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FILED
DALLAS COUNTY
1/10/2019 2:49PM
FELICIA PITRE
DISTRICT CLERK
CAROLYN SELLERS
CAUSE NO. DC-18-19340
VOLENTE HEALTHCARE, LLC and § IN THE DISTRICT COURT OF
VOLENTE DIAGNOSTICS I, LLC §
§
Plaintiffs, §
§
V. §
§
HEALTHTRACKRX, INC. and § DALLAS COUNTY, TEXAS
AMERICAN INSTITUTE OF §
TOXICOLOGY, INC. D/B/A §
AIT LABORATORIES §
§
Defendants. § 68TH JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE
TO AMEND DEADLINES RELATING TO DEFENDANTS’
AMENDED MOTION TO TRANSFER VENUE
Plaintiffs Volente Healthcare, LLC and Volente Diagnostics I, LLC (“Plaintiffs”) file this
Response to Defendants” Motion for Leave to Amend Deadlines Relating to Defendants’ Amended
Motion t0 Transfer Venue (“Motion for Leave” and “Amended Transfer Motion”). In support,
Plaintiffs respectfully would show the Court as follows:
A. Defendants seek t0 severely truncate the notice requirements and briefing schedule under
Rule 8 7.
Under Texas Rule 0f Civil Procedure 87, the movant for a motion to transfer venue “has the
duty to request a setting on the motion ..
..”TEX. R. CIV. P. 87. Plaintiffs are entitled t0 at least 45
days notice 0f a hearing on the motion t0 transfer, except on leave 0f court. Id. Also, except 0n leave
of court, any response or opposing affidavits shall be filed at least 30 days prior to the hearing of the
motion to transfer. Id. Any reply and any additional affidavits supporting the motion t0 transfer must,
except 0n leave of court, be filed not later than 7 days prior to the hearing date. Id.
Therefore, if at the hearing on Defendants’ Motion for Leave the Court allows Plaintiffs the
allotted notice period and the briefing schedule required under Rule 87, it will set a hearing for the
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO AMEND
DEADLINES RELATING TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE PAGE 1
169127.V3
Amended Transfer Motion on or after February 25, 2019. As an example, if the Court set the hearing
on the earliest possible date, February 25, Plaintiffs’ response brief would be due on January 25,
2019, giving them ample time to do the needed research and assemble any supporting evidence,
including affidavit testimony. In that scenario, Defendants’ reply brief and any supporting affidavits
would be due on February 18, 2019, giving Plaintiffs one week before the hearing to review that reply
and any such affidavits, and prepare for the hearing accordingly.
Nevertheless, Defendants wish to severely truncate Rule 87’s notice period and briefing
schedule by obtaining a hearing on or before January 28, approximately one month before the earliest
date on which the hearing could be set under Rule 87. If, hypothetically, Defendants were to obtain
a January 28 setting, the relief requested in their Motion for Leave would require Plaintiffs to file
their response brief four days before the hearing (January 24) and would allow Defendants to file
their reply brief and any supporting affidavits a mere one day before the hearing – instead of 7, as
required under Rule 87.
B. Defendants offer no compelling reasons or authority to support the requested relief, which
contravenes the prevailing authority in Texas jurisprudence.
Defendants posit no compelling reason to severely truncate the notice period and briefing schedule set
forth in Rule 87. They ask the Court to accelerate the notice period and briefing deadlines for a single reason:
so their Amended Transfer Motion can be resolved before any ruling on Plaintiffs’ pending request for
temporary injunctive relief. Motion for Leave at 2. Presumably, Defendants believe they will stand a better
chance of avoiding a temporary injunction if the case is transferred to Denton County before this
Court has the opportunity to consider whether that relief is warranted.
Defendants hinge their change of venue request on Section 65.023 of the Texas Civil Practice
and Remedies Code (entitled “Place for Trial”) that states, in part, that “a writ of injunction against a
party who is a resident of this state shall be tried in a district or county court in the county in which
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO AMEND
DEADLINES RELATING TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE PAGE 2
169127.v3
the party is domiciled.” (“Section 65.023”). Section 65.023’s applicability is much more complex
than Defendants suggest, and it does not apply simply because Plaintiffs have included a request for
injunctive relief, among other remedies, in their Original Petition. Section 65.023 speaks expressly
to the place for trial, yet Plaintiffs at this juncture only seek a temporary injunction to preserve the
status quo, not a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)
(“A temporary injunction’s purpose is to preserve the status quo of the litigation’s subject matter
pending a trial on the merits.”). See In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (stating that the
“status quo” is the “last, actual, peaceable, non-contested status which preceded the pending
controversy”) (quoting Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589
(1962)). Also, as will be developed more fully in Plaintiffs’ response to the Amended Transfer
Motion, Section 65.023 applies “only to suits in which the relief sought is purely or primarily
injunctive.” In re Continental Airlines, 988 S.W.2d 733, 736 (Tex. 1998) (orig. proceeding). In
addition to a request for injunctive relief, Plaintiffs have asserted causes of action for breaches of
contract, fraud, and fraudulent inducement, and seek damages exceeding $1,000,000, as well as
attorney’s fees and court costs. Orig. Pet. ¶¶ 58-70, 73-81 & p. 34. In future briefing, Plaintiffs will
demonstrate that the relief sought is not “purely or primarily injunctive,” so that Section 65.024 does
not require the transfer of this action to Denton County.
This Court has full authority to grant the temporary injunction that Plaintiffs seek before ruling
on Defendants’ Amended Transfer Motion. See Story v. Story, 172 S.W.2d 753, 754 (Tex. Civ. App.
– Dallas 1943) (overruling appellant’s contention that the trial court erred in granting a temporary
injunction before hearing and ruling on her plea of privilege), rev’d on other grounds, 176 S.W.2d
925 (Tex. 1944). Trial courts frequently address applications for temporary relief before resolving
venue challenges. See, e.g., Gentry v. Tucker, 891 S.W.2d 766, 768 (Tex. App. – Texarkana 1995, no
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO AMEND
DEADLINES RELATING TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE PAGE 3
169127.v3
writ). Acknowledging this practice, Texas courts have repeatedly explained that a party does not
waive an objection t0 venue merely by participating in temporary injunction hearings. Greene v.
Barker, 806 S.W.2d 274, 275 (TeX. App. — Fort Worth 1991, orig. proceeding); Perkola v. Koelling
& Assocs., Ina, 601 S.W.2d 110, 111-12 (TeX. CiV. App. — Dallas 1980, writ dism'd) (collecting
cases); Pugh v.Borst, 237 S.W.2d 1021, 1023 (Tex. Civ. App. — San Antonio 1951, n0 writ). Even if
a court grants a temporary injunction and later concludes that venue must lieelsewhere, the fact that
injunctive relief was granted by a court other than one in the county of Defendants’ domicile would
not render the temporary restraining order 0r temporary injunction void. Ex Part6 Cofiee, 328 S.W.2d
283, 290-91 (Tex. 1959).
In Trice v. State, 694 S.W.2d 616 (Tex. App. — Waco 1995, n0 writ), the trial court heard
defendant’s motion t0 transfer venue under article 4656 (the predecessor t0 Section 65.023) in
conjunction with plaintiff’s request for a temporary injunction. The court denied the venue motion
and granted the temporary injunction. On appeal, the court rej ected appellant’s argument that the
temporary injunction was “irregular and erroneous” because itviolated article 4656 and dismissed the
appeal as an impermissible interlocutory appeal from a venue determination. In short, there is no rule
0r authority requiring a venue hearing before a temporary injunction can be issued. Accordingly, the
Motion for Leave should be denied s0 that Plaintiffs are given the full notice period and briefing
schedule promulgated under Rule 87.
CONCLUSION AND PRAYER
For the many reasons stated above, Plaintiffs respectfully request that this Court deny the
Motion for Leave in all respects.
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO AMEND
DEADLINES RELATING TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE PAGE 4
169127.V3
Respectfully submitted,
BRADLEY ARANT BOULT CUMMINGS LLP
By: /s/ William S. Snyder
RICHARD A. SAYLES
State Bar No. 17697500
dsa les bradle .com
WILLIAM S. SNYDER
State Bar No. 00786250
wsnyderngradleycom
ROBERT L. SAYLES
State Bar No. 24049857
rsaylengbradley30m
SHAWN C. LONG
Texas Bar No. 24047859
slon bradle .com
4400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
(214) 939-8700 (Telephone)
(214) 939-8787 (Facsimile)
ATTORNEYS FOR PLAINTIFFS
VOLENTE HEALTHCARE, LLC AND
VOLENTE DIAGNOSTICS I, LLC
CERTIFICATE OF SERVICE
The undersigned certifies that a copy 0f the foregoing instrument was served upon the
attorneys of record 0f all parties to the above cause in accordance with Rule 21a, Texas Rules of
Civil Procedure, on this 10th day of January, 2019.
/s/ William S. Snyder
William S. Snyder
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO AMEND
DEADLINES RELATING TO DEFENDANTS’ AMENDED MOTION T0 TRANSFER VENUE PAGE 5
169127.v3
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FILED DALLAS COUNTY 1/10/2019 2:49PM FELICIA PITRE DISTRICT CLERK CAROLYN SELLERS CAUSE NO. DC-18-19340 VOLENTE HEALTHCARE, LLC and § IN THE DISTRICT COURT OF VOLENTE DIAGNOSTICS I, LLC § § Plaintiffs, § § V. § § HEALTHTRACKRX, INC. and § DALLAS COUNTY, TEXAS AMERICAN INSTITUTE OF § TOXICOLOGY, INC. D/B/A § AIT LABORATORIES § § Defendants. § 68TH JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO AMEND DEADLINES RELATING TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE Plaintiffs Volente Healthcare, LLC and Volente Diagnostics I, LLC (“Plaintiffs”) file this Response to Defendants” Motion for Leave to Amend Deadlines Relating to Defendants’ Amended Motion t0 Transfer Venue (“Motion for Leave” and “Amended Transfer Motion”). In support, Plaintiffs respectfully would show the Court as follows: A. Defendants seek t0 severely truncate the notice requirements and briefing schedule under Rule 8 7. Under Texas Rule 0f Civil Procedure 87, the movant for a motion to transfer venue “has the duty to request a setting on the motion .. ..”TEX. R. CIV. P. 87. Plaintiffs are entitled t0 at least 45 days notice 0f a hearing on the motion t0 transfer, except on leave 0f court. Id. Also, except 0n leave of court, any response or opposing affidavits shall be filed at least 30 days prior to the hearing of the motion to transfer. Id. Any reply and any additional affidavits supporting the motion t0 transfer must, except 0n leave of court, be filed not later than 7 days prior to the hearing date. Id. Therefore, if at the hearing on Defendants’ Motion for Leave the Court allows Plaintiffs the allotted notice period and the briefing schedule required under Rule 87, it will set a hearing for the PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO AMEND DEADLINES RELATING TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE PAGE 1 169127.V3 Amended Transfer Motion on or after February 25, 2019. As an example, if the Court set the hearing on the earliest possible date, February 25, Plaintiffs’ response brief would be due on January 25, 2019, giving them ample time to do the needed research and assemble any supporting evidence, including affidavit testimony. In that scenario, Defendants’ reply brief and any supporting affidavits would be due on February 18, 2019, giving Plaintiffs one week before the hearing to review that reply and any such affidavits, and prepare for the hearing accordingly. Nevertheless, Defendants wish to severely truncate Rule 87’s notice period and briefing schedule by obtaining a hearing on or before January 28, approximately one month before the earliest date on which the hearing could be set under Rule 87. If, hypothetically, Defendants were to obtain a January 28 setting, the relief requested in their Motion for Leave would require Plaintiffs to file their response brief four days before the hearing (January 24) and would allow Defendants to file their reply brief and any supporting affidavits a mere one day before the hearing – instead of 7, as required under Rule 87. B. Defendants offer no compelling reasons or authority to support the requested relief, which contravenes the prevailing authority in Texas jurisprudence. Defendants posit no compelling reason to severely truncate the notice period and briefing schedule set forth in Rule 87. They ask the Court to accelerate the notice period and briefing deadlines for a single reason: so their Amended Transfer Motion can be resolved before any ruling on Plaintiffs’ pending request for temporary injunctive relief. Motion for Leave at 2. Presumably, Defendants believe they will stand a better chance of avoiding a temporary injunction if the case is transferred to Denton County before this Court has the opportunity to consider whether that relief is warranted. Defendants hinge their change of venue request on Section 65.023 of the Texas Civil Practice and Remedies Code (entitled “Place for Trial”) that states, in part, that “a writ of injunction against a party who is a resident of this state shall be tried in a district or county court in the county in which PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO AMEND DEADLINES RELATING TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE PAGE 2 169127.v3 the party is domiciled.” (“Section 65.023”). Section 65.023’s applicability is much more complex than Defendants suggest, and it does not apply simply because Plaintiffs have included a request for injunctive relief, among other remedies, in their Original Petition. Section 65.023 speaks expressly to the place for trial, yet Plaintiffs at this juncture only seek a temporary injunction to preserve the status quo, not a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (“A temporary injunction’s purpose is to preserve the status quo of the litigation’s subject matter pending a trial on the merits.”). See In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (stating that the “status quo” is the “last, actual, peaceable, non-contested status which preceded the pending controversy”) (quoting Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962)). Also, as will be developed more fully in Plaintiffs’ response to the Amended Transfer Motion, Section 65.023 applies “only to suits in which the relief sought is purely or primarily injunctive.” In re Continental Airlines, 988 S.W.2d 733, 736 (Tex. 1998) (orig. proceeding). In addition to a request for injunctive relief, Plaintiffs have asserted causes of action for breaches of contract, fraud, and fraudulent inducement, and seek damages exceeding $1,000,000, as well as attorney’s fees and court costs. Orig. Pet. ¶¶ 58-70, 73-81 & p. 34. In future briefing, Plaintiffs will demonstrate that the relief sought is not “purely or primarily injunctive,” so that Section 65.024 does not require the transfer of this action to Denton County. This Court has full authority to grant the temporary injunction that Plaintiffs seek before ruling on Defendants’ Amended Transfer Motion. See Story v. Story, 172 S.W.2d 753, 754 (Tex. Civ. App. – Dallas 1943) (overruling appellant’s contention that the trial court erred in granting a temporary injunction before hearing and ruling on her plea of privilege), rev’d on other grounds, 176 S.W.2d 925 (Tex. 1944). Trial courts frequently address applications for temporary relief before resolving venue challenges. See, e.g., Gentry v. Tucker, 891 S.W.2d 766, 768 (Tex. App. – Texarkana 1995, no PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO AMEND DEADLINES RELATING TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE PAGE 3 169127.v3 writ). Acknowledging this practice, Texas courts have repeatedly explained that a party does not waive an objection t0 venue merely by participating in temporary injunction hearings. Greene v. Barker, 806 S.W.2d 274, 275 (TeX. App. — Fort Worth 1991, orig. proceeding); Perkola v. Koelling & Assocs., Ina, 601 S.W.2d 110, 111-12 (TeX. CiV. App. — Dallas 1980, writ dism'd) (collecting cases); Pugh v.Borst, 237 S.W.2d 1021, 1023 (Tex. Civ. App. — San Antonio 1951, n0 writ). Even if a court grants a temporary injunction and later concludes that venue must lieelsewhere, the fact that injunctive relief was granted by a court other than one in the county of Defendants’ domicile would not render the temporary restraining order 0r temporary injunction void. Ex Part6 Cofiee, 328 S.W.2d 283, 290-91 (Tex. 1959). In Trice v. State, 694 S.W.2d 616 (Tex. App. — Waco 1995, n0 writ), the trial court heard defendant’s motion t0 transfer venue under article 4656 (the predecessor t0 Section 65.023) in conjunction with plaintiff’s request for a temporary injunction. The court denied the venue motion and granted the temporary injunction. On appeal, the court rej ected appellant’s argument that the temporary injunction was “irregular and erroneous” because itviolated article 4656 and dismissed the appeal as an impermissible interlocutory appeal from a venue determination. In short, there is no rule 0r authority requiring a venue hearing before a temporary injunction can be issued. Accordingly, the Motion for Leave should be denied s0 that Plaintiffs are given the full notice period and briefing schedule promulgated under Rule 87. CONCLUSION AND PRAYER For the many reasons stated above, Plaintiffs respectfully request that this Court deny the Motion for Leave in all respects. PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO AMEND DEADLINES RELATING TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE PAGE 4 169127.V3 Respectfully submitted, BRADLEY ARANT BOULT CUMMINGS LLP By: /s/ William S. Snyder RICHARD A. SAYLES State Bar No. 17697500 dsa les bradle .com WILLIAM S. SNYDER State Bar No. 00786250 wsnyderngradleycom ROBERT L. SAYLES State Bar No. 24049857 rsaylengbradley30m SHAWN C. LONG Texas Bar No. 24047859 slon bradle .com 4400 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 (214) 939-8700 (Telephone) (214) 939-8787 (Facsimile) ATTORNEYS FOR PLAINTIFFS VOLENTE HEALTHCARE, LLC AND VOLENTE DIAGNOSTICS I, LLC CERTIFICATE OF SERVICE The undersigned certifies that a copy 0f the foregoing instrument was served upon the attorneys of record 0f all parties to the above cause in accordance with Rule 21a, Texas Rules of Civil Procedure, on this 10th day of January, 2019. /s/ William S. Snyder William S. Snyder PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO AMEND DEADLINES RELATING TO DEFENDANTS’ AMENDED MOTION T0 TRANSFER VENUE PAGE 5 169127.v3