On October 29, 2019 a
Motion-Secondary
was filed
involving a dispute between
Dean, Billie,
Dean, Genevieve (As Next Friend Of Minors Exxx Dxxx And Cxxxx Dxxx,
Dean, Jack,
Dean, John (As Next Friend Of Minors Exxx Dxxx And Cxxxx Dxxx And As,
Dxxx, Cxxxx,
Dxxx, Exxx,
Payne, Jennifer,
Payne, Marilyn,
Payne, Robert,
Dean, Jordan D,
Payne, Jennifer (As Guardian Of Minor Children E D And C D And As,
and
Aghorn Oil & Gas Inc,
Aghorn Operating Inc,
Alliance Machine & Specialties Inc,
Donaldson Fire & Safety Inc,
Gilliam'S Aghorn Energy Inc,
Knighten Machine And Service Inc,
National Oilwell Varco L P,
Rudy, Kathy J,
Rudy, Russell T,
Russell T Rudy Energy Llc,
Russell T Rudy Ltd,
Sentinel Transportation Llc,
Superior Controls Inc,
for PERSONAL INJ (NON-AUTO)
in the District Court of Harris County.
Preview
CAUSE NO. 2019-79056
JACK DEAN, BILLIE DEAN, ROBERT IN THE DISTRICT COURT OF
PAYNE, MARILYN PAYNE, JOHN DEAN
AND GENEVIEVE DEAN AS NEXT
FRIENDS OF MINORS E.D. AND C.D.
AND AS REPRESENTATIVES OF THE
ESTATE OF JACOB DEAN, AND
JENNIFER PAYNE AS
REPRESENTATIVE OF THE ESTATE OF
NATALEE DEAN
Plaintiffs,
vs. HARRIS COUNTY, TEXAS
AGHORN OPERATING, INC., AGHORN
OIL & GAS, INC., GILLIAM’S AGHORN
ENERGY, INC., AND SENTINEL
TRANSPORTATION, LLC
Defendants JUDICIAL DISTRICT
PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO ALLIANCE MACHINE &
SPECIALTIES, INC.’S MOTION TO TRANSFER VENUE
COME NOW, Jack Dean and Billie Dean (collectively “Plaintiffs”), and file this
Supplemental Response
to Alliance Machine & Specialties, Inc.’s_ Alliance”) Motion to Transfer
Venue and in support thereof would show the following:
NTRODUCTION
Alliance was on notice, before it filed its Cross-Action against Jack Dean and invoked the
general jurisdiction of this Court, that if it wanted to have Jack Dean’s alleged responsibility
considered
by ajury it did not need
to do anything because Jack Dean was already a party to this
lawsuit. Despite this knowledge, Alliance chose to proceed
with asserting a Cross-Action, thereby
invoking the jurisdiction of this Court and waiving its Motion to Transfer Venue. See Grozier v.
B Sprinkler
& Plumbing Repair, 744 S.W.2d 306, 310 (Tex. App. Fort Worth 1988, writ
denied) (“. .when a party does not first seek a ruling on its plea of privilege, its benefits
may be
waived by... pleading
a cross action...)
ACKGROUND
On November 21, 2019, Plaintiffs filed their First Amended Petition, which named
Alliance Machine & Specialties, Inc. as a Defendant and alleged it was negligent in its inspection,
repair, maintenance and/or service of the pump that leaked on the date of the incident.
OnJanuary 17, 2020, Alliance filed
a Motion to Transfer
V enue and Answer, which sought
to name Plaintiff Jack Dean as a Responsible
Third Party.
On January 30, 2020, Plaintiffs filed an Objection to Alliance's attempted designation of
Jack Dean as a Responsible Third Party. That Objection stated in part:
Alliance’ s attempted designation of Plaintiff Jack Dean as a responsible third party is moot in that
he is already a party to this lawsuit and cannot properly be both responsible third part and
claimant(Emphasis added).
Section 33.of the Texas Civil Practice and Remedies Code spe __cificallyprovides:
(a) The trier of fact, as to each cause of action asserted, shall
determine the percentage of responsibility, stated in whole
numbers, for the following persons with respect to each person’ s
causingor contributing to cause in any way the harm for which
recovery
of damages is sought, whether
by negligent act or
omission, by any defective product, by other conduct — activity
that violates applicable legal standard, or by any combination
these:
(1) Claimant;
(2) each defendant;
(3) each settling person; and
(4) responsible third §=partywhohas
been
designated
under Section 33.004.
RAC ODE emphasis added)Thus, the Texas Civil Practice
and Remedies Code identifies four (4) classes of proportionately responsible parties and
differentiates between: (1) laimants (2) defendants; (3) ettlingersons and (4) responsible hird
arty
On February 4, 2020, shortly thereafter, Alliance’s counsel contacted Plaintiffs’ counsel
and stated as follows:
Youare correct in your objections to our designation of Jack Dean as a responsible
third party. We will amend and namehimas across defendant instead.
(Exhibit 1).
On February 4, 2020, Alliance filed its Cross Action against Jack Dean.
RGUMENT
Alliance knew, or should have known, before filing its Cross Action against Jack Dean
that if it wanted
to have any alleged fault on Jack Dean’ s part submitted to the jury it did not have
to do anything because Jack Dean was already a party to this lawsuit. Plaintiffs’ Objection
to
Alliance's attempt to designate Jack Dean as a responsible third party made it clear to Alliance
there are four (4) classes of proportionately responsible parties who are submitted
to the jury under
Chapter
33 of the Texas Civil Practice
and Remedies Code (1) laimants (2) defendants; (3)
etiling ersons and (4) responsible hird arty RAC ODE And
that Jack Dean is a claimant.
Despite this information, Alliance chose to charge forward with invoking this Court’s
general jurisdiction by naming Jack Dean as a Cross Defendant
and in doing so, waived its right
to challenge
venue in Haris County. See Dosseyv. Oehler, 359 S.W.2d 624, 626 (Tex. Civ. App
Eastland 1962, writ ref’d n.re.) (“[i]t is well settled that the presenting of a plea in abatement
or
other pleading in which a defendant invokes the active jurisdiction of the court is a waiver of a
Hea of privilege.”) (emphasis in original).
ONCLUSION
For the foregoing reasons, Alliance’ sMotion to Transfer Venue should be overruled.
Respectfully submitted,
ABRAHAM, WATKINS, NICHOLS,
SORRELS, AGOSTO AZIZ& STOGNER
/s/ Muhanad S, Aziz
MUHAMMAD S. AZIZ
State Bar No. 24043538
KARL P. LONG
State Bar No. 24070162
800 Commenve Street
Houston, Texas 77002
(713) 222
(713) 225 Facsimile
maziz@awtxlaw.com.
klong@awtxlaw.com
JOHN K. ZAID & ASSOCIATES
/sfJohn K. Zaid.
JOHN K. ZAID
State Bar No. 24037764
JOE I. ZAID
State Bar No. 24085675
RYANE. BILL
State Bar No. 24087038
16951 Feather Craft Lane
Houston, Texas 77058
(281) 333 Telephone
(888) 734 Facsimile
john@zaidlaw.com
joe@zaidlaw.com
ryan@zaidlaw.com
service@jkz.legal
J.D. SILVA & ASSOCIATES, PLLC
/s{Johnathan D. Silva
JOHNATHAN D. SILVA.
State Bar No. 24097258
16951 Feather Craft Lane
Houston, Texas 7705
(281) 971 Telephone
(877) 993 Facsimile
johnathan@)jdsilvalaw.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing document has been forwarded.
to all known counsel of record in this cause in accordance with the Texas Rules of Civil Procedure
on this day of May
/s/ Muhammad
§, Aziz
MUHAMMAD S. AZIZ
Preview
CAUSE NO. 2019-79056 JACK DEAN, BILLIE DEAN, ROBERT IN THE DISTRICT COURT OF PAYNE, MARILYN PAYNE, JOHN DEAN AND GENEVIEVE DEAN AS NEXT FRIENDS OF MINORS E.D. AND C.D. AND AS REPRESENTATIVES OF THE ESTATE OF JACOB DEAN, AND JENNIFER PAYNE AS REPRESENTATIVE OF THE ESTATE OF NATALEE DEAN Plaintiffs, vs. HARRIS COUNTY, TEXAS AGHORN OPERATING, INC., AGHORN OIL & GAS, INC., GILLIAM’S AGHORN ENERGY, INC., AND SENTINEL TRANSPORTATION, LLC Defendants JUDICIAL DISTRICT PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO ALLIANCE MACHINE & SPECIALTIES, INC.’S MOTION TO TRANSFER VENUE COME NOW, Jack Dean and Billie Dean (collectively “Plaintiffs”), and file this Supplemental Response to Alliance Machine & Specialties, Inc.’s_ Alliance”) Motion to Transfer Venue and in support thereof would show the following: NTRODUCTION Alliance was on notice, before it filed its Cross-Action against Jack Dean and invoked the general jurisdiction of this Court, that if it wanted to have Jack Dean’s alleged responsibility considered by ajury it did not need to do anything because Jack Dean was already a party to this lawsuit. Despite this knowledge, Alliance chose to proceed with asserting a Cross-Action, thereby invoking the jurisdiction of this Court and waiving its Motion to Transfer Venue. See Grozier v. B Sprinkler & Plumbing Repair, 744 S.W.2d 306, 310 (Tex. App. Fort Worth 1988, writ denied) (“. .when a party does not first seek a ruling on its plea of privilege, its benefits may be waived by... pleading a cross action...) ACKGROUND On November 21, 2019, Plaintiffs filed their First Amended Petition, which named Alliance Machine & Specialties, Inc. as a Defendant and alleged it was negligent in its inspection, repair, maintenance and/or service of the pump that leaked on the date of the incident. OnJanuary 17, 2020, Alliance filed a Motion to Transfer V enue and Answer, which sought to name Plaintiff Jack Dean as a Responsible Third Party. On January 30, 2020, Plaintiffs filed an Objection to Alliance's attempted designation of Jack Dean as a Responsible Third Party. That Objection stated in part: Alliance’ s attempted designation of Plaintiff Jack Dean as a responsible third party is moot in that he is already a party to this lawsuit and cannot properly be both responsible third part and claimant(Emphasis added). Section 33.of the Texas Civil Practice and Remedies Code spe __cificallyprovides: (a) The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’ s causingor contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective product, by other conduct — activity that violates applicable legal standard, or by any combination these: (1) Claimant; (2) each defendant; (3) each settling person; and (4) responsible third §=partywhohas been designated under Section 33.004. RAC ODE emphasis added)Thus, the Texas Civil Practice and Remedies Code identifies four (4) classes of proportionately responsible parties and differentiates between: (1) laimants (2) defendants; (3) ettlingersons and (4) responsible hird arty On February 4, 2020, shortly thereafter, Alliance’s counsel contacted Plaintiffs’ counsel and stated as follows: Youare correct in your objections to our designation of Jack Dean as a responsible third party. We will amend and namehimas across defendant instead. (Exhibit 1). On February 4, 2020, Alliance filed its Cross Action against Jack Dean. RGUMENT Alliance knew, or should have known, before filing its Cross Action against Jack Dean that if it wanted to have any alleged fault on Jack Dean’ s part submitted to the jury it did not have to do anything because Jack Dean was already a party to this lawsuit. Plaintiffs’ Objection to Alliance's attempt to designate Jack Dean as a responsible third party made it clear to Alliance there are four (4) classes of proportionately responsible parties who are submitted to the jury under Chapter 33 of the Texas Civil Practice and Remedies Code (1) laimants (2) defendants; (3) etiling ersons and (4) responsible hird arty RAC ODE And that Jack Dean is a claimant. Despite this information, Alliance chose to charge forward with invoking this Court’s general jurisdiction by naming Jack Dean as a Cross Defendant and in doing so, waived its right to challenge venue in Haris County. See Dosseyv. Oehler, 359 S.W.2d 624, 626 (Tex. Civ. App Eastland 1962, writ ref’d n.re.) (“[i]t is well settled that the presenting of a plea in abatement or other pleading in which a defendant invokes the active jurisdiction of the court is a waiver of a Hea of privilege.”) (emphasis in original). ONCLUSION For the foregoing reasons, Alliance’ sMotion to Transfer Venue should be overruled. Respectfully submitted, ABRAHAM, WATKINS, NICHOLS, SORRELS, AGOSTO AZIZ& STOGNER /s/ Muhanad S, Aziz MUHAMMAD S. AZIZ State Bar No. 24043538 KARL P. LONG State Bar No. 24070162 800 Commenve Street Houston, Texas 77002 (713) 222 (713) 225 Facsimile maziz@awtxlaw.com. klong@awtxlaw.com JOHN K. ZAID & ASSOCIATES /sfJohn K. Zaid. JOHN K. ZAID State Bar No. 24037764 JOE I. ZAID State Bar No. 24085675 RYANE. BILL State Bar No. 24087038 16951 Feather Craft Lane Houston, Texas 77058 (281) 333 Telephone (888) 734 Facsimile john@zaidlaw.com joe@zaidlaw.com ryan@zaidlaw.com service@jkz.legal J.D. SILVA & ASSOCIATES, PLLC /s{Johnathan D. Silva JOHNATHAN D. SILVA. State Bar No. 24097258 16951 Feather Craft Lane Houston, Texas 7705 (281) 971 Telephone (877) 993 Facsimile johnathan@)jdsilvalaw.com ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing document has been forwarded. to all known counsel of record in this cause in accordance with the Texas Rules of Civil Procedure on this day of May /s/ Muhammad §, Aziz MUHAMMAD S. AZIZ