Motion,Ex Parte: My Parent's Basement, L.L.C. & Michael Bornstein, Individually vs Lance Pearson, Terry A Pearson & Mike F Pearson

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  MY PARENT’S BASEMENT              L.L.C. &                IN THE DISTRICT COURT
  MICHAEL BORNSTEIN,

          Plaintiffs,

                                                            268TH JUDICIAL DISTRICT

  LANCE PEARSON, TERRY A.
  PEARSON, & MIKE E. PEARSON,

                                                            FORT BEND COUNTY, TEXAS

               DEFENDANTS’ MOTION TO DISMISS AND DISSOLVE OR.
               IN THE ALTERNATIVE, MOTION TO TRANSFER VENUE




and Dissolve or, in the Alternative, Motion to Transfer Venue to




Temporary Injunction was granted on December

an unverified Application. Venue, however, is improper in Fort Bend County because mandatory

venue for this injunction proceeding is Collin




“in the county in which all or a substantial part of the events or omissions

occurred” or “in the county of the defendant’s residence at the time the cause of action accrued if




 EFENDANTS                   ISMISS AND
         LTERNATIVE                  RANSFER
venue shall be brought in the county required by that statute.”

             RAC                       § 15.016.   For suits involving a writ of injunction against a party,

Section 65.023 establishes mandatory venue as the “county in which the party is domiciled.”

           In re Continental Airlines, Inc., 988 S.W.2d 733, 736 (Tex. 1998) (“The statute placing




                   Because Defendants are Collin County residents, venue is mandatory in Collin

County, Texas in this injunction suit pursuant to Texas Civil Practice & Remedies Code § 65.023.

           RAC                        § 65.023(a); Pls. Original Pet. §{j 5-7.

                   Plaintiffs’   reference   in the unverified   petition to

contained within a “Consulting Agreement”              is inapposite. A contract provision fixing venue is

void if it contravenes mandatory statutory venue requirements. Fid. Union Life Ins. Co. v. Evans




statutory scheme for fixing venue.”); see also McCullough v. Fid. Union Life Ins. Co.

209 (Tex. Civ. App.—Waco,             1971, writ ref'd n.r.e.). Accordingly, Plaintiffs cannot rely on an




                   Plaintiffs’ further reliance on Section 15.017    to establish venue for libel and slander

claims in Fort Bend County, Plaintiffs’ place of residence, is also misplaced. Although Plaintiffs

state that under this statute Fort Bend County is the “only” proper venue, Sec

provides that venue for defamation claims is                proper in the Defendants’ county of residence.

Because Collin County is a proper venue for defamation claims, Plaintiffs cannot overcome the

mandatory venue provision contained in Section 65.023 which applies to injunction proceedings.




  Lance Pearson is unaware of any Consulting Agreement he executed with Bornstein that contains a
provision selecting Fort Bend County as a proper venue. Nevertheless, as explained above, any such
provision is subservient to the mandatory venue statute.

 EFENDANTS                        ISMISS AND
        LTERNATIV!                           RANSFER
Moreover, the factual allegations do not support the assertion that venue is proper

in Fort Bend County pursuant to Section 15.002(a)(1), as the county where all or a substantial part

of the events or omissions giving rise to the claim occurred. The only facts alleged in connection

with Fort Bend County are that “Plaintiffs” funds, property at issue, and accountings in this case




necessary implication of this allegation is that the “funds, property at issue, and accountings” are

currently located, stored, held, or prepared —_        Fort Bend County. Other than allegedly being

the ultimate destination for these items, no other act is alleged to have occurred in Fort Bend

                                                          tory venue statute requiring this injunction

proceeding to be tried in Collin County, the allegations in the Original Petition do not support

                                                RAC


                                     CONCLUSION AND PRAYER

                   Defendants Lance Pearson, Terry Pearson, and mike Pearson pray that their Motion

to Dismiss be granted and this Court dissolve                                       In the alternative,

Defendants pray that its Motion to Transfer Venue to Collin County be granted and that this Court

                                         the court located in the proper venue may address the merits,

if any. Defendants pray for such other and further relief to which they may show themselves to be

justly entitled.




  EFENDANTS                     ISMISS AND
          LTERNATIVE                    RANSFER
Respectfully submitted,

                                                      /s/ Neil R. Burger




                                                       sstricker@ccsb.com
                                                      CARRINGTON, COLEMAN,           SLOMAN
                                                       & BLUMENTHAL, L.L.P.


                                                      Phone: (214) 855-3000
                                                      Fax:   (214) 580-2641




       The undersigned certifies that a copy of the foregoing instrument was served upon the




                                             /s/ Neil R. Burger
                                             Neil R. Burger


                             CERTIFICATE OF CONFERENCE

       The undersigned certifies that on the 13th day of January, 2023, he personally conferred

with Dale Jefferson, counsel for Plaintiffs, concerning the relief sought. Counsel indicated that




                                             /s/ Neil R. Burger
                                             Neil R. Burger




 EFENDANTS                  ISMISS AND
        LTERNATIVE                 RANSFER