Preview
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NO. 2011-45607
RENEE KUSMER, INDIVIDUALLY § IN THE DISTRICT COURT
AND RENEE KUSMER, AS A/N/F OF §
JESSE MCINTYRE, JR. §
§
VS § 127TH JUDICIAL DISTRICT
§
FIRST START LEARNING §
ACADEMY § HARRIS COUNTY, TEXAS
DEFENDANT'S MOTION IN OPPOSITION OF
PLAINTIFFS' MOTION TO REOPEN EVIDENCE
NOW COMES Defendant. FIRST START LEARNING ACADEMY, Non-Movant in
responds to Plaintiffs’, RENEE KUSMER, IND. and A/N/E of JESSE MCINTYRE, JR.. Movants
Motion to Reopen Evidence. Non-Movant requests this Court to sustain Non-Movants” objection to
said motion and in support submits the following:
I
Texas Rule of Civil Procedure 270 allows a trial court to permit additional evidence to be
offered at any time when it clearly appears to be necessary to the due administration of justice. TEX.
R. CIV. P. 270. Rule 270 allows, but does not require, the court lo permit additional evidence. See
id: Krishnan v. Ramirez, 42 S.W.3d 205, 223 (Tex.App.-Corpus Christi 2001, no pet.). In
determining whether to grant a motion to reopen, the trial court considers whether: (1) the moving,
party showed due diligence in obtaining the evidence, (2) the proffered evidence is decisive, (3)
reception f such evidence will cause undue delay, and (4) granting the motion will cause an injustice.
Word of Faith World Outreach v. Oechsner, 669 8.W 2d 364, 366-67 (Tex.App.-Dallas 1984, no
writ). “It is within the trial courts discretion and will be disturbed on appeal only when clear abuse
has been shown.” See Guerrero v. Standard Alloys Mfg. Co., 898 8. W.2d 656, 658 (1 ex.App.-
Beaumont 1980, writ ref'd n.v.e.). However, a trial court does not abuse its discretion by refusing to
12/19/2012 12:23:04 PM 713-755-1451 Page 3/4
reopen a case after evidence is closed if the party secking 10 reopen has not shown
diligence in
attempting to produce the evidence ina timely fashion. See Estrella v,
Elboar, 965 8. W.2d 75. 4, 759
(Tex.App.-Fort Worth 1998, no pet.) (citing McNamara v. Fulks, 855 S.W 2d 782,
784 (Tex.App.-El
Paso 1993, no writ),
TL.
Pursuant to Rule 270 and the cases provided, the Moving party must prove
that they were
diligent in securing the additional evidence. The Plaintiffs knew that areport had been
prepared with
regard to the incident. ‘The Plaintiffs knew this as early as of the date this lawsuit was filed,
April 14,
2010. The Plaintiffs could have, if he were diligent, subpoenaed the report and
had it available for
trial. In the alternative, the Plaintiffs attorney could have moved for a continuance
at the Pre-Trial
Conference on September 17, 2012 if he were worried about not having the required evidence.
The report contains matters which were raised on the presentation of the evidence during the
trial. The Plaintiffs’ attorney brought out the allegations made in the report and to allow theattorncy
to reopen the evidence would not bring any new evidence to the Court. Pursuant to Hernandez y.
Lautersack, 201 8.W.3d 772 (Tex.App.-Fort Worth 2006), “Rule 270 allows, bul docs not require,
the Court to permit additional evidence. Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex.App.-Corpus
Christi 2001, no pet.)
A trial Court does not abuse its discretion by refusing to reopen a case after evidence is
closed if the party seeking to reopen has not shown diligence in aliempting to produce the evidence
ina timely fashion. Hernandez v. Lautersack, id. By the Plaintiffs own admission, he knew of the
evidence on November 2, 2011. Plaintiffs’ attorney never attempted to subpoena the evidence for
trial. Therefore, the Plaintiffs failed the diligence requirement for reopening the evidence.
WHEREFORE PREMISES CONSIDERED, Defendant, FIRST START LEARNING
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ACADEMY prays this Court will sustain its opposition/objection to Plaintiffs’ Motion to Reopen
Evidence, Defendant further prays the Court enters judgment in favor of Defendant, and such other
and further relief as Defendant may be entitled to in law or in equity.
Respectfully submitted.
Law Office of Cici Agomo Brown
By: Cte
Chinyere Agomo
Texas Bar No. 00786960
2323 South Voss Road, Suite 555
Houston, Texas 77057
Tel, (713) 782-5551
Fax. (713) 782-6239
Attorney for Defendant
CERTIFICATE OF SERVICE
| certify that on November 30, 2012 a true and correct copy of Defendant's Motion in
Opposition of Plaintiffs” Motion to Reopen Evidence was served on all party in accordance with the
Texas Rules of Civil Procedures.
Che
Chinyere Agomo
Preview
12/19/2012 12:23:04 PM 713-755-1451 Page 2/4 NO. 2011-45607 RENEE KUSMER, INDIVIDUALLY § IN THE DISTRICT COURT AND RENEE KUSMER, AS A/N/F OF § JESSE MCINTYRE, JR. § § VS § 127TH JUDICIAL DISTRICT § FIRST START LEARNING § ACADEMY § HARRIS COUNTY, TEXAS DEFENDANT'S MOTION IN OPPOSITION OF PLAINTIFFS' MOTION TO REOPEN EVIDENCE NOW COMES Defendant. FIRST START LEARNING ACADEMY, Non-Movant in responds to Plaintiffs’, RENEE KUSMER, IND. and A/N/E of JESSE MCINTYRE, JR.. Movants Motion to Reopen Evidence. Non-Movant requests this Court to sustain Non-Movants” objection to said motion and in support submits the following: I Texas Rule of Civil Procedure 270 allows a trial court to permit additional evidence to be offered at any time when it clearly appears to be necessary to the due administration of justice. TEX. R. CIV. P. 270. Rule 270 allows, but does not require, the court lo permit additional evidence. See id: Krishnan v. Ramirez, 42 S.W.3d 205, 223 (Tex.App.-Corpus Christi 2001, no pet.). In determining whether to grant a motion to reopen, the trial court considers whether: (1) the moving, party showed due diligence in obtaining the evidence, (2) the proffered evidence is decisive, (3) reception f such evidence will cause undue delay, and (4) granting the motion will cause an injustice. Word of Faith World Outreach v. Oechsner, 669 8.W 2d 364, 366-67 (Tex.App.-Dallas 1984, no writ). “It is within the trial courts discretion and will be disturbed on appeal only when clear abuse has been shown.” See Guerrero v. Standard Alloys Mfg. Co., 898 8. W.2d 656, 658 (1 ex.App.- Beaumont 1980, writ ref'd n.v.e.). However, a trial court does not abuse its discretion by refusing to 12/19/2012 12:23:04 PM 713-755-1451 Page 3/4 reopen a case after evidence is closed if the party secking 10 reopen has not shown diligence in attempting to produce the evidence ina timely fashion. See Estrella v, Elboar, 965 8. W.2d 75. 4, 759 (Tex.App.-Fort Worth 1998, no pet.) (citing McNamara v. Fulks, 855 S.W 2d 782, 784 (Tex.App.-El Paso 1993, no writ), TL. Pursuant to Rule 270 and the cases provided, the Moving party must prove that they were diligent in securing the additional evidence. The Plaintiffs knew that areport had been prepared with regard to the incident. ‘The Plaintiffs knew this as early as of the date this lawsuit was filed, April 14, 2010. The Plaintiffs could have, if he were diligent, subpoenaed the report and had it available for trial. In the alternative, the Plaintiffs attorney could have moved for a continuance at the Pre-Trial Conference on September 17, 2012 if he were worried about not having the required evidence. The report contains matters which were raised on the presentation of the evidence during the trial. The Plaintiffs’ attorney brought out the allegations made in the report and to allow theattorncy to reopen the evidence would not bring any new evidence to the Court. Pursuant to Hernandez y. Lautersack, 201 8.W.3d 772 (Tex.App.-Fort Worth 2006), “Rule 270 allows, bul docs not require, the Court to permit additional evidence. Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex.App.-Corpus Christi 2001, no pet.) A trial Court does not abuse its discretion by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown diligence in aliempting to produce the evidence ina timely fashion. Hernandez v. Lautersack, id. By the Plaintiffs own admission, he knew of the evidence on November 2, 2011. Plaintiffs’ attorney never attempted to subpoena the evidence for trial. Therefore, the Plaintiffs failed the diligence requirement for reopening the evidence. WHEREFORE PREMISES CONSIDERED, Defendant, FIRST START LEARNING 12/19/2012 12:23:04 PM 713-755-1451 Page 4/4 ACADEMY prays this Court will sustain its opposition/objection to Plaintiffs’ Motion to Reopen Evidence, Defendant further prays the Court enters judgment in favor of Defendant, and such other and further relief as Defendant may be entitled to in law or in equity. Respectfully submitted. Law Office of Cici Agomo Brown By: Cte Chinyere Agomo Texas Bar No. 00786960 2323 South Voss Road, Suite 555 Houston, Texas 77057 Tel, (713) 782-5551 Fax. (713) 782-6239 Attorney for Defendant CERTIFICATE OF SERVICE | certify that on November 30, 2012 a true and correct copy of Defendant's Motion in Opposition of Plaintiffs” Motion to Reopen Evidence was served on all party in accordance with the Texas Rules of Civil Procedures. Che Chinyere Agomo