Preview
Electronically Filed
7/24/2020 3:43 PM
Hidalgo County District Clerks
Reviewed By: Jose Hernandez
CAUSE NO. C-3763-19-G
DARLENE ADAMS KOONS IN THE DISTRICT COURT OF
VS HIDALGO COUNTY, TEXAS
ABEL BECERRA 370" JUDICIAL DISTRICT
DEFENDANT’S SUPPLEMENTAL RESPONSE TO PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, Abel Becerra, (Becerra) asks the Court to deny Plaintiff Darlene Adams Koons
(Koons) Motion for Partial Summary Judgment on Liability.
I
INTRODUCTION
1 Plaintiff, Darlene Adams Koons, sued Defendant, Abel Becerra for common law negligence
as a result of an alleged accident on June 8, 2018.
2. Defendant Becerra filed a Motion to Transfer Venue and subject thereto and answered
asserting a general denial, pleading comparative negligence and unavoidable accident among other
defenses.
3 Plaintiff has not filed a Response to Defendant’s Motion to Transfer Venue.
4 The Court has not made a ruling on Defendant’s Motion to Transfer Venue.
5 Defendant has requested and noticed the Plaintiff's deposition but Plaintiffs counsel filed
a Motion to Quash said deposition.
Electronically Filed
7/24/2020 3:43 PM
Hidalgo County District Clerks
Reviewed By: J ose Hernandez
6. A Zoom Court hearing was held on June 16, 2020 regarding Defendants prior Motion for
Continuance, Plaintiff's Motion to Compel and the Court Order for Plaintiff's deposition to occur
no earlier than two weeks after Mr. Becerra’s deposition which occurred on July 24, 2020.
Il.
BACKGROUND
7
Plaintiff Koons filed her Partial Motion for Summary Judgment as a Traditional and No
Evidence motion.
8 Defendant has filed a Motion for Continuance on Plaintiff's Motion for Summary Judgment
which is incorporated herein.
lll.
SUMMARY OF ARGUMENT
9 As stated above, Defendant has previously filed a Motion to Transfer Venue subject to his
answer to the lawsuit. Prior Courts have held that the filing ofa plea of privilege divests the Court
of jurisdiction to enter judgment against the defendant pending disposal of the plea of privilege. See
Wheeler V Keels, 584 S. W. 2d 574 (Tex. Civ. App. — Beaumont 1979, no writ); Texas — Louisiana
Power Co. v. Wells, 121 Tex. 397, 48 S.W. 2d 978, 981 (1932); Norrell v National Motor Club, 498
S.W. 2d 257, 260 ( Tex. Civ. App. Tyler 1973, writ ref’dn.r.e.). Rosenthal
v. Short, 582 S.W.2d 214,
215 (Tex. Civ. App. — Houston {1*. Dist.} 1979 writ dism’d).
10. Plaintiff has attached her own affidavit as summary judgment evidence. To be competent
summary judgment evidence, an interested witness’s testimony must be clear, positive, direct,
credible or free from contradiction, and susceptible to being readily controverted. See Tex. R. Civ.
P. 166a( c ).
Electronically Filed
7/24/2020 3:43 PM
Hidalgo County District Clerks
Reviewed By: J ose Hernandez
11. Plaintiff has failed to make herself available for a deposition as requested before filing her
motion. The Court has ordered that Plaintiff is to give her deposition no earlier than two weeks
following the deposition of Mr. Becerra which was taken on July 24, 2020.
Iv.
ARGUMENT
12. Defendant Becerra previously filed a Motion to Transfer Venue subject to his answer on
January 9, 2020. On January 17, 2020, Defendant propounded interrogatories, request for production
and request for admissions to plaintiff. In mid-March, 2020, the State of Texas, the United States,
and the World had begun and were in the process of undergoing massive shutdown, lockdown,
and/or stay-at-home orders. Plaintiff has not filed a response to Defendant’s Motion to Transfer
Venue. Prior Courts have held that the filing ofa plea of privilege divests the Court of jurisdiction
to enter judgment against the defendant pending disposal of the plea of privilege. See Wheeler V
Keels, 584 S. W. 2d 574 (Tex. Civ. App. — Beaumont 1979, no writ); Texas — Louisiana Power Co.
v. Wells, 121 Tex. 397, 48 S.W. 2d 978, 981 (1932); Norrell v National Motor Club, 498 S.W. 2d
257, 260 ( Tex. Civ. App. Tyler 1973, writ ref’d n.r.e.). Rosenthal v. Short, 582 S.W.2d 214, 215
(Tex. Civ. App. — Houston {1*. Dist.} 1979 writ dism’d). There has been no ruling on Defendant’s
Motion to Transfer Venue. A determination must be made on Defendant’s motion prior to trial.
Tex. R. Civ. P 87. Therefore, Plaintiffs Motion for Partial Summary Judgment on Liability should
be denied as a matter of law.
13. Plaintiff's affidavit in support of her on motion for summary judgment is unreliable. The
court should deny Plaintiff's Motion for Partial Summary Judgment on Liability because she is an
interested witness and her testimony is not one or more of the following: clear, positive, direct,
Electronically Filed
7/24/2020 3:43 PM
Hidalgo County District Clerks
Reviewed By: J ose Hernandez
credible or free from contradiction, and susceptible to being readily controverted. To be competent
summary judgment evidence, an interested witness’s testimony must be all of these things. See Tex.
R. Civ. P. 166a( c ). New Times, Inc v. Isaacks, 156 S.W. 3d 144, 164 (Tex. 2004); Trico Techs,
Corp. v. Montiel, 949 S.W. 2d 308, 310 (Tex. 1997). Plaintiffs affidavit is not free from
contradiction. Among other defenses, Defendant has pled contributory negligence on the part of
Plaintiff.
14. In addition, on May 12, 2020, prior to the filing of Plaintiff's Motion for Partial Summary
Judgment on Liability, Defendant’s counsel requested the deposition of Plaintiff. Plaintiffs counsel
did not respond. On May 27, 2020, Defendant’s counsel noticed the deposition of Plaintiff at
Plaintiff's counsel’s office for June 3, 2020. Two days later, on May 29, 2020, Plaintiffs counsel
filed a Motion to Quash the deposition. The court had a Zoom hearing on June 16, 2020 to resolve
the discovery issue. The Court Order dated July 9, 2020 gives Defendant the opportunity to take
Plaintiffs deposition no earlier than two weeks after the deposition of Mr. Becerra which was taken
on July 24, 2020. Defendant’s counsel has already requested dates from Plaintiff's counsel regarding
the deposition of Plaintiff.
15. The Agreed Docket Control Order provides that the written discovery period ends October
9, 2020 and the date for all depositions to be completed is November 2, 2020. Plaintiff should not
be able to file an affidavit claiming Defendant is liable and then shield herself from providing a
deposition on the issues of liability.
Vv.
CONCLUSION
16. Insummary, Plaintiffs Motion for Partial Summary Judgment on Liability should be denied
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7/24/2020 3:43 PM
Hidalgo County District Clerks
Reviewed By: J ose Hernandez
because this Court lacks jurisdiction to enter a partial judgment against Defendant on liability when
there is a pending Motion to Transfer Venue, Plaintiff's affidavit (an interested witness) is not free
from contradiction and susceptible to being readily controverted, and Plaintiff has not presented
herself for deposition despite the request prior to the filing of her motion.
WHEREFORE, PREMISES CONSIDERED, Defendant, Abel Becerra, prays that this Court
deny Plaintiff's Motion for Partial Summary Judgment on Liability and for such other and further
relief, both general and special, at law or in equity, to which this Defendant may be justly entitled.
Respectfully submitted,
BUSH + RAMIREZ
see-~
Matt W. Childs
State Bar No. 04202050
5615 Kirby Drive, Suite 900
Houston, Texas 77005
713 626-1555
713-622-8077, Fax
Email: mchilds.atty@bushramirez.com
Attorney for Defendant
ABEL BECERRA
Electronically Filed
7/24/2020 3:43 PM
Hidalgo County District Clerks
Reviewed By: Jose Hernandez
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing instrument has been e-filed with
the District Clerk of Hidalgo County, Texas and forwarded to all counsel of record by e-service,
certified mail/return receipt requested, regular mail, and/or facsimile on this the 24th day of July,
2020.
let—~
MATT W. CHILDS
Preview
Electronically Filed 7/24/2020 3:43 PM Hidalgo County District Clerks Reviewed By: Jose Hernandez CAUSE NO. C-3763-19-G DARLENE ADAMS KOONS IN THE DISTRICT COURT OF VS HIDALGO COUNTY, TEXAS ABEL BECERRA 370" JUDICIAL DISTRICT DEFENDANT’S SUPPLEMENTAL RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY TO THE HONORABLE JUDGE OF SAID COURT: Defendant, Abel Becerra, (Becerra) asks the Court to deny Plaintiff Darlene Adams Koons (Koons) Motion for Partial Summary Judgment on Liability. I INTRODUCTION 1 Plaintiff, Darlene Adams Koons, sued Defendant, Abel Becerra for common law negligence as a result of an alleged accident on June 8, 2018. 2. Defendant Becerra filed a Motion to Transfer Venue and subject thereto and answered asserting a general denial, pleading comparative negligence and unavoidable accident among other defenses. 3 Plaintiff has not filed a Response to Defendant’s Motion to Transfer Venue. 4 The Court has not made a ruling on Defendant’s Motion to Transfer Venue. 5 Defendant has requested and noticed the Plaintiff's deposition but Plaintiffs counsel filed a Motion to Quash said deposition. Electronically Filed 7/24/2020 3:43 PM Hidalgo County District Clerks Reviewed By: J ose Hernandez 6. A Zoom Court hearing was held on June 16, 2020 regarding Defendants prior Motion for Continuance, Plaintiff's Motion to Compel and the Court Order for Plaintiff's deposition to occur no earlier than two weeks after Mr. Becerra’s deposition which occurred on July 24, 2020. Il. BACKGROUND 7 Plaintiff Koons filed her Partial Motion for Summary Judgment as a Traditional and No Evidence motion. 8 Defendant has filed a Motion for Continuance on Plaintiff's Motion for Summary Judgment which is incorporated herein. lll. SUMMARY OF ARGUMENT 9 As stated above, Defendant has previously filed a Motion to Transfer Venue subject to his answer to the lawsuit. Prior Courts have held that the filing ofa plea of privilege divests the Court of jurisdiction to enter judgment against the defendant pending disposal of the plea of privilege. See Wheeler V Keels, 584 S. W. 2d 574 (Tex. Civ. App. — Beaumont 1979, no writ); Texas — Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W. 2d 978, 981 (1932); Norrell v National Motor Club, 498 S.W. 2d 257, 260 ( Tex. Civ. App. Tyler 1973, writ ref’dn.r.e.). Rosenthal v. Short, 582 S.W.2d 214, 215 (Tex. Civ. App. — Houston {1*. Dist.} 1979 writ dism’d). 10. Plaintiff has attached her own affidavit as summary judgment evidence. To be competent summary judgment evidence, an interested witness’s testimony must be clear, positive, direct, credible or free from contradiction, and susceptible to being readily controverted. See Tex. R. Civ. P. 166a( c ). Electronically Filed 7/24/2020 3:43 PM Hidalgo County District Clerks Reviewed By: J ose Hernandez 11. Plaintiff has failed to make herself available for a deposition as requested before filing her motion. The Court has ordered that Plaintiff is to give her deposition no earlier than two weeks following the deposition of Mr. Becerra which was taken on July 24, 2020. Iv. ARGUMENT 12. Defendant Becerra previously filed a Motion to Transfer Venue subject to his answer on January 9, 2020. On January 17, 2020, Defendant propounded interrogatories, request for production and request for admissions to plaintiff. In mid-March, 2020, the State of Texas, the United States, and the World had begun and were in the process of undergoing massive shutdown, lockdown, and/or stay-at-home orders. Plaintiff has not filed a response to Defendant’s Motion to Transfer Venue. Prior Courts have held that the filing ofa plea of privilege divests the Court of jurisdiction to enter judgment against the defendant pending disposal of the plea of privilege. See Wheeler V Keels, 584 S. W. 2d 574 (Tex. Civ. App. — Beaumont 1979, no writ); Texas — Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W. 2d 978, 981 (1932); Norrell v National Motor Club, 498 S.W. 2d 257, 260 ( Tex. Civ. App. Tyler 1973, writ ref’d n.r.e.). Rosenthal v. Short, 582 S.W.2d 214, 215 (Tex. Civ. App. — Houston {1*. Dist.} 1979 writ dism’d). There has been no ruling on Defendant’s Motion to Transfer Venue. A determination must be made on Defendant’s motion prior to trial. Tex. R. Civ. P 87. Therefore, Plaintiffs Motion for Partial Summary Judgment on Liability should be denied as a matter of law. 13. Plaintiff's affidavit in support of her on motion for summary judgment is unreliable. The court should deny Plaintiff's Motion for Partial Summary Judgment on Liability because she is an interested witness and her testimony is not one or more of the following: clear, positive, direct, Electronically Filed 7/24/2020 3:43 PM Hidalgo County District Clerks Reviewed By: J ose Hernandez credible or free from contradiction, and susceptible to being readily controverted. To be competent summary judgment evidence, an interested witness’s testimony must be all of these things. See Tex. R. Civ. P. 166a( c ). New Times, Inc v. Isaacks, 156 S.W. 3d 144, 164 (Tex. 2004); Trico Techs, Corp. v. Montiel, 949 S.W. 2d 308, 310 (Tex. 1997). Plaintiffs affidavit is not free from contradiction. Among other defenses, Defendant has pled contributory negligence on the part of Plaintiff. 14. In addition, on May 12, 2020, prior to the filing of Plaintiff's Motion for Partial Summary Judgment on Liability, Defendant’s counsel requested the deposition of Plaintiff. Plaintiffs counsel did not respond. On May 27, 2020, Defendant’s counsel noticed the deposition of Plaintiff at Plaintiff's counsel’s office for June 3, 2020. Two days later, on May 29, 2020, Plaintiffs counsel filed a Motion to Quash the deposition. The court had a Zoom hearing on June 16, 2020 to resolve the discovery issue. The Court Order dated July 9, 2020 gives Defendant the opportunity to take Plaintiffs deposition no earlier than two weeks after the deposition of Mr. Becerra which was taken on July 24, 2020. Defendant’s counsel has already requested dates from Plaintiff's counsel regarding the deposition of Plaintiff. 15. The Agreed Docket Control Order provides that the written discovery period ends October 9, 2020 and the date for all depositions to be completed is November 2, 2020. Plaintiff should not be able to file an affidavit claiming Defendant is liable and then shield herself from providing a deposition on the issues of liability. Vv. CONCLUSION 16. Insummary, Plaintiffs Motion for Partial Summary Judgment on Liability should be denied Electronically Filed 7/24/2020 3:43 PM Hidalgo County District Clerks Reviewed By: J ose Hernandez because this Court lacks jurisdiction to enter a partial judgment against Defendant on liability when there is a pending Motion to Transfer Venue, Plaintiff's affidavit (an interested witness) is not free from contradiction and susceptible to being readily controverted, and Plaintiff has not presented herself for deposition despite the request prior to the filing of her motion. WHEREFORE, PREMISES CONSIDERED, Defendant, Abel Becerra, prays that this Court deny Plaintiff's Motion for Partial Summary Judgment on Liability and for such other and further relief, both general and special, at law or in equity, to which this Defendant may be justly entitled. Respectfully submitted, BUSH + RAMIREZ see-~ Matt W. Childs State Bar No. 04202050 5615 Kirby Drive, Suite 900 Houston, Texas 77005 713 626-1555 713-622-8077, Fax Email: mchilds.atty@bushramirez.com Attorney for Defendant ABEL BECERRA Electronically Filed 7/24/2020 3:43 PM Hidalgo County District Clerks Reviewed By: Jose Hernandez CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing instrument has been e-filed with the District Clerk of Hidalgo County, Texas and forwarded to all counsel of record by e-service, certified mail/return receipt requested, regular mail, and/or facsimile on this the 24th day of July, 2020. let—~ MATT W. CHILDS