Preview
Received and Seow for Record
1/2821 6:14 PM
Melisa lg District Clerk
MontgomeryCaunty, Texas
Deputy Clérk, y Beltran
CAUSE NO. 20-03-04222
ROBERT WILLIAMS AND MICHELLE 8 IN THE DISTRICT COURT OF
WILLIAMS
Plaintiffs,
v. MONTGOMERY COUNTY, TEXAS
PRECISION HOMES CUSTOM
BUILDERS, INC., JW CLOVIS IIL
LTD., AND JW CONROE I, LTD.
Defendants. 284" JUDICIAL DISTRICT
PLAINTIFFS’ UNOPPOSED MOTION FOR LEAVE TO FILE AMENDED
PLEADINGS
TO THE HONORABLE JUDGE OF THIS COURT:
COME NOW, Plaintiffs Robert Williams and Michelle Williams, husband and wife, and
file this unopposed motion asking the Court for leave to file the attached amended pleadings and
would show as follows.
I
INTRODUCTION & BACKGROUND
1 This lawsuit concerns Plaintiffs Robert and Michelle Williams (“Plaintiffs”) seeking to
establish and restore an access easement for ingress and egress between State Highway 242 and
their one-acre tract of real property (the “Plaintiffs’ Property”) that was destroyed by Defendants
actions.
2. On October 29, 2020, Plaintiffs filed their Fourth Amended Petition and Requests for
Disclosures (“Fourth Amended Petition”). On December 18, 2020, Plaintiffs filed a supplement to
their Fourth Amended Petition. The pleadings deadline was December 18, 2020 pursuant to the
Court’s docket control order dated October 19, 2020.
Plaintiffs’ Motion for Leave to File Amended Pleadings with Fifth Amended Petition
3 Accordingly, Plaintiffs now seek leave from this Court, to which Defendants are
unopposed, to file their Fifth Amended Petition. Therefore, Plaintiffs file their Fifth Amended
Petition simultaneously with this Motion for Leave.
4. The purpose of Plaintiffs’ amendments is not to make substantive changes, but merely to
correct the designation of paragraphs being incorporated in the several causes of action and to
incorporate the supplemental pleading.
5 This case is not governed by the expedited pretrial rules under Texas Rule of Civil
Procedure 169, and pursuant to the Court’s docket control order dated October 19, 2020, the
discovery period will expire on February 16, 2021 and trial is set on May 17, 2021.
IL.
ARGUMENT & AUTHORITIES
6 A court should grant leave to amend a pleading after the filing deadline unless (1) the
opposing party presents evidence of surprise, (2) the opposing party establishes the amendment
is prejudicial on its face, or (3) the amendment removes the suit from the expedited-actions
process in Texas Rule of Civil Procedure 169 and the party presenting the amendment does not
show that good cause for filing the amendment outweighs any prejudice to the opposing party.
See Tex. R. Civ. P. 63, 169(c)(2); see also Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938,
939 (Tex. 1990) (burden to show surprise or prejudice is on party opposing amendment).
A. Defendants cannot show surprise.
7. No court has defined “surprise” for purposes of Rule 63, but courts have considered
certain factors when determining whether a party opposing an amendment was surprised. To
establish surprise, the opposing party should address these factors, which include (1) how long
the suit has been pending before the amendment was filed, (2) how soon before trial the
amendment was made, and (3) whether the amendment presents a new claim. Dunnagan v.
Plaintiffs’ Motion for Leave to File Amended Pleadings with Fifth Amended Petition
Watson, 204 S8.W.3d 30, 38 (Tex. App.—Fort Worth 2006, pet. denied); see Stevenson v.
Koutzarov, 795 S.W.2d 313, 321 (Tex. App.—Houston [1st Dist.] 1990, writ denied). If the
amendment presents a new claim, the opposing party should also address whether the claim is
based on recently discovered matters and indicate whether the opposing party is prepared to try
the new claim. See Dunnagan, 204 S.W.3d at 38; Stevenson, 795 S.W.2d at 321.
8 The Court should grant leave to file the amended pleading because the Defendants cannot
claim to be surprised by the amendments since Plaintiffs’ amended pleading does not present a
new claim but makes a correction of paragraph designation and incorporates the supplemental
pleadings made on December 18, 2020. Additionally, because the discovery period in this case
does not expire until February 2021 and trial is set for May 17, 2021, the Defendants cannot
claim to be surprised by the amendments since there is still sufficient time for the parties to
prepare these issues for trial.
B. Defendants cannot show prejudice.
9 To establish prejudice on the face of an amendment, the opposing party should show that
the amendment (1) asserts a new substantive matter that reshapes the nature of the suit, (2) could
not have been anticipated by the opposing party, and (3) will detrimentally affect the opposing
party’s ability to present its case. Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex. 1980);
Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 623 (Tex. App.—Dallas 2010, no
pet.).
10. The Court should grant leave to file the amended pleading because the Defendants cannot
claim to be prejudiced by the amendments, which do not consist of new claims but merely
incorporate earlier supplemental pleadings and correct paragraph designations. Additionally,
counsel for Plaintiffs conferred with Defendants’ counsel prior to filing this motion and they
indicated they had no opposition.
Plaintiffs’ Motion for Leave to File Amended Pleadings with Fifth Amended Petition
C. Good cause for amendment outweighs any possible prejudice.
LL. The Court should grant leave to file the amended pleading because good cause for the
amendment outweighs any prejudice to the Defendants.
Til.
CONCLUSION & PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray the Court set this
Motion for a hearing or submission and, upon a hearing or submission, the Court grant Plaintiffs
leave to file their amended pleadings.
Respectfully submitted,
Tough Law Firm, PLLC
/s/ Bruce C. Tough
Bruce C. Tough
State Bar No. 20151500
Fed. Adm ID No. 513
819 Crossbridge
Spring, Texas 77373
btough@toughlawfirm.net
Telephone: (281) 681-0808
Facsimile: (281) 681-0809
Attorneys for Plaintiff
Robert and Michelle Williams
CERTIFICATE OF CONFERENCE
I hereby certify that I have conferred with Defendants’ counsel of record regarding the
relief sought in this Motion prior to its filing and that Defendant’ counsel has indicated that
Defendants are not opposed.
/s/ Diana Tough
Diana Tough
Plaintiffs’ Motion for Leave to File Amended Pleadings with Fifth Amended Petition
CERTIFICATE OF SERVICE
I hereby certify that service of Plaintiffs’ Unopposed Motion for Leave to File Amended
Pleadings was made in accordance with the Texas Rules of Civil Procedure on the Sth day of
January, 2021 via eservice, as follows:
Travis Owens
Owens Law Group, P.L.L.C.
P.O. Box 8605
The Woodlands, TX 77387
travis@owens-lawgroup.com
ATTORNEY FOR DEFENDANT
PRECISION HOMES CUSTOM
BUILDERS, INC.
Bradford W. Irelan
Jeffrey M. Smith
Irelan McDaniel PLLC
2520 Caroline, 2nd Floor
Houston, Texas 77004
birelan@IMTexasLaw.com
jsmith@IMTexasLaw.com
Telephone: 713-222-7666
Facsimile: 713-222-7669
ATTORNEYS FOR RESPONDENTS JW
CLOVIS II, LTD., AND JW CONROE I,
LTD.
/s/ Diana Tough
Diana Tough
Plaintiffs’ Motion for Leave to File Amended Pleadings with Fifth Amended Petition
Preview
Received and Seow for Record 1/2821 6:14 PM Melisa lg District Clerk MontgomeryCaunty, Texas Deputy Clérk, y Beltran CAUSE NO. 20-03-04222 ROBERT WILLIAMS AND MICHELLE 8 IN THE DISTRICT COURT OF WILLIAMS Plaintiffs, v. MONTGOMERY COUNTY, TEXAS PRECISION HOMES CUSTOM BUILDERS, INC., JW CLOVIS IIL LTD., AND JW CONROE I, LTD. Defendants. 284" JUDICIAL DISTRICT PLAINTIFFS’ UNOPPOSED MOTION FOR LEAVE TO FILE AMENDED PLEADINGS TO THE HONORABLE JUDGE OF THIS COURT: COME NOW, Plaintiffs Robert Williams and Michelle Williams, husband and wife, and file this unopposed motion asking the Court for leave to file the attached amended pleadings and would show as follows. I INTRODUCTION & BACKGROUND 1 This lawsuit concerns Plaintiffs Robert and Michelle Williams (“Plaintiffs”) seeking to establish and restore an access easement for ingress and egress between State Highway 242 and their one-acre tract of real property (the “Plaintiffs’ Property”) that was destroyed by Defendants actions. 2. On October 29, 2020, Plaintiffs filed their Fourth Amended Petition and Requests for Disclosures (“Fourth Amended Petition”). On December 18, 2020, Plaintiffs filed a supplement to their Fourth Amended Petition. The pleadings deadline was December 18, 2020 pursuant to the Court’s docket control order dated October 19, 2020. Plaintiffs’ Motion for Leave to File Amended Pleadings with Fifth Amended Petition 3 Accordingly, Plaintiffs now seek leave from this Court, to which Defendants are unopposed, to file their Fifth Amended Petition. Therefore, Plaintiffs file their Fifth Amended Petition simultaneously with this Motion for Leave. 4. The purpose of Plaintiffs’ amendments is not to make substantive changes, but merely to correct the designation of paragraphs being incorporated in the several causes of action and to incorporate the supplemental pleading. 5 This case is not governed by the expedited pretrial rules under Texas Rule of Civil Procedure 169, and pursuant to the Court’s docket control order dated October 19, 2020, the discovery period will expire on February 16, 2021 and trial is set on May 17, 2021. IL. ARGUMENT & AUTHORITIES 6 A court should grant leave to amend a pleading after the filing deadline unless (1) the opposing party presents evidence of surprise, (2) the opposing party establishes the amendment is prejudicial on its face, or (3) the amendment removes the suit from the expedited-actions process in Texas Rule of Civil Procedure 169 and the party presenting the amendment does not show that good cause for filing the amendment outweighs any prejudice to the opposing party. See Tex. R. Civ. P. 63, 169(c)(2); see also Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990) (burden to show surprise or prejudice is on party opposing amendment). A. Defendants cannot show surprise. 7. No court has defined “surprise” for purposes of Rule 63, but courts have considered certain factors when determining whether a party opposing an amendment was surprised. To establish surprise, the opposing party should address these factors, which include (1) how long the suit has been pending before the amendment was filed, (2) how soon before trial the amendment was made, and (3) whether the amendment presents a new claim. Dunnagan v. Plaintiffs’ Motion for Leave to File Amended Pleadings with Fifth Amended Petition Watson, 204 S8.W.3d 30, 38 (Tex. App.—Fort Worth 2006, pet. denied); see Stevenson v. Koutzarov, 795 S.W.2d 313, 321 (Tex. App.—Houston [1st Dist.] 1990, writ denied). If the amendment presents a new claim, the opposing party should also address whether the claim is based on recently discovered matters and indicate whether the opposing party is prepared to try the new claim. See Dunnagan, 204 S.W.3d at 38; Stevenson, 795 S.W.2d at 321. 8 The Court should grant leave to file the amended pleading because the Defendants cannot claim to be surprised by the amendments since Plaintiffs’ amended pleading does not present a new claim but makes a correction of paragraph designation and incorporates the supplemental pleadings made on December 18, 2020. Additionally, because the discovery period in this case does not expire until February 2021 and trial is set for May 17, 2021, the Defendants cannot claim to be surprised by the amendments since there is still sufficient time for the parties to prepare these issues for trial. B. Defendants cannot show prejudice. 9 To establish prejudice on the face of an amendment, the opposing party should show that the amendment (1) asserts a new substantive matter that reshapes the nature of the suit, (2) could not have been anticipated by the opposing party, and (3) will detrimentally affect the opposing party’s ability to present its case. Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex. 1980); Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 623 (Tex. App.—Dallas 2010, no pet.). 10. The Court should grant leave to file the amended pleading because the Defendants cannot claim to be prejudiced by the amendments, which do not consist of new claims but merely incorporate earlier supplemental pleadings and correct paragraph designations. Additionally, counsel for Plaintiffs conferred with Defendants’ counsel prior to filing this motion and they indicated they had no opposition. Plaintiffs’ Motion for Leave to File Amended Pleadings with Fifth Amended Petition C. Good cause for amendment outweighs any possible prejudice. LL. The Court should grant leave to file the amended pleading because good cause for the amendment outweighs any prejudice to the Defendants. Til. CONCLUSION & PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray the Court set this Motion for a hearing or submission and, upon a hearing or submission, the Court grant Plaintiffs leave to file their amended pleadings. Respectfully submitted, Tough Law Firm, PLLC /s/ Bruce C. Tough Bruce C. Tough State Bar No. 20151500 Fed. Adm ID No. 513 819 Crossbridge Spring, Texas 77373 btough@toughlawfirm.net Telephone: (281) 681-0808 Facsimile: (281) 681-0809 Attorneys for Plaintiff Robert and Michelle Williams CERTIFICATE OF CONFERENCE I hereby certify that I have conferred with Defendants’ counsel of record regarding the relief sought in this Motion prior to its filing and that Defendant’ counsel has indicated that Defendants are not opposed. /s/ Diana Tough Diana Tough Plaintiffs’ Motion for Leave to File Amended Pleadings with Fifth Amended Petition CERTIFICATE OF SERVICE I hereby certify that service of Plaintiffs’ Unopposed Motion for Leave to File Amended Pleadings was made in accordance with the Texas Rules of Civil Procedure on the Sth day of January, 2021 via eservice, as follows: Travis Owens Owens Law Group, P.L.L.C. P.O. Box 8605 The Woodlands, TX 77387 travis@owens-lawgroup.com ATTORNEY FOR DEFENDANT PRECISION HOMES CUSTOM BUILDERS, INC. Bradford W. Irelan Jeffrey M. Smith Irelan McDaniel PLLC 2520 Caroline, 2nd Floor Houston, Texas 77004 birelan@IMTexasLaw.com jsmith@IMTexasLaw.com Telephone: 713-222-7666 Facsimile: 713-222-7669 ATTORNEYS FOR RESPONDENTS JW CLOVIS II, LTD., AND JW CONROE I, LTD. /s/ Diana Tough Diana Tough Plaintiffs’ Motion for Leave to File Amended Pleadings with Fifth Amended Petition