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Electronically Submitted
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Hidalgo County Clerk
Accepted by: Nancy Flores
CAUSE NO. CL-23-0716-J
BILLY MUNOZ and MARINA MUNOZ § IN THE COUNTY COURT
§
VS. § AT LAW NO. 10
§
GUNIT TOOR and JODIE PEREZ § HIDALGO COUNTY, TEXAS
PLAINTIFFS’ VERIFIED MOTION FOR CONTINUANCE AND
RESPONSE TO DEFENDANT GUNIT TOOR'S
TRADITIONAL AND NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
BILLY MUNOZ and MARINA MUNOZ, hereinafter referred to as “Plaintiffs”, ask
the Court to continue the hearing on Defendant GUNIT TOOR’s traditional and no
evidence motions for summary judgment because additional time is needed to obtain
discovery and for the Court to rule on Plaintiffs’ pending discovery motion.
In the alternative, Plaintiffs ask the Court to deny Defendant GUNIT TOOR’s
traditional and no evidence motions for summary judgment.
I. INTRODUCTION
1. This lawsuit arises out of dog attack experienced by Plaintiffs BILLY MUNOZ and
MARINA MUNOZ. Defendant JODIE PEREZ is the owner of the dog while
Defendant GUNIT TOOR was the owner of the property housing Defendant JODIE
PEREZ and her dog. Plaintiffs sued Defendants for negligent handling of an animal
and Defendant JODIE PEREZ for negligence per-se. Plaintiff MARINA MUNOZ
has asserted a bystander claim.
2. This case is scheduled for mediation on March 22, 2024, at 1:30 P.M. with Court
appointed mediator, Armando M. Guerra.
3. On February 15, 2024, Defendant GUNIT TOOR filed traditional and no evidence
Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ
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motions for summary judgment.
4. The motions for summary judgment are set for hearing on March 19, 2024, at 9:00
A.M.
II. MOTION FOR CONTINUANCE
i. CONTINUANCE TO OBTAIN ADDITIONAL DISCOVERY
5. Under Texas Rule of Civil Procedure 166a(g), a court can grant a continuance of
a summary judgment hearing if the party opposing summary judgment can
establish by affidavit or verified motion that it has not had an adequate time for
discovery. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). To
seek a continuance under Rule 166a(g), the affidavit or verified motion must
identify the evidence sought, explain why it is material, and state with particularity
the diligence used to obtain the evidence. West v. SMG, 318 S.W.3d 430, 443 (Tex.
App.—Houston [1st Dist.] 2010, no pet.); Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex.
App.—Austin 2002, no pet.); Dozier v. AMR Corp., No. 2-09-186-CV, 2010 WL
3075633 (Tex. App.—Fort Worth 2010, no pet.) (memo op.; 8-5-10); In re Estate of
Mask, No. 04-07-00667-CV, 2008 WL 4595027 (Tex. App.—San Antonio 2008, pet.
denied) (memo op.; 10-15-08). If the basis for continuance is the need to take
additional depositions, the affidavit or verified motion must also meet the additional
requirements of Texas Rule of Civil Procedure 252. Tri-Steel Structures, Inc. v.
Baptist Found., 166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet.
denied); Gundermann v. Buehring, No. 13-05-278-CV, 2006 WL 240517 (Tex.
App.—Corpus Christi 2006, pet. denied) (memo op.; 2-2-06). To meet the
additional requirements of Rule 252, the affidavit or verified motion must (1)
Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ
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explain the reasons for not obtaining the discovery earlier, if known, and (2) show
that the discovery cannot be obtained from any other source if the party had
previously applied for a continuance. Tex. R. Civ. P. 252; see Mulcahy v. Wal-Mart
Stores, Inc., No. 02-10-00074-CV, 2010 WL 5118199 (Tex. App.—Fort Worth 2010,
no pet.) (memo op.; 12-16-10); Gundermann, No. 13-05-278-CV, 2006 WL
240517 (memo op.).
6. If the affidavit or verified motion meets the requirements for a continuance, the
court should consider the following nonexclusive factors in deciding whether to
grant the motion: (1) the materiality and the purpose of the discovery sought, (2)
whether the party exercised due diligence, and (3) the length of time the case has
been on file. West, 318 S.W.3d at 443; see Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 161 (Tex. 2004).
A. Evidence sought.
7. Plaintiffs need additional time to obtain the following evidence: written discovery
from Defendant JODIE PEREZ, depositions of Defendants JODIE PEREZ and
GUNIT TOOR, and information regarding reports of animals and animal attacks on
the location at issue.
B. Evidence is material to opposition.
8. This evidence is material to Plaintiffs’ opposition to Defendant GUNIT TOOR’s
motions for summary judgment because it would provide evidence regarding the
knowledge Defendant GUNIT TOOR had, if any, regarding the presence of
Defendant JODIE PEREZ’ dog and its propensities.
Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ
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C. Plaintiffs have exercised diligence in attempting to obtain the evidence.
9. Plaintiffs have been unable to obtain this evidence earlier even though they
diligently used the discovery process. Plaintiff BILLY MUNOZ has sent written
discovery to Defendant JODIE PEREZ as follows:
a. Plaintiff’s Interrogatories to Defendant Jodie Perez;
b. Plaintiff’s First Request for Production to Defendant Jodie Perez; and
c. Plaintiff’s First Request for Admissions to Defendant Jodie Perez.
Defendant JODIE PEREZ did not respond to any of the written discovery. A motion
to compel is pending.
10. Plaintiffs also sent an open records request to the City of Edinburg requesting
reports of loose animals, stray animals, animal bites, and animal attacks at
Defendant GUNIT TOOR’s premises, 1811 Tierra Dulce Dr., Edinburg, Texas
78539. However, the City of Edinburg only produced the documentation for the
specific dog attack at issue. Further time is needed to obtain this information.
D. Case has been on file for short period of time.
11. This case has been on file for a short period of time: around a year.
ii. CONTINUANCE UNTIL COURT RULES ON DISCOVERY MOTIONS
12. Plaintiffs ask the Court to continue the summary judgment hearing until after it rules
on Plaintiff BILLY MUNOZ’ outstanding discovery motions and Plaintiffs have a
reasonable opportunity to review the Court's rulings. A party is entitled to a ruling
on its discovery motions within a reasonable time. Nelson v. PNC Mortg. Corp.,
139 S.W.3d 442, 445 (Tex. App.—Dallas 2004, no pet.). Granting a summary
judgment before ruling on a party's discovery motions forecloses any possibility
Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ
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that the party can exercise her right to obtain reasonable discovery before
summary judgment. Id. For this reason, Plaintiffs ask the Court to continue the
summary judgment hearing until it rules on the following discovery motions:
Plaintiff Billy Munoz’ Motion to Compel Defendant Jodie Perez to Respond to
Written Discovery.
III. RESPONSE TO MOTIONS FOR SUMMARY JUDGMENT
i. SUMMARY JUDGMENT EVIDENCE
13. To support the facts in this response, Plaintiffs offer the following summary
judgment evidence attached to this response and incorporates the evidence into
this response by reference:
Exhibit 1: Deposition of Billy Munoz.
Exhibit 2: Edinburg Police Department Report.
Exhibit 3: Billy Munoz’ medical records from Physician’s Injury Clinic.
ii. RESPONSE TO TRADITIONAL SUMMARY JUDGMENT MOTION
Defendant did not disprove Plaintiffs’ causes of action as a matter of law.
14. A defendant is entitled to summary judgment on a plaintiff's cause of action if the
defendant can disprove at least one element of the cause of action as a matter of
law. Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018); Sw.
Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
15. The elements of a cause of action for injury caused by the negligent handling of
an animal are the following: (1) the defendant was the owner or possessor of the
animal, (2) the defendant owed a duty to exercise reasonable care to prevent the
animal from injuring others, (3) the defendant breached the duty, and (4) the
Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ
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defendant's breach proximately caused the plaintiff's injury. Bushnell v. Mott, 254
S.W.3d 451, 452–53 (Tex.2008) (element 2); Marshall v. Ranne, 511 S.W.2d 255,
259 (Tex.1974) (element 1); Johnson v. Enriquez, 460 S.W.3d 669, 675
(Tex.App.—El Paso 2015, no pet.) (elements 1–4); Labaj v. VanHouten, 322
S.W.3d 416, 420 (Tex.App.—Amarillo 2010, pet. denied) (elements 1–4).
16. A landlord has a duty to a non-tenant injured by an animal on the leased premises
if the landlord (1) had actual knowledge that an animal was on the leased premises,
(2) had actual knowledge that the animal had vicious propensities, and (3) had the
ability to control the premises. Bolton v. Fisher, 528 S.W.3d 770, 775 (Tex.App.—
Texarkana 2017, pet. denied); Batra v. Clark, 110 S.W.3d 126, 129-30 (Tex.App.—
Houston [1st Dist.] 2003, no pet.).
17. Defendant GUNIT TOOR claims that he disproved that he had actual knowledge
that the animal had vicious propensities. However, Plaintiffs have pled negligent
handling of an animal which does not have an actual knowledge element. The dog
attack did not occur on Defendant GUNIT TOOR’s leased premises (1811 Tierra
Dulce Dr., Edinburg, Texas 78539). The attack occurred across the street on
Plaintiffs’ premises (1708 Tierra Dulce Dr., Edinburg, Texas 78539). Ex 2.
18. The elements of Plaintiff MARINA MUNOZ’ cause of action as a bystander are the
following: (1) the defendant negligently inflicted serious or fatal injuries on the
primary victim, (2) the bystander was located near the scene of the accident, (3)
the bystander suffered shock as a result of a direct emotional impact from a
sensory and contemporaneous observance of the accident, and (4) the bystander
and the victim were closely related. United Servs. Auto. Ass'n v. Keith, 970 S.W.2d
Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ
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540, 541–42 (Tex.1998) (elements 2–4); Edinburg Hosp. Auth. v. Treviño, 941
S.W.2d 76, 80 (Tex.1997) (elements 1–4); Boyles v. Kerr, 855 S.W.2d 593, 598
(Tex.1993) (elements 1–4); Jones v. City of Houston, 294 S.W.3d 917, 920
(Tex.App.—Houston [1st Dist.] 2009, pet. denied) (elements 2–4). The elements of
a bystander claim are flexible and are applied on a case-by-case basis. Keith, 970
S.W.2d at 542; Jones, 294 S.W.3d at 920.
19. Defendant GUNIT TOOR claims that MARINA MUNOZ can not recover as
bystander because Plaintiff BILLY MUNOZ’ injuries were not “serious” or “fatal”.
The dog attack resulted in blood on the sidewalk that “stayed there for a long time”.
Ex 1, P29 Lines 15-17. Plaintiff BILLY MUNOZ’ injuries included multiple puncture
wounds to his right hand and right foot. Ex 1, P25 Line 16- P26 Line 2, Ex 2 and
Ex 3. There was also extensive bruising to his foot. Ex 3. Whether these injuries
are “serious” is an issue of material fact that should be determined by a jury.
20. The Court should deny Defendant GUNIT TOOR’s traditional motion for summary
judgment because Defendant GUNIT TOOR did not disprove any elements as a
matter of law. There are genuine issues of material fact on the challenged
elements.
iii. RESPONSE TO NO EVIDENCE SUMMARY JUDGMENT MOTION
Plaintiffs have sufficient evidence to raise fact issues on their causes of action.
21. In a no evidence motion for summary judgment, a defendant can challenge a
plaintiff to produce evidence to support one or more elements of the plaintiff's
cause of action on which the plaintiff would have the burden of proof at trial after
an adequate time for discovery has passed. Tex. R. Civ. P. 166a(i). To avoid a no-
Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ
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evidence summary judgment, the plaintiff is not required to marshal its proof; the
plaintiff only needs to point out evidence that raises a fact issue on the elements
challenged in the defendant's motion. Hamilton v. Wilson, 249 S.W.3d 425, 426
(Tex. 2008); see Tex. R. Civ. P. 166a(i); Boerjan v. Rodriguez, 436 S.W.3d 307, 310
(Tex. 2014). To raise a genuine issue of material fact, the plaintiff must produce
more than a scintilla of evidence in support of the challenged elements. Smith v.
O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004); see Boerjan, 436 S.W.3d at 312. More than a scintilla
of evidence is produced if the evidence is sufficient to allow reasonable and fair-
minded people to differ in their conclusions on whether the challenged fact
exists. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.
2003); see First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d
214, 220 (Tex. 2017). In evaluating whether more than a scintilla of evidence
exists, the court must view the evidence in the light most favorable to the plaintiff,
crediting evidence favorable to the plaintiff if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not. Boerjan, 436
S.W.3d at 311–12; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
22. Defendant GUNIT TOOR alleged that there is no evidence supporting essential
elements of Plaintiff’s cause of action for negligence. Defendant contends that
there is no evidence to support the element of actual knowledge.
23. However, as explained above, Plaintiffs have pled negligent handling of an animal
which does not have an actual knowledge element.
24. Defendant GUNIT TOOR alleged that there is no evidence supporting essential
Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ
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elements of Plaintiff MARINA MUNOZ’ bystander claim. Defendant contends that
there is no evidence to support that Plaintiff BILLY MUNOZ’ injury was serious. As
discussed above, Plaintiff BILLY MUNOZ’ testimony and his medical records
establish that the injuries experienced by Plaintiff BILLY MUNOZ included multiple
puncture wounds to his right hand and right foot. Ex 1, P25 Line 16- P26 Line 2
and Ex 3. There was also extensive bruising to his foot. Ex 3.
25. The Court should deny Defendant GUNIT TOOR’s no evidence motion for
summary judgment because Plaintiffs have produced sufficient evidence to raise
fact issues on the elements challenged by Defendant GUNIT TOOR.
IV. PRAYER
For these reasons, Plaintiffs ask the Court to continue the hearing on Defendant
GUNIT TOOR’s traditional and no evidence motions for summary judgment.
In the alternative, Plaintiffs ask the Court to deny Defendant GUNIT TOOR’s
motions for summary judgment. If the Court grants Defendant GUNIT TOOR's motions
for summary judgment, Plaintiffs ask the Court to overrule Plaintiffs’ objections so they
will be preserved for appeal.
Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ
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Respectfully submitted,
LAW OFFICE OF FRANCISCO J.
RODRIGUEZ
1111 West Nolana Ave., Suite A
McAllen Texas 78504
Telephone: (956) 687-4363
Facsimile: (956) 687-6415
E-mail: frankr@mcallenlawfirm.com
danielle@mcallenlawfirm.com
By:_________________________
FRANCISCO J. RODRIGUEZ
State Bar No. 17145800
DANIELLE C. RODRIGUEZ
State Bar No. 24075952
AND
MELISSA R. CARRANZA
State Bar No.: 24051884
melissa@mrclawfirm.com
CARRANZA LAW FIRM
204 E. Cano
Edinburg, Texas 78539
Telephone: (956) 664-0500
Facsimile: (956) 664-0595
ATTORNEYS FOR PLAINTIFFS
Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ
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CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of March 2024, a true and correct copy of the
foregoing document was delivered to the following:
VIA E-SERVICE
Scott T. Clark
Adams & Graham, L.L.P.
P.O. Drawer 1429
Harlingen, Texas 78551
VIA E-SERVICE
Jodie Perez
Pro-Se
1811 Tierra Dulce Dr., Apt. 1
Edinburg, Texas 78539
VIA E-SERVICE
Melissa R. Carranza
Carranza Law Firm
204 E. Cano
Edinburg, Texas 78539
________________________________
DANIELLE C. RODRIGUEZ
Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ
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Envelope ID: 85468856
Filing Code Description: Motion (No Fee)
Filing Description: Plaintiffs' Verified Motion for Continuance and
Response to Defendant Gunit Toor's Traditional and No Evidence Motions
for Summary Judgment
Status as of 3/12/2024 2:50 PM CST
Associated Case Party: Billy Munoz
Name BarNumber Email TimestampSubmitted Status
Francisco JRodriguez frankr@mcallenlawfirm.com 3/12/2024 2:27:19 PM SENT
Danielle CRodriguez danielle@mcallenlawfirm.com 3/12/2024 2:27:19 PM SENT
Aida Moralez aida@mcallenlawfirm.com 3/12/2024 2:27:19 PM SENT
Melissa Carranza melissa@mrclawfirm.com 3/12/2024 2:27:19 PM SENT
Melissa Carranza melissa@mrclawfirm.com 3/12/2024 2:27:19 PM SENT
Jodie Perez missjodiebb28@gmail.com 3/12/2024 2:27:19 PM SENT
Associated Case Party: Gunit Toor
Name BarNumber Email TimestampSubmitted Status
Scott T.Clark sclark@adamsgraham.com 3/12/2024 2:27:19 PM SENT
Oscar O.Gomez ogomez@theoglawfirm.com 3/12/2024 2:27:19 PM SENT
Martha Ramirez mramirez@theoglawfirm.com 3/12/2024 2:27:19 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Datascope Marquis Litigation houproduction@mlsdatascope.com 3/12/2024 2:27:19 PM SENT
Eva Nieto enieto@adamsgraham.com 3/12/2024 2:27:19 PM SENT
Preview
Electronically Submitted 3/12/2024 2:27 PM Hidalgo County Clerk Accepted by: Nancy Flores CAUSE NO. CL-23-0716-J BILLY MUNOZ and MARINA MUNOZ § IN THE COUNTY COURT § VS. § AT LAW NO. 10 § GUNIT TOOR and JODIE PEREZ § HIDALGO COUNTY, TEXAS PLAINTIFFS’ VERIFIED MOTION FOR CONTINUANCE AND RESPONSE TO DEFENDANT GUNIT TOOR'S TRADITIONAL AND NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: BILLY MUNOZ and MARINA MUNOZ, hereinafter referred to as “Plaintiffs”, ask the Court to continue the hearing on Defendant GUNIT TOOR’s traditional and no evidence motions for summary judgment because additional time is needed to obtain discovery and for the Court to rule on Plaintiffs’ pending discovery motion. In the alternative, Plaintiffs ask the Court to deny Defendant GUNIT TOOR’s traditional and no evidence motions for summary judgment. I. INTRODUCTION 1. This lawsuit arises out of dog attack experienced by Plaintiffs BILLY MUNOZ and MARINA MUNOZ. Defendant JODIE PEREZ is the owner of the dog while Defendant GUNIT TOOR was the owner of the property housing Defendant JODIE PEREZ and her dog. Plaintiffs sued Defendants for negligent handling of an animal and Defendant JODIE PEREZ for negligence per-se. Plaintiff MARINA MUNOZ has asserted a bystander claim. 2. This case is scheduled for mediation on March 22, 2024, at 1:30 P.M. with Court appointed mediator, Armando M. Guerra. 3. On February 15, 2024, Defendant GUNIT TOOR filed traditional and no evidence Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ Page 1 of 11 Electronically Submitted 3/12/2024 2:27 PM Hidalgo County Clerk Accepted by: Nancy Flores motions for summary judgment. 4. The motions for summary judgment are set for hearing on March 19, 2024, at 9:00 A.M. II. MOTION FOR CONTINUANCE i. CONTINUANCE TO OBTAIN ADDITIONAL DISCOVERY 5. Under Texas Rule of Civil Procedure 166a(g), a court can grant a continuance of a summary judgment hearing if the party opposing summary judgment can establish by affidavit or verified motion that it has not had an adequate time for discovery. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). To seek a continuance under Rule 166a(g), the affidavit or verified motion must identify the evidence sought, explain why it is material, and state with particularity the diligence used to obtain the evidence. West v. SMG, 318 S.W.3d 430, 443 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.—Austin 2002, no pet.); Dozier v. AMR Corp., No. 2-09-186-CV, 2010 WL 3075633 (Tex. App.—Fort Worth 2010, no pet.) (memo op.; 8-5-10); In re Estate of Mask, No. 04-07-00667-CV, 2008 WL 4595027 (Tex. App.—San Antonio 2008, pet. denied) (memo op.; 10-15-08). If the basis for continuance is the need to take additional depositions, the affidavit or verified motion must also meet the additional requirements of Texas Rule of Civil Procedure 252. Tri-Steel Structures, Inc. v. Baptist Found., 166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied); Gundermann v. Buehring, No. 13-05-278-CV, 2006 WL 240517 (Tex. App.—Corpus Christi 2006, pet. denied) (memo op.; 2-2-06). To meet the additional requirements of Rule 252, the affidavit or verified motion must (1) Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ Page 2 of 11 Electronically Submitted 3/12/2024 2:27 PM Hidalgo County Clerk Accepted by: Nancy Flores explain the reasons for not obtaining the discovery earlier, if known, and (2) show that the discovery cannot be obtained from any other source if the party had previously applied for a continuance. Tex. R. Civ. P. 252; see Mulcahy v. Wal-Mart Stores, Inc., No. 02-10-00074-CV, 2010 WL 5118199 (Tex. App.—Fort Worth 2010, no pet.) (memo op.; 12-16-10); Gundermann, No. 13-05-278-CV, 2006 WL 240517 (memo op.). 6. If the affidavit or verified motion meets the requirements for a continuance, the court should consider the following nonexclusive factors in deciding whether to grant the motion: (1) the materiality and the purpose of the discovery sought, (2) whether the party exercised due diligence, and (3) the length of time the case has been on file. West, 318 S.W.3d at 443; see Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A. Evidence sought. 7. Plaintiffs need additional time to obtain the following evidence: written discovery from Defendant JODIE PEREZ, depositions of Defendants JODIE PEREZ and GUNIT TOOR, and information regarding reports of animals and animal attacks on the location at issue. B. Evidence is material to opposition. 8. This evidence is material to Plaintiffs’ opposition to Defendant GUNIT TOOR’s motions for summary judgment because it would provide evidence regarding the knowledge Defendant GUNIT TOOR had, if any, regarding the presence of Defendant JODIE PEREZ’ dog and its propensities. Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ Page 3 of 11 Electronically Submitted 3/12/2024 2:27 PM Hidalgo County Clerk Accepted by: Nancy Flores C. Plaintiffs have exercised diligence in attempting to obtain the evidence. 9. Plaintiffs have been unable to obtain this evidence earlier even though they diligently used the discovery process. Plaintiff BILLY MUNOZ has sent written discovery to Defendant JODIE PEREZ as follows: a. Plaintiff’s Interrogatories to Defendant Jodie Perez; b. Plaintiff’s First Request for Production to Defendant Jodie Perez; and c. Plaintiff’s First Request for Admissions to Defendant Jodie Perez. Defendant JODIE PEREZ did not respond to any of the written discovery. A motion to compel is pending. 10. Plaintiffs also sent an open records request to the City of Edinburg requesting reports of loose animals, stray animals, animal bites, and animal attacks at Defendant GUNIT TOOR’s premises, 1811 Tierra Dulce Dr., Edinburg, Texas 78539. However, the City of Edinburg only produced the documentation for the specific dog attack at issue. Further time is needed to obtain this information. D. Case has been on file for short period of time. 11. This case has been on file for a short period of time: around a year. ii. CONTINUANCE UNTIL COURT RULES ON DISCOVERY MOTIONS 12. Plaintiffs ask the Court to continue the summary judgment hearing until after it rules on Plaintiff BILLY MUNOZ’ outstanding discovery motions and Plaintiffs have a reasonable opportunity to review the Court's rulings. A party is entitled to a ruling on its discovery motions within a reasonable time. Nelson v. PNC Mortg. Corp., 139 S.W.3d 442, 445 (Tex. App.—Dallas 2004, no pet.). Granting a summary judgment before ruling on a party's discovery motions forecloses any possibility Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ Page 4 of 11 Electronically Submitted 3/12/2024 2:27 PM Hidalgo County Clerk Accepted by: Nancy Flores that the party can exercise her right to obtain reasonable discovery before summary judgment. Id. For this reason, Plaintiffs ask the Court to continue the summary judgment hearing until it rules on the following discovery motions: Plaintiff Billy Munoz’ Motion to Compel Defendant Jodie Perez to Respond to Written Discovery. III. RESPONSE TO MOTIONS FOR SUMMARY JUDGMENT i. SUMMARY JUDGMENT EVIDENCE 13. To support the facts in this response, Plaintiffs offer the following summary judgment evidence attached to this response and incorporates the evidence into this response by reference: Exhibit 1: Deposition of Billy Munoz. Exhibit 2: Edinburg Police Department Report. Exhibit 3: Billy Munoz’ medical records from Physician’s Injury Clinic. ii. RESPONSE TO TRADITIONAL SUMMARY JUDGMENT MOTION Defendant did not disprove Plaintiffs’ causes of action as a matter of law. 14. A defendant is entitled to summary judgment on a plaintiff's cause of action if the defendant can disprove at least one element of the cause of action as a matter of law. Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). 15. The elements of a cause of action for injury caused by the negligent handling of an animal are the following: (1) the defendant was the owner or possessor of the animal, (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others, (3) the defendant breached the duty, and (4) the Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ Page 5 of 11 Electronically Submitted 3/12/2024 2:27 PM Hidalgo County Clerk Accepted by: Nancy Flores defendant's breach proximately caused the plaintiff's injury. Bushnell v. Mott, 254 S.W.3d 451, 452–53 (Tex.2008) (element 2); Marshall v. Ranne, 511 S.W.2d 255, 259 (Tex.1974) (element 1); Johnson v. Enriquez, 460 S.W.3d 669, 675 (Tex.App.—El Paso 2015, no pet.) (elements 1–4); Labaj v. VanHouten, 322 S.W.3d 416, 420 (Tex.App.—Amarillo 2010, pet. denied) (elements 1–4). 16. A landlord has a duty to a non-tenant injured by an animal on the leased premises if the landlord (1) had actual knowledge that an animal was on the leased premises, (2) had actual knowledge that the animal had vicious propensities, and (3) had the ability to control the premises. Bolton v. Fisher, 528 S.W.3d 770, 775 (Tex.App.— Texarkana 2017, pet. denied); Batra v. Clark, 110 S.W.3d 126, 129-30 (Tex.App.— Houston [1st Dist.] 2003, no pet.). 17. Defendant GUNIT TOOR claims that he disproved that he had actual knowledge that the animal had vicious propensities. However, Plaintiffs have pled negligent handling of an animal which does not have an actual knowledge element. The dog attack did not occur on Defendant GUNIT TOOR’s leased premises (1811 Tierra Dulce Dr., Edinburg, Texas 78539). The attack occurred across the street on Plaintiffs’ premises (1708 Tierra Dulce Dr., Edinburg, Texas 78539). Ex 2. 18. The elements of Plaintiff MARINA MUNOZ’ cause of action as a bystander are the following: (1) the defendant negligently inflicted serious or fatal injuries on the primary victim, (2) the bystander was located near the scene of the accident, (3) the bystander suffered shock as a result of a direct emotional impact from a sensory and contemporaneous observance of the accident, and (4) the bystander and the victim were closely related. United Servs. Auto. Ass'n v. Keith, 970 S.W.2d Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ Page 6 of 11 Electronically Submitted 3/12/2024 2:27 PM Hidalgo County Clerk Accepted by: Nancy Flores 540, 541–42 (Tex.1998) (elements 2–4); Edinburg Hosp. Auth. v. Treviño, 941 S.W.2d 76, 80 (Tex.1997) (elements 1–4); Boyles v. Kerr, 855 S.W.2d 593, 598 (Tex.1993) (elements 1–4); Jones v. City of Houston, 294 S.W.3d 917, 920 (Tex.App.—Houston [1st Dist.] 2009, pet. denied) (elements 2–4). The elements of a bystander claim are flexible and are applied on a case-by-case basis. Keith, 970 S.W.2d at 542; Jones, 294 S.W.3d at 920. 19. Defendant GUNIT TOOR claims that MARINA MUNOZ can not recover as bystander because Plaintiff BILLY MUNOZ’ injuries were not “serious” or “fatal”. The dog attack resulted in blood on the sidewalk that “stayed there for a long time”. Ex 1, P29 Lines 15-17. Plaintiff BILLY MUNOZ’ injuries included multiple puncture wounds to his right hand and right foot. Ex 1, P25 Line 16- P26 Line 2, Ex 2 and Ex 3. There was also extensive bruising to his foot. Ex 3. Whether these injuries are “serious” is an issue of material fact that should be determined by a jury. 20. The Court should deny Defendant GUNIT TOOR’s traditional motion for summary judgment because Defendant GUNIT TOOR did not disprove any elements as a matter of law. There are genuine issues of material fact on the challenged elements. iii. RESPONSE TO NO EVIDENCE SUMMARY JUDGMENT MOTION Plaintiffs have sufficient evidence to raise fact issues on their causes of action. 21. In a no evidence motion for summary judgment, a defendant can challenge a plaintiff to produce evidence to support one or more elements of the plaintiff's cause of action on which the plaintiff would have the burden of proof at trial after an adequate time for discovery has passed. Tex. R. Civ. P. 166a(i). To avoid a no- Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ Page 7 of 11 Electronically Submitted 3/12/2024 2:27 PM Hidalgo County Clerk Accepted by: Nancy Flores evidence summary judgment, the plaintiff is not required to marshal its proof; the plaintiff only needs to point out evidence that raises a fact issue on the elements challenged in the defendant's motion. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008); see Tex. R. Civ. P. 166a(i); Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014). To raise a genuine issue of material fact, the plaintiff must produce more than a scintilla of evidence in support of the challenged elements. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see Boerjan, 436 S.W.3d at 312. More than a scintilla of evidence is produced if the evidence is sufficient to allow reasonable and fair- minded people to differ in their conclusions on whether the challenged fact exists. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); see First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). In evaluating whether more than a scintilla of evidence exists, the court must view the evidence in the light most favorable to the plaintiff, crediting evidence favorable to the plaintiff if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Boerjan, 436 S.W.3d at 311–12; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). 22. Defendant GUNIT TOOR alleged that there is no evidence supporting essential elements of Plaintiff’s cause of action for negligence. Defendant contends that there is no evidence to support the element of actual knowledge. 23. However, as explained above, Plaintiffs have pled negligent handling of an animal which does not have an actual knowledge element. 24. Defendant GUNIT TOOR alleged that there is no evidence supporting essential Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ Page 8 of 11 Electronically Submitted 3/12/2024 2:27 PM Hidalgo County Clerk Accepted by: Nancy Flores elements of Plaintiff MARINA MUNOZ’ bystander claim. Defendant contends that there is no evidence to support that Plaintiff BILLY MUNOZ’ injury was serious. As discussed above, Plaintiff BILLY MUNOZ’ testimony and his medical records establish that the injuries experienced by Plaintiff BILLY MUNOZ included multiple puncture wounds to his right hand and right foot. Ex 1, P25 Line 16- P26 Line 2 and Ex 3. There was also extensive bruising to his foot. Ex 3. 25. The Court should deny Defendant GUNIT TOOR’s no evidence motion for summary judgment because Plaintiffs have produced sufficient evidence to raise fact issues on the elements challenged by Defendant GUNIT TOOR. IV. PRAYER For these reasons, Plaintiffs ask the Court to continue the hearing on Defendant GUNIT TOOR’s traditional and no evidence motions for summary judgment. In the alternative, Plaintiffs ask the Court to deny Defendant GUNIT TOOR’s motions for summary judgment. If the Court grants Defendant GUNIT TOOR's motions for summary judgment, Plaintiffs ask the Court to overrule Plaintiffs’ objections so they will be preserved for appeal. Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ Page 9 of 11 Electronically Submitted 3/12/2024 2:27 PM Hidalgo County Clerk Accepted by: Nancy Flores Respectfully submitted, LAW OFFICE OF FRANCISCO J. RODRIGUEZ 1111 West Nolana Ave., Suite A McAllen Texas 78504 Telephone: (956) 687-4363 Facsimile: (956) 687-6415 E-mail: frankr@mcallenlawfirm.com danielle@mcallenlawfirm.com By:_________________________ FRANCISCO J. RODRIGUEZ State Bar No. 17145800 DANIELLE C. RODRIGUEZ State Bar No. 24075952 AND MELISSA R. CARRANZA State Bar No.: 24051884 melissa@mrclawfirm.com CARRANZA LAW FIRM 204 E. Cano Edinburg, Texas 78539 Telephone: (956) 664-0500 Facsimile: (956) 664-0595 ATTORNEYS FOR PLAINTIFFS Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ Page 10 of 11 Electronically Submitted 3/12/2024 2:27 PM Hidalgo County Clerk Accepted by: Nancy Flores CERTIFICATE OF SERVICE I hereby certify that on this 12th day of March 2024, a true and correct copy of the foregoing document was delivered to the following: VIA E-SERVICE Scott T. Clark Adams & Graham, L.L.P. P.O. Drawer 1429 Harlingen, Texas 78551 VIA E-SERVICE Jodie Perez Pro-Se 1811 Tierra Dulce Dr., Apt. 1 Edinburg, Texas 78539 VIA E-SERVICE Melissa R. Carranza Carranza Law Firm 204 E. Cano Edinburg, Texas 78539 ________________________________ DANIELLE C. RODRIGUEZ Plaintiffs’ Verified Motion for Continuance and Response to Defendant Gunit Toor’s MSJ Page 11 of 11 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. Envelope ID: 85468856 Filing Code Description: Motion (No Fee) Filing Description: Plaintiffs' Verified Motion for Continuance and Response to Defendant Gunit Toor's Traditional and No Evidence Motions for Summary Judgment Status as of 3/12/2024 2:50 PM CST Associated Case Party: Billy Munoz Name BarNumber Email TimestampSubmitted Status Francisco JRodriguez frankr@mcallenlawfirm.com 3/12/2024 2:27:19 PM SENT Danielle CRodriguez danielle@mcallenlawfirm.com 3/12/2024 2:27:19 PM SENT Aida Moralez aida@mcallenlawfirm.com 3/12/2024 2:27:19 PM SENT Melissa Carranza melissa@mrclawfirm.com 3/12/2024 2:27:19 PM SENT Melissa Carranza melissa@mrclawfirm.com 3/12/2024 2:27:19 PM SENT Jodie Perez missjodiebb28@gmail.com 3/12/2024 2:27:19 PM SENT Associated Case Party: Gunit Toor Name BarNumber Email TimestampSubmitted Status Scott T.Clark sclark@adamsgraham.com 3/12/2024 2:27:19 PM SENT Oscar O.Gomez ogomez@theoglawfirm.com 3/12/2024 2:27:19 PM SENT Martha Ramirez mramirez@theoglawfirm.com 3/12/2024 2:27:19 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Datascope Marquis Litigation houproduction@mlsdatascope.com 3/12/2024 2:27:19 PM SENT Eva Nieto enieto@adamsgraham.com 3/12/2024 2:27:19 PM SENT