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CAUSE NO. 22-CCV-071305
LAKELAND WEST CAPITAL 41, LLC IN THE COUNTY COURT
VS. AT LAW NO. 6
DIOGU KALU DIOGU, II
AND ALL OTHER OCCUPANTS FORT BEND COUNTY, TEXAS
MOTION IN LIMINE AND REQUEST FOR RULE 166(p) RELIEF
Lakeland West Capital 41, LLC (“Lakeland”) files this Motion in Limine and Request for
Rule 166(p) Relief (“Motion”) and would respectfully show as follows:
1 The sole issue in this eviction appeal is who has the right to immediate possession
of the property. Aguilar v. Weber, 72 S.W.3d 729, 732 (Tex. App.—Waco 2002). The appellate
jurisdiction of this Court is confined to the jurisdictional limits of the justice court. See Rice v.
Pinney, 51 S.W.3d 705, 708 (Tex. App. — Dallas 2001, no pet.). In an effort to avoid prejudice and
a possible mistrial, Lakeland files this Motion to seek an order from this Court limiting the
evidence that may be presented at trial by Diogu Kalu Diogu, II, (“Diogu”) to relevant and
admissible evidence. Evidence that is more prejudicial than probative or irrelevant to the sole issue
in this case should not be admissible at trial nor mentioned to the jury in an attempt to mislead the
jury. Tex. R. Evid. 402 and 403.
2 Diogu creates confusion and introduces issues outside of the sole issue in this case
of immediate possession by labeling his arguments as affirmative defenses. The trial in the Justice
of the Peace court took in excess of six (6) hours. For example, in Diogu’s motion for summary
judgment, Diogu inter alia alleges issues relating to: (1) the existence of a landlord-tenant
relationship, (2) statute of limitations, (3) claims adjudicated in prior lawsuits, and (4) the validity
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of documents without providing admissible evidence supporting or verifying his statements and
blatantly erroneous legal conclusions.
3 Lakeland objects to any introduction by Diogu of irrelevant, prejudicial, confusing,
and unreliable evidence because its admissibility is precluded from the jury’s consideration under
the Texas Rules of Evidence and Texas Rules of Civil Procedure. Lakeland requests that this
Court, prior to the voir dire examination of the jury panel, jury selection, and trial, exclude any
and all evidence unrelated to the issue of immediate right of possession of the property and as
otherwise described below as they are irrelevant, inadmissible, prejudicial, and/or misleading to
the material issue in this case. See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551,
557 (Tex. App.—Houston [Ist Dist.] 1996) aff'd, 972 S.W.2d 35 (Tex. 1998) (a motion in limine
“precludes reference to the subject of the motion without first obtaining a ruling on the
admissibility of those matters outside the presence of the jury”). If Plaintiff, Defendant, their
attorneys, or witnesses (each individually referred to as a “Party” or collectively as the “Parties”)
inject any other matter outside immediate possession of the property into this case, the jury will be
prejudiced and irreparable harm will be caused to Lakeland’s case that no jury instruction would
cure. If any of these irrelevant matters are brought directly or indirectly to the attention of the jury,
Lakeland may be compelled to move for a mistrial.
4 In general, the only admissible evidence for the Court and jury to consider is
reliable evidence relevant to adjudicate the issue of immediate possession of the property at subject
in this case. Tex. R. Evid. 105 and 403. Title is not required to be proven in a forcible detainer
action and this Court has no jurisdiction to adjudicate title to real estate in a de novo trial following
an appeal of a forcible detainer suit from justice court. See Rice, 51 S.W.3d at 709. Evidence of
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ownership is relevant for the purpose that it demonstrates a superior right to immediate possession.
Goggins v. Leo, 849 8.W.2d 373, 377 (Tex.App.—Houston [14th Dist.] 1993, no writ).
5 More specifically, the matters set forth below would not be admissible evidence for
any purpose because they have no rational relationship to any probable or controlling fact issue in
dispute nor do they have any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence. Moreover, permitting interrogation of witnesses, comments to jurors, or prospective
jurors, or offers of evidence concerning any of the below matters would unfairly prejudice the jury,
and could potentially confuse the issues and mislead the jury. See Tex. R. Evid. 402 and 403. All
of the listed items are immaterial, irrelevant and/or prejudicial; their mere mention would cause
bias against Lakeland even if objections were timely made and sustained by the Court and a
limiting instruction would not sufficiently dispel the prejudice.
6 Because the below certain matters are either inadmissible, irrelevant and/or
prejudicial, Lakeland asks the Court to enter the attached Order in Limine instructing Diogu Kalu
Diogu, II, (“Diogu”), his counsel and any of his witnesses not to mention, reference, hint at, testify
about, or offer in evidence any evidence or document, either directly or indirectly, in the presence
of the venire panel or the jury selected to try the case, without first seeking the permission of the
Court, involving or relating to the following matters:
I LIMITATIONS
Diogu, in his MSJ, states: “. . . this summary judgment motion is based on
limitations . . .” Diogu MSJ, p. 13. In Guillen, the 14" Court of Appeals found that
a limitations argument did not rise to the level of the title issue in Yarbrough and
concluded that the County Court had jurisdiction over the forcible entry and
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detainer. Guillen, 494 S.W.3d at 868. In that case, Guillen argued that the deed of
trust was invalid due to limitations and therefore, the title issue was “so intertwined
with the issue of right of immediate possession that the county court was deprived
of jurisdiction to determine possession until such time as the title issue was
resolved. . .” Guillen, 494 S.W.3d at 864, 867-68. The Guillen court citing
Yarbrough ruled that:
The justice court generally may resolve the issue of immediate possession
independent of any title issues as long as a landlord-tenant relationship
exists. If a deed of trust contains an enforceable tenancy-at-sufferance
clause, the justice court may resolve the issue of immediate possession
independent of any title issues.
Guillen, 494 S.W.3d at 866 (citing Yarbrough, 455 S.W.3d at 280 and 281.) The
Guillen court went on to hold that when the title dispute is based on the foreclosure
being improper, then the issue is not intertwined with the right of immediate
possession. Guillen, 494 S.W.3d at 867 (citing Pinnacle Premier Props., Inc. v.
Breton, 447 S.W.3d 558 (Tex. App.-Houston [14" Dist.] 2014, no pet.); Gardocki
y, Fed. Nat’l Mortg. Ass’n, 2013 WL 6568705, at *4 (Tex. App.-Houston fi4
Dist.] Dec. 12, 2013, no pet.).
In an effort to confuse and possibly create an issue, Diogu improperly raises issues
of title, claims and defenses which are either presently pending in the bankruptcy
court or which have been resolved by that court; and Diogu further raises issues
through false, misleading and wholly unsupported facts and legal conclusions.
Diogu incorrectly attempts to ride the Yarbrough decision for the proposition that
the combination of title issues with the issue of immediate possession deprives this
Court of jurisdiction. Yarbrough v. Household Fin. Corp. III, 455 8.W.3d 277, 280
20210675.20210675/4410011.1
(Tex.App.-Houston [14" Dist.] 2015, no pet.). Diogu argues limitation in an
attempt to bring this matter under Yarbrough; however, the 14" Court of Appeals
has previously denied such an approach. Guillen v. U.S. Bank, N.A., 4948.W.3d
861, 868 (Tex.App.-Houston. [14" Dist.] 2016, no pet.) (“we see no reason to treat
Guillen’s statute of limitations claim differently than any other attack on the
foreclosure process. The question of the foreclosure’s validity — whether based on
the terms of the deed or the terms of the governing statute — is to be resolved by the
district court ‘independent of the county court’s determination in the forcible
detainer action that [U.S. Bank] is entitled to immediate possession of the
property.” Jd. (quoting Villalon v. Bank One, 176 S.W.3d 66, 71 (Tex.App.-
Houston [1* Dist.] 2004, pet. denied)).
IL LANDLORD/TENANT
To prevail on a forcible detainer action, Lakeland must prove four (4) elements: (1)
Lakeland owns the Property by virtue of a foreclosure sale deed or substitute
trustee’s deed, (2) Diogu became a tenant at sufferance when the Property was sold
under the deed of trust, (3) Lakeland gave Diogu notice to vacate the Property, and
(4) Diogu refused to vacate the Property. See Tex. Prop. C. § 24.002, see also Tehuti
y. Trans-Atlas Fin., Inc., 2015 WL 1111400, at *2 (Tex. App. — Dallas, Mar. 12,
2015, pet. dism’d, w.o,j.) and Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d
566, 568-69 (Tex. App.—Dallas 2008, pet. dism'd w.oj.).
Diogu argues there is no landlord/tenant relationship; this assertion is wrong. The
Deed of Trust states that after foreclosure Diogu is a mere tenant at sufferance and
contractually required to surrender possession to Lakeland. See, Ex. A, Deed of
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Trust, | 22. Section 24.002(a)(2) of the Texas Property Code states, in pertinent
part:
a) A person who refuses to surrender possession of real property on demand
commits a forcible detainer if the person:
2) is a tenant at will or by sufferance .. .”
Texas Property Code § 24.002(a)(2). This establishes the requisite landlord/tenant
relationship for Lakeland to proceed with an eviction suit for judgment of
possession of the premises and a writ of possession. Tex. Prop. Code § 24.0061 (a)
(Supp.).
Evidence relating to the meaning of terms of a written agreement: The written
agreements are not ambiguous and the Court should enforce a contract as written
and not consider parol evidence for the purpose of creating an ambiguity or giving
a contract a different meaning from its stated language. David J. Sacks, P.C. v.
Haden, 266 $.W.3d 447, 450-51 (Tex. 2008) (per curiam). The Deed of Trust
creates a landlord-tenant relationship in paragraph 22 and any mention or reference
that a landlord-tenant relationship does not exist is false and will mislead the jury.
Il. CURRENT OWNERSHIP
Lakeland does not need to prove title, but only a superior right of possession.
Sanders v. Vaughan, 2022 WL 4002909, at *3 (Tex. App. — Texarkana Sept. 2,
2022) (cited cases omitted); Tehuti v. Bank of New York Mellon Trust Co., N.A.,
517 S.W.3d 270, 273 (Tex. App. — Texarkana 2017) (“The right to immediately
possess real property is not necessarily contingent on proving full title, and ‘[t]he
Texas [Legislature] has specifically bifurcated the questions of possession and title
[ ] and placed jurisdiction for adjudicating those issues in separate courts.””)
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(quoting Borunda v. Fed, Nat’l Mortg. Ass'n, 511 S$.W.3d 731, 733-35 (Tex. App.-
El Paso 2013, no pet.). The June 2022 substitute trustee’s deed which Lakeland
obtained after a final Order Lifting the Stay and the vacating and voiding of the
TRO demonstrates Lakeland’s superior right of possession. See, Exhibits H and L.
Iv. PERSONAL CHARACTERISTICS
Prior Lawsuits: Any reference to or mention of Diogu’s involvement in the
obtaining of a Temporary Restraining Order obtained in the Harris County District
Court which was subsequently removed to federal bankruptcy court and ordered
void and vacated is irrelevant to the issues of the present suit and is prejudicial. See
Tex. R. Evid. 401 — 403.
Other Claims: Any reference to or mention of the Deed of Trust being void, claims
regarding statute of limitations, and/or claims that Lakeland lacks standing is
unsupported and irrelevant in this appeal from the justice court of a forcible detainer
suit. See Tex. R. Evid. 401 — 403.
Discrimination: Any reference suggesting that a Party should be treated more or
less favorably because of such Party’s race, gender, national origin, nationality,
religion, political beliefs, marital status, occupation, or financial status, These
references are meant to incite or arouse passion, bias or prejudice or otherwise
inflame the jury, and any such reference to insinuate that the jury’s service would
not be necessary but for Lakeland’s actions or that the jury should punish Lakeland
for taking such actions. Tex. R. Evid. 401 and 403.
Comparison of relative size: Any mention, reference, or inquiry into the relative
economic size of each party, including any comparison of numbers of employees,
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revenues, net worth, earnings, profits, assets, or financial status of Lakeland or the
disparity in size and/or ability of the Parties. Tex. R. Evid. 402 and 403.
Vv PRETRIAL POSITIONS, RULINGS, AND PREPARATIONS
a. Pretrial Motions or Matters: Any mention of or reference to any Court rulings on
pretrial motions filed by either Party, including, but not limited to, this Motion,
motions for summary judgment, discovery motions, and the disposition of such or
the lack thereof. Comment upon these matters could only be motivated by a desire
to influence the jury by an implication of the Court’s evaluation of the issues and
would be improper. Tex. R. Evid. 402 and 403.
Motion in Limine: Any mention of or reference to the filing of this Motion or any
ruling by the Court in response to this motion, or any other suggestion that Lakeland
or its counsel have attempted to prohibit proof or that the Court has excluded proof
of any particular matter. Any reference is inherently prejudicial in that it suggests
or infers that the movant has sought to prohibit proof or that the Court has excluded
proof of matters. Tex, R. Evid. 402, 403, and 611(a); Burdick v. York Oil Co., 364
S.W.2d 766, 769-770 (Tex. Civ. App.—San Antonio 1963, writ refd n.re.).
Cc. Trial preparation of represented witnesses: Any reference about how other counsel
prepared witnesses who they represent for trial testimony. Tex. R. Evid. 401 — 403.
VI. RESPONSIBILITY AND RECOVERY
Settlement Negotiations or Mediations: Any reference to any offers of settlement
or compromises, or payments discussed, furnished, or promised from Lakeland or
Veritex or Green Bank to any Party, including all statements made by any Party in
settlement discussions during the course of those discussions. Evidence of
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settlement negotiations is inadmissible under the Texas Rules of Evidence. See Tex.
R. Evid. 408.
Golden Rule: Any reference that the jurors should put themselves in the position of
a party. Tex. R. Evid. 401 — 403.
VII. TRIAL CONDUCT
a. Privileged communications: Any reference to the intent or understanding of counsel
to any party, including any reference to the content of any attorney-client privileged
or confidential communications or lack thereof. Tex. R. Evid. 501. Counsel shall
refrain from asking any question that may attempt or elicit a witness to divulge
information protected from disclosure by privilege, including, but not limited to,
information protected by the attorney-client privilege, the attorney work product
privilege, the party communications privilege, and any other privilege recognized
by the Texas Rules of Civil Procedure and the Texas Rules of Evidence, or which
may tend to require an attorney or witness to have to object to answering on such
grounds. Tex. R. Evid. 503.
Questioning attorneys: Any. question by a witness directed to the adverse party’s
counsel.
Statement of any venire person: Any reference to a statement of any venire person
after the conclusion of jury selection. See Tex. R. Evid. 401 — 403.
Counsel’s opinions or beliefs: Any reference to counsel’s personal opinion
regarding the credibility of any witness. Any reference to or mention of any
personal beliefs of the Party or its counsel (as opposed to stating what the facts will
show or arguing the facts in evidence) concerning the justice of the Parties’
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respective cases or Lakeland’s right to recover damages. Tex. R. Evid. 402, 403,
and 611(a).
Attendees in the courtroom: Any reference to any person sitting in the courtroom
other than witnesses, counsel, the Party’s corporate representatives, or Court
personnel. See Tex. R. Evid. 401 — 403.
Testimony drawing legal conclusions: Any evidence and/or testimony of any
witness that attempts to draw legal conclusions from or comment upon the character
of the evidence. See Tex. R. Evid. 401 — 403. Before the Court rules on the law
applicable to this case, Counsel shall refrain from making any statement of the law
other than regarding the burden of proof and the basic legal definitions counsel
believes to be applicable regarding eviction suits, such as any issues outside
possession, especially and issues regarding title.
Vill. RULE 166(p) MOTION
1 The Court, pursuant to Rule 166 of the Texas Rules of Civil Procedure should hold
a pre-trial conference to deal with the various motions on file and pursuant to sub-paragraph (p)
deal with “[s]uch other matters as may aid in the disposition of the action.” Tex. R. Civ. P. 166(p).
There is no remaining issue of fact to be tried by the Court.
2 To prevail on a forcible detainer action, Lakeland must prove four (4) elements: (1)
Lakeland owns the Property by virtue of a foreclosure sale deed or substitute trustee’s deed, (2)
Diogu became a tenant at sufferance when the Property was sold under the deed of trust, (3)
Lakeland gave Diogu notice to vacate the Property, and (4) Diogu refused to vacate the Property.
See Tex. Prop. C. § 24.002; see also Tehuti v. Trans-Atlas Fin., Inc., 2015 WL 1111400, at *2
10
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(Tex. App. — Dallas, Mar. 12, 2015, pet. dism’d, w.o,j.) and Elwell v. Countrywide Home Loans,
Inc., 267 S.W.3d 566, 568-69 (Tex. App.—Dallas 2008, pet. dism'd w.o,j.).
3 Lakeland filed a Complaint for Forcible Detainer which was verified. Diogu filed
an unverified answer and subsequently a motion for summary judgment to which Lakeland has
responded.
4 In the Complaint, Lakeland states that it is
a. the record owner of the Property (See, {§ 4 and 9 of Complaint, p. 2 and 4.)
b. Lakeland demanded that Diogu and the other Occupants vacate the
Property. (See, J 10 of Complaint, p. 4.)
¢. That Diogu and the other Occupants failed and refused, and continued to
fail and refuse to vacate the Property. (See, { 13 of Complaint, p. 5.)
5 Diogu filed his Motion for Summary Judgment (“Diogu’s MSJ”) and attached an
Affidavit in which he admits:
a. Lakeland’s foreclosure sale took place (See, bottom paragraph of p. 2 and
top paragraph of p. 3 of Diogu Affidavit).
b that the Deed of Trust contained a provision pursuant to which Diogu
became a tenant at sufferance (See, first full paragraph on p. 4 of Diogu Affidavit).
6 In Lakeland’s Response to Diogu’s MSJ, the following facts are established:
a. Lakeland owns the Property by virtue of the Substitute Trustee’s Deed.
(See, § 29, 30, 38, 39 and Exhibit I and Exhibit O (Mr. Adams’ Affidavit) of Lakeland’s Response
to Diogu’s MSJ).
b. Diogu became a tenant at sufferance (See, 38, and Exhibit A, § 22, and
Exhibit O (Mr. Adams’ Affidavit), § 2.)
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¢. Lakeland gave Diogu notice to vacate the Property (See, § 40 and Exhibit
M of Lakeland’s Response to Diogu’s MSJ.)
d Diogu refused to vacate the Property. (See, § 40 and Exhibit P (Michael
Durrschmidt’s Affidavit), of Lakeland’s Response to Diogu’s MSJ.), {| 16.
7
Lakeland and Diogu have demonstrated the four elements to carry Lakeland’s
burden; therefore, the only outstanding issue is why is Diogu and the other occupants in the
Property.
PRAYER
Wherefore premises considered, Plaintiff, Lakeland West Capital 41, LLC, respectfully
requests that the Court grant its Motion in Limine, and that the Parties and their counsel and
witnesses, by and through their counsel, be instructed not to make any reference, directly or
indirectly, to any of the requested instructions, facts, or conditions related to each matter listed
above in this Motion, sign and enter the Order in Limine submitted herewith, and grant Lakeland
any other relief to which Lakeland may be justly entitled.
Respectfully submitted,
HIRSCH & WESTHEIMER, P.C.
By: /s/ Michael J. Durrschmidt
Michael J. Durrschmidt
Texas Bar No. 06287650
Kim Lewinski
State Bar No. 24097994
1415 Louisiana, 36'" Floor
Houston, Texas 77002
Telephone: 713-220-9165
Facsimile: 713-223-9319
E-mail: mdurrschmidt@hirschwest.com
E-mail: klewinski@hirschwest.com
ATTORNEYS FOR LAKELAND WEST
CAPITAL 41, LLC
12
20210675,20210675/4410011.1
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Motion in Limine was served by email
and/or certified mail, to the parties listed below on this 21“ day of September, 2022.
Carolyn Okorafor
Co & Co Attorneys at Law
2120 Welch Street, Suite D
Houston, Texas 77019
cokorafor@coandcolaw.com
Via Email
Sonya Chandler Anderson
The Law Office of Chandler Anderson
1202 1% St. E., No. 2532
Humble, TX 77347
sonya@chandlerandersonlaw.com
Via Email
Diogu Kalu Diogu, II
4726 Gainsborough Dr.
Brookshire, Texas 77423
Diogu.diogu.law.firm@gmail.com
DEFENDANT
Via Email
All Other Occupants
4726 Gainsborough Dr.
Brookshire, Texas 77423
Via First-Class U.S. Mail and
CMRRR No. 9414 7266 9904 2179 1905 76
/s/ Michael J. Durrschmidt
Michael J. Durrschmidt
13
20210675.20210675/4410011.1
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CAUSE NO. 22-CCV-071305 LAKELAND WEST CAPITAL 41, LLC IN THE COUNTY COURT VS. AT LAW NO. 6 DIOGU KALU DIOGU, II AND ALL OTHER OCCUPANTS FORT BEND COUNTY, TEXAS MOTION IN LIMINE AND REQUEST FOR RULE 166(p) RELIEF Lakeland West Capital 41, LLC (“Lakeland”) files this Motion in Limine and Request for Rule 166(p) Relief (“Motion”) and would respectfully show as follows: 1 The sole issue in this eviction appeal is who has the right to immediate possession of the property. Aguilar v. Weber, 72 S.W.3d 729, 732 (Tex. App.—Waco 2002). The appellate jurisdiction of this Court is confined to the jurisdictional limits of the justice court. See Rice v. Pinney, 51 S.W.3d 705, 708 (Tex. App. — Dallas 2001, no pet.). In an effort to avoid prejudice and a possible mistrial, Lakeland files this Motion to seek an order from this Court limiting the evidence that may be presented at trial by Diogu Kalu Diogu, II, (“Diogu”) to relevant and admissible evidence. Evidence that is more prejudicial than probative or irrelevant to the sole issue in this case should not be admissible at trial nor mentioned to the jury in an attempt to mislead the jury. Tex. R. Evid. 402 and 403. 2 Diogu creates confusion and introduces issues outside of the sole issue in this case of immediate possession by labeling his arguments as affirmative defenses. The trial in the Justice of the Peace court took in excess of six (6) hours. For example, in Diogu’s motion for summary judgment, Diogu inter alia alleges issues relating to: (1) the existence of a landlord-tenant relationship, (2) statute of limitations, (3) claims adjudicated in prior lawsuits, and (4) the validity 20210675,20210675/4410011.1 of documents without providing admissible evidence supporting or verifying his statements and blatantly erroneous legal conclusions. 3 Lakeland objects to any introduction by Diogu of irrelevant, prejudicial, confusing, and unreliable evidence because its admissibility is precluded from the jury’s consideration under the Texas Rules of Evidence and Texas Rules of Civil Procedure. Lakeland requests that this Court, prior to the voir dire examination of the jury panel, jury selection, and trial, exclude any and all evidence unrelated to the issue of immediate right of possession of the property and as otherwise described below as they are irrelevant, inadmissible, prejudicial, and/or misleading to the material issue in this case. See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App.—Houston [Ist Dist.] 1996) aff'd, 972 S.W.2d 35 (Tex. 1998) (a motion in limine “precludes reference to the subject of the motion without first obtaining a ruling on the admissibility of those matters outside the presence of the jury”). If Plaintiff, Defendant, their attorneys, or witnesses (each individually referred to as a “Party” or collectively as the “Parties”) inject any other matter outside immediate possession of the property into this case, the jury will be prejudiced and irreparable harm will be caused to Lakeland’s case that no jury instruction would cure. If any of these irrelevant matters are brought directly or indirectly to the attention of the jury, Lakeland may be compelled to move for a mistrial. 4 In general, the only admissible evidence for the Court and jury to consider is reliable evidence relevant to adjudicate the issue of immediate possession of the property at subject in this case. Tex. R. Evid. 105 and 403. Title is not required to be proven in a forcible detainer action and this Court has no jurisdiction to adjudicate title to real estate in a de novo trial following an appeal of a forcible detainer suit from justice court. See Rice, 51 S.W.3d at 709. Evidence of 20210675.20210675/4410011.1 ownership is relevant for the purpose that it demonstrates a superior right to immediate possession. Goggins v. Leo, 849 8.W.2d 373, 377 (Tex.App.—Houston [14th Dist.] 1993, no writ). 5 More specifically, the matters set forth below would not be admissible evidence for any purpose because they have no rational relationship to any probable or controlling fact issue in dispute nor do they have any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Moreover, permitting interrogation of witnesses, comments to jurors, or prospective jurors, or offers of evidence concerning any of the below matters would unfairly prejudice the jury, and could potentially confuse the issues and mislead the jury. See Tex. R. Evid. 402 and 403. All of the listed items are immaterial, irrelevant and/or prejudicial; their mere mention would cause bias against Lakeland even if objections were timely made and sustained by the Court and a limiting instruction would not sufficiently dispel the prejudice. 6 Because the below certain matters are either inadmissible, irrelevant and/or prejudicial, Lakeland asks the Court to enter the attached Order in Limine instructing Diogu Kalu Diogu, II, (“Diogu”), his counsel and any of his witnesses not to mention, reference, hint at, testify about, or offer in evidence any evidence or document, either directly or indirectly, in the presence of the venire panel or the jury selected to try the case, without first seeking the permission of the Court, involving or relating to the following matters: I LIMITATIONS Diogu, in his MSJ, states: “. . . this summary judgment motion is based on limitations . . .” Diogu MSJ, p. 13. In Guillen, the 14" Court of Appeals found that a limitations argument did not rise to the level of the title issue in Yarbrough and concluded that the County Court had jurisdiction over the forcible entry and 20210675,20210675/4410011.1 detainer. Guillen, 494 S.W.3d at 868. In that case, Guillen argued that the deed of trust was invalid due to limitations and therefore, the title issue was “so intertwined with the issue of right of immediate possession that the county court was deprived of jurisdiction to determine possession until such time as the title issue was resolved. . .” Guillen, 494 S.W.3d at 864, 867-68. The Guillen court citing Yarbrough ruled that: The justice court generally may resolve the issue of immediate possession independent of any title issues as long as a landlord-tenant relationship exists. If a deed of trust contains an enforceable tenancy-at-sufferance clause, the justice court may resolve the issue of immediate possession independent of any title issues. Guillen, 494 S.W.3d at 866 (citing Yarbrough, 455 S.W.3d at 280 and 281.) The Guillen court went on to hold that when the title dispute is based on the foreclosure being improper, then the issue is not intertwined with the right of immediate possession. Guillen, 494 S.W.3d at 867 (citing Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558 (Tex. App.-Houston [14" Dist.] 2014, no pet.); Gardocki y, Fed. Nat’l Mortg. Ass’n, 2013 WL 6568705, at *4 (Tex. App.-Houston fi4 Dist.] Dec. 12, 2013, no pet.). In an effort to confuse and possibly create an issue, Diogu improperly raises issues of title, claims and defenses which are either presently pending in the bankruptcy court or which have been resolved by that court; and Diogu further raises issues through false, misleading and wholly unsupported facts and legal conclusions. Diogu incorrectly attempts to ride the Yarbrough decision for the proposition that the combination of title issues with the issue of immediate possession deprives this Court of jurisdiction. Yarbrough v. Household Fin. Corp. III, 455 8.W.3d 277, 280 20210675.20210675/4410011.1 (Tex.App.-Houston [14" Dist.] 2015, no pet.). Diogu argues limitation in an attempt to bring this matter under Yarbrough; however, the 14" Court of Appeals has previously denied such an approach. Guillen v. U.S. Bank, N.A., 4948.W.3d 861, 868 (Tex.App.-Houston. [14" Dist.] 2016, no pet.) (“we see no reason to treat Guillen’s statute of limitations claim differently than any other attack on the foreclosure process. The question of the foreclosure’s validity — whether based on the terms of the deed or the terms of the governing statute — is to be resolved by the district court ‘independent of the county court’s determination in the forcible detainer action that [U.S. Bank] is entitled to immediate possession of the property.” Jd. (quoting Villalon v. Bank One, 176 S.W.3d 66, 71 (Tex.App.- Houston [1* Dist.] 2004, pet. denied)). IL LANDLORD/TENANT To prevail on a forcible detainer action, Lakeland must prove four (4) elements: (1) Lakeland owns the Property by virtue of a foreclosure sale deed or substitute trustee’s deed, (2) Diogu became a tenant at sufferance when the Property was sold under the deed of trust, (3) Lakeland gave Diogu notice to vacate the Property, and (4) Diogu refused to vacate the Property. See Tex. Prop. C. § 24.002, see also Tehuti y. Trans-Atlas Fin., Inc., 2015 WL 1111400, at *2 (Tex. App. — Dallas, Mar. 12, 2015, pet. dism’d, w.o,j.) and Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568-69 (Tex. App.—Dallas 2008, pet. dism'd w.oj.). Diogu argues there is no landlord/tenant relationship; this assertion is wrong. The Deed of Trust states that after foreclosure Diogu is a mere tenant at sufferance and contractually required to surrender possession to Lakeland. See, Ex. A, Deed of 20210675.20210675/4410011.1 Trust, | 22. Section 24.002(a)(2) of the Texas Property Code states, in pertinent part: a) A person who refuses to surrender possession of real property on demand commits a forcible detainer if the person: 2) is a tenant at will or by sufferance .. .” Texas Property Code § 24.002(a)(2). This establishes the requisite landlord/tenant relationship for Lakeland to proceed with an eviction suit for judgment of possession of the premises and a writ of possession. Tex. Prop. Code § 24.0061 (a) (Supp.). Evidence relating to the meaning of terms of a written agreement: The written agreements are not ambiguous and the Court should enforce a contract as written and not consider parol evidence for the purpose of creating an ambiguity or giving a contract a different meaning from its stated language. David J. Sacks, P.C. v. Haden, 266 $.W.3d 447, 450-51 (Tex. 2008) (per curiam). The Deed of Trust creates a landlord-tenant relationship in paragraph 22 and any mention or reference that a landlord-tenant relationship does not exist is false and will mislead the jury. Il. CURRENT OWNERSHIP Lakeland does not need to prove title, but only a superior right of possession. Sanders v. Vaughan, 2022 WL 4002909, at *3 (Tex. App. — Texarkana Sept. 2, 2022) (cited cases omitted); Tehuti v. Bank of New York Mellon Trust Co., N.A., 517 S.W.3d 270, 273 (Tex. App. — Texarkana 2017) (“The right to immediately possess real property is not necessarily contingent on proving full title, and ‘[t]he Texas [Legislature] has specifically bifurcated the questions of possession and title [ ] and placed jurisdiction for adjudicating those issues in separate courts.””) 20210675,20210675/4410011.1 (quoting Borunda v. Fed, Nat’l Mortg. Ass'n, 511 S$.W.3d 731, 733-35 (Tex. App.- El Paso 2013, no pet.). The June 2022 substitute trustee’s deed which Lakeland obtained after a final Order Lifting the Stay and the vacating and voiding of the TRO demonstrates Lakeland’s superior right of possession. See, Exhibits H and L. Iv. PERSONAL CHARACTERISTICS Prior Lawsuits: Any reference to or mention of Diogu’s involvement in the obtaining of a Temporary Restraining Order obtained in the Harris County District Court which was subsequently removed to federal bankruptcy court and ordered void and vacated is irrelevant to the issues of the present suit and is prejudicial. See Tex. R. Evid. 401 — 403. Other Claims: Any reference to or mention of the Deed of Trust being void, claims regarding statute of limitations, and/or claims that Lakeland lacks standing is unsupported and irrelevant in this appeal from the justice court of a forcible detainer suit. See Tex. R. Evid. 401 — 403. Discrimination: Any reference suggesting that a Party should be treated more or less favorably because of such Party’s race, gender, national origin, nationality, religion, political beliefs, marital status, occupation, or financial status, These references are meant to incite or arouse passion, bias or prejudice or otherwise inflame the jury, and any such reference to insinuate that the jury’s service would not be necessary but for Lakeland’s actions or that the jury should punish Lakeland for taking such actions. Tex. R. Evid. 401 and 403. Comparison of relative size: Any mention, reference, or inquiry into the relative economic size of each party, including any comparison of numbers of employees, 20210675,20210675/4410011.1 revenues, net worth, earnings, profits, assets, or financial status of Lakeland or the disparity in size and/or ability of the Parties. Tex. R. Evid. 402 and 403. Vv PRETRIAL POSITIONS, RULINGS, AND PREPARATIONS a. Pretrial Motions or Matters: Any mention of or reference to any Court rulings on pretrial motions filed by either Party, including, but not limited to, this Motion, motions for summary judgment, discovery motions, and the disposition of such or the lack thereof. Comment upon these matters could only be motivated by a desire to influence the jury by an implication of the Court’s evaluation of the issues and would be improper. Tex. R. Evid. 402 and 403. Motion in Limine: Any mention of or reference to the filing of this Motion or any ruling by the Court in response to this motion, or any other suggestion that Lakeland or its counsel have attempted to prohibit proof or that the Court has excluded proof of any particular matter. Any reference is inherently prejudicial in that it suggests or infers that the movant has sought to prohibit proof or that the Court has excluded proof of matters. Tex, R. Evid. 402, 403, and 611(a); Burdick v. York Oil Co., 364 S.W.2d 766, 769-770 (Tex. Civ. App.—San Antonio 1963, writ refd n.re.). Cc. Trial preparation of represented witnesses: Any reference about how other counsel prepared witnesses who they represent for trial testimony. Tex. R. Evid. 401 — 403. VI. RESPONSIBILITY AND RECOVERY Settlement Negotiations or Mediations: Any reference to any offers of settlement or compromises, or payments discussed, furnished, or promised from Lakeland or Veritex or Green Bank to any Party, including all statements made by any Party in settlement discussions during the course of those discussions. Evidence of 20210675,20210675/4410011,1 settlement negotiations is inadmissible under the Texas Rules of Evidence. See Tex. R. Evid. 408. Golden Rule: Any reference that the jurors should put themselves in the position of a party. Tex. R. Evid. 401 — 403. VII. TRIAL CONDUCT a. Privileged communications: Any reference to the intent or understanding of counsel to any party, including any reference to the content of any attorney-client privileged or confidential communications or lack thereof. Tex. R. Evid. 501. Counsel shall refrain from asking any question that may attempt or elicit a witness to divulge information protected from disclosure by privilege, including, but not limited to, information protected by the attorney-client privilege, the attorney work product privilege, the party communications privilege, and any other privilege recognized by the Texas Rules of Civil Procedure and the Texas Rules of Evidence, or which may tend to require an attorney or witness to have to object to answering on such grounds. Tex. R. Evid. 503. Questioning attorneys: Any. question by a witness directed to the adverse party’s counsel. Statement of any venire person: Any reference to a statement of any venire person after the conclusion of jury selection. See Tex. R. Evid. 401 — 403. Counsel’s opinions or beliefs: Any reference to counsel’s personal opinion regarding the credibility of any witness. Any reference to or mention of any personal beliefs of the Party or its counsel (as opposed to stating what the facts will show or arguing the facts in evidence) concerning the justice of the Parties’ 20210675.20210675/4410011.1 respective cases or Lakeland’s right to recover damages. Tex. R. Evid. 402, 403, and 611(a). Attendees in the courtroom: Any reference to any person sitting in the courtroom other than witnesses, counsel, the Party’s corporate representatives, or Court personnel. See Tex. R. Evid. 401 — 403. Testimony drawing legal conclusions: Any evidence and/or testimony of any witness that attempts to draw legal conclusions from or comment upon the character of the evidence. See Tex. R. Evid. 401 — 403. Before the Court rules on the law applicable to this case, Counsel shall refrain from making any statement of the law other than regarding the burden of proof and the basic legal definitions counsel believes to be applicable regarding eviction suits, such as any issues outside possession, especially and issues regarding title. Vill. RULE 166(p) MOTION 1 The Court, pursuant to Rule 166 of the Texas Rules of Civil Procedure should hold a pre-trial conference to deal with the various motions on file and pursuant to sub-paragraph (p) deal with “[s]uch other matters as may aid in the disposition of the action.” Tex. R. Civ. P. 166(p). There is no remaining issue of fact to be tried by the Court. 2 To prevail on a forcible detainer action, Lakeland must prove four (4) elements: (1) Lakeland owns the Property by virtue of a foreclosure sale deed or substitute trustee’s deed, (2) Diogu became a tenant at sufferance when the Property was sold under the deed of trust, (3) Lakeland gave Diogu notice to vacate the Property, and (4) Diogu refused to vacate the Property. See Tex. Prop. C. § 24.002; see also Tehuti v. Trans-Atlas Fin., Inc., 2015 WL 1111400, at *2 10 20210675,20210675/441001 1.1 (Tex. App. — Dallas, Mar. 12, 2015, pet. dism’d, w.o,j.) and Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568-69 (Tex. App.—Dallas 2008, pet. dism'd w.o,j.). 3 Lakeland filed a Complaint for Forcible Detainer which was verified. Diogu filed an unverified answer and subsequently a motion for summary judgment to which Lakeland has responded. 4 In the Complaint, Lakeland states that it is a. the record owner of the Property (See, {§ 4 and 9 of Complaint, p. 2 and 4.) b. Lakeland demanded that Diogu and the other Occupants vacate the Property. (See, J 10 of Complaint, p. 4.) ¢. That Diogu and the other Occupants failed and refused, and continued to fail and refuse to vacate the Property. (See, { 13 of Complaint, p. 5.) 5 Diogu filed his Motion for Summary Judgment (“Diogu’s MSJ”) and attached an Affidavit in which he admits: a. Lakeland’s foreclosure sale took place (See, bottom paragraph of p. 2 and top paragraph of p. 3 of Diogu Affidavit). b that the Deed of Trust contained a provision pursuant to which Diogu became a tenant at sufferance (See, first full paragraph on p. 4 of Diogu Affidavit). 6 In Lakeland’s Response to Diogu’s MSJ, the following facts are established: a. Lakeland owns the Property by virtue of the Substitute Trustee’s Deed. (See, § 29, 30, 38, 39 and Exhibit I and Exhibit O (Mr. Adams’ Affidavit) of Lakeland’s Response to Diogu’s MSJ). b. Diogu became a tenant at sufferance (See, 38, and Exhibit A, § 22, and Exhibit O (Mr. Adams’ Affidavit), § 2.) 11 20210675,20210675/4410011.1 ¢. Lakeland gave Diogu notice to vacate the Property (See, § 40 and Exhibit M of Lakeland’s Response to Diogu’s MSJ.) d Diogu refused to vacate the Property. (See, § 40 and Exhibit P (Michael Durrschmidt’s Affidavit), of Lakeland’s Response to Diogu’s MSJ.), {| 16. 7 Lakeland and Diogu have demonstrated the four elements to carry Lakeland’s burden; therefore, the only outstanding issue is why is Diogu and the other occupants in the Property. PRAYER Wherefore premises considered, Plaintiff, Lakeland West Capital 41, LLC, respectfully requests that the Court grant its Motion in Limine, and that the Parties and their counsel and witnesses, by and through their counsel, be instructed not to make any reference, directly or indirectly, to any of the requested instructions, facts, or conditions related to each matter listed above in this Motion, sign and enter the Order in Limine submitted herewith, and grant Lakeland any other relief to which Lakeland may be justly entitled. Respectfully submitted, HIRSCH & WESTHEIMER, P.C. By: /s/ Michael J. Durrschmidt Michael J. Durrschmidt Texas Bar No. 06287650 Kim Lewinski State Bar No. 24097994 1415 Louisiana, 36'" Floor Houston, Texas 77002 Telephone: 713-220-9165 Facsimile: 713-223-9319 E-mail: mdurrschmidt@hirschwest.com E-mail: klewinski@hirschwest.com ATTORNEYS FOR LAKELAND WEST CAPITAL 41, LLC 12 20210675,20210675/4410011.1 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Motion in Limine was served by email and/or certified mail, to the parties listed below on this 21“ day of September, 2022. Carolyn Okorafor Co & Co Attorneys at Law 2120 Welch Street, Suite D Houston, Texas 77019 cokorafor@coandcolaw.com Via Email Sonya Chandler Anderson The Law Office of Chandler Anderson 1202 1% St. E., No. 2532 Humble, TX 77347 sonya@chandlerandersonlaw.com Via Email Diogu Kalu Diogu, II 4726 Gainsborough Dr. Brookshire, Texas 77423 Diogu.diogu.law.firm@gmail.com DEFENDANT Via Email All Other Occupants 4726 Gainsborough Dr. Brookshire, Texas 77423 Via First-Class U.S. Mail and CMRRR No. 9414 7266 9904 2179 1905 76 /s/ Michael J. Durrschmidt Michael J. Durrschmidt 13 20210675.20210675/4410011.1