Preview
Electronically Filed
9/26/2022 4:55 PM
Laura Richard
County Clerk
Fort Bend County, Texas
CAUSE NO. 22-CCV-071305
LAKELAND WEST CAPITAL 41, LLC, COUNTY COURT AT LAW
Plaintiff,
Vv. NO. 6
DIOGU KALU DIOGU, II, AND ALL
OTHER OCCUPANTS,
Defendant. FORT BEND COUNTY, TEXAS
OBJECTION TO MOTION FOR CONTINUANCE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Lakeland West Capital 41, LLC (“Lakeland”) and files this Objection
(“Objection”) to Defendant’s Motion for Continuance of the Hearing Date of Defendant’s Motion
Sor Summary Judgment and Trial and/or Motion to Dismiss for Lack of Subject Matter Jurisdiction
(“Motion”) filed by counsel for Diogu Kalu Diogu, II, (“Diogu”) and in response would
respectfully state as follows:
1 To the extent Diogu’s Motion seeks to dismiss this case in the entirety, Lakeland
does not oppose. To the extent that Diogu seeks to reschedule any of tomorrow’s hearing and/or
trial for a later date, Lakeland objects to Diogu’s Motion for a continuance for the following
reasons. Good cause does not exist for this Court to grant Diogu’s Motion for a continuance of
trial. The sole issue in Diogu’s appeal is who has the right to immediate possession. See TRCP
510.3(e). This is a simple issue that can easily be proven and decided by the Court tomorrow;
there is no need for discovery; and this is an appeal resulting in a trial de novo.
2. Diogu’s Motion for a continuance fails to meet the statutory requirements of Tex.
R. Civ. Proc. 252. Tex. R. Civ. Proc. 252 states “[i]f the ground of such application be the want
of testimony, the party applying therefor shall make affidavit that such testimony is material,
20210675 .20210675/4415954,1
showing
the materiality thereof, and that he has used due diligence to procure such testimony,
stating
such diligence, and the cause of failure, if known; that such testimony
cannot be procured
from any other source; and, it if be for the absence of a witness, he shall state
the name and
residence
of the witness, and what he expects toprove by him; and also state that the continuance
is not sought
for delay only, but that justice
may be done; provided that, on a first application
for
acontinuance, it shall not be necessary to show that the absent testimony cannot be procured from
any othersource. Id. Diogu’s Motion fails to include an affidavit that meets the requirements in
Tex. R. Civ. Proc. 252 for such affidavit. Further, requesting discovery in an appeals case is
unfounded in law
This is not the first time Diogu has requested a continuance last minute. Diogu
requested a continuance in the JP eviction case and in Lakeland's first motion to lift stay. Although,
request comes from one of Diogu’ sattomey who presumably consulted with his client prior
to accepting representation; it does not come from the alleged “lead” attomey
and the reasons
presented in Diogu’ s Motionare not good cause to delay the jury trial
jury trial set for tomorowis result
of Diogu’s jury demand
that he made on
September7, 2022. Diogu
now seeks continuance
the day before his jury trial, presumably after
Fort Bend County issued jury notices to its residents and told them to appear. Diogu’s Motion to
continue results in a waste of judicial resources.
Diogu’s Motion to continue is based on limitations the validity of the foreclosure
and/or the issue of tenancy; issue that are not the subject of this appeal. 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 detainer suit
Guillen, 494 S.W.3d
at 868. In that case, Guillen argued that the deed of trust was invalid due to
20210675.20210675/4415954.1
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 v. Fed. Nat’! Mortg. Ass’n, 2013 WL 6568705, at *4 (Tex. App.-Houston [14"
Dist.] Dec. 12, 2013, no pet.).
6 Pursuant to Rule 510.7(c) of the Texas Rules of Civil Procedure, Lakeland does not
onsent to the postponement of this eviction trial.
7 In the event the jury trial is continued, Lakeland prays the trial is conducted at the
bench and that Diogu be requested to set bond in the amount of $8,800.00 per month or any partial
month, retroactive to the judgment of the Justice of the Peace decision.
PRAYER
Therefore, Plaintiff, Lakeland West Capital 41, LLC, respectfully requests that Diogu’s
Motion for Continuance be denied, that the jury trial scheduled for September 27, 2022 proceed at
9:00 A.M. and for any other relief to which Lakeland may be justly entitled.
20210675 .20210675/4415954,1
Respectfully submitted,
HIRSCH & WESTHEIMER, P.C.
By: 4s/ 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
20210675 .20210675/4415954,1
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Objection to Diogu’s Motion to
Continue was served by facsimile and/or certified mail, to the parties listed below on this 26" day
of September, 2022.
James Okorafor
10101 Fondren #260
Houston, Texas 77097
laws@joolawsl.com
ATTORNEY FOR DEFENDANT
Via Email
Carolyn Okorafor
Co & Co Attorneys at Law
2120 Welch Street, Suite D
Houston, Texas 77019
okorafor@coandcolaw.com
Via E-Mail
Sonya Chandler Anderson, Esq.
The Law Office of Chandler Anderson
1202 Ist Street East No. 2532
Humble, Texas 77347
sonya@chandlerandersonlaw.com
Via E-Mail
/s/ Michael J. Durrschmidt
Michael J. Durrschmidt
20210675 ,20210675/4415954,1
Preview
Electronically Filed 9/26/2022 4:55 PM Laura Richard County Clerk Fort Bend County, Texas CAUSE NO. 22-CCV-071305 LAKELAND WEST CAPITAL 41, LLC, COUNTY COURT AT LAW Plaintiff, Vv. NO. 6 DIOGU KALU DIOGU, II, AND ALL OTHER OCCUPANTS, Defendant. FORT BEND COUNTY, TEXAS OBJECTION TO MOTION FOR CONTINUANCE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Lakeland West Capital 41, LLC (“Lakeland”) and files this Objection (“Objection”) to Defendant’s Motion for Continuance of the Hearing Date of Defendant’s Motion Sor Summary Judgment and Trial and/or Motion to Dismiss for Lack of Subject Matter Jurisdiction (“Motion”) filed by counsel for Diogu Kalu Diogu, II, (“Diogu”) and in response would respectfully state as follows: 1 To the extent Diogu’s Motion seeks to dismiss this case in the entirety, Lakeland does not oppose. To the extent that Diogu seeks to reschedule any of tomorrow’s hearing and/or trial for a later date, Lakeland objects to Diogu’s Motion for a continuance for the following reasons. Good cause does not exist for this Court to grant Diogu’s Motion for a continuance of trial. The sole issue in Diogu’s appeal is who has the right to immediate possession. See TRCP 510.3(e). This is a simple issue that can easily be proven and decided by the Court tomorrow; there is no need for discovery; and this is an appeal resulting in a trial de novo. 2. Diogu’s Motion for a continuance fails to meet the statutory requirements of Tex. R. Civ. Proc. 252. Tex. R. Civ. Proc. 252 states “[i]f the ground of such application be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, 20210675 .20210675/4415954,1 showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known; that such testimony cannot be procured from any other source; and, it if be for the absence of a witness, he shall state the name and residence of the witness, and what he expects toprove by him; and also state that the continuance is not sought for delay only, but that justice may be done; provided that, on a first application for acontinuance, it shall not be necessary to show that the absent testimony cannot be procured from any othersource. Id. Diogu’s Motion fails to include an affidavit that meets the requirements in Tex. R. Civ. Proc. 252 for such affidavit. Further, requesting discovery in an appeals case is unfounded in law This is not the first time Diogu has requested a continuance last minute. Diogu requested a continuance in the JP eviction case and in Lakeland's first motion to lift stay. Although, request comes from one of Diogu’ sattomey who presumably consulted with his client prior to accepting representation; it does not come from the alleged “lead” attomey and the reasons presented in Diogu’ s Motionare not good cause to delay the jury trial jury trial set for tomorowis result of Diogu’s jury demand that he made on September7, 2022. Diogu now seeks continuance the day before his jury trial, presumably after Fort Bend County issued jury notices to its residents and told them to appear. Diogu’s Motion to continue results in a waste of judicial resources. Diogu’s Motion to continue is based on limitations the validity of the foreclosure and/or the issue of tenancy; issue that are not the subject of this appeal. 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 detainer suit Guillen, 494 S.W.3d at 868. In that case, Guillen argued that the deed of trust was invalid due to 20210675.20210675/4415954.1 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 v. Fed. Nat’! Mortg. Ass’n, 2013 WL 6568705, at *4 (Tex. App.-Houston [14" Dist.] Dec. 12, 2013, no pet.). 6 Pursuant to Rule 510.7(c) of the Texas Rules of Civil Procedure, Lakeland does not onsent to the postponement of this eviction trial. 7 In the event the jury trial is continued, Lakeland prays the trial is conducted at the bench and that Diogu be requested to set bond in the amount of $8,800.00 per month or any partial month, retroactive to the judgment of the Justice of the Peace decision. PRAYER Therefore, Plaintiff, Lakeland West Capital 41, LLC, respectfully requests that Diogu’s Motion for Continuance be denied, that the jury trial scheduled for September 27, 2022 proceed at 9:00 A.M. and for any other relief to which Lakeland may be justly entitled. 20210675 .20210675/4415954,1 Respectfully submitted, HIRSCH & WESTHEIMER, P.C. By: 4s/ 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 20210675 .20210675/4415954,1 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Objection to Diogu’s Motion to Continue was served by facsimile and/or certified mail, to the parties listed below on this 26" day of September, 2022. James Okorafor 10101 Fondren #260 Houston, Texas 77097 laws@joolawsl.com ATTORNEY FOR DEFENDANT Via Email Carolyn Okorafor Co & Co Attorneys at Law 2120 Welch Street, Suite D Houston, Texas 77019 okorafor@coandcolaw.com Via E-Mail Sonya Chandler Anderson, Esq. The Law Office of Chandler Anderson 1202 Ist Street East No. 2532 Humble, Texas 77347 sonya@chandlerandersonlaw.com Via E-Mail /s/ Michael J. Durrschmidt Michael J. Durrschmidt 20210675 ,20210675/4415954,1