Preview
Filed: 4/22/2019 10:30 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 32944722
By: Shailja Dixit
4/22/2019 11:15 AM
CAUSE NO. 17-CV-1506
ALLEN and JOY SOAPE § IN THE DISTRICT COURT OF
Plaintiffs §
§
vs. §
§ GALVESTON COUNTY, TEXAS
DSW HOMES, LLC, §
AAK ELECTRIC, LLC, and §
DALE’S WATER WELLS, LLC §
Defendants. § 405th JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR CONTINUANCE &
REQUEST FOR PREFERENTIAL SETTING IF TRIAL CONTINUANCE IS GRANTED
COMES NOW, Plaintiffs Allen and Joy Soape and file this Response to Defendants DSW
Homes, LLC and AAK Electric, LLC’s Motion for Continuance and for Entry of an Amended
Docket Control Order. In support thereof, Plaintiffs would respectfully show the Court the
following:
BACKGROUND
1. This case centers around the electrocution of Mr. Soape that occurred when he came into
contact with an improperly buried electrical cable (UF Cable) installed a year earlier during DSW
Homes, LLC’s (“DSW”) construction of their home. On September 21, 2016, Mr. Soape was
digging in his back yard to plant rose bushes for his wife around the volleyball court they had
built to enjoy with their kids and grandkids. Unbeknownst to Mr. Soape, when his home had been
built one year earlier, the UF Cable was buried only four to seven inches under the ground with no
protective conduit. Mr. Soape severed that cable and came into contact with the electrical current
when he inserted a metal rod into the hole to check its depth.
2. Mr. Soape was electrocuted, knocking him to the ground in an unconscious state, with no
detectible pulse or signs of breathing. Mr. Soape was found on the ground by Mrs. Soape, who
called 911. With no signs of breathing and no pulse, Mr. Soape was clinically dead. The 911
operator instructed Mrs. Soape on how to perform CPR, and miraculously, Mrs. Soape was able
to revive Mr. Soape. Without her heroic efforts, Mr. Soape would have been killed that day.
3. Mr. Soape’s health and life have been totally destroyed as a result of this electrocution. The
resulting injuries and the pain and suffering endured by Mr. Soape cannot be overstated, and that
extreme pain and suffering will continue to be a part of daily life for Mr. Soape
forever. Immediately following the electrocution, Mr. Soape was hospitalized for two-three
days. Thereafter, he has suffered from extensive, permanent damage to his heart. Mr. Soape has
been diagnosed with Atrial fibrillation (“AFib”), which is the quivering or irregular heartbeat
(arrhythmia) that can lead to blood clots, stroke, heart failure and other heart-related
complications. Mr. Soape has undergone three heart surgeries and has been under constant cardiac
treatment since the electrocution.
4. In addition, Mr. Soape has been diagnosed with bilateral neuropathy due to
electrocution. This condition manifests itself in that Mr. Soape suffers from a loss of feeling and
a loss of function in his arms and legs, with significant pain in his extremities. In addition to the
orthostatic hypotension caused by the electrocution, his wildly erratic heart rate, and generalized
muscle atrophy, Mr. Soape’s bilateral neuropathy causes him to be an extreme fall risk both for
falls associated with a loss of consciousness and for falls associated with a loss of the physical
ability to stand and support himself. As a result of multiple falls, Mr. Soape has sustained
significant additional injuries on several occasions necessitating trips to the hospital. Mr. Soape
also suffers from a loss of peripheral vision, loss of cognitive functions such as memory loss,
confusion, difficulty communicating, etc., and is suffering from depression, irritability, and PTSD.
Page 2 of 8
ARGUMENT & AUTHORITY
5. The Texas Rules of Civil Procedure specify that no motion for a continuance shall be
granted "except for sufficient cause supported by affidavit, or by consent of the parties, or by
operation of law”. TEX. R. CIV. P. 251. When determining the necessity for a trial continuance,
factors Courts consider include "the length of time the case has been on file, the materiality and
purpose of the discovery sought, and whether the party seeking the continuance has exercised due
diligence to obtain the discovery sought." Lee v. Lee, 528 S.W.3d 201 (Tex.App.—Houston [14th
Dist.], 2017) (citing Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)).
First, however, Defendants must show it complied with the rules governing a motion for
continuance. See Brown v. Gage, 519 S.W.2d 190, 192 (Tex. Civ. App.—Fort Worth 1975, no
writ).
6. The primary thrust of Defendants’ request for a trial continuance centers around a need to
procure additional testimony. In such instances, Texas Rule of Civil Procedure 252 requires that
Defendants “shall make affidavit that such testimony is material, showing the materiality thereof,
and that he has used due diligence to procure such testimony, stating such diligence, and the cause
of failure, if known…” TEX. R. CIV. P. 252.
7. Defendants only attach the verification of DSW’s counsel, Jennifer Cully, who attests that
the statements contained in the motion are within her personal knowledge and are true and correct.
In its motion, Defendants identify the following individuals from whom testimony is purportedly
required:
1. Mrs. Joy Soape (who was previously scheduled for deposition and unilaterally cancelled
by Defendants);
2. Mr. Soape’s daughter and granddaughter (who Defendants have never requested to
depose);
Page 3 of 8
3. Mr. Soape’s grandson (who Defendant DSW said in email correspondence was someone
it intended to depose but has never requested deposition dates);
4. Mr. Soape’s treating physicians (who Defendants have never requested despite being
named as non-retained experts since July 17, 2018);
5. Plaintiff’s life care planner (who Defendants have never requested despite being named as
an expert since July 17, 2018);
6. Plaintiff’s electrical experts (who Defendants have not requested deposition dates);
7. Plaintiff’s biomedical and electrical injury expert (who Defendants have not requested
deposition dates); and
8. a DETCOG representative (who is not even identified).
8. As demonstrated in the notes above for each of these deponents, Defendants fail to identify
what diligence, if any, has been utilized to procure the testimony of these individuals as required
by the Texas Rules. Defendants also fail to identify in its’ motion why some of the deposition
testimony is necessary at all (i.e. failing to explain the materiality of the anticipated testimony of
the Soapes’ daughter and granddaughter or that of a DETCOG representative). It is also abundantly
clear that Defendants cannot demonstrate any due diligence to procure the testimony of Mr.
Soape’s treating physicians and life care planner and the cause of Defendants’ inability to obtain
this testimony. Indeed, these experts have been named as either retained or non-retained experts
since July 17, 2018. Defendants’ motion is therefore legally deficient under the Texas Rules.
9. To promote the completion of discovery, Plaintiffs recently noticed the deposition of one
of Mr. Soape’s treating physicians who was scheduled to be deposed on April 29, 2019, but
Defendants quashed that notice. Plaintiffs are also seeking additional deposition dates for its
witnesses and has requested dated of Defendants’ experts promptly after receiving Defendants’
Page 4 of 8
expert designations on April 17, 2019. Plaintiffs believe these expert depositions can be scheduled
in a timely manner.
10. The remaining points Defendants rely upon to support its need for a 120-day continuance
also fail to substantiate the need for a trial continuance of this duration or how Defendants will
suffer substantial harm or prejudice without a continuance. See TEX. R. CIV. P. 252. Specifically,
Defendants argue 1) that it is lacking a medical exam of Mr. Soape, 2) the 911 recording of the
call made by Mrs. Soape, and 3) some photographs. Notably, Plaintiffs have not objected to a
medical exam which was requested on March 22, 2019 for the first time. Moreover, Plaintiffs have
requested an agreed protocol for the examination, setting forth basic items such as location, scope
of exam, and attendees, but to date, Defendants have not proposed any protocol so that the date of
the examination can be secured. Once the protocol is established, however, the examination can
easily occur prior to the June 17, 2019 trial setting.
11. Additionally, the actual existence of the recording of the 911 emergency phone call Mrs.
Soape made after finding Mr. Soape on the ground and unconscious is also unclear, as Plaintiffs
have attempted to obtain it but have been informed that it no longer exists. Specifically, Plaintiffs
contacted the emergency dispatch center for Lufkin, TX and was told that they no longer had the
recording in their possession. Finally, any complaints about missing photographs to the extent any
such complaints have merit can be easily resolved well in advance of the current trial setting as
well.
12. Defendants also seek a completely new docket control order ostensibly resetting all
deadlines by which all parties have been abiding. A new docket control order is wholly unmerited
as all parties have designated experts, pleadings and motion deadlines currently exist, and the
remaining necessary discovery has been identified. Plaintiffs respectfully request that if a
Page 5 of 8
continuance is granted, that only the discovery deadline and trial date be continued, leaving all
other deadlines in place.
13. This matter was previously reset for trial on June 17, 2019, largely due to Mr. Soape’s
health and general condition. Although the Defendants previously agreed to the June trial setting,
Defendants are now requesting a 120-day continuance. Despite having failed to meet their burden
in establishing the due diligence required for a continuance, Plaintiffs will agree to a short
continuance of no more than 60 days. The urgency and necessity to set and maintain a trial date
is incredibly real, and all of Defendants’ complaints regarding the necessary depositions can be
resolved with a short 60-day trial continuance, at most.
14. This lawsuit has been on file since December 2017, and the June 2019 trial setting has also
been calendared since the fall of last year. Considering all of these facts, a trial continuance of
120 days is unreasonable and is only sought for delay. Plaintiffs agree that there are a number of
depositions that need to occur, but if a short continuance of 60 days allowed, there will be sufficient
time to complete this discovery. In addition to the overall health condition of Mr. Soape and the
hardship trial will cause, a preferential trial setting is also needed so that Plaintiffs can plan to have
a health practitioner, such as a nurse, available to monitor Mr. Soape while the case is in trial. For
all of the foregoing reasons, Plaintiffs do not object to a 60-day trial continuance so long as the
matter can be preferentially set to occur in August 2019 or as is convenient for this Honorable
Court, around this time period.
CONCLUSION
For all of the foregoing reasons, Plaintiffs respectfully ask this Court to deny Defendants
DSW Homes, LLC and AAK Electric, LLC’s Motion for Continuance and for Entry of an
Amended Docket Control Order. If this matter is continued and reset with a preferential trial setting
approximately 60 days from the current trial setting, Plaintiffs have no objection to the continuance
Page 6 of 8
provided all deadlines except the close of discovery and trial setting remain in place. Finally,
Plaintiffs seek any and all further relief to which they may be entitled both at law and in equity.
Respectfully Submitted,
WALSTON BOWLIN, LLP
/s/ Joshua N. Bowlin
JOSHUA N. BOWLIN
josh@walstonbowlin.com
State Bar No. 24037666
CLIFFORD WALSTON
cliff@walstonbowlin.com
State Bar No. 24037666
NATHANIEL J. ALFORD, III
nate@walstonbowlin.com
State Bar No. 24084871
4299 San Felipe Street
Suite 300
Houston, TX 77027
(713) 300-8700
(713) 583-5020 Fax
And
ARNOLD & ITKIN, LLP
KURT ARNOLD
State Bar No. 24036150
karnold@arnolditkin.com
J. KYLE FINDLEY
State Bar No. 24076382
kfindley@arnolditkin.com
6009 Memorial Drive
Houston, Texas 77007
(713) 222-3800
(713) 222-3850 Fax
e-service@arnolditkin.com
ATTORNEYS FOR PLAINTIFFS
Page 7 of 8
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was forwarded to
opposing counsel pursuant to the Texas Rules of Civil Procedure on April 22, 2019.
/s/ Joshua N. Bowlin
JOSHUA N. BOWLIN
Page 8 of 8
Preview
Filed: 4/22/2019 10:30 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 32944722 By: Shailja Dixit 4/22/2019 11:15 AM CAUSE NO. 17-CV-1506 ALLEN and JOY SOAPE § IN THE DISTRICT COURT OF Plaintiffs § § vs. § § GALVESTON COUNTY, TEXAS DSW HOMES, LLC, § AAK ELECTRIC, LLC, and § DALE’S WATER WELLS, LLC § Defendants. § 405th JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR CONTINUANCE & REQUEST FOR PREFERENTIAL SETTING IF TRIAL CONTINUANCE IS GRANTED COMES NOW, Plaintiffs Allen and Joy Soape and file this Response to Defendants DSW Homes, LLC and AAK Electric, LLC’s Motion for Continuance and for Entry of an Amended Docket Control Order. In support thereof, Plaintiffs would respectfully show the Court the following: BACKGROUND 1. This case centers around the electrocution of Mr. Soape that occurred when he came into contact with an improperly buried electrical cable (UF Cable) installed a year earlier during DSW Homes, LLC’s (“DSW”) construction of their home. On September 21, 2016, Mr. Soape was digging in his back yard to plant rose bushes for his wife around the volleyball court they had built to enjoy with their kids and grandkids. Unbeknownst to Mr. Soape, when his home had been built one year earlier, the UF Cable was buried only four to seven inches under the ground with no protective conduit. Mr. Soape severed that cable and came into contact with the electrical current when he inserted a metal rod into the hole to check its depth. 2. Mr. Soape was electrocuted, knocking him to the ground in an unconscious state, with no detectible pulse or signs of breathing. Mr. Soape was found on the ground by Mrs. Soape, who called 911. With no signs of breathing and no pulse, Mr. Soape was clinically dead. The 911 operator instructed Mrs. Soape on how to perform CPR, and miraculously, Mrs. Soape was able to revive Mr. Soape. Without her heroic efforts, Mr. Soape would have been killed that day. 3. Mr. Soape’s health and life have been totally destroyed as a result of this electrocution. The resulting injuries and the pain and suffering endured by Mr. Soape cannot be overstated, and that extreme pain and suffering will continue to be a part of daily life for Mr. Soape forever. Immediately following the electrocution, Mr. Soape was hospitalized for two-three days. Thereafter, he has suffered from extensive, permanent damage to his heart. Mr. Soape has been diagnosed with Atrial fibrillation (“AFib”), which is the quivering or irregular heartbeat (arrhythmia) that can lead to blood clots, stroke, heart failure and other heart-related complications. Mr. Soape has undergone three heart surgeries and has been under constant cardiac treatment since the electrocution. 4. In addition, Mr. Soape has been diagnosed with bilateral neuropathy due to electrocution. This condition manifests itself in that Mr. Soape suffers from a loss of feeling and a loss of function in his arms and legs, with significant pain in his extremities. In addition to the orthostatic hypotension caused by the electrocution, his wildly erratic heart rate, and generalized muscle atrophy, Mr. Soape’s bilateral neuropathy causes him to be an extreme fall risk both for falls associated with a loss of consciousness and for falls associated with a loss of the physical ability to stand and support himself. As a result of multiple falls, Mr. Soape has sustained significant additional injuries on several occasions necessitating trips to the hospital. Mr. Soape also suffers from a loss of peripheral vision, loss of cognitive functions such as memory loss, confusion, difficulty communicating, etc., and is suffering from depression, irritability, and PTSD. Page 2 of 8 ARGUMENT & AUTHORITY 5. The Texas Rules of Civil Procedure specify that no motion for a continuance shall be granted "except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law”. TEX. R. CIV. P. 251. When determining the necessity for a trial continuance, factors Courts consider include "the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought." Lee v. Lee, 528 S.W.3d 201 (Tex.App.—Houston [14th Dist.], 2017) (citing Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)). First, however, Defendants must show it complied with the rules governing a motion for continuance. See Brown v. Gage, 519 S.W.2d 190, 192 (Tex. Civ. App.—Fort Worth 1975, no writ). 6. The primary thrust of Defendants’ request for a trial continuance centers around a need to procure additional testimony. In such instances, Texas Rule of Civil Procedure 252 requires that Defendants “shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known…” TEX. R. CIV. P. 252. 7. Defendants only attach the verification of DSW’s counsel, Jennifer Cully, who attests that the statements contained in the motion are within her personal knowledge and are true and correct. In its motion, Defendants identify the following individuals from whom testimony is purportedly required: 1. Mrs. Joy Soape (who was previously scheduled for deposition and unilaterally cancelled by Defendants); 2. Mr. Soape’s daughter and granddaughter (who Defendants have never requested to depose); Page 3 of 8 3. Mr. Soape’s grandson (who Defendant DSW said in email correspondence was someone it intended to depose but has never requested deposition dates); 4. Mr. Soape’s treating physicians (who Defendants have never requested despite being named as non-retained experts since July 17, 2018); 5. Plaintiff’s life care planner (who Defendants have never requested despite being named as an expert since July 17, 2018); 6. Plaintiff’s electrical experts (who Defendants have not requested deposition dates); 7. Plaintiff’s biomedical and electrical injury expert (who Defendants have not requested deposition dates); and 8. a DETCOG representative (who is not even identified). 8. As demonstrated in the notes above for each of these deponents, Defendants fail to identify what diligence, if any, has been utilized to procure the testimony of these individuals as required by the Texas Rules. Defendants also fail to identify in its’ motion why some of the deposition testimony is necessary at all (i.e. failing to explain the materiality of the anticipated testimony of the Soapes’ daughter and granddaughter or that of a DETCOG representative). It is also abundantly clear that Defendants cannot demonstrate any due diligence to procure the testimony of Mr. Soape’s treating physicians and life care planner and the cause of Defendants’ inability to obtain this testimony. Indeed, these experts have been named as either retained or non-retained experts since July 17, 2018. Defendants’ motion is therefore legally deficient under the Texas Rules. 9. To promote the completion of discovery, Plaintiffs recently noticed the deposition of one of Mr. Soape’s treating physicians who was scheduled to be deposed on April 29, 2019, but Defendants quashed that notice. Plaintiffs are also seeking additional deposition dates for its witnesses and has requested dated of Defendants’ experts promptly after receiving Defendants’ Page 4 of 8 expert designations on April 17, 2019. Plaintiffs believe these expert depositions can be scheduled in a timely manner. 10. The remaining points Defendants rely upon to support its need for a 120-day continuance also fail to substantiate the need for a trial continuance of this duration or how Defendants will suffer substantial harm or prejudice without a continuance. See TEX. R. CIV. P. 252. Specifically, Defendants argue 1) that it is lacking a medical exam of Mr. Soape, 2) the 911 recording of the call made by Mrs. Soape, and 3) some photographs. Notably, Plaintiffs have not objected to a medical exam which was requested on March 22, 2019 for the first time. Moreover, Plaintiffs have requested an agreed protocol for the examination, setting forth basic items such as location, scope of exam, and attendees, but to date, Defendants have not proposed any protocol so that the date of the examination can be secured. Once the protocol is established, however, the examination can easily occur prior to the June 17, 2019 trial setting. 11. Additionally, the actual existence of the recording of the 911 emergency phone call Mrs. Soape made after finding Mr. Soape on the ground and unconscious is also unclear, as Plaintiffs have attempted to obtain it but have been informed that it no longer exists. Specifically, Plaintiffs contacted the emergency dispatch center for Lufkin, TX and was told that they no longer had the recording in their possession. Finally, any complaints about missing photographs to the extent any such complaints have merit can be easily resolved well in advance of the current trial setting as well. 12. Defendants also seek a completely new docket control order ostensibly resetting all deadlines by which all parties have been abiding. A new docket control order is wholly unmerited as all parties have designated experts, pleadings and motion deadlines currently exist, and the remaining necessary discovery has been identified. Plaintiffs respectfully request that if a Page 5 of 8 continuance is granted, that only the discovery deadline and trial date be continued, leaving all other deadlines in place. 13. This matter was previously reset for trial on June 17, 2019, largely due to Mr. Soape’s health and general condition. Although the Defendants previously agreed to the June trial setting, Defendants are now requesting a 120-day continuance. Despite having failed to meet their burden in establishing the due diligence required for a continuance, Plaintiffs will agree to a short continuance of no more than 60 days. The urgency and necessity to set and maintain a trial date is incredibly real, and all of Defendants’ complaints regarding the necessary depositions can be resolved with a short 60-day trial continuance, at most. 14. This lawsuit has been on file since December 2017, and the June 2019 trial setting has also been calendared since the fall of last year. Considering all of these facts, a trial continuance of 120 days is unreasonable and is only sought for delay. Plaintiffs agree that there are a number of depositions that need to occur, but if a short continuance of 60 days allowed, there will be sufficient time to complete this discovery. In addition to the overall health condition of Mr. Soape and the hardship trial will cause, a preferential trial setting is also needed so that Plaintiffs can plan to have a health practitioner, such as a nurse, available to monitor Mr. Soape while the case is in trial. For all of the foregoing reasons, Plaintiffs do not object to a 60-day trial continuance so long as the matter can be preferentially set to occur in August 2019 or as is convenient for this Honorable Court, around this time period. CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully ask this Court to deny Defendants DSW Homes, LLC and AAK Electric, LLC’s Motion for Continuance and for Entry of an Amended Docket Control Order. If this matter is continued and reset with a preferential trial setting approximately 60 days from the current trial setting, Plaintiffs have no objection to the continuance Page 6 of 8 provided all deadlines except the close of discovery and trial setting remain in place. Finally, Plaintiffs seek any and all further relief to which they may be entitled both at law and in equity. Respectfully Submitted, WALSTON BOWLIN, LLP /s/ Joshua N. Bowlin JOSHUA N. BOWLIN josh@walstonbowlin.com State Bar No. 24037666 CLIFFORD WALSTON cliff@walstonbowlin.com State Bar No. 24037666 NATHANIEL J. ALFORD, III nate@walstonbowlin.com State Bar No. 24084871 4299 San Felipe Street Suite 300 Houston, TX 77027 (713) 300-8700 (713) 583-5020 Fax And ARNOLD & ITKIN, LLP KURT ARNOLD State Bar No. 24036150 karnold@arnolditkin.com J. KYLE FINDLEY State Bar No. 24076382 kfindley@arnolditkin.com 6009 Memorial Drive Houston, Texas 77007 (713) 222-3800 (713) 222-3850 Fax e-service@arnolditkin.com ATTORNEYS FOR PLAINTIFFS Page 7 of 8 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document was forwarded to opposing counsel pursuant to the Texas Rules of Civil Procedure on April 22, 2019. /s/ Joshua N. Bowlin JOSHUA N. BOWLIN Page 8 of 8