Motion to Strike Initial Pleading in Julie Buras vs. Christi Gilchrist| Trellis.Law

On May 07, 2020 a Party Discovery was filed involving a dispute between Buras, Julie, and Gilchrist, Christi, for Other Civil - Cases in the District Court of Galveston County.

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Filed: 2/19/2021 3:07 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 50726405
By: Shailja Dixit
N0. 20-CV-0628
NO. 20-CV-0628 2/19/2021 3:27 PM

JULIE BURAS
JULIE BURAS §§ THE DISTRICT
IN THE
IN COURT
DISTRICT COURT
Plaintiff §§
V. §§ 212TH JUDICIAL DISTRICT
212TH JUDICIAL DISTRICT
CHRISTI GILCHRIST
CHRISTI L. GILCHRIST §§
Defendant
Defendant §§ GALVESTON COUNTY,
GALVESTON TEXAS
COUNTY, TEXAS
MOTION TO
OPPOSED MOTION
OPPOSED TO STRIKE DEEMED ADMISSIONS
STRIKE DEEMED ADMISSIONS
deemed admissions as allowed by
Christi Gilchrist, Defendant, requests the Court to strike deemed by

198.3.
Texas Rule of Civil Procedure, Rule 198.3.

1.
1. by certified
Plaintiff sent request for admission by December
certiﬁed mail, return receipt requested on December

15,
15, 2021. Under was due as early as January 17,
Under the rules, Defendant’s response was 17, 2021. (Exhibit 1).
1).

As the document
As document was was provided by
was not received until it was on February 5, 2021, under Texas
by email on

Rules of Civil Procedure, Rule 21a (e),
(e), the February 18,
18, 2021 may not be late. This filing
2021 response may ﬁling

made to clarify the status of the responses provided on
is made on February 18, 2021 are the formal and only
18, 2021

of Defendant.
responses of

2. On or about February 5, 2021, Respondent’s
On became aware that the deadline to
Respondent’s attorney became

respond to the Request for Admissions had been inadvertently missed. (Exhibit 2).

3. Defendant’s attorney contacted counsel for Plaintiff to address the missing responses.

(Exhibit 2).

4. was not aware of the missed deadline until the February 5, 2021
Defendant was from
2021 email from

Plaintiffs counsel.
Plaintiff’s counsel.

5. On February 18,
On Admissions.
18, 2021, Defendant responded to Petitioner’s Request for Admissions.

(Exhibit 3).

6. deemed admissions described below
Defendant asks the Court to permit her to withdraw the deemed

on February 18,
and allow the answers sent to Petitioner on 2021 to serve as her responses. In support,
18, 2021

11
Defendant shows:

a. Good cause exists for the withdrawal of
Good deemed admissions and
of the deemed amendment
and the amendment
Resp0ndent’s failure to timely respond to Petitioner’s Request for
of admissions in that Respondent’s
was the result of accident or mistake, rather than Defendant’s intentional or
Admissions was
Wheeler v.
indifference. Wheeler
conscious indifference. Green, 157
v. Green, S.W.3d 439, 442
157 S.W.3d 442 (Tex. 2005). Although the
ofﬁce electronically indicates they were delivered, there is no
post office no record at counsel for
were ever in fact received.
Defendant’s office they were received. After a diligent search no such discovery
appears until the courtesy copy provided by by Plaintiff’s
Plaintiff’ s attorney February 5, 2021.

upon realizing the mistake and/or accident of failing to respond to the request
Furthermore, upon
request.
for admissions, Respondent immediately responded to the request.

b. Petitioner will not be unduly prejudiced because discovery in the case remains open.
The delay in responding is only 31
Mediation is not yet set. The way will delay
31 days and in no way
the trial of this matter.

c. Furthermore, if of the merits of the action
if the admissions are not struck, presentation of
would be decided on deemed, but possibly untrue, facts.
will suffer because the case would
Wheeler, 157
Wheeler, S.W.3d at 443 n.2. Furthermore, presentation of the merits of the case will be
157 S.W.3d
by permitting Respondent to withdraw and/or amend
served by amend the deemed
deemed admissions.

of Counsel for Defendant attached hereto as Exhibit 4 in
Defendant adopts the affidavit of

made herein.
support of the assertions made

Deemed Admissions, set aside the
Motion to Strike Deemed
Respondent prays the Court grant this Motion

deemed admissions, and replace the admissions with the answers provided in Exhibit 3.
deemed

Respectfully submitted,

The Law Office
The Law Ofﬁce of Daniel J. Lemkuil
Lemkuil
Avondale
106 Avondale
106
TX 77006
Houston, TX 77006
993-9100
Tel: (713) 993-9100
225-0099
Fax: (713) 225-0099

By:/V Daniel Lemkuil
By:/s/
Daniel J. Lemkuil
State Bar No. 00789448
No. 00789448
Attorney for Defendant

2
Conference
Certiﬁcate of Conference
Certificate

on or about February 5, 2021, I have conferred by
I certify that on of emails,
by an exchange of

ﬁle a
attached hereto as Exhibit 2, with opposing counsel. Although counsel agreed not to seek or file

deem admissions, such an offer does not resolve the issue.
motion to deem

/s/ Daniel Lemkuil
/s/
Lemkuil
Daniel J. Lemkuil

Submission
by Submission
Notice of Hearing/Consideration by

of Galveston
This motion is set for hearing/consideration in the 212th Judicial District Court, of

VIA Zoom:
on _________________________ at ______________ a.m., VIA
County, Texas on Zoom:

meeting. Access code if
___________________________, meeting.
,
if needed: ___________________

OR
OR

By submission on
By on ______________________________, 2021 M.
2021 at __________ __M.
,

Certiﬁcate of Service
Certificate

was served on
copy of this motion was
I certify that a true and correct copy on each attorney of
of record in

accordance with the Texas Rules of on February 19,
of Civil Procedure on 19, 2021.

/s/ Daniel
/s/ Lemkuil
Daniel J. Lemkuil
J. Lemkuil

3
EXHIBIT
2o~¢u—o 4,27!
__£.___
CAUSE NO. 20-CV—0628
JULIE BURAS § IN THE DISTRICT COURT
PLAINTIFF §
§
vs. § 212"‘ JUDICIAL DISTRICT
§
CHRISTI L. GILCHRIST §
DEFENDANT § GALVESTON COUNTY, TEXAS
PLAINTIFF JULIE BURAS’ FIRST REQUEST
FOR ADMISSIONS TO CHRISTI L. GILCHRIST
TO: Christi L. Gilchrist, via her Counsel of Record, Daniel J. Lemkuil, Law Office of Daniel
J. Lemkuil, 106 Avondale, Houston, Texas 77006, (713) 993—9l00 (p), (713) 225-0099 (t),
Daniel.Lemkui|.Attyi’ZDginai|.com.

Buras, serves these Requests for Admissions on Christi L. Gilchrist, as allowed by
Plaintiff, Julie
Texas Rule ofCivil Procedure 198. Christi L. Gilchrist must admit or deny each request, in writing,
within 30 days after service.

DEFINITIONS

1. “Defendant,” as well as a party’s full or abbreviated name or a pronoun referring
“Plaintiff” or
to a party, means the party, and when applicable, the party’s agents, representatives, officers,
directors, employees, partners, corporate agents, subsidiaries, affiliates, or any other person acting
in concert with the party or under the party’s control, whether directly or indirectly, including any
attorney.

2.“You” or “your” means Christi L. Gilchrist, her successors, predecessors, divisions, subsidiaries,
resent and former officers, a ents, em lo ees, and all other P ersons actin 8 on behalfof Christi L
Gilchrist or his successors, predecessors, divisions, and subsidiaries.

3. “Person” means an natural erson, cor oration, firm, association, artnershi 'oint venture,
P J ,

proprietorship, governmental body, or any other organization, business, or legal entity and all
predecessors or successors in interest.

4. “Communication” means any oral or written communication of which Christi L. Gilchrist has
knowledge, information, or belief.

5. “Mobile device” means any cellular telephone, satellite telephone, pager, personal digital
assistant, handheld computer, electronic rolodex, walkie-talkie, or any combination of these
devices.

6. “Electronic or magnetic data” means electronic information that is stored in a medium from
which can be retrieved and examined. The term refers to the original (or identical duplicate when
it

the original is not available) and any other copies of the data that may have attached comments,

notes, marks, or highlighting of any kind. Electronic or magnetic data includes, but is not limited
to, the following: computer programs; operating systems; computer activity logs; programming
notes or instructions; e-mail receipts, messages, or transmissions; output resulting from the use of
any software program, including word-processing documents, spreadsheets, database ﬁles, charts,
graphs, and outlines; metadata; PIF and PDF ﬁles; batch ﬁles; deleted ﬁles; temporary ﬁles;
Internet— or web-browser-generated information stored in textual, graphical, or audio format,
including history ﬁles, caches, and cookies; and any miscellaneous ﬁles or ﬁle fragments.
Electronic or magnetic data includes any items stored on magnetic, optical, digital, or other
electronic-storage media, such as hard drives, ﬂoppy disks, CD—ROMs, DVDs, tapes, smart cards,
integrated-circuit cards (e.g., SIM cards), removable media (e.g., Zip drives, Jaz cartridges),
microﬁche, punched cards. Electronic or magnetic data also includes the ﬁle, folder, tabs,
containers, and labels attached to or associated with any physical storage device with each original
or copy.

REQUESTS FOR ADMISSIONS
Admit or Deny the truth of the following statements:

REQUEST 1: Plaintiff properly named Defendant in Plaintiffs original petition.

RESPONSE:

REQUEST 2: Defendant owned a Samsung Galaxy 7 cell phone between December 2017 and
June 2018.

RESPONSE:

REQUEST 3: Defendant used AT&T U-Verse for digital and wireless services between
December 2017 and June 2018.

RESPONSE:

REQUEST 4: Defendant logged into Plaintiffs yahoo email account on May 6”‘, 2018.

RESPONSE:

REQUEST 5: Defendant logged into Plaintiffs yahoo email account on May 7”‘, 2018.

RESPONSE:

REQUEST 6: Defendant is familiar with and has utilized spyware previously.
RESPONSE:
REQUEST 7: Defendant texted Emily Buras on May 5"‘, 2018..

RESPONSE:
REQUEST 8: Defendant texted Emily Buras on May 6"‘, 2018..

RESPONSE:

REQUEST 9: Defendant texted Emily Buras on May 7”‘, 2018..
RESPONSE:

Respectfully submitted,

By: /s/ Anthony W. Reed
Anthony W. Reed, Esq.
Texas Bar No. 24029789
The Reed Law Group, PLLC.
3245 W. Main Street, Ste 235-346
Frisco, Texas 75034
Tel. (469) 579-5739 Fax. (214) 975-6854
areed@therccdlaw1irm.com

I hereby certify that on the 15"‘ day of December 2020, a true and correct copy of the
foregoing Plaintiffs First Request for Admissions was duly served to Defendant through her
counsel of record, Daniel J. Lemkuil, Law Office of Daniel J. Lcmkuil, 106 Avondale, Houston,
Texas 77006, (713) 993-9100 (p), (713) 225-0099 (f), Daniel.LemkuiI./\tIy@gmail.com.

Anthony W. Reed
/s/
Anthony W. Reed
2/19/2021 Gmail

M
-
RE: Discovery - Gilchrist matter

Daniel Lemkuil

RE: Discovery - Gilchrist matter
1 message

areed@thereedlawfirm.com Fri. Feb 5. 2021 at 5:02 PM
To: Daniel Lemkuil
Cc: areed@thereed|awﬁrm.com

Absolutely, Agreed.

Safe travels counselor.

Anthony W. Reed, Esq.

The Reed Law Group, PLLC.

3245 W. Main Street, Ste. 235-346

Frisco, Texas 75034

(469) 579-5739 (ofc)

(214) 975-6854 (fax)

Notice: This communication, including attachments, may contain information that is confidential. It constitutes non-public
infomiation intended to be conveyed only to the designated rccipient(s). If the reader or recipient of this communication is not the
intended recipient, an employee or agent of the intended recipient who is responsible for delivering it to the intended recipient, or
if you believe that you have received communication in error, please notify the sender immediately by retum e-mail and
this
promptly delete attachments without reading or saving them in any manner. The unauthorized use,
this e—mail, including
dissemination, distribution, or reproduction ofthis e-mail, including attachments, is prohibited and may be unlawful. lfyou have
received this email in error, please notify us immediately by e—mail or telephone and delete the e—mail and the attachments (ifany).

From: Daniel Lemkuil
Sent: Friday, February 5, 2021 5:00 PM
To: A Reed
Subject: Re: Discovery - Gilchrist matter

I'm about to leave Saturday for Wyoming on a family matter. I will be gone one week.

Can this email serve as our Rule 11 agreement that I have 14 days from today to respond and answer the discovery
requests?

Dan Lemkuil

https://maiI.google.com/maiI/u/0?ik=de403eeO4a&view=pt&search=aI|&permthid=thread-f%3A1690893202604983751%7Cmsg-f%3A16908981966390... 1/5
2/19/2021 Gmail - RE: Discovery -
Gilchrist matter

On Fri, Feb 5, 2021 at 4:27 PM wrote:
have no issue providing two weeks for a response via Rule 11, but not
I
agreed as to “served today". I have no
intention to ﬁle anything pertaining to a deemed response.

I have to go to the ofﬁce to check the hard ﬁle; follow up Monday.

Anthony W, Reed, Esq.

The Reed Law Group, PLLC.

3245 W. Main Street, Ste. 235-346

Frisco, Texas 75034

(469) 579-5739 (ofc)

(214) 975-6854 (fax)

Notice: This communication, including attachments, may contain information that is conﬁdential. it constitutes non-public
information intended to be conveyed only to the designated recipient(s). If the reader or recipient of this communication is not
the intended recipient, an employee or agent of the intended recipient who is responsible for delivering it to the intended
recipient, or ifyou believe that you have received this communication in error, please notify the sender immediately by return e-
mail and promptly delete this e-mail, including attachments without reading or saving them in any manner. The unauthorized
use, dissemination, distribution, or reproduction ofthis c-mail, including attachments, is prohibited and may be unlawful. If you
have received this email in error, please notify us immediately by e—mail or telephone and delete the e—mail and the attachments
(if any).

From: Daniel Lemkuil
Sent: Friday, February 5, 2021 4:23 PM
To: A Reed
Subject: Re: Discovery — Gilchrist matter

Thanks, and the agreement? Served today?

Dan

On Fri, Feb 5, 2021 at 4:18 PM wrote:

I will review the file and get back to you regarding signature.

I typically mail discovew via certiﬁed mail and regular mail. e-sen/ed the production because was not
I
I at my ofﬁce
and out of town.

Anthony W. Reed, Esq.

The Reed Law Group, PLLC.

https://maiI.google.com/maiI/u/0?ik=dc403ee04a&view=pt&search=a||&permthid=thread-f%3A1690893202604983751%7Cmsg-I'%3A1690898196690... 2/5
2/19/2021 Gmail - RE: Discovery - Gilchrist matter

3245 W. Main Street, Ste. 235-346

Frisco, Texas 75034

(469) 579-5739 (ofc)

(214) 975-6854 (fax)

Notice: This communication, including attachments, may contain information that is conﬁdential. It constitutes non—public
information intended to be conveyed only to the designated recipient(s). If the reader or recipient of this communication is
not the intended recipient, an employee or agent of the intended recipient who is responsible for delivering it to the intended
recipient, or ifyou believe that you have received this communication in error, please notify the sender immediately by
return e-mail and promptly delete this e-mail, including attachments without reading or saving them in any manner. The
unauthorized use, dissemination, distribution, or reproduction ofthis e-mail, including attachments, is prohibited and may be
unlawful. Ifyou have received this email in error, please notify us immediately by e-mail or telephone and delete the e-mail
and the attachments (if any).

From: Daniel Lemkuil
Sent: Friday, February 5, 2021 4:15 PM
To: A Reed
Subject: Re: Discovery - Gilchrist matter

Mr. Reed

isee the shipping receipt. I never received it. It's not logged for a green card — did someone at my ofﬁce sign?
Please send it to me, and I will fire them for not logging the green card. I
don't see them in eservice.

If you want to do a Rule 11 that they are served as of today - I'll gladly do that and get to work. I'll otherwise have to
file to undeem and provide for a response.

is there a reason why they were mailed and not electronically served?

Please let me know. Please also consider this my attempt to resolve this issue per Rule 191.2.

Dan Lemkuil

On Fri, Feb 5, 2021 at 3:57 PM wrote:
The prior discovery is attached with USPS delivery receipt.

Anthony W. Reed, Esq.

https://maiI.goog|e.eom/maillu/0?ik=du103eeO4a&view=pt&search=a||&permthid=thread-f%3A1690893202604983751%7Cmsg-f%3A1690898196690... 3/5
2/19/2021 Gmail — RE: Discovery ~ Gilchrist matter

The Reed Law Group, PLLC.

3245 W. Main Street, Ste. 235-346

Frisco, Texas 75034

(469) 579-5739 (ofc)

(214) 975-6854 (fax)

Notice: This communication, including attachments, may contain information that is confidential. It constitutes non-
public infomiation intended to be conveyed only to the designated recipient(s). If the reader or recipient of this
communication not the intended recipient, an employee or agent of the intended recipient who is responsible for
is
delivering it to the intended recipient, or
ifyou believe that you have received this communication in error, please notify
the sender immediately by return e-mail and promptly delete this e-mail, including attachments without reading or saving
them in any manner. The unauthorized use, dissemination, distribution, or reproduction of this e-mail, including
attachments, is prohibited and may be unlawful. lfyou have received this email in error, please notify us immediately by
e-mail or telephone and delete the e-mail and the attachments (if any).

From: Daniel Lemkuil
Sent: Friday, February 5, 2021 3:50 PM
To: A Reed
Subject: Re: Discovery - Gilchrist matter

I'm sorry - I missed some? lfl did, l'|| do it right away. I know I just got some. Please advise.

Dan

On Fri, Feb 5, 2021 at 3:43 PM wrote:

Good afternoon.

Do you have a date you anticipate the discovery that was propounded in December will be answered?

Anthony W. Reed, Esq.

The Reed Law Group, PLLC.

3245 W. Main Street, Ste. 235-346

Frisco, Texas 75034

(469) 579-5739 (ofc)

(214) 975-6854 (fax)

Notice: This communication, including attachments, may contain information that is conﬁdential. It constitutes non-
public information intended to be conveyed only to the designated recipient(s). If the reader or recipient of this
communication is not the intended recipient, an employee or agent of the intended recipient who is responsible for

https://maiI.gcog|e.com/maiI/u/O?ik=de403eeO4a&view=pt&search=al|&permthid=thread-f%3A1690893202604983751%7Cmsg-f%3A1690898196690.. 4/5
2/19/2021 Gmail - RE: Discovery - Gilchrist matter

delivering it to the intended recipient, or if you believe that you have received this communication in error, please

notify the sender immediately by return e—mail and promptly delete this e—mail, including attachments without reading
or saving them in any manner. The unauthorized use, dissemination, distribution, or reproduction of this e—mail,
including attachments, is prohibited and may be unlawful. If you have received this email in error, please notify us
immediately by e—mail or telephone and delete the e—mail and the attachments (if any).

https://mall.google.com/maiI/u/0?ik=de403ee04a&view=pt&search=a||&permthid=thread-f%3A1690893202604983751%7Cmsg-f%3A1690898196690... 5/5
CAUSE NO. 20-CV-628
JULIE BURAS § IN THE DISTRICT CoURT
PLAINTIFF §
§
vs. § 212"-JUDICIAL DISTRICT
§
CHRISTI L. GILCHRIST §
DEFENDANT § GALVESTON COUNTY, TEXAS
DEFENDANT’S RESPONSES TO PLAINTlFF’S REQUEST FOR ADMISSION
TO: Julie Buras, by and through her Counsel of Record, Anthony W. Reed, The Reed Law
Group, PLLC, 3245 W. Main Street, Suite 235-346, Frisco, TX 75034;
areed@thereed1awfIrm.com.

Christi L. Gilchrist, serves the Responses to Plaintiff’ s Requests for Admissions on
Julie Buras, attached hereto as Exhibit A.

Respectfully submitted,

By: /s/ Daniel J. Lemkuil
Daniel J. Lemkuil
Texas Bar No. 00789448
106 Avondale
Houston, TX 77006
Tel. 713-993-9100
Fax. 713-225-0099
daniel.1emkuil.atty§zu gm2IiLcom

I hereby certify that on the February 18, 2021, a true and correct copy of Defendant’s

Responses to Plaintiffs Request for Admission was duly served on Plaintiff through her counsel
of record, Anthony W. Reed by electronic service.

/s/Daniel J. Lemkuil
Daniel J. Lemkuil

EXHIBIT
go» 01- 00956
3
EXHIBIT A
REQUEST 1: Plaintiff properly named Defendant in Plaintiff's original
petition.

RESPONSE: Admit

REQUEST 2: Defendant owned a Samsung Galaxy 7 cell phone between December 2017
and June 2018.

RESPONSE: Deny in part and Admit in part. The phone is/was a Samsung Galaxy S7 Edge.

REQUEST 3: Defendant used AT&T U-Verse for digital and wireless services between
December 2017 and June 2018.

RESPONSE: Admit

REQUEST 4: Defendant logged into Plaintiffs yahoo email account on May 6"‘,
2018.

RESPONSE: Deny

REQUEST 5: Defendant logged into Plaintiffs yahoo email account on May 7"‘,
2018.

RESPONSE: Deny

REQUEST 6: Defendant is familiar with and has utilized spyware previously.
RESPONSE: Deny

REQUEST 7: Defendant texted Emily Buras on May 5"‘, 2018.
RESPONSE: Deny.
REQUEST 8: Defendant texted Emily Buras on May 6”‘, 2018.
RESPONSE: Admit.

REQUEST 9: Defendant texted Emily Buras on May 7"‘, 2018.
RESPONSE: Admit.
Proof of Service

This Proof of Service serves as notice that eservice submission below has been delivered to the recipients below at the indicated time.

Submission ID : 50704372
SubmittedDate 02/18/21 04:13: PM CST
Jurisdiction : Galveston County - 212th District Court
Case Number: 20-CV—0628
Case Style : Julie Buras vs. Christi Gilchrist

Case Matter Number: Gilchrist

Client :

eserved Document Detail(s)

Filing Code Document Type
Sewice only Document Name Type Security esewe
Stamped_Resp to Req for Adm.pdf

Service Status :

Status Code Name Email sewed Opened
Sent Anthony Reed areed@thereed|awﬁrm.com 02/18/21 04:13 PM CST
Sent Daniel Jake Lemkuil Daniel.Lemkui|.Atly@gmail.com 02/18/21 04:13 PM CST 02/19/21 12:57 PM CST
State of Texas §

County of Harris §

Supporting Affidavit

Before me, the undersigned authority, personally appeared Daniel J. Lemkuil, a person
known to me, and under oath did state as follows:

“My name is Daniel J. Lemkuil. I am over the age of 18 and otherwise competent to make
this affidavit. I have made a diligent search of my records and the case filings in my office. I find no
record indicating service of any request for admissions in this case until Mr. Reed’s email of February
5, 2021. Failure to respond to any request that may have been served on me or my office was the
result of an accident or mistake in the processing of the incoming discovery request. In short, eitherl
did not receive the mailed request or if received, it was not correctly processed within the office. I
cannot say which one occurred, only that I have no record of receiving such a mailing. The failure to
respond to the request was not the result of conscious indifference. In less than the two weeks
promised Mr. Reed, Defendants responses were provided.

I am asking the Court to permit me to withdraw the deemed admissions and allow the

answers sent to Petitioner on February 18, 2021 to serve as Defendant’s response to Plaintiff’ s
Request for Admissions. The failure to answer was not intentional or the result of conscious
indifference. Plaintiff will not be unduly prejudiced because discovery remains open and there is no
mediation or trial for some time. Further, if the admissions are not struck, presentation of the merits
of the action will suffer because the case would be decided on deemed, but untrue, facts.”

Daniel J. Lemkuil

Executed under oath by Daniel J. Lemkuil, a person known to me, on February 19, 2021 for
the purposes therein stated.

Notary Public, State of Texas
ROXANA ELIZAEETH ASCENCIO
Notary Public, State of Texas
Comm. Expires 024 5-2023
Notary ID 128176472
~

EXHIBIT
.?.o— w— 64 29’
§ ‘/

Case Info

Judge

Grady, Patricia Track Judge’s New Case

Case No.

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Document Filed Date

February 19, 2021

Case Filing Date

May 07, 2020

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Party Discovery: Julie Buras vs. Christi Gilchrist

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