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FILED
1/22/2024 9:28 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Lauren Beavers DEPUTY
CAUSE NO. DC-16-15204
JAMES ALAN BARNES, INDIVIDUALLY § IN THE DISTRICT COURT OF
AND NEXT FRIEND OF EB, a minor AND §
AS THE PERSONAL REPRESENTATIVE §
OF THE ESTATE OF C.A.B, DECEASED §
Plaintiffs, §
§
MIRTHA BARNES, INDIVIDUALLY §
AND NEXT FRIEND OF EB, a minor §
Intervenors, § DALLAS COUNTY, TEXAS
§
V. §
§
RICHARDSON MOTORSPORTS, LTD §
BOMBARDIER RECREATIONAL §
PRODUCTS, AND FREEDOM §
POWERSPORTS LLC §
Defendants. § 44TH JUDICIAL DISTRICT
PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO RICHARDSON MOTORSPORTS,
LTD.’S VERFIFIED EMERGENCY MOTION FOR STAY OF TRIAL PROCEEDINGS
PENDING SUPREME COURT OF TEXAS RULING
TO THE HONORABLE JUDGE VERETTA FRAZIER:
COMES NOW JAMES ALAN BARNES, et al., Plaintiffs, and files this their Supplemental
Response to Richardson Motorsports, LTD.’s Verified Emergency Motion for Stay of Trial
Proceedings Pending Supreme Court of Texas Ruling (“Supplement”) and would respectfully
show unto the Court why this motion does not constitute an emergency and, further, why such
motion lacks merit.
I. ARGUMENT & AUTHORITIES
As Plaintiffs’ Supplement is purposefully narrow, Plaintiffs will not repeat any arguments
contained in their earlier filed Response to Richardson Motorsports, LTD.’s Verified Emergency
Motion for Stay of Trial Proceedings Pending Supreme Court of Texas Ruling (“Response”).
1
(i) Richardson ignores this Court’s POLICIES AND PROCEDURES.
The 44th District Court’s POLICIES AND PROCEDURES are publicly available.1
(a) Richardson’s Motion is untimely per this Court’s POLICIES AND PROCEDURES.
Per this Court’s POLICIES AND PROCEDURES, “[a]ny continuance2 requested because of lack
of discovery or because of discovery issues, must be filed at least thirty (30) days before trial, and
should detail the discovery efforts and outstanding discovery as of the date of the filing of the
motion.”3 Here, Richardson’s Motion, which predicates its emergency on an ongoing discovery
dispute concerning the privileged mental health records of a child and could have (and should
have) been filed months ago, is untimely. As Richardson filed its Motion seven (7) days before the
trial date that Richardson long ago requested, Richardson’s Motion is untimely and should not be
entertained.
(b) Richardson’s Motion should be set for an oral hearing.
Additionally, per this Court’s POLICIES AND PROCEDURES, “[i]f a continuance is opposed
by any party, the motion should be filed and set for hearing at least seven (7) days prior to trial.”4
Here, Richardson’s Motion has been set, without conference with Plaintiffs’ counsel, on this
Court’ submission docket. Richardson’s Motion should be set for an oral hearing.
(ii) Judicial Economy demands that any stay not be limited to the Supreme Court of
Texas but the Fifth Court of Appeals, too.
(a) Judicial Economy and Appeals
In the event this Court stays (continues) this matter on the grounds of judicial economy,
then this Court should not limit its stay merely to the Supreme Court of Texas’ determination of
1
Hon. Veretta L. Frazier, 44th District Court Policies and Procedures,
https://www.dallascounty.org/Assets/uploads/docs/courts/civil-district/44/44th-Policies-Procedures-Frazier.pdf
2
While Richardson has requested a “stay” of proceedings, the effect of any stay is the same as any continuance.
3
44th District Court Policies and Procedures, p. 4.
4
Id.
2
the discoverability or privilege of a minor’s mental health records but should further await the
Fifth Court of Appeals’ opinion concerning whether Freedom Powersports, LLC properly
benefited from a no-evidence motion for summary judgment granted by Judge Ashely Wysocki.
As this Court aware, Defendant Richardson is prohibited from designating Freedom
Powersports, LLC a responsible third party.5 Indeed,
where one defendant successfully prosecutes a motion for summary
judgment, another defendant cannot subsequently designate the
successful movant as a responsible third party on the basis of the
same evidence which the trial court previously determined did not
create a genuine issue of material fact.6
Plaintiffs will oppose any attempt by Defendant Richardson to designate Freedom.7
Plaintiffs will likewise oppose any explicit or implicit attempt undertaken by Richardson, e.g.,
arguments or testimony at trial, to blame Freedom when, as here, Freedom has benefited from a
(erroneous) summary judgment and cannot be a responsible third party as a matter of law.8
Because there is an outstanding appeal, the resolution of which could necessitate a second
trial, this Court, if inclined to stay this matter, should not limit any stay to one appeal of this suit
but to every appeal in this suit.
(b) Judicial Economy and Trial Depositions
If this Court is to stay this matter, which might be stayed by “default,”9 then this Court should
at least ensure that any stay is to the benefit of the Court, the least expense of the litigants 10, and
the orderly presentation of evidence at trial, i.e., trial depositions, which will accommodate
doctors’ schedules, eliminate the travel requirements of a subpoena, and ensure that the doctors’
practices are not disrupted and their patients not disadvantaged.
5
In re El Apple, Inc., 362 S.W.3d 154, 160 (Tex. App.—El Paso 2012, no pet.).
6
Id.
7
Id.
8
Id.
9
If this Court denies Richardson’s Motion, Richardson is likely to seek mandamus relief and secure its stay by default.
10
TEX. R. CIV. P. 1.
3
Here, the Court can (and should) exercise its discovery powers and permit the limited trial
depositions sought by Plaintiffs, such ensuring that this sure-to-be-tried case is not idled by matters
pending in the appellate courts.
II. PRAYER
Wherefore, Plaintiffs respectfully request that this Court deny Richardson’s Verified
Emergency Motion for Stay of Trial Proceedings Pending Supreme Court of Texas Ruling, keep
this matter scheduled for trial on February 5, 2024, and for any and all further relief to which they
are justly entitled at law or in equity. In the alternative, Plaintiffs request the Court stay the matter
until both pending appeals have been completed and allow Plaintiffs to depose four (4) treating
physicians so they will not need to be subpoenaed for trial.
Respectfully submitted,
THE FERGUSON LAW FIRM, L.L.P.
3155 Executive Boulevard
Beaumont, Texas 77705
(409) 832-9700 phone
(409) 832-9708 fax
By: _______________________________
Jane S. Leger
State Bar No. 0078814
jleger@thefergusonlawfirm.com
Paul “Chip” Ferguson
State Bar No. 06919200
cferguson@thefergusonlawfirm.com
Mark Sparks
State Bar No. 24000273
mark@thefergusonlawfirm.com
Tripp Jones
State Bar No. 24097058
tjones@thefergusonlawfirm.com
ATTORNEYS FOR PLAINTIFFS
4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been furnished
to all counsel on the 22nd day of January 2024, by electronic service, and in accordance with the
TEXAS RULES OF CIVIL PROCEDURE.
By: _____________________________
Jane S. Leger
5
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.
Victoria Delarosa on behalf of Jane Leger
Bar No. 788814
vdelarosa@thefergusonlawfirm.com
Envelope ID: 83625496
Filing Code Description: Response
Filing Description: SUPPLEMENTAL/ TO DEFENDANT'S EMERGENCY
MOTION FOR STAY
Status as of 1/22/2024 1:49 PM CST
Associated Case Party: E B
Name BarNumber Email TimestampSubmitted Status
Michelle Robberson michelle.robberson@cooperscully.com 1/22/2024 9:28:25 AM SENT
Michael ShaneO'Dell sodell@namanhowell.com 1/22/2024 9:28:25 AM SENT
Melissa Piedra mpiedra@pulf.com 1/22/2024 9:28:25 AM SENT
Edward Fisher efisher@pulf.com 1/22/2024 9:28:25 AM SENT
Marian W.Price marian.price@cooperscully.com 1/22/2024 9:28:25 AM SENT
Annie J.Jacobs ajacobs@clarkhill.com 1/22/2024 9:28:25 AM SENT
Crystal Montalbano cmontalbano@namanhowell.com 1/22/2024 9:28:25 AM SENT
Bijan R.Siahatgar bsiahatgar@clarkhill.com 1/22/2024 9:28:25 AM SENT
Charlotte Rogers crogers@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT
Mark CJordan mcjordan@clarkhill.com 1/22/2024 9:28:25 AM SENT
Kayla Plumlee kp@coxtriallaw.com 1/22/2024 9:28:25 AM SENT
Lilibeth Jaramillo ljaramillo@clarkhill.com 1/22/2024 9:28:25 AM SENT
Samantha Jacobs sjacobs@clarkhill.com 1/22/2024 9:28:25 AM SENT
John Cox jmc@coxtriallaw.com 1/22/2024 9:28:25 AM SENT
Leigh Taylor lmt@coxtriallaw.com 1/22/2024 9:28:25 AM SENT
Michael Manning mm@coxtriallaw.com 1/22/2024 9:28:25 AM SENT
Ann Austin aa@coxtriallaw.com 1/22/2024 9:28:25 AM SENT
Mark Sparks mark@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT
Kara Mace kmace@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT
David Ortega dortega@namanhowell.com 1/22/2024 9:28:25 AM SENT
Joseph G.Glass jglass@duplass.com 1/22/2024 9:28:25 AM SENT
Jan ETemplemire jtemplemire@namanhowell.com 1/22/2024 9:28:25 AM SENT
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.
Victoria Delarosa on behalf of Jane Leger
Bar No. 788814
vdelarosa@thefergusonlawfirm.com
Envelope ID: 83625496
Filing Code Description: Response
Filing Description: SUPPLEMENTAL/ TO DEFENDANT'S EMERGENCY
MOTION FOR STAY
Status as of 1/22/2024 1:49 PM CST
Associated Case Party: E B
Jan ETemplemire jtemplemire@namanhowell.com 1/22/2024 9:28:25 AM SENT
Gabriella Tercilla gtercilla@namanhowell.com 1/22/2024 9:28:25 AM ERROR
Associated Case Party: JAMESALANBARNES
Name BarNumber Email TimestampSubmitted Status
Melissa Wesolowski mwesolowski@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT
EDWARD DFISHER efisher@provostumphrey.com 1/22/2024 9:28:25 AM SENT
Tripp Jones tjones@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT
Victoria Delarosa vdelarosa@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT
Yulisa Ceja Yceja@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT
Paul ChipFerguson cferguson@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT
Ashlie Allen aallen@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Randall G. Walters 20819480 waltersedocsnotifications@wbclawfirm.com 1/22/2024 9:28:25 AM SENT
R. Brent Cooper 4783250 brent.cooper@cooperscully.com 1/22/2024 9:28:25 AM SENT
Graig J. Alvarez 24001647 graig.alvarez@asb-lawfirm.com 1/22/2024 9:28:25 AM SENT
Randall Sorrels 10000000 Randy@SorrelsLaw.com 1/22/2024 9:28:25 AM SENT
Diana Faust 793717 diana.faust@cooperscully.com 1/22/2024 9:28:25 AM SENT
Vonciel Jones Hill 10961900 voncielhill@aol.com 1/22/2024 9:28:25 AM SENT
Preview
FILED 1/22/2024 9:28 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Lauren Beavers DEPUTY CAUSE NO. DC-16-15204 JAMES ALAN BARNES, INDIVIDUALLY § IN THE DISTRICT COURT OF AND NEXT FRIEND OF EB, a minor AND § AS THE PERSONAL REPRESENTATIVE § OF THE ESTATE OF C.A.B, DECEASED § Plaintiffs, § § MIRTHA BARNES, INDIVIDUALLY § AND NEXT FRIEND OF EB, a minor § Intervenors, § DALLAS COUNTY, TEXAS § V. § § RICHARDSON MOTORSPORTS, LTD § BOMBARDIER RECREATIONAL § PRODUCTS, AND FREEDOM § POWERSPORTS LLC § Defendants. § 44TH JUDICIAL DISTRICT PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO RICHARDSON MOTORSPORTS, LTD.’S VERFIFIED EMERGENCY MOTION FOR STAY OF TRIAL PROCEEDINGS PENDING SUPREME COURT OF TEXAS RULING TO THE HONORABLE JUDGE VERETTA FRAZIER: COMES NOW JAMES ALAN BARNES, et al., Plaintiffs, and files this their Supplemental Response to Richardson Motorsports, LTD.’s Verified Emergency Motion for Stay of Trial Proceedings Pending Supreme Court of Texas Ruling (“Supplement”) and would respectfully show unto the Court why this motion does not constitute an emergency and, further, why such motion lacks merit. I. ARGUMENT & AUTHORITIES As Plaintiffs’ Supplement is purposefully narrow, Plaintiffs will not repeat any arguments contained in their earlier filed Response to Richardson Motorsports, LTD.’s Verified Emergency Motion for Stay of Trial Proceedings Pending Supreme Court of Texas Ruling (“Response”). 1 (i) Richardson ignores this Court’s POLICIES AND PROCEDURES. The 44th District Court’s POLICIES AND PROCEDURES are publicly available.1 (a) Richardson’s Motion is untimely per this Court’s POLICIES AND PROCEDURES. Per this Court’s POLICIES AND PROCEDURES, “[a]ny continuance2 requested because of lack of discovery or because of discovery issues, must be filed at least thirty (30) days before trial, and should detail the discovery efforts and outstanding discovery as of the date of the filing of the motion.”3 Here, Richardson’s Motion, which predicates its emergency on an ongoing discovery dispute concerning the privileged mental health records of a child and could have (and should have) been filed months ago, is untimely. As Richardson filed its Motion seven (7) days before the trial date that Richardson long ago requested, Richardson’s Motion is untimely and should not be entertained. (b) Richardson’s Motion should be set for an oral hearing. Additionally, per this Court’s POLICIES AND PROCEDURES, “[i]f a continuance is opposed by any party, the motion should be filed and set for hearing at least seven (7) days prior to trial.”4 Here, Richardson’s Motion has been set, without conference with Plaintiffs’ counsel, on this Court’ submission docket. Richardson’s Motion should be set for an oral hearing. (ii) Judicial Economy demands that any stay not be limited to the Supreme Court of Texas but the Fifth Court of Appeals, too. (a) Judicial Economy and Appeals In the event this Court stays (continues) this matter on the grounds of judicial economy, then this Court should not limit its stay merely to the Supreme Court of Texas’ determination of 1 Hon. Veretta L. Frazier, 44th District Court Policies and Procedures, https://www.dallascounty.org/Assets/uploads/docs/courts/civil-district/44/44th-Policies-Procedures-Frazier.pdf 2 While Richardson has requested a “stay” of proceedings, the effect of any stay is the same as any continuance. 3 44th District Court Policies and Procedures, p. 4. 4 Id. 2 the discoverability or privilege of a minor’s mental health records but should further await the Fifth Court of Appeals’ opinion concerning whether Freedom Powersports, LLC properly benefited from a no-evidence motion for summary judgment granted by Judge Ashely Wysocki. As this Court aware, Defendant Richardson is prohibited from designating Freedom Powersports, LLC a responsible third party.5 Indeed, where one defendant successfully prosecutes a motion for summary judgment, another defendant cannot subsequently designate the successful movant as a responsible third party on the basis of the same evidence which the trial court previously determined did not create a genuine issue of material fact.6 Plaintiffs will oppose any attempt by Defendant Richardson to designate Freedom.7 Plaintiffs will likewise oppose any explicit or implicit attempt undertaken by Richardson, e.g., arguments or testimony at trial, to blame Freedom when, as here, Freedom has benefited from a (erroneous) summary judgment and cannot be a responsible third party as a matter of law.8 Because there is an outstanding appeal, the resolution of which could necessitate a second trial, this Court, if inclined to stay this matter, should not limit any stay to one appeal of this suit but to every appeal in this suit. (b) Judicial Economy and Trial Depositions If this Court is to stay this matter, which might be stayed by “default,”9 then this Court should at least ensure that any stay is to the benefit of the Court, the least expense of the litigants 10, and the orderly presentation of evidence at trial, i.e., trial depositions, which will accommodate doctors’ schedules, eliminate the travel requirements of a subpoena, and ensure that the doctors’ practices are not disrupted and their patients not disadvantaged. 5 In re El Apple, Inc., 362 S.W.3d 154, 160 (Tex. App.—El Paso 2012, no pet.). 6 Id. 7 Id. 8 Id. 9 If this Court denies Richardson’s Motion, Richardson is likely to seek mandamus relief and secure its stay by default. 10 TEX. R. CIV. P. 1. 3 Here, the Court can (and should) exercise its discovery powers and permit the limited trial depositions sought by Plaintiffs, such ensuring that this sure-to-be-tried case is not idled by matters pending in the appellate courts. II. PRAYER Wherefore, Plaintiffs respectfully request that this Court deny Richardson’s Verified Emergency Motion for Stay of Trial Proceedings Pending Supreme Court of Texas Ruling, keep this matter scheduled for trial on February 5, 2024, and for any and all further relief to which they are justly entitled at law or in equity. In the alternative, Plaintiffs request the Court stay the matter until both pending appeals have been completed and allow Plaintiffs to depose four (4) treating physicians so they will not need to be subpoenaed for trial. Respectfully submitted, THE FERGUSON LAW FIRM, L.L.P. 3155 Executive Boulevard Beaumont, Texas 77705 (409) 832-9700 phone (409) 832-9708 fax By: _______________________________ Jane S. Leger State Bar No. 0078814 jleger@thefergusonlawfirm.com Paul “Chip” Ferguson State Bar No. 06919200 cferguson@thefergusonlawfirm.com Mark Sparks State Bar No. 24000273 mark@thefergusonlawfirm.com Tripp Jones State Bar No. 24097058 tjones@thefergusonlawfirm.com ATTORNEYS FOR PLAINTIFFS 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been furnished to all counsel on the 22nd day of January 2024, by electronic service, and in accordance with the TEXAS RULES OF CIVIL PROCEDURE. By: _____________________________ Jane S. Leger 5 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. Victoria Delarosa on behalf of Jane Leger Bar No. 788814 vdelarosa@thefergusonlawfirm.com Envelope ID: 83625496 Filing Code Description: Response Filing Description: SUPPLEMENTAL/ TO DEFENDANT'S EMERGENCY MOTION FOR STAY Status as of 1/22/2024 1:49 PM CST Associated Case Party: E B Name BarNumber Email TimestampSubmitted Status Michelle Robberson michelle.robberson@cooperscully.com 1/22/2024 9:28:25 AM SENT Michael ShaneO'Dell sodell@namanhowell.com 1/22/2024 9:28:25 AM SENT Melissa Piedra mpiedra@pulf.com 1/22/2024 9:28:25 AM SENT Edward Fisher efisher@pulf.com 1/22/2024 9:28:25 AM SENT Marian W.Price marian.price@cooperscully.com 1/22/2024 9:28:25 AM SENT Annie J.Jacobs ajacobs@clarkhill.com 1/22/2024 9:28:25 AM SENT Crystal Montalbano cmontalbano@namanhowell.com 1/22/2024 9:28:25 AM SENT Bijan R.Siahatgar bsiahatgar@clarkhill.com 1/22/2024 9:28:25 AM SENT Charlotte Rogers crogers@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT Mark CJordan mcjordan@clarkhill.com 1/22/2024 9:28:25 AM SENT Kayla Plumlee kp@coxtriallaw.com 1/22/2024 9:28:25 AM SENT Lilibeth Jaramillo ljaramillo@clarkhill.com 1/22/2024 9:28:25 AM SENT Samantha Jacobs sjacobs@clarkhill.com 1/22/2024 9:28:25 AM SENT John Cox jmc@coxtriallaw.com 1/22/2024 9:28:25 AM SENT Leigh Taylor lmt@coxtriallaw.com 1/22/2024 9:28:25 AM SENT Michael Manning mm@coxtriallaw.com 1/22/2024 9:28:25 AM SENT Ann Austin aa@coxtriallaw.com 1/22/2024 9:28:25 AM SENT Mark Sparks mark@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT Kara Mace kmace@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT David Ortega dortega@namanhowell.com 1/22/2024 9:28:25 AM SENT Joseph G.Glass jglass@duplass.com 1/22/2024 9:28:25 AM SENT Jan ETemplemire jtemplemire@namanhowell.com 1/22/2024 9:28:25 AM SENT 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. Victoria Delarosa on behalf of Jane Leger Bar No. 788814 vdelarosa@thefergusonlawfirm.com Envelope ID: 83625496 Filing Code Description: Response Filing Description: SUPPLEMENTAL/ TO DEFENDANT'S EMERGENCY MOTION FOR STAY Status as of 1/22/2024 1:49 PM CST Associated Case Party: E B Jan ETemplemire jtemplemire@namanhowell.com 1/22/2024 9:28:25 AM SENT Gabriella Tercilla gtercilla@namanhowell.com 1/22/2024 9:28:25 AM ERROR Associated Case Party: JAMESALANBARNES Name BarNumber Email TimestampSubmitted Status Melissa Wesolowski mwesolowski@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT EDWARD DFISHER efisher@provostumphrey.com 1/22/2024 9:28:25 AM SENT Tripp Jones tjones@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT Victoria Delarosa vdelarosa@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT Yulisa Ceja Yceja@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT Paul ChipFerguson cferguson@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT Ashlie Allen aallen@thefergusonlawfirm.com 1/22/2024 9:28:25 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Randall G. Walters 20819480 waltersedocsnotifications@wbclawfirm.com 1/22/2024 9:28:25 AM SENT R. Brent Cooper 4783250 brent.cooper@cooperscully.com 1/22/2024 9:28:25 AM SENT Graig J. Alvarez 24001647 graig.alvarez@asb-lawfirm.com 1/22/2024 9:28:25 AM SENT Randall Sorrels 10000000 Randy@SorrelsLaw.com 1/22/2024 9:28:25 AM SENT Diana Faust 793717 diana.faust@cooperscully.com 1/22/2024 9:28:25 AM SENT Vonciel Jones Hill 10961900 voncielhill@aol.com 1/22/2024 9:28:25 AM SENT