue of
residence.
Case Summary
9 Procedural Posture
of
Defendant builder was domiciled one county and Outcome
1 in
spent 15 months in another county while supervising The court denied the builder's petition for writ of
Page
construction. He was named a defendant in an action mandamus on the issue of residence.
-
involving a contract with a defense of accord and
satisfaction, and the trial court and the Court of Civil
92600090
Appeals (Texas) held that he established a second
residence in the second county. The builder sought a
Number:
writ of mandamus to certify, based upon a conflict LexisNexis® Headnotes
\
v23“!
between the opinion and precedent.
Document
Certified
David BERGEN EXHIBIT A
Page 2 of 9
**1 ***1
150 Tex. 407, *407; 241 S.W.2d 136, 36; 1951 Tex. LEXIS 424,
Civil Procedure > > Writs > Common Law Civil Procedure > Preliminary
Writs > Mandamus Considerations > Venue > Individual Defendants
Civil Procedure > Remedies > Writs > General \[fi] Venue, Individual Defendants
Overview
The presence of the wife living in a second place of
‘\[\§’~‘\] Common Law Writs, Mandamus abode is certainly evidence of the establishment of a
second residence apart from a domicile, but the failure
The court will issue a writ of mandamus t0 certify only of the wife to live in a second place of abode does not
where the decision in the case at bar is in conflict with as a matter of law prevent from becoming a second it
other decisions and the court does not approve the residence. Conversely, neither does the presence of the
decision in the case at bar. wife in the second place of abode for a considerable
period of time establish a second residence as a matter
of law.The presence or absence of the wife in a second
place of abode away from a domicile is not conclusive
Civil Procedure > > In Rem & Personal
and does not determine the question of a second
Jurisdiction > In Personam Actions > General
residence as a matter of law one way or the other, but is
Overview
simply evidence to be considered.
Civil Procedure > Preliminary
Considerations > Venue > Individual Defendants
Civil Procedure > > In Rem & Personal
“TQM In Rem & Personal Jurisdiction, In Jurisdiction > In Personam Actions > General
Personam Actions Overview
The elements of the legal concept of domicile are 1) an Civil Procedure > Preliminary
actual residence, and 2) the intent to make it the Considerations > Venue > Individual Defendants
permanent home. The word "home" means a true, fixed
and permanent home and principal establishment, and \Ifi] In Rem & Personal Jurisdiction, In
to which, whenever he is absent, he has the intention of Personam Actions
returning.From the fact that there can be but one
domicile and several residences, the court concludes A second residence away from a domicile within the
that the element of "intent to make a permanent it meaning of the first sentence of Art. 1995 must include
home" is not necessary to the establishment of a the following elements: 1) a fixed place of abode within
second residence away from the domicile. the possession of the defendant, 2) occupied or
intended to be occupied consistently over a substantial
period of time, 3) which is permanent rather than
Rem & temporary. A rented room may be a residence under
Civil Procedure > > In Personal
Art. 1995. For a place of abode to become a residence
Jurisdiction > In Personam Actions > General
9 under the first sentence of Art. 1995 the defendant must
Overview
of have some right of possession and not be a mere
2 visitor. The payment of rent satisfies this requirement.
Governments > Local Governments > Elections
Page
Rem &
-
x ‘\ ~
\ v \.\~ -.
x
-
5‘
ME»?
“mm“.
.
aga]
-.. .
In Personal Jurisdiction, In
Personam Actions Civil Procedure > > In Rem & Personal
92600090
Jurisdiction > In Personam Actions > General
Art. 2958, R.C.S., states that the residence of a married Overview
man is the place where his wife resides. Since this
Number:
statute defines the place a married man can vote and \ \ M In Rem & Personal Jurisdiction, In
x “x“
since a person cannot vote in but one county, under Art.
Personam Actions
2958 a married man can have but residence for voting
Document
purposes, actually his domicile. The question of whether a stay is temporary or
permanent is a question of intent to be proved by
Certified
David BERGEN EXHIBIT A
Page 3 of 9
**1 ***1
150 Tex. 407, *407; 241 S.W.2d 136, 36; 1951 Tex. LEXIS 424,
declarations and acts. of this State shall be sued in the "county in which he has
his domicile," the word, "domicile" is not used in its
technical sense, but may apply to the place of his
residence, and where a defendant has a home, pays
Civil Procedure > > In Rem & Personal
taxes, votes and registers his automobile in one county
Jurisdiction > In Personam Actions > General
but maintains a rented room in a hotel or private
Overview
residence while supervising construction work for his
Governments > Local Governments > Claims By & company in another county, the question of proper
venue in a suit against him is dependent upon whether
Against
there any evidence to support a judgment establishing
is
Civil Procedure > Preliminary a second residence in a county different from that of his
Considerations > Venue > General Overview established domicile.
Civil Procedure > Preliminary
[***2] Venue -- Domicile --
Residence -- Words and
Considerations > Venue > Individual Defendants Phrases.
\1§] In Rem & Personal Jurisdiction, In
Since the term "residence" is a lesser-included element
Personam Actions within the technical meaning of "domicile" it is
necessary, in deciding an issue of plea of privilege to
Statutes regulating the local venue of legal proceedings look to the elements of a legal domicile which are (a) an
are generally designed to provide for the convenience of actual residence and (b) a place which is intended as a
the parties involved. The provisions fixing the venue of permanent home, and the word home has the legal
actions against living persons are manifestly adopted to significance of a true, fixed and permanent
prevent serious inconveniences and probable injury to establishment to which, whenever he is absence, he
defendants from the bringing of suits against them in has the intention to return, which elements are not
counties remote from where the defendants reside and necessary in the establishment of a second residence.
transact their business. Such inconvenience, however,
cannot be claimed by a defendant when sued in a Venue -- Husband and Wife -- Voting -- Words and
county where he spends so large a portion of his time Phrases.
as to make that county a place of residence.
In determining the issue of venue under Article 1995,
R.C.S., providing that an inhabitant of this State shall be
sued in the county in which he has his domicile, Article
2958, providing that the residence of a married man is
the place where his wife resides and the place where he
Headnotes/Summary can vote, has n0 application, since a person can vote in
--
but one county therefore can have but one residence
--
for voting purposes which is his domicile, and the fact
Headnotes
that his wife is not present in his second residence away
9
from the domicile, does not determine [***3] the legal
of
Mandamus - Conflicts.
3 status of the second residence, but it is only evidence
that the court may look to.
Page
As a general rule the Supreme Court will authorize the
-
issuance of the writ of mandamus compelling a court of
Preview
20-CV—1564 Dccons ‘ ot Document _ 10/13/2020 1.01 PM copy - iiiil’flimu uummmxmuluu CAUSE NO. 2020-3 1023 ROBERT L. MOODY, JR. § IN THE DISTRICT cogRT 0F § chORHND § HARRIS COUNTY TExggo‘E"W150 g mow“02 02” v. § 55th JUDIC WTEWRLQT r” § Tens GREER, HERZ, & ADAMS, LLP, § IRWIN “BUDDY” HERZ, JR. and § Ross RANKIN MOODY § JURY TRIAL DEMANDED I PLAINTIFF’S BENCH BRIEF REGARDING DEFENDANTS’ MOTIONS T0 TRANSFER VENUE I. It is undisputed that venue is mandatory under Texas Property Code § 115.002 in the county where a trustee resides. Texas Property Code § 115.002 requires that a suit “by or against a trustee and all proceedings concerning trusts” “shall be brought in the county in which” “the trustee resides or has resided at any time during the four-year pen'od preceding the date the action is filed.“ Defendants and Plaintiff agree 0n this and such is not ifi dispute? Thus, if Trustee Herz resides in Plaintiff’s choice of venue (Harris County), venue is mandatory in Harris County. II. It isundisputed that an individual Defendant can have more than one residence for purposes 0f venue. ‘ 4 The lead cases are Snyder v. Pills and Mijares v. Paez, attached. A party can have more of l than one residence for venue purposesf and residence is different than domicilefi where a person Page - has only one domicile but can have multiple residencess 92600089 1 TEX. PROP. CODE § 115.002(b). Ross Moody’s Motion at 2-3; Herz Motion at 9-15: GHA Motion at 3-4; Plaintiff’s First Amended Petition. p. 5. Number: 2 3Sm2der v. Pitts, 241 S.W.2d 136. 140 (Tex. 1951); Rosales v. HliButl Groceifv C0., 905 S.W.2d 745, 747 (Tex.App.—San Antonio, 1995. no motion for r‘hearing denied). 4 Document Snyder, 241 S.W.2d at 140. 5 Shyder, 241 S.W.2d at 140; Afljares v. Paez, 534 S.W.2d 435. 436 (Tex. Civ. App.——Amarillo 1976, n0 writ). Certified Ill. It is undisputed that three elements decide whether Herz resides in Harris County. The Parties agree“ that three factors determine whether Herz resides in Harris County: 1. A fixed place of abode within the possession of the defendant, 2. Occupied opintended to be occupied consistently over a substantial period of time, and 3. Which is permanent rather than temporary.7 IV. Herz is a resident of Harris County because his condo satisfies Texas’s three-part test. o Herz admits he owns a condominium in Harris County.8 Herz’s wife testified in her that recent deposition that Herz and her have “lived there for 19 vears.”9 Herz’s Houston 10 condominium qualifies as a residence under the Supreme Court’s test. o A fixed place of abode within the possession of the defendant. Herz’s owns his condominium, which is located at Four Leaf Towers, Unit 234, Building E, 5100 San ” So it is a fixed place of abode within Herz’s possession. Felipe, Houston, Texas 77056. o Occupied or intended be occupied consistently over a substantial period of time. t0 Herz and his wife stay at the Houston condominium “two or three times a month, one or 12 two times in each weekend.” They have stayed at the Houston condominium that often ‘3 14 since at least 2015. Herz bought his Houston condominium in 2001 for $346,000. So it has been occupied consistently over a substantial period of time. o Which is permanent rather than temporary. Herz has owned the Houston condominium 15 since 2001. Herz’s wife testified that she and Herz have “lived there for 19 years.” Herz and his wife bought the Houston condominium to stay there when they visit their children They use the Houston condominium as “a respite” where they can ‘6 and grandchildren. “slow down and just enjoy our family there.” 17 Herz has made improvements to the condo, 18 indicating an intent to occupy it permanently. They keeps a stock of food there, bathroom 6 Herz Motion at p. 12 (joined in by Ross Moody and GHA); Plaintiff’s Response at p. 23. 4 7 Snyder. 241 S.W.2d at 140. of 3 Herz Discovery Responses, attached to Plaintiff’s Resp. as Ex. A at 7; Herz Motion at 12 (“It is true that Trustee 2 Herz owns property in both places he owns a one-and-a-half bedroom condominium in Harris County”): Herz Page Motion, Ex. 7 (Herz Declaration) (“In 2001. I purchased a one-and-a-half bedroom condominium in Houston"). 9 - Plaintist Resp. Ex. C at 19. 1° Snyder, 241 S.W.2d at 140; Plaintiff’s Resp, Ex. B. ” Plaintiff’s Resp., Ex. A at 7. 92600089 13 Plaintiff’s Resp. as Ex. C, at 8; see also Plaintiff’s Resp. Ex. A at 8 (Herz admitted he “typically spends one or two weekends a month sleeping at the Houston Condo”). 13 Plaintiffs Rcsp.. Ex. C at 9. Number: ‘4 Plaintiffs Resp. Ex. A at 7. 15 Plaintiff’s Resp. Ex. C at 19. ‘6 Plaintiff’s Resp, Ex. C at 9, 17. 17 Plaintiffs Resp. Ex. C at 21. 13 Document Plaintiffs Resp. Ex. C at 18. Certified supplies, and toys for his grandkids,” have a landline telephone there,” grocery shop and cook there, go to Houston restaurants, and attend Rice football, basketball, and baseball 2‘ games from there. So Herz’s use ofthe condominium is permanent rather than temporary. Because Herz’s condo satisfies the three requirements for venue purposes, Herz is a Harris County resident, and therefore, there is mandatory venue in Ham's County. Respectfully submitted, THE BUZBEE LAW FIRM By: /s/ Anthony G. Buzbee Anthony G. Buzbee State Bar No. 24001 820 tbuzltstzeG-Etxatturnavscorn David L. Bergen State Bar No. 24097371 {E’it-eargem’eiitxaitamevs.Com Bn'ttany C. Ifejika State Bar No. 241 1 1011 Bi {sis \sjixai‘s'iomey s 13:33:: J.P. Morgan Chase Tower 600 Travis, Suite 7300 Houston, Texas 77002 Telephone: (713) 223-5393 Facsimile: (713) 223-5909 WWW.txafiornc:y3.cmn. ATTORNEYS FOR PLAINTIFF ROBERT L. MOODY, JR. 4 of 3 Page - 92600089 Number: 19 Plaintiff’s Resp. Ex. C al 15. 3° Plaintist Resp. Ex. C at 15. 31 Document Plaintist Resp. Ex. C at 17. Certified CERTIFICATE OF SERVICE I certify that this document has been furnished to the attorneys below in accordance with Texas Rule of Civil Procedure 21 and 21a by the Court’s electronic filing system on October 13, 2020. Robin C. Gibbs, David J. Beck Tex. Bar No. 07853000 Tex. Bar No. 00000070 rgibbsfwihh‘sbmns.cam dhccixztffibeckredden.atom Samuel W. Cruse, III B.D. Daniel State Bar No. 24036423 Tex. Bar No. 05362200 scmsefigibbshmnscom bdda:1iei@beckredden.com Ross M. MacDonald Allison Standish Miller State Bar No. 24087956 Tex. Bar No. 24046440 i'macdmmid(tbqibbsbmns.c0m am} i Ee;(&§beci~:redcien .com Gibbs & Bruns, LLP, Beck Redden, LLP 1100 Louisiana, Suite 5300, Houston Office Houston, Texas 77002 1221 McKinney Street Tel: 713.751/5217 Suite 4500 Fax: 713.750.0903 Houston, Texas 77010 Tel: 713.951.6209 COUNSEL FOR DEFENDANT Fax: 713.951.3720 IRWIN “BUDDY” HERZ, JR. COUNSEL FOR DEFENDANT Harry M. Reasoner GREER, HERZ & ADAMS, LLP Tex. Bar No. 16642000 hreasonerfi: val aw. com Stacey Neumann Vu Tex. Bar No. 24047047 swfifivclawcom Page Robinson Tex. Bar No. 24093053 probinganfa‘v'e}awcom 4 Shelby Hart-Armstrong of Tex. Bar No. 241 16490 4 Shanuarmstrmmfyvelaw.com Page Vinson & Elkins, LLP ’s' Anthony G. Buzbee - 1001 Fannin Street Anthony G. Buzbee Suite2500 92600089 Houston, Texas 77002 Tel: 713.758.2358 Fax: 713.615.5173 Number: COUNSEL FOR DEFENDANT ROSS RANKIN MOODY Document Certified '1 ,3" ‘In... ‘n. ’ I g ~’ 0‘ i ‘ :a '0 ' l I9. - »61 ! ¢ v ‘ '3'- n w :O. 3 H g tr” . t i V: :- O O ‘ .Q ‘Q . u 31a ‘d fi U a, I: Mariiyn Burgess: District Clerk of Harris County, Texas certify that this is a true and correct copy of the originai record filed and or recorded in my office: efiectronicafly or hard copy, as it. appears on this date. Witness my official hand and seal of office this October 19- 2020 Certified Document Numb er: 92600089 Um 46m?» Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 406.013 electronicaily transmitted authenticated documents are valid‘ If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerkmom Caution As of: October 12, 2020 10:35 PM Z .x .n l w \v‘ Ila, ‘\ x 3‘ 3e [I ’l . ’I/I,’ \\\ $\3 \\‘i In], l) ’4,” II, 0 ,4 4,} n I 'Ml. ril”, I412 I Supreme Court of Texas June 27, 1951, Decided No. A-3046 Reporter 150 Tex. 407 241 S.W.2d 136 **; *; 1951 Tex. LEXIS 424 Overview Cecil Snyder et al v. E. L. Pitts, Chief Justice et al. The court noted that Art. 1995 used the word "domicile" but meant that an be sued in the inhabitant should county of residence. The court found that the elements of domicile included an actual residence and the intent Subsequent History: [***1] Rehearing Overruled July to make the permanent home, but that permanence it 25, 1951. was not necessary to the establishment of a second residence away from the domicile. A person could have one domicile but two or more residences. The court noted that the presence of a wife living in a second place was evidence of a second residence away from Disposition: Mandamus denied. the domicile but was not dispositive. The court found that a rented room could be evidence of residence. The court found that a seCond residence had to include a fixed place of abode within the possession of the person, occupied consistently over a substantial period Core Terms of time, which was permanent rather than temporary. The court found that an action in the second county was domicile, permanent, abode, sentence, temporary, no inconvenience to the builder because he spent so spending, inhabitant, married, rented, spent, venue much time there. The court did not find a conflict between the decision and earlier cases on the issue of residence. Case Summary 9 Procedural Posture of Defendant builder was domiciled one county and Outcome 1 in spent 15 months in another county while supervising The court denied the builder's petition for writ of Page construction. He was named a defendant in an action mandamus on the issue of residence. - involving a contract with a defense of accord and satisfaction, and the trial court and the Court of Civil 92600090 Appeals (Texas) held that he established a second residence in the second county. The builder sought a Number: writ of mandamus to certify, based upon a conflict LexisNexis® Headnotes \ v23“! between the opinion and precedent. Document Certified David BERGEN EXHIBIT A Page 2 of 9 **1 ***1 150 Tex. 407, *407; 241 S.W.2d 136, 36; 1951 Tex. LEXIS 424, Civil Procedure > > Writs > Common Law Civil Procedure > Preliminary Writs > Mandamus Considerations > Venue > Individual Defendants Civil Procedure > Remedies > Writs > General \[fi] Venue, Individual Defendants Overview The presence of the wife living in a second place of ‘\[\§’~‘\] Common Law Writs, Mandamus abode is certainly evidence of the establishment of a second residence apart from a domicile, but the failure The court will issue a writ of mandamus t0 certify only of the wife to live in a second place of abode does not where the decision in the case at bar is in conflict with as a matter of law prevent from becoming a second it other decisions and the court does not approve the residence. Conversely, neither does the presence of the decision in the case at bar. wife in the second place of abode for a considerable period of time establish a second residence as a matter of law.The presence or absence of the wife in a second place of abode away from a domicile is not conclusive Civil Procedure > > In Rem & Personal and does not determine the question of a second Jurisdiction > In Personam Actions > General residence as a matter of law one way or the other, but is Overview simply evidence to be considered. Civil Procedure > Preliminary Considerations > Venue > Individual Defendants Civil Procedure > > In Rem & Personal “TQM In Rem & Personal Jurisdiction, In Jurisdiction > In Personam Actions > General Personam Actions Overview The elements of the legal concept of domicile are 1) an Civil Procedure > Preliminary actual residence, and 2) the intent to make it the Considerations > Venue > Individual Defendants permanent home. The word "home" means a true, fixed and permanent home and principal establishment, and \Ifi] In Rem & Personal Jurisdiction, In to which, whenever he is absent, he has the intention of Personam Actions returning.From the fact that there can be but one domicile and several residences, the court concludes A second residence away from a domicile within the that the element of "intent to make a permanent it meaning of the first sentence of Art. 1995 must include home" is not necessary to the establishment of a the following elements: 1) a fixed place of abode within second residence away from the domicile. the possession of the defendant, 2) occupied or intended to be occupied consistently over a substantial period of time, 3) which is permanent rather than Rem & temporary. A rented room may be a residence under Civil Procedure > > In Personal Art. 1995. For a place of abode to become a residence Jurisdiction > In Personam Actions > General 9 under the first sentence of Art. 1995 the defendant must Overview of have some right of possession and not be a mere 2 visitor. The payment of rent satisfies this requirement. Governments > Local Governments > Elections Page Rem & - x ‘\ ~ \ v \.\~ -. x - 5‘ ME»? “mm“. . aga] -.. . In Personal Jurisdiction, In Personam Actions Civil Procedure > > In Rem & Personal 92600090 Jurisdiction > In Personam Actions > General Art. 2958, R.C.S., states that the residence of a married Overview man is the place where his wife resides. Since this Number: statute defines the place a married man can vote and \ \ M In Rem & Personal Jurisdiction, In x “x“ since a person cannot vote in but one county, under Art. Personam Actions 2958 a married man can have but residence for voting Document purposes, actually his domicile. The question of whether a stay is temporary or permanent is a question of intent to be proved by Certified David BERGEN EXHIBIT A Page 3 of 9 **1 ***1 150 Tex. 407, *407; 241 S.W.2d 136, 36; 1951 Tex. LEXIS 424, declarations and acts. of this State shall be sued in the "county in which he has his domicile," the word, "domicile" is not used in its technical sense, but may apply to the place of his residence, and where a defendant has a home, pays Civil Procedure > > In Rem & Personal taxes, votes and registers his automobile in one county Jurisdiction > In Personam Actions > General but maintains a rented room in a hotel or private Overview residence while supervising construction work for his Governments > Local Governments > Claims By & company in another county, the question of proper venue in a suit against him is dependent upon whether Against there any evidence to support a judgment establishing is Civil Procedure > Preliminary a second residence in a county different from that of his Considerations > Venue > General Overview established domicile. Civil Procedure > Preliminary [***2] Venue -- Domicile -- Residence -- Words and Considerations > Venue > Individual Defendants Phrases. \1§] In Rem & Personal Jurisdiction, In Since the term "residence" is a lesser-included element Personam Actions within the technical meaning of "domicile" it is necessary, in deciding an issue of plea of privilege to Statutes regulating the local venue of legal proceedings look to the elements of a legal domicile which are (a) an are generally designed to provide for the convenience of actual residence and (b) a place which is intended as a the parties involved. The provisions fixing the venue of permanent home, and the word home has the legal actions against living persons are manifestly adopted to significance of a true, fixed and permanent prevent serious inconveniences and probable injury to establishment to which, whenever he is absence, he defendants from the bringing of suits against them in has the intention to return, which elements are not counties remote from where the defendants reside and necessary in the establishment of a second residence. transact their business. Such inconvenience, however, cannot be claimed by a defendant when sued in a Venue -- Husband and Wife -- Voting -- Words and county where he spends so large a portion of his time Phrases. as to make that county a place of residence. In determining the issue of venue under Article 1995, R.C.S., providing that an inhabitant of this State shall be sued in the county in which he has his domicile, Article 2958, providing that the residence of a married man is the place where his wife resides and the place where he Headnotes/Summary can vote, has n0 application, since a person can vote in -- but one county therefore can have but one residence -- for voting purposes which is his domicile, and the fact Headnotes that his wife is not present in his second residence away 9 from the domicile, does not determine [***3] the legal of Mandamus - Conflicts. 3 status of the second residence, but it is only evidence that the court may look to. Page As a general rule the Supreme Court will authorize the - issuance of the writ of mandamus compelling a court of