Preview
FILED
6/13/2023 2:09 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele DEPUTY
CAUSE NO. DC-21-09308
MELISSA TARVER, Individually and as IN THE DISTRICT COURT OF
§§§§§§§§§§§§§§§§§§§§§§§§§§
Representative of the Estate of DERIC
TARVER, and as next friend of B.T. and
K.T., Minors, RANDY TARVER and
DEBBIE TARVER
V.
ATMOS ENERGY CORPORATION
and BOBCAT CONTRACTING, LLC
TAMMY BOEHLER, Individually and as
Representative of the Estate of ETHAN
KNIGHT, and CLAY BOEHLER DALLAS COUNTY, TEXAS
V.
ATMOS ENERGY CORPOMTION and
FEsco, LTD.
MICHAEL GLOVER
V.
ATMOS ENERGY CORPORATION
and BOBCAT CONTRACTING, LLC 192ND JUDICIAL DISTRICT
TARVER PLAINTIFFS’ AMENDED UNOPPOSED MOTION FOR PREFERENTIAL
TRIAL SETTING
COME NOW, Plaintiffs Melissa Tarver, Individually and as Representative of the Estate
of Deric Tarver, and as next friend of B.T. and K.T., Minors, Randy Tarver and Debbie Tarver
(“Plaintiffs”), and file this Motion for Preferential Trial Setting and would show the Court as
follows:
BACKGROUND
1. This is a personal injury lawsuit arising from an explosion occurring at a facility in
Farmersville, Texas on June 28, 2021, wherein Deric Tarver tragically lost his life. Tarver Plaintiffs
filed suit against Atmos Energy Corporation (“Atmos”) and Bobcat Contracting, LLC (“Bobcat”)
on July 16, 2021.
2. Arising out of the same explosion that occurred on June 28, 2021, Plaintiffs Tammy
Boehler, Individually and as Representative of the Estate of Ethan Knight, and Clay Boehler
(“Boehler Plaintiffs”) then filed suit against Atmos on July 28, 2021 .On August 20, 2021, Boehler
Plaintiffs amended their petition to include claims against FESCO, Ltd. (“FESCO”).
3. On March 16, 2022, Plaintiff Michael Glover (“Glover”) also filed suit against Atmos and
Bobcat seeking damages arising out of the same explosion made the basis of this suit.
4. On May 16, 2022, all three cases were consolidated into the above-styled cause for the
purposes of discovery. The previous trial date in this cause was set for August 21, 2023.
5. On May 22, 2023, the Parties virtually attended mediation with Bob Black in Houston,
Texas. No plaintiff group settled.
6. On May 24, 2023, Defendants, Atmos, Bobcat, and FESCO (“Defendants”), filed a Joint
Motion for Continuance of Trial Setting. Defendants argue that a continuance is necessary to allow
sufficient time for completion of discovery and pre-trial matters.
7. Although Defendants’ Joint Motion for Continuance specifically seeks additional time to
complete discovery, necessary discovery in this matter has been completed. Therefore, Plaintiffs
submit that it is appropriate for the Court to assign a preferential trial setting at this time.
Accordingly, Plaintiffs respectfully request this Court set the Plaintiffs’ cause for a preferential
trial setting in October 2023.
ARGUMENT & AUTHORITIES
8. Under Texas law, the trial court may set contested cases on written request of any party
with reasonable notice of not less than forty-five days to the parties of a first setting for trial. TEX.
R. CIV. P. 245. Moreover, the trial court has the inherent authority to control its own docket. See
H0 v. University 0f Texas at Arlington, 984 S.W.2d 672, 694—95 (Tex. App—Amarillo 1998, pet.
denied) (citing Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982)).
9. As set forth in the Defendants’ Joint Motion for Continuance, the Parties have mediated,
demonstrating the substantial work that has continually been done to resolve this matter, or prepare
for trial. As of the date of this filing, discovery in this matter has been ongoing for almost two
years and accordingly, all parties have had ample opportunity to thoroughly investigate liability.
Preferentially setting this case for trial ensures that proper attention is given to the scheduling of
all pending matters, including completion of discovery as requested by Defendants, along with
pre-trial matters and proceedings. As the Court is aware, there are multiple parties and witnesses
involved in the litigation of this case; a preferential setting also ensures that all interested parties,
designated experts, and fact witnesses will have ample opportunity to plan their appearances at
trial. This will streamline judicial economy and alleviate difficulties that stem from scheduling or
witness unavailability.
10. The loss of Deric Tarver permanently impacted Plaintiffs and as this case prolongs,
Plaintiffs will continue to suffer both mentally and economically. See TEX. GOV’T. CODE §
23.102(1) (“[P]recedence should be given to matters where delay will cause physical or economic
injury to either the parties or the public[.]”). A preferential setting further ensures this case will
continue to move forward towards a resolution.
11. Furthermore, Defendants will not be harmed by proceeding to trial in a timely manner. See
Cezeaux v. Libby, 539 S.W.2d 187, 190 (Tex. Civ. App—Beaumont 1976, no writ) (holding the
trial court did not abuse its discretion by setting a case preferentially for trial when the defendants
could not show they were harmed by the trial setting). Preferentially setting this matter to trial in
October 2023 will concurrently afford Defendants plenty of time to complete any pending
discovery deemed necessary and will ensure Plaintiffs have their claims proceed forward to trial
on a date certain, in a timely manner.
CONCLUSION
12. Above all, a preferential trial setting will encourage diligent progression and completion
of this case so that justice may be done and will ameliorate the harm to the parties brought on by
the delay.
13. Plaintiffs estimate that this case should take no more than 7 days to try and respectfully
request the Court grant this motion and assign this case to trial in October 2023, consistent with
the Court’s availability.
Respectfully submitted,
ABRAHAM, WATKINS, NICHOLS,
AGOSTO, AZIZ & STOGNER
/s/ Ben Agosto III
Benny Agosto, Jr.
State Bar No. 00794981
Ben Agosto III
State Bar No. 24091926
800 Commerce Street
Houston, Texas 77002
T: (713) 222-7211 — Telephone
F: (713) 225-0827 — Facsimile
bagosto@awtxlaw.com
-and -
LYONs & SIMMONS, LLP
1 ichael P Lyons '9
State Bar No. 24013074
mlvons@lvons-simmons.com
2101 Cedar Springs Rd., Suite 1900
Dallas, TX 75201
214-665-6900
Fax 214-665-6950
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF CONFERENCE
I the undersigned attorney, hereby certify to the Court that Plaintiffs’ counsel has conferred
with opposing counsel in an effort to resolve the issues contained in this motion without the
necessity of Court intervention, and opposing counsel does not oppose the requested relief of a
preferential trial setting.
Certified this 13th day of June, 2023 by
Michael P. Lyons
CERTIFICATE OF SERVICE
I hereby certify that all interested parties have been provided a copy of this document in
accordance with the Texas Rules of Civil Procedure via e-service and/or e-mail on June 13, 2023.
I
Michael P. Lyons
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suzanne Le Blanc on behalf of Michael Lyons
Bar No. 24013074
sleblanc@lyons-simmons.com
Envelope ID: 76569261
Filing Code Description: Motion - Miscellanous
Filing Description: AMENDED UNOPPOSED PREFERENTIAL TRIAL
SETTING
Status as of 6/13/2023 3:44 PM CST
Associated Case Party: MELISSA TARVER
Name BarNumber Email TimestampSubmitted Status
Benny Agosto, Jr. bagosto@awtxlaw.com 6/13/2023 2:09:31 PM ERROR
Michael P.Lyons mlyons@lyons-simmons.com 6/13/2023 2:09:31 PM ERROR
Shari Welch swelch@awtxlaw.com 6/13/2023 2:09:31 PM ERROR
Ben Agosto |||
ben.agosto@awtxlaw.com 6/13/2023 2:09:31 PM ERROR
Wady Rahbani-Chavez wchavez@awtxlaw.com 6/13/2023 2:09:31 PM ERROR
lssys Orellana iorellana@awtxlaw.com 6/13/2023 2:09:31 PM ERROR
Suzanne Le Blanc sleblanc@lyons-simmons.com 6/13/2023 2:09:31 PM ERROR
Associated Case Party: ATMOS ENERGY CORPORATION
Name BarNumber Email TimestampSubmitted Status
susan kennedy susan.kennedy@bakerbotts.com 6/13/2023 2:09:31 PM ERROR
Jessica B. Pulliam jessica.pulliam@bakerbotts.com 6/13/2023 2:09:31 PM ERROR
Brooke Vaydik brooke.vaydik@bakerbotts.com 6/13/2023 2:09:31 PM ERROR
Zachary Stone Zachary.Stone@bakerbotts.com 6/13/2023 2:09:31 PM ERROR
Salam Sheikh-Khalil salam.sheikh-khalil@bakerbotts.com 6/13/2023 2:09:31 PM ERROR
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Roger Howerton rhowerton@thorntonfirm.com 6/13/2023 2:09:31 PM ERROR
Jennifer DAufricht jaufricht@thompsoncoe.com 6/13/2023 2:09:31 PM ERROR
David W.Jones djones@beckredden.com 6/13/2023 2:09:31 PM ERROR
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suzanne Le Blanc on behalf of Michael Lyons
Bar No. 24013074
sleblanc@lyons-simmons.com
Envelope ID: 76569261
Filing Code Description: Motion - Miscellanous
Filing Description: AMENDED UNOPPOSED PREFERENTIAL TRIAL
SETTING
Status as of 6/13/2023 3:44 PM CST
Case Contacts
Sallie Jenkins sjenkins@thompsoncoe.com 6/13/2023 2:09:31 PM ERROR
Steven Joseph Kherkher 11375950 SKherkher-Team@KherkherGarcia.com 6/13/2023 2:09:31 PM ERROR
Michael Dale Hudlow 24007403 mhudlow@hdr-law.com 6/13/2023 2:09:31 PM ERROR
Robin Clay Hoblit 9743100 hdrccservice@hdr-law.com 6/13/2023 2:09:31 PM ERROR
Dana Ward dward@thompsoncoe.com 6/13/2023 2:09:31 PM ERROR
Tim K. Singley tsingley@thorntonfirm.com 6/13/2023 2:09:31 PM ERROR
Renee Smith Renee.Smith@thompsoncoe.com 6/13/2023 2:09:31 PM ERROR
BENNY AGOSTOJR bagosto@awtxlaw.com 6/13/2023 2:09:31 PM ERROR
Jessica Pulliam jessica.pulliam@bakerbotts.com 6/13/2023 2:09:31 PM ERROR
Susan Kennedy susan.kennedy@bakerbotts.com 6/13/2023 2:09:31 PM ERROR
Zachary Stone zachary.stone@bakerbotts.com 6/13/2023 2:09:31 PM ERROR
Kristin Sullivan Kristin.Sullivan@bakerbotts.com 6/13/2023 2:09:31 PM ERROR
Bruce Parkerson bparkerson@pmpllp.com 6/13/2023 2:09:31 PM ERROR
Debora Simonson debora.simonson@bakerbotts.com 6/13/2023 2:09:31 PM ERROR
Dana Lisenby dlisenby@thompsoncoe.com 6/13/2023 2:09:31 PM ERROR
Christopher Hansen chansen@thompsoncoe.com 6/13/2023 2:09:31 PM ERROR
Lisa Schmidt LSchmidt@PMPllp.com 6/13/2023 2:09:31 PM ERROR
Gadi Alvarado-Lopez gadi@thekaramlawoffice.com 6/13/2023 2:09:31 PM ERROR
Jacob Karam jacob@thekaramlawoffice.com 6/13/2023 2:09:31 PM ERROR
Edward AFesteryga edward@awtxlaw.com 6/13/2023 2:09:31 PM ERROR
Briseida Martinez briseida@thekaramlawoffice.com 6/13/2023 2:09:31 PM ERROR
Suzanne Le Blanc sleblanc@lyons—simmons.com 6/13/2023 2:09:31 PM ERROR
Florence Monauer FMonauer@Thompsoncoe.com 6/13/2023 2:09:31 PM ERROR
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suzanne Le Blanc on behalf of Michael Lyons
Bar No. 24013074
sleblanc@lyons-simmons.com
Envelope ID: 76569261
Filing Code Description: Motion - Miscellanous
Filing Description: AMENDED UNOPPOSED PREFERENTIAL TRIAL
SETTING
Status as of 6/13/2023 3:44 PM CST
Case Contacts
Lena B.Laurenzo llaurenzo@awtxlaw.com 6/13/2023 2:09:31 PM ERROR
Ben Agosto |l| ben .agosto@awtxlaw.com 6/13/2023 2:09:31 PM ERROR
Associated Case Party: BOBCAT CONTRACTING, LLC
Name BarNumber Email TimestampSubmitted Status
Sarah HolleyLong Long EDocsNotifications@wbclawfirm.com 6/13/2023 2:09:31 PM ERROR
Associated Case Party: TAMMY BOEHLER
Name BarNumber Email TimestampSubmitted Status
Carmen S.Mitchel| cmitchell@mitchellgoff.com 6/13/2023 2:09:31 PM ERROR
Heather Teer hteer@mitchellgoff.com 6/13/2023 2:09:31 PM ERROR
Sara Valladares sarav@mitchellgoff.com 6/13/2023 2:09:31 PM ERROR
Associated Case Party: MICHAEL GLOVER
Name BarNumber Email TimestampSubmitted Status
Bobbie Gilbert bgilbert@kv-Iaw.com 6/13/2023 2:09:31 PM ERROR
Loren Klitsas klitsas@kv-law.com 6/13/2023 2:09:31 PM ERROR