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  • MELISSA TARVER, et al  vs.  ATMOS ENERGY CORPORATION, et alOTHER PERSONAL INJURY document preview
  • MELISSA TARVER, et al  vs.  ATMOS ENERGY CORPORATION, et alOTHER PERSONAL INJURY document preview
  • MELISSA TARVER, et al  vs.  ATMOS ENERGY CORPORATION, et alOTHER PERSONAL INJURY document preview
  • MELISSA TARVER, et al  vs.  ATMOS ENERGY CORPORATION, et alOTHER PERSONAL INJURY document preview
  • MELISSA TARVER, et al  vs.  ATMOS ENERGY CORPORATION, et alOTHER PERSONAL INJURY document preview
  • MELISSA TARVER, et al  vs.  ATMOS ENERGY CORPORATION, et alOTHER PERSONAL INJURY document preview
  • MELISSA TARVER, et al  vs.  ATMOS ENERGY CORPORATION, et alOTHER PERSONAL INJURY document preview
  • MELISSA TARVER, et al  vs.  ATMOS ENERGY CORPORATION, et alOTHER PERSONAL INJURY document preview
						
                                

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