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9/13/2020 9:18 PM
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Marilyn Burgess - District Clerk Harris County
Envelope No. 46183974
By: Lewis John-Miller
Filed: 9/14/2020 12:00 AM
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CAUSE NO. 2020-31023
ROBERT L. MOODY, JR. IN THE DISTRICT COURT OF
CLER, 1HIN
KD I ARD
HARRIS COUNTY, a BARD.
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55 TUNG ib aleteg
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SOunry, Texag
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GREER, HERZ, & ADAMS, LLP,
IRWIN “BUDDY” HERZ, JR. and
ROSS RANKIN MOODY JURY TRIAL DEMANDED
PLAINTIFF ROBERT L. MOODY, JR.’S CONSOLIDATED RESPONSE TO
DEFENDANTS’ MOTIONS TO TRANSFER VENUE AND OBJECTION TO
DEFENDANTS’ EVIDENCE IN SUPPORT OF DEFENDANTS’ MOTIONS TO
- TRANSFER VENUE
Respectfully submitted,
THE BUZBEE LAW FIRM
By: /s/ Anthony G. Buzbee
Anthony G. Buzbee
S tate Bar No. 2400182
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avi erge
State Bar No. 24097371
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Brittany C. Ifejika
State Bar No. 24111 on
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SAL.
J.P. Morgan Chase Towe r
600 Travis, Suite 7300
Houston, Texas 77002
Telephone: (713) 223-5393
Facsimile: (713) 223-5909
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ATTORNEYS FOR PLAINTIFF
ROBERT L. MOODY, JR.
—cv— 1564
DCRESPONSE
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CERTIFICATE OF SERVICE
I certify that this document has been furnished to the attorneys below in accordance with
Texas Rule of Civil Procedure 21 and 21a by the Court’s electronic filing system on September
13, 2020
Robin C. Gibbs, David J. Beck
Tex. Bar No. 07853000 Tex. Bar No. 00000070
raibbsi@sibbsbruns.com dbeck@beckredden com
Samuel W. Cruse, III B.D. Daniel
State Bar No. 24036423 Tex. Bar No. 05362200
scrusedigibbsbruns.com bddantel@beckredden
Arcee ERE REE com
Ross M. MacDonald Allison Standish Miller
State Bar No 24087956 Tex. Bar No. 24046440
tmacde DS Druns COD aroul sredden.¢ v0
Gibbs & Bruns, LLP, Beck Redden LLP
1100 Louisiana, Suite 5300 Houston Office
Houston, Texas 77002 1221 McKinney Street
Tel: 713.751/5217 Suite 4500
Fax: 713.750.0903 Houston, Texas 77010
Tel: 713.951.6209
COUNSEL FOR DEFENDANT Fax: 713.951.3720
IRWIN “BUDDY” HERZ, JR.
COUNSEL FOR DEFENDANT
Harry M. Reasoner GREER, HERZ & ADAMS, LLP
Tex. Bar No. 16642000
hreasoner@velaw.com Ss‘ AnthonyG. Buzbee
Stacey Neumann Vu Anthony G. Buzbee
Tex. Bar No. 24047047
syu@velaw.com
Page Robinson
Tex. Bar No. 24093053
yrobinsorGvelaw.com
Shelby Hart-Armstrong
Tex. Bar No. 24116490
Shart-armstrongi@velaw com
Vinson & Elkins, LLP
1001 Fannin Street
Suite 2500
Houston, Texas 77002
Tel: 713.758.2358
Fax: 713.615.5173
COUNSEL FOR DEFENDANT
ROSS RANKIN MOODY
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‘ SUMMARY OF OVERWHELMING EVIDENCE THAT HERZ HAS A HARRIS COUNTY RESIDENCE
e Both Herz and his wife admit they have a “second home” in Houston (Herz’s
Motion, p. 5) and have had it for nineteen years (Exh. C, Deposition of Barbara
Herz, dated Aug. 25, 2020, p. 8:15-9:6);
When asked about the Herz Houston residence, Herz’s wife admitted in her
deposition that “We’ve lived there for 19 years;” (Exh. C, p. 19:8)
Herz and his wife have consistently occupied the Houston residence two to
three times per month for several days each visit, for nineteen years; (Exh. C,
p.10:12-14; 17:19-24)
Herz and his wife purchased the Houston residence to be close to their children
and grandchildren, who reside in Houston; (Exh. C, p. 11:2-5)
Herz and his wife use his Houston residence like any other person uses a
residence, by keeping food in the pantry at the residence (Exh. C, p. 13:21-
14:5); maintaining a home phone at the residence (Exh. B, p. 13:5-7) keeping
changes of clothes at the residence (Exh. C, p. 15:15-17); keeping kitchen
supplies to routinely cook-in at the residence; grocery shopping locally to keep
food at the residence (Exh. C, p. 14:6-9, 14:16-15:14); keeping children’s toys
for routine babysitting at the residence (Exh. C, p. 15:23-25; 17:10; 21:8-9);
keeping bathroom supplies at the residence (Exh. C, p. 15:18-19);, employing
routine maintenance staff at the residence (Exh. C, p. 19:16-20:3); and making
renovations at the residence; (Exh. C, p. 18:1-11)
Herz and his spouse regularly attend Rice University basketball, football and
baseball games and frequent local restaurants in Houston while at their Houston
residence; and (Exh. C, p. 17:7-8; 14:6-21)
Herz and his wife have no plans to sell the Houston residence and never lease
it or rent it. (Exh. C, p. 12-14)
Distinguished Civil Proceduralist, Scholar, Author, Professor, and Expert David Crump
Affirms Unequivocally that Herz Maintains a Houston Residence (Exh. B)
e “In fact, Herz’s citation of cases virtually concedes the residence issue when
taken together with his allegations of fact. He states as a fact that Harris County
is a “second home.” (Exh. B, p. 2)
“Mr. Herz’s Harris County residence is a fixed place of abode” because “the
residence has been in the same place, unchanged, for all of these years” and
“Herz owns it.” (Exh. B, p. 4)
“The residence has been occupied and intended to be occupied over a
substantial period of time.” (Exh. B, p. 4)
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“The residence is permanent rather than temporary. The real estate has not
changed and neither has Mr. Herz’s ownership of it.” (Exh. B, p. 5)
“A ‘second home,’ which Mr. Herz states that he owns in Harris County, is a
residence. There is no distinction between primary and secondary homes. . .
Mr. Herz’s Harris County home is unquestionably a residence.” (Exh. B, p. 5)
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TABLE OF CONTENTS
Procedural and Factual Background
A Factual Background
B Procedural Background
Il Venue Standard: The Plaintiff's Choice of Venue Controls if it Is a County of Proper
Venue Pee eee nee eee ee ee ee eee teeter tenes
Courts Conduct a Three-Step Analysis in Determining Proper Venue 11
1 Step One: Defendants Only Tool to Object to Harris County is Through
Specific Denials 11
Step Two: Plaintiff Must Present Prima Facie Evidence Regarding
Denied Venue Facts. ........0.0cccccccccccccccscssscseseseseeenececseseceneescsesesesesenenenseaees 11
Step Three: If Plaintiff Cannot Raise Prima I‘acie Proof to Support
Venue in the County of Suit, a Defendant Can Raise Evidence that
Venue is Proper in Another County 13
Ill. This Court Should Strike Defendants' Argument and Supporting Evidence Intending to
Show that Venue is Improper in Harris County Because Such Evidence is Irrelevant to
this Court's Inquiry 14
IV. Argument and Authorities 14
A Defendants Failed to Specifically Deny Numerous Facts Plaintiff Pled in
Support of Venue. This Proves Fatal to Defendants' Motions 16
1 Plaintiff's Pled Venue Facts. ...0..0.00.0.00ccccccccceeceececsetetees 16
2 Defendants' Specific Denials Are Only General, Global Denials 17
3 Because Defendants Did Not Specifically Deny Each of Plaintiff's Pled
Facts Regarding Venue, These Facts Must be Taken as True 19
When Taken as True, These Facts Prove Fatal to Defendants' Motions
Because These Facts Satisfy the Requirements for Mandatory or
Permissive Venue 20
Harris County is a County of Mandatory Venue Because Herz is a Resident of
Harris County as Well as Galveston County 22
1 A Party Can Have More Than One Residence for Venue Purposes . 22
2 The Texas Supreme Court Recognizes a Three-Part Test for Residency . 23
3 Herz has a Harris County Residence Because He Owns a Condominium
in Houston That He Regularly Visits 24
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4 Because Herz is a Resident of Harris County, as well as Galveston
County, Venue is Proper in Harris County under the Mandatory Venue
Statute 26
Because Venue is Proper in Harris County as to Herz, it is proper in Harris
County as to all of the Defendants 26
Because a Mandatory Venue Provision Applies, the Permissive Venue Statute
Does Not Apply 26
Even if the Mandatory Venue Provision Does Not Apply, Venue is Still Proper
in Harris County Under the Permissive Venue Statute Because Herz Resides in
Harris County 27
The Defendants Have Not Established that Keeping This Case in Harris County
Would Work an Injustice to them, so this Court Should Deny the Defendants’
Motion for a Convinience Transfer 27
Because Defendants Raised Transfer Grounds Based on Convenience, Plaintiff
is Required to Specifically Deny Facts Relating to This Ground or such Facts
are Taken as True 30
1 Specific Denial as to Ross Moody’s Venue Facts Relating to Transfer
Based on Convenience 31
Specific Denial as to GHA’s Venue Facts Relating to Transfer Based on
Convenience 31
Specific Denial as to Herz’s Venue Facts Relating to Transfer Based on
Convenience 32
Vv Conclusion 33
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4 SUMMARY OF PLAINTIFF BOBBY MOODY, JR.’S OBJECTION AND RESPONSE
This Court should deny Defendants’ Motions to Transfer Venue for the following reasons:
e Defendants attached evidence to their Motions in an attempt to
improperly show that Harris County is not a proper venue. But
Defendants’ evidence as to this issue is irrelevant because this is not
a contested evidentiary proceeding. For the present analysis,
Defendants can only specifically deny Plaintiff’s pled venue facts. If
they fail to do so, those facts are taken as true. As to facts they deny,
Plaintiff need only raise minimal, prima facie evidence that Harris
County is a proper venue; such evidence is not subject to rebuttal,
cross-examination, or a credibility determination. If Plaintiff does
so, Harris County can be the only county of proper venue. Because
Defendants improperly attached evidence in an attempt to
disprove/rebut Plaintiff's choice of venue, such evidence must be
stricken.
Setting aside
the fact that the evidence overwhelmingly
demonstrates that Herz maintains a residence in Harris County,
venue is proper in Harris County because Defendants did not
specifically deny each and every fact Plaintiff pled to support venue
in Harris County. These facts are thus taken as true and establish
that venue is proper in Harris County. Defendants’ failure alone
proves fatal to their meritless Motions.
Venue is mandatory in Harris County under Texas Property Code
§ 115.002 because Plaintiff's prima facie proof confirms that
Trustee Herz has a residence in Harris County because his
residence: (1) is a fixed place of abode within Herz’s possession; (2)
is permanent rather than temporary; and (3) it has been occupied
consistently for almost twenty years. Therefore, Herz resides in
Harris County, and Harris County is a county of mandatory venue
under Trust Code § 115.002.
Because mandatory venue is good as to Herz, it is good as to all
Defendants.
Even if the mandatory venue provision did not apply (which
Defendants admit it does), permissive venue is proper in Harris
County under CPRC § 15.002(a)(2) because Herz resides in Harris
County.
Lastly, Defendants have not (nor can they) carry their heavy
burden to establish that litigating this case in Harris County would
work a serious injustice to them; thus, any effort to transfer this
case due to “convenience,” fails.
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4 PLAINTIFF’S CONSOLIDATED RESPONSE TO DEFENDANTS’ MOTIONS TO TRANSFER AND
OBJECTION TO DEFENDANTS’ EVIDENCE IN SUPPORT OF DEFENDANTS’ MOTIONS
TO TRANSFER VENUE
Plaintiff Robert L. Moody, Jr. files this Consolidated Response to Defendants’ Motions to
Transfer and Objection to Defendants’ evidence supporting their Motions to Transfer Venue filed
by Defendants Ross Rankin Moody (“Ross Moody”), Irwin “Buddy” Herz, Jr. (“Herz”), and Greer,
Herz, & Adams, LLP (“GHA”) (collectively “Defendants”).!
I. Procedural and Factual Background.
A. Factual Background.
This is an egregious case of a trustee and lawyer taking advantage of his position to
exponentially enrich himself, his law firm, and his family.? The facts are overwhelming, and most
are not in dispute.
After the patriarch of the Moody family, Robert L. Moody, Sr., became sick, he executed—
at the urging of Defendant Herz and Herz’s co-conspirator Defendant Ross Moody—a power of
attorney ceding control of his substantial and complex business interests to the Moody National
Bank Trust Department. At a later date, Robert L. Moody, Sr. stepped down from multiple
business and charitable boards that control the billions of dollars that make up the Moody interests.
Herz and Ross Moody have used that power of attorney and Robert L. Moody, Sr.’s sickness not
only as an opportunity to exponentially enrich Herz’s law firm Defendant GHA, but also to enrich
Herz and Ross Moody themselves. Due to their efforts, now Ross Moody, along with Herz, have
gained control of the Moody fortune and the Moody legacy to the detriment of Herz’s long-term
' Defendant Ross Moody’s Motion to Transfer Venue and, Subject to His Motion to Transfer Venue, Original Answer,
Special Exception, and Counterclaim to Plaintiff's Petition (“Ross Moody Motion”) (filed July 13, 2020); Defendant
Herz’s Motion to Transfer Venue to Galveston County. and, Subject to that Motion, His Original Answer and
Affirmative Defenses (“Herz Motion”) (filed July 13, 2020); and Defendant GHA’s Motion to Transfer Venue and
Original Answer Subject Thercto (‘GHA Motion”) (filed July 13, 2020).
? See Plaintiff's First Amended Petition (“Pet.”) at 1-2 (filed May 21, 2020).
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legal client, Bobby Moody, Jr—the oldest son and namesake of Robert L. Moody, Sr. Herz, aided
and abetted by Ross Moody, and with Ross Moody’s knowing participation, did so, despite Herz’s
fiduciary obligations to Bobby Moody, Jr. as beneficiary of the Trust that controls a substantial
portion of the Moody fortune, and despite the fact that Herz, and his firm GHA, were legal counsel
to Bobby Moody, Jr.
B. Procedural Background.
On May 21, 2020, Plaintiff filed a thirty-two-page Petition, with very specific factual
allegations.’ Plaintiff's live pleading includes several grounds for why venue is mandatory in
Harris County, and, alternatively, Plaintiff also plead that venue is proper in Harris County using
a permissive venue analysis. First, venue is mandatory in Harris County pursuant to Texas Property
Code § 115.002 because Trustee Herz resides in Harris County.’ Second, venue is permissive in
Harris County pursuant to Texas Civil Practice & Remedies Code § 15.002(a)(2) because Herz
resides in Harris County.> Third, venue is permissive in Harris County pursuant to Texas Civil
Practice & Remedies Code § 15.002(a)(1) because Trustee Herz’s wrongful conduct substantially
occurred and damaged Trust assets in Harris County, Texas and two contingent beneficiaries reside
and are being damaged in Harris County, Texas.®
On July 13, 2020, Defendants separately answered the lawsuit and, in an attempt to avoid
this forum and transfer to what they perceive to be a much more favorable venue, filed frivolous
motions to transfer venue to Galveston County, Texas.’ These motions misrepresent the law, the
* See Plaintiff’s First Amended Petition (“Pet.”) at 1-2 (the original was filed May 21, 2020).
‘Pet. at p. 5.
> Pet. at p. 5.
6 Pet. at p. 5.
7 See footnote 1.
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venue-standard, and contain irrelevant evidence that has nothing to do with this Court’s venue
analysis.
The primary argument contained in Defendants’ Motions is that Harris County can only be
a proper forum for both mandatory and permissive venue purposes if Trustee Herz resides in Harris
County—Plaintiff absolutely agrees with this premise. But, the Defendants then go to great lengths
focusing on where Herz votes, where he registers his car, where he maintains his “primary home,”
where he claims a Homestead exemption, where he offices and multiple other inquiries that have
NOTHING to do with where he has one or more residences for purposes of the venue analysis
before this Honorable Court. The analyses to determine one’s “residence” versus one’s “domicile”
are two very different inquiries. The residence analysis is straightforward and simple. When an
individual owns a fixed abode—here a condominium—for more than nineteen years with no
intention to sell; a place he frequents with his spouse two to three times a month for two days or
more at a time for those nineteen years; a place where he pays $1,800 a month in dues, pays for
routine maintenance and upkeep, pays for periodic improvements, a place where he keeps clothes,
kitchen supplies, bathroom supplies, a home phone, and toys for his grandchildren—that abode
overwhelmingly qualifies as a residence for purposes of venue under Texas case law, regardless
whether he claims it as his primary or secondary home. Defendants’ focus on whether Herz’s
Houston home is his “domicile” (Homestead, voting and car registration, primary home, etc.), is
misleading, irrelevant, and to be frank, insulting to this Court and its staff.
In support of their Motions to Transfer, Defendants rely on a series of exhibits filed by
Herz and others in arguing that Harris County is not a proper venue and instead Galveston County
is the only county of proper venue because Herz (allegedly) does not reside in Harris County, only
resides in Galveston County, Texas, and a substantial part of the acts or omissions giving rise to
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the claim did not occur in Harris County.* GHA also attached a detailed affidavit from a GHA
employee as evidence of these same issues, and GHA argues at length that “Venue is not proper
in Harris County.” Defendants’ efforts border on hysterical, but, clearly are irrelevant to the
present analysis.
For the reasons that follow, all of Defendants’ proffered “evidence” is not only irrelevant,
but such is contrary to the procedure with which the Court is to analyze the existing Motions.
Defendants’ Motions border on being frivolous, and should be denied.
II. Venue Standard: The Plaintiff's Choice of Venue Controls if it
Is a County of Proper Venue.
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“In Texas, the plaintiff has the right to choose venue in the first instance. If “a
mandatory venue provision permits suit in one of several counties, the plaintiff may choose from
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among the permissible counties.
“The ultimate goal in any venue-transfer analysis is first to determine whether the
plaintiff's choice is appropriate. If so, that choice must be upheld, even if the venue the defendant
® Herz cites to the following exhibits to show that “venuc in Harris County would be improper,” “none of the
Defendants reside in Harris County,” and “a substantial party of the alleged actions that gave rise to this litigation did
not occur in Harris County.” Specifically, Exhibit 1 (former lawsuit brought by Plaintiff in Galveston County); Exhibit
2 (former lawsuit brought by Plaintiff in Galveston County); Exhibit 3 (former lawsuit brought by Plaintiff in
Galveston County); Exhibit 4 (texts messages Herz claims show Bobby Moody, Jr. is “trying a new forum”); Exhibit
5 (prior lawsuit Herz. claims show Bobby Moody, Jr. is “trying a new forum”); Exhibit 6 (trust agreements Herz. claims
show that the Trust was executed or amended in Galveston); and Exhibit 7 (declaration of Irwin Herz, intending to
show that he resides only in Galveston County and does not reside in Harris County, the situs of administration is in
Galveston, the beneficiaries in reside in various counties, and the location of various trust-related assets.).
While Ross Moody does not cite any evidence in his Motion and joins in Herz’s Motion, Ross Moody does argue at
length and cite to Herz’s evidence in arguing that Herz does not reside in Harris County for the reasons set forth in
Herz’s Motion.
° See GHA’s Motion, p. 6, subsection entitled “Venue is Not Proper in Harris County,” and citing to Exhibit 1, 11,
12, 13, 14 the affidavit of Andrew Mytelka, claiming Herz does not reside in Harris County and only resides in
Galveston County.
'0 \oveforfree.com, Inc. v. David Hetrick, Inc., 288 $.W.3d 539, 541 (Tex. App.—Houston [14th Dist.] 2009, no
pet.); Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 260 (Tex. 1994) (The plaintiff is given the first choice
in the filing of the lawsuit.”).
"In re Hannah, 431 S.W.3d 801, 807 (Tex. App.—Houston {14th Dist.] 2014, no pet.) (orig. proceeding).
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suggests would have also been appropriate if chosen by the plaintiff”'? “In other words, if both
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counties at issue would be appropriate venue choices, the plaintiffs choice controls.
If the county where the suit was filed is a county of proper venue, then the motion to
transfer venue must be denied.“4 The motion cannot be granted unless the county where the
plaintiff filed the case is not a county of proper venue.'> “Absent such circumstances, venue in
any county other than the plaintiff's choice is improper as a matter of law.”'© “If any probative
evidence supports the plaintiff's choice, then transferring venue is reversible error, mandating a
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new trial.
2 Moveforfree.com, Inc., 288 §.W.3d at 542.
3 Moveforfree.com, Inc., 288 S.W.3d at 542.
"In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding); TEX. Civ. PRAC. & REM. CODE §
15.063 (“The court, on motion filed and served concurrently with or before the filing of the answer, shall transfer an
action to another county of proper venue if: (1) the county in which the action is pending is not a proper county as
provided by this chapter”).
'S In re Team Rocket, L.P., 256 S.W.3d at 259.
16 Moveforfree.com, Inc., 288 S.W.3d at 541.
'" Moveforfree.com, Inc., 288 S.W.3d at 541-42, TEX. Clv. PRAC. & REM. CODE § 15.064(b) (“On appeal from the
trial on the merits, if venuc was improper it shall in no cvent be harmless crror and shall be reversible crror.”) Rosales
v. H.E.B Grocery Co., 905 $.W.2d 745, 749 (Tex. App.—San Antonio, 1995, no motion for rehearing denied) (“The
trial court’s assessment will be upheld on appeal so long as there “is any probative evidence in the entire record that
venue was proper in the county where judgment was rendered.”).
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A. Courts Conduct a Three-Step Analysis in Determining Proper Venue.
1. Step One: Defendants Only Tool to Object to Harris County Is
Through Specific Denials.
The general rule when analyzing a venue motion is that “All venue facts when properly
pleaded shall be taken as true unless specifically denied.”'® A ‘specific denial” of a venue fact
requires that the fact itself must be denied.?
“Global” or “general” denials of venue allegations do not suffice as specific denials under
the rules of civil procedure.”° Statements such as “Defendant specifically denies those venue facts
pled in Plaintiffs Petition” do not constitute a specific denial as required by Tex. R. Civ. P. 87.7!
2. Step Two: Plaintiff Must Present Prima Facie Evidence Regarding
Denied Venue Facts.
Only as to the facts that have been specifically denied, Plaintiff is required to provide
minimal, prima facie proof of his venue facts:
Prima facie proof is made when the venue facts are properly pleaded and an
affidavit, and any duly proved attachments to the affidavit, are filed fully and
specifically setting forth the facts supporting such pleading. TEX. R. Clv. P.
87(2)(a); see also Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 72
(Tex.App.—Houston [Ist Dist.] 1998, pet. denied) (“A_prima_ facie case
'8 Tex. R. Civ. P. 87(3)(a) [emphasis added].
19 In re Socorro Indep. Sch. Dist., 2010 Tex. App. LEXIS 2126, *8 (Tex. App.—Edinburg Mar. 22, 2010, no pet.),
quoting Afaranatha Temple, Inc. y. Enter. Prod. Co., 833 S.W.2d 736, 740 (Tex. App.—Houston [Ist Dist.] 1992,
writ denied); State v. Life Partners, Inc., 243 S.W.3d 236, 239 (Tex. App.—Waco 007, pet. denied), Sanes v. Clark,
25 S.W.3d 800, 803 (Tex. App.—Waco 2000, pet. denied): Pevsen v. Dawson, 974 S.W.2d 377, 380 (Tex. App.—
a
San Antonio 1998, no pet.); see also Bleeker v. Villarreal, 941 S.W.2d 163, 175 (Tex. App.—Corpus Christi 1996,
writ dism’d by agr.).
?° In re Socorro Indep. Sch. Dist., 2010 Tex. App. LEXIS 2126 at *8. [emphasis added]
21 Jd [internal citations omitted].; see also Jackson v. Jackson, 2016 Tex. App. LEXIS 10444, *10 (Tex. App.—Fort
Worth, Sept. 22, 2016, no pet.) (“Andrew never specifically denied that he communicated with John in Tarrant County
or that he did so in conformity with the customary practice among the parties that John would share the information
with the other family members. Accordingly, in the absence of a specific denial, we take that fact as true .
Appellant’s motion to transfer specifically dnies that the cause of action arose in the county of suit .. . However, it
does not specifically deny that appellant contracted to pay the note in San Patricio County. Therefore, .. . Appellee
established proper permissive venue in that county.”).
2 In re Socorro Indep. Sch. Dist., 2010 Tex. App. LEXIS 2126 at *8.
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. represents the minimum quantity of evidence necessary to support a rational
inference that the allegation of fact is true.”).?3
Once provided, the venue analysis ends. In other words, “Rule 87 of the rules of civil
procedure requires trial courts to make venue determinations on the basis of prima facie proof only
and does not require or even affirmatively permit trial courts to assess the credibility of conflicting
affiants.”™* In fact, it is irrelevant “whether the evidence as a whole shows that the prima facie
proof was wrong or misleading.”?> Put plainly:
The laintiff’s prima facie proof is not subject to rebuttal, cross-examination
impeachment, or disproof. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex.
1993). When ruling on a motion to transfer venue, the trial court must assume the
pleadings are true . . . If the plaintiff adequately pleads and provides prima facie
proof that venue is proper in the amount of suit, then the trial court must not transfer
the case. Tex. R. Civ. P. 87(3)(c); see also Wilson, 886 S.W.2d at 261 (“Together,
Rule 87(3)(c) and Section 15.063(1) requires that a lawsuit pleaded and proved to
be filed in a county of proper venue may not be transferred.” In such a situation,
no other county can be a proper county of venue, even if the county of transfer also
would have been proper had it been originally chosen by the plaintiff. Wilson, 886,
S.W.2d at 261.”
“This rule—that plaintiff is given the first choice in the filing of the lawsuit—gives effect
to the plaintiff's right to select a proper venue.””’ And therefore, if Plaintiff provides prima facie
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proof that venue is proper in the forum, “then there can be no other proper venue in that case.
33 Id, [emphasis added]
™ Rosales v. H.E Butt Grocery Co., 905 $.W.2d 745, 749 (Tex.App.—San Antonio, 1995, no motion for hearing
denied).
5 Rosales., 905 S.W.2d at 749, citing Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993).
26 In re Socorro Indep. Sch. Dist., 2010 Tex. App. LEXIS 2126 at **7-8. [emphasis added]
27 Rosales., 905 S.W.2d at 748.
28 Id.
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3. Step Three: If Plaintiff Cannot Raise Prima Facie Proof to Support
Venue in the County of Suit, Only Then Can a Defendant Produce
Evidence that Venue Is Proper in Another County.
If, and only if, this Court finds that Plaintiff failed to produce minimal prima facie evidence
to establish that venue is proper in Harris County, this Court may then transfer venue to Galveston
County if “Defendant[s] prove[] that venue is maintainable in the county to which venue is sought”
(Galveston).”’ In other words, Defendants may only cite evidence to support venue in Galveston
County.
What Defendants cannot do is cite evidence to support their argument that venue is
improper in Harris County because “[P]laintiff's prima facie proof is not subject to rebuttal,
cross-examination, impeachment, or disproof” and the only tool to dispute venue in Harris
County is a specific denial.”*° In other words, only if a plaintiff cannot establish proper venue in
the forum of suit may the court consider a defendant’s alternative evidence that another forum may
be proper.*! Yet, this is exactly what these Defendants attempt to do and it is improper.
III. This Court Should Strike Defendants’ Evidence Intending to Show
that Venue is Improper in Harris County Because Such Evidence is
Irrelevant to the Court’s Inquiry.
This is not a contested evidentiary hearing.
29 Rosales v. H.E. Butt Grocery Co., 905 §.W.2d at 747 (“If the plaintiff fails to meet this burden, the trial court must
transfer the lawsuit to another specified county of proper venue if the defendant then proves that venue is maintainable
inthe county to which transfer is sought.”).
30 Ruiz v. Conoco, Inc., 868 §.W.2d 752, 757 (Tex. 1993).
| Jackson, 2016 Tex.App. LEXIS 10444 at *12 (‘In Andrew’s third issue, he contends that the trial court erred by
denying his motion to transfer venuc because he showed that Midland County was a county of proper venue . . . But,
as long as the forum is a proper one, it is the plaintiffs privilege to choose the forum. Only if venue had not been
established as to any plaintiff would we need to address Andrew's proposed transfer to Midland County.”).
Rosales y. H.E.B Grocery Co., 905 S.W.2d at 749. (Indeed, appellees cite a long list of evidence from which they
arguc that Rosales Maintaincd his only residence in Bexar County. The cvidence cited by Appellccs challenges the
validity of Rosales’s evidence produced in response to the motion to transfer venue. This is actually the type of conflict
in evidence that would be decided by the trier of fact in a typical civil trial. This is a venue challenge, however, and
the rules applicable to a typical civil trial do not apply.”).
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Yet, Herz’s Motion, joined by Ross Moody and GHA, includes a trove of evidence—not
to alternatively show that Galveston County may be a proper venue to the extent Plaintiff fails to
produce minimal, prima facie evidence showing proper venue in Harris County— but instead, to
show “that Harris County is not a proper venue,” “Defendants do not reside in Harris County,” nor
did “a substantial part of the events giving rise to this suit occur in Harris. County.”*? GHA,
likewise, cites to Exhibit 1, a detailed affidavit in arguing that “Venue is not proper in Harris
County.”
But, as explained above, Defendants have only one “move” to address Plaintiff's facts
relating to Harris County—to specifically deny them, and if denied, the venue analysis ends once
Plaintiff puts forth prima facie evidence of proper venue and such “is not subject to rebutta 1
Because Defendants’ evidence and arguments attack the validity of Harris County as a
proper venue, all of Defendants’ arguments and evidence as to this issue are improper and should
be stricken.*> What Defendants are arguing is that this Court should completely disregard
the proper framework of a proper venue analysis and commit reversible error. Thus, Plaintiff
requests that this Court strike Herz’s exhibits 1-7 and GHA’s exhibit 1 and disregard arguments in
support of said evidence because this evidence has been proffered improperly for the purpose of
disproving venue in Harris County.
IV. Argument and Authorities.
a
As show below, Defendants’ Motions fail for a host of reasons.
Defendants failed to specifically deny a host of venue-related facts. These facts should be
taken as true. When taken as true, Plaintiff s venue allegations regarding Herz’s residence are more
» Herz’s Motion to Transfer, p. 1-2.
33 GHA’s Motion to Transfer, p. 6-7.
+ See footnote 26.
35 See footnote 8.
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than sufficient to establish that venue is proper in Harris County—the forum of Plaintiff's
choosing.
Even if this Court finds Defendants’ sloppy, haphazard, and generalized venue denials to
be sufficient—which they are not—Plaintiff submits prima facie proof that venue is proper in
Harris County under both mandatory and permissive venue rules. The analysis stops there.
Specifically, Defendants and Plaintiff agree that the mandatory venue provision § 115.002
of the Texas Trust Code controls because this is a lawsuit against Trustee Herz regarding his
actions as trustee.*° Under § 115.002, a suit “by or against a trustee and all proceedings concerning
2966
trusts shall be brought in the county in which” “the trustee resides or has resided at any time
during the four-year period preceding the date the action is filed.”*” This is the primary venue
allegation plead by Plaintiff.
Plaintiff has never disputed that Herz has a residence in Galveston County; Plaintiff submit
prima facie evidence, and in fact proves, however, that Herz also has a residence in Harris County,
because he owns a condominium in Houston where he regularly stays, has routinely and frequently
stayed for nineteen years, and has no intention to sell.** Because Herz also resides in Harris
County, Harris County is a county of mandatory venue under § 115.002 of the Texas Trust Code.”
Under the good-as-to-one, good-as-to-all rule, venue is proper in Harris County against all
Defendants because it is proper in Harris County as to Herz."
*6 Tex. PROP. CODE § 115.002; Ross Moody Motion at 2-3; Herz Motion at 9-15; GHA Motion at 3-4; Plaintiff's First
Amended Petition, p. 5, pleads mandatory venue provision TPC § 115.002.
37 Tex. PROP. CODE § 115.001(a)(1); TEX. Prop. CODE § 115.002(b) (“(b) If there is a single, noncorporate trustee, an
action shall be brought in the county in which: (1) the trustee resides or has resided at any time during the four-year
period preceding the date the action is filed; or (2) the situs of administration of the trust is maintained or has been
maintained at any time during the four-year period preceding the date the action is filed.”).
38 See Herz Motion Ex. 7.
39 See § II(B) below.
4° See § II(C) below.
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As part of their shotgun approach, the Defendants argue that if the permissive-venue statute
applies, then venue is proper only in Galveston County.*! But the permissive-venue statute does
not apply when a mandatory-venue provision statute applies, so permissive venue does not control
in this case.*? Even if mandatory venue does not apply, permissive venue would also be proper in
Plaintiff's chosen forum under TEX. CIV. PRAC. & REM. CODE § 15.002(a)(2) and (a)(1) because
Herz resides in Harris County and uadisputed factual allegations establish that a substantial part
of the events occurred in Harris County.
Finally, as a Hail Mary, the Defendants argue that even if this Court determines that Harris
County is a county of mandatory venue, this Court should still transfer this case to Galveston
43
County for the convenience of the parties. The Defendants have not carried their burden of
establishing that keeping this case in Harris County would work an injustice to them, so a
convenience transfer would be improper."
A. Defendants Failed to Specifically Deny Numerous Facts Plaintiff Pled in Support of
Venue. This Failure Proves Fatal to All of Defendants’ Motions.
1. Plaintiff's Pled Venue Facts.
Plaintiff's live pleading* alleges that venue is proper in Harris County, Texas under
mandatory venue statute Texas Property Code § 115.002 or, alternatively, under permissive venue
*t Ross Moody: Motion at 2-3.
2 See § II(D) below.
‘3 Herz Motion at 19-20; GHA Motion at 8, TEX. PRop. CODE § 115.002(d); Tex. Civ. Prac. & Rem. Code § 15.002(b).
44 See § II(E) below
* See Plaintiffs First Amended Petition, generally. See Jn re Fluor Enters., 2011 Tex. App. LEXIS 4496, *10-11
(Tex. App.—Corpus Christi, June 13, 2011, no pet.) (*[Plaintiff] was clearly entitled to amend his pleadings at Icast
seven days before the hearing on the motion transfer. Tex. R. Civ. P. 63; JVatson v. Citv of Odessa, 893 S.W.2d 197,
199-200 (Tex. App.—El Paso 1995, writ denied), see also A foriarty v. Williams, 752 S.W.2d 610, 61 (Tex. App.—El
Paso 1988, writ denied”)).
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te
.
statute Texas Civil Practice & Remedies § 15.002 because Trustee/Defendant Herz resides in
Harris County.*¢
247
Specifically, Plaintiff alleges that “Herz has resided in Harris County for many years.
Plaintiff alleges that Herz’s home “is a fixed place of abode within [Herz’s] possession.”** Plaintiff
alleges that Herz’s “Houston residence is occupied, has been occupied for many years, and is
intended to be occupied over a substantial period of time.”*? Plaintiff alleges that Herz’s residence
50
is “permanent.
Plaintiff also alleges that venue is proper in Harris County because a substantial part of the
events or omissions giving rise to the claim occurred in Harris County.*! Plaintiff pleads that this
includes “bank branches, substantial monies, and nursing homes, a substantial portion of
Defendant Buddy Herz’s wrongful conduct occurred here, substantial assets are being managed
and mismanaged here, substantial Trust assets are being damaged here, the wrongful conduct
described herein impacted substantial trust assets in Harris County, and one of the contingent
52
beneficiaries of the Trust described herein resides in Harris County and is being damaged here.
2. Defendants’ Specific Denials are only General Denials.
As addressed in some detail above, “global” or “general” denials, for example: “Defendant
specifically denies those venue facts pled in Plaintiff’s petition” or that a named defendant “does
46 See Pet., p. 5.
47 Id
Preview
9/13/2020 9:18 PM wo Marilyn Burgess - District Clerk Harris County Envelope No. 46183974 By: Lewis John-Miller Filed: 9/14/2020 12:00 AM wv CAUSE NO. 2020-31023 ROBERT L. MOODY, JR. IN THE DISTRICT COURT OF CLER, 1HIN KD I ARD HARRIS COUNTY, a BARD. v 55 TUNG ib aleteg ‘STON SOunry, Texag eS GREER, HERZ, & ADAMS, LLP, IRWIN “BUDDY” HERZ, JR. and ROSS RANKIN MOODY JURY TRIAL DEMANDED PLAINTIFF ROBERT L. MOODY, JR.’S CONSOLIDATED RESPONSE TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE AND OBJECTION TO DEFENDANTS’ EVIDENCE IN SUPPORT OF DEFENDANTS’ MOTIONS TO - TRANSFER VENUE Respectfully submitted, THE BUZBEE LAW FIRM By: /s/ Anthony G. Buzbee Anthony G. Buzbee S tate Bar No. 2400182 ih 0 % avi erge State Bar No. 24097371 Om Brittany C. Ifejika State Bar No. 24111 on bi 3 SAL. J.P. Morgan Chase Towe r 600 Travis, Suite 7300 Houston, Texas 77002 Telephone: (713) 223-5393 Facsimile: (713) 223-5909 Www oY ATTORNEYS FOR PLAINTIFF ROBERT L. MOODY, JR. —cv— 1564 DCRESPONSE nse egp0es ee WN MN CERTIFICATE OF SERVICE I certify that this document has been furnished to the attorneys below in accordance with Texas Rule of Civil Procedure 21 and 21a by the Court’s electronic filing system on September 13, 2020 Robin C. Gibbs, David J. Beck Tex. Bar No. 07853000 Tex. Bar No. 00000070 raibbsi@sibbsbruns.com dbeck@beckredden com Samuel W. Cruse, III B.D. Daniel State Bar No. 24036423 Tex. Bar No. 05362200 scrusedigibbsbruns.com bddantel@beckredden Arcee ERE REE com Ross M. MacDonald Allison Standish Miller State Bar No 24087956 Tex. Bar No. 24046440 tmacde DS Druns COD aroul sredden.¢ v0 Gibbs & Bruns, LLP, Beck Redden LLP 1100 Louisiana, Suite 5300 Houston Office Houston, Texas 77002 1221 McKinney Street Tel: 713.751/5217 Suite 4500 Fax: 713.750.0903 Houston, Texas 77010 Tel: 713.951.6209 COUNSEL FOR DEFENDANT Fax: 713.951.3720 IRWIN “BUDDY” HERZ, JR. COUNSEL FOR DEFENDANT Harry M. Reasoner GREER, HERZ & ADAMS, LLP Tex. Bar No. 16642000 hreasoner@velaw.com Ss‘ AnthonyG. Buzbee Stacey Neumann Vu Anthony G. Buzbee Tex. Bar No. 24047047 syu@velaw.com Page Robinson Tex. Bar No. 24093053 yrobinsorGvelaw.com Shelby Hart-Armstrong Tex. Bar No. 24116490 Shart-armstrongi@velaw com Vinson & Elkins, LLP 1001 Fannin Street Suite 2500 Houston, Texas 77002 Tel: 713.758.2358 Fax: 713.615.5173 COUNSEL FOR DEFENDANT ROSS RANKIN MOODY te 1 ‘ SUMMARY OF OVERWHELMING EVIDENCE THAT HERZ HAS A HARRIS COUNTY RESIDENCE e Both Herz and his wife admit they have a “second home” in Houston (Herz’s Motion, p. 5) and have had it for nineteen years (Exh. C, Deposition of Barbara Herz, dated Aug. 25, 2020, p. 8:15-9:6); When asked about the Herz Houston residence, Herz’s wife admitted in her deposition that “We’ve lived there for 19 years;” (Exh. C, p. 19:8) Herz and his wife have consistently occupied the Houston residence two to three times per month for several days each visit, for nineteen years; (Exh. C, p.10:12-14; 17:19-24) Herz and his wife purchased the Houston residence to be close to their children and grandchildren, who reside in Houston; (Exh. C, p. 11:2-5) Herz and his wife use his Houston residence like any other person uses a residence, by keeping food in the pantry at the residence (Exh. C, p. 13:21- 14:5); maintaining a home phone at the residence (Exh. B, p. 13:5-7) keeping changes of clothes at the residence (Exh. C, p. 15:15-17); keeping kitchen supplies to routinely cook-in at the residence; grocery shopping locally to keep food at the residence (Exh. C, p. 14:6-9, 14:16-15:14); keeping children’s toys for routine babysitting at the residence (Exh. C, p. 15:23-25; 17:10; 21:8-9); keeping bathroom supplies at the residence (Exh. C, p. 15:18-19);, employing routine maintenance staff at the residence (Exh. C, p. 19:16-20:3); and making renovations at the residence; (Exh. C, p. 18:1-11) Herz and his spouse regularly attend Rice University basketball, football and baseball games and frequent local restaurants in Houston while at their Houston residence; and (Exh. C, p. 17:7-8; 14:6-21) Herz and his wife have no plans to sell the Houston residence and never lease it or rent it. (Exh. C, p. 12-14) Distinguished Civil Proceduralist, Scholar, Author, Professor, and Expert David Crump Affirms Unequivocally that Herz Maintains a Houston Residence (Exh. B) e “In fact, Herz’s citation of cases virtually concedes the residence issue when taken together with his allegations of fact. He states as a fact that Harris County is a “second home.” (Exh. B, p. 2) “Mr. Herz’s Harris County residence is a fixed place of abode” because “the residence has been in the same place, unchanged, for all of these years” and “Herz owns it.” (Exh. B, p. 4) “The residence has been occupied and intended to be occupied over a substantial period of time.” (Exh. B, p. 4) -l- eG “The residence is permanent rather than temporary. The real estate has not changed and neither has Mr. Herz’s ownership of it.” (Exh. B, p. 5) “A ‘second home,’ which Mr. Herz states that he owns in Harris County, is a residence. There is no distinction between primary and secondary homes. . . Mr. Herz’s Harris County home is unquestionably a residence.” (Exh. B, p. 5) -2- te TABLE OF CONTENTS Procedural and Factual Background A Factual Background B Procedural Background Il Venue Standard: The Plaintiff's Choice of Venue Controls if it Is a County of Proper Venue Pee eee nee eee ee ee ee eee teeter tenes Courts Conduct a Three-Step Analysis in Determining Proper Venue 11 1 Step One: Defendants Only Tool to Object to Harris County is Through Specific Denials 11 Step Two: Plaintiff Must Present Prima Facie Evidence Regarding Denied Venue Facts. ........0.0cccccccccccccccscssscseseseseeenececseseceneescsesesesesenenenseaees 11 Step Three: If Plaintiff Cannot Raise Prima I‘acie Proof to Support Venue in the County of Suit, a Defendant Can Raise Evidence that Venue is Proper in Another County 13 Ill. This Court Should Strike Defendants' Argument and Supporting Evidence Intending to Show that Venue is Improper in Harris County Because Such Evidence is Irrelevant to this Court's Inquiry 14 IV. Argument and Authorities 14 A Defendants Failed to Specifically Deny Numerous Facts Plaintiff Pled in Support of Venue. This Proves Fatal to Defendants' Motions 16 1 Plaintiff's Pled Venue Facts. ...0..0.00.0.00ccccccccceeceececsetetees 16 2 Defendants' Specific Denials Are Only General, Global Denials 17 3 Because Defendants Did Not Specifically Deny Each of Plaintiff's Pled Facts Regarding Venue, These Facts Must be Taken as True 19 When Taken as True, These Facts Prove Fatal to Defendants' Motions Because These Facts Satisfy the Requirements for Mandatory or Permissive Venue 20 Harris County is a County of Mandatory Venue Because Herz is a Resident of Harris County as Well as Galveston County 22 1 A Party Can Have More Than One Residence for Venue Purposes . 22 2 The Texas Supreme Court Recognizes a Three-Part Test for Residency . 23 3 Herz has a Harris County Residence Because He Owns a Condominium in Houston That He Regularly Visits 24 -3- te 4 Because Herz is a Resident of Harris County, as well as Galveston County, Venue is Proper in Harris County under the Mandatory Venue Statute 26 Because Venue is Proper in Harris County as to Herz, it is proper in Harris County as to all of the Defendants 26 Because a Mandatory Venue Provision Applies, the Permissive Venue Statute Does Not Apply 26 Even if the Mandatory Venue Provision Does Not Apply, Venue is Still Proper in Harris County Under the Permissive Venue Statute Because Herz Resides in Harris County 27 The Defendants Have Not Established that Keeping This Case in Harris County Would Work an Injustice to them, so this Court Should Deny the Defendants’ Motion for a Convinience Transfer 27 Because Defendants Raised Transfer Grounds Based on Convenience, Plaintiff is Required to Specifically Deny Facts Relating to This Ground or such Facts are Taken as True 30 1 Specific Denial as to Ross Moody’s Venue Facts Relating to Transfer Based on Convenience 31 Specific Denial as to GHA’s Venue Facts Relating to Transfer Based on Convenience 31 Specific Denial as to Herz’s Venue Facts Relating to Transfer Based on Convenience 32 Vv Conclusion 33 -4- me 4 SUMMARY OF PLAINTIFF BOBBY MOODY, JR.’S OBJECTION AND RESPONSE This Court should deny Defendants’ Motions to Transfer Venue for the following reasons: e Defendants attached evidence to their Motions in an attempt to improperly show that Harris County is not a proper venue. But Defendants’ evidence as to this issue is irrelevant because this is not a contested evidentiary proceeding. For the present analysis, Defendants can only specifically deny Plaintiff’s pled venue facts. If they fail to do so, those facts are taken as true. As to facts they deny, Plaintiff need only raise minimal, prima facie evidence that Harris County is a proper venue; such evidence is not subject to rebuttal, cross-examination, or a credibility determination. If Plaintiff does so, Harris County can be the only county of proper venue. Because Defendants improperly attached evidence in an attempt to disprove/rebut Plaintiff's choice of venue, such evidence must be stricken. Setting aside the fact that the evidence overwhelmingly demonstrates that Herz maintains a residence in Harris County, venue is proper in Harris County because Defendants did not specifically deny each and every fact Plaintiff pled to support venue in Harris County. These facts are thus taken as true and establish that venue is proper in Harris County. Defendants’ failure alone proves fatal to their meritless Motions. Venue is mandatory in Harris County under Texas Property Code § 115.002 because Plaintiff's prima facie proof confirms that Trustee Herz has a residence in Harris County because his residence: (1) is a fixed place of abode within Herz’s possession; (2) is permanent rather than temporary; and (3) it has been occupied consistently for almost twenty years. Therefore, Herz resides in Harris County, and Harris County is a county of mandatory venue under Trust Code § 115.002. Because mandatory venue is good as to Herz, it is good as to all Defendants. Even if the mandatory venue provision did not apply (which Defendants admit it does), permissive venue is proper in Harris County under CPRC § 15.002(a)(2) because Herz resides in Harris County. Lastly, Defendants have not (nor can they) carry their heavy burden to establish that litigating this case in Harris County would work a serious injustice to them; thus, any effort to transfer this case due to “convenience,” fails. -5- eS a 4 PLAINTIFF’S CONSOLIDATED RESPONSE TO DEFENDANTS’ MOTIONS TO TRANSFER AND OBJECTION TO DEFENDANTS’ EVIDENCE IN SUPPORT OF DEFENDANTS’ MOTIONS TO TRANSFER VENUE Plaintiff Robert L. Moody, Jr. files this Consolidated Response to Defendants’ Motions to Transfer and Objection to Defendants’ evidence supporting their Motions to Transfer Venue filed by Defendants Ross Rankin Moody (“Ross Moody”), Irwin “Buddy” Herz, Jr. (“Herz”), and Greer, Herz, & Adams, LLP (“GHA”) (collectively “Defendants”).! I. Procedural and Factual Background. A. Factual Background. This is an egregious case of a trustee and lawyer taking advantage of his position to exponentially enrich himself, his law firm, and his family.? The facts are overwhelming, and most are not in dispute. After the patriarch of the Moody family, Robert L. Moody, Sr., became sick, he executed— at the urging of Defendant Herz and Herz’s co-conspirator Defendant Ross Moody—a power of attorney ceding control of his substantial and complex business interests to the Moody National Bank Trust Department. At a later date, Robert L. Moody, Sr. stepped down from multiple business and charitable boards that control the billions of dollars that make up the Moody interests. Herz and Ross Moody have used that power of attorney and Robert L. Moody, Sr.’s sickness not only as an opportunity to exponentially enrich Herz’s law firm Defendant GHA, but also to enrich Herz and Ross Moody themselves. Due to their efforts, now Ross Moody, along with Herz, have gained control of the Moody fortune and the Moody legacy to the detriment of Herz’s long-term ' Defendant Ross Moody’s Motion to Transfer Venue and, Subject to His Motion to Transfer Venue, Original Answer, Special Exception, and Counterclaim to Plaintiff's Petition (“Ross Moody Motion”) (filed July 13, 2020); Defendant Herz’s Motion to Transfer Venue to Galveston County. and, Subject to that Motion, His Original Answer and Affirmative Defenses (“Herz Motion”) (filed July 13, 2020); and Defendant GHA’s Motion to Transfer Venue and Original Answer Subject Thercto (‘GHA Motion”) (filed July 13, 2020). ? See Plaintiff's First Amended Petition (“Pet.”) at 1-2 (filed May 21, 2020). -6- te legal client, Bobby Moody, Jr—the oldest son and namesake of Robert L. Moody, Sr. Herz, aided and abetted by Ross Moody, and with Ross Moody’s knowing participation, did so, despite Herz’s fiduciary obligations to Bobby Moody, Jr. as beneficiary of the Trust that controls a substantial portion of the Moody fortune, and despite the fact that Herz, and his firm GHA, were legal counsel to Bobby Moody, Jr. B. Procedural Background. On May 21, 2020, Plaintiff filed a thirty-two-page Petition, with very specific factual allegations.’ Plaintiff's live pleading includes several grounds for why venue is mandatory in Harris County, and, alternatively, Plaintiff also plead that venue is proper in Harris County using a permissive venue analysis. First, venue is mandatory in Harris County pursuant to Texas Property Code § 115.002 because Trustee Herz resides in Harris County.’ Second, venue is permissive in Harris County pursuant to Texas Civil Practice & Remedies Code § 15.002(a)(2) because Herz resides in Harris County.> Third, venue is permissive in Harris County pursuant to Texas Civil Practice & Remedies Code § 15.002(a)(1) because Trustee Herz’s wrongful conduct substantially occurred and damaged Trust assets in Harris County, Texas and two contingent beneficiaries reside and are being damaged in Harris County, Texas.® On July 13, 2020, Defendants separately answered the lawsuit and, in an attempt to avoid this forum and transfer to what they perceive to be a much more favorable venue, filed frivolous motions to transfer venue to Galveston County, Texas.’ These motions misrepresent the law, the * See Plaintiff’s First Amended Petition (“Pet.”) at 1-2 (the original was filed May 21, 2020). ‘Pet. at p. 5. > Pet. at p. 5. 6 Pet. at p. 5. 7 See footnote 1. -7- te . venue-standard, and contain irrelevant evidence that has nothing to do with this Court’s venue analysis. The primary argument contained in Defendants’ Motions is that Harris County can only be a proper forum for both mandatory and permissive venue purposes if Trustee Herz resides in Harris County—Plaintiff absolutely agrees with this premise. But, the Defendants then go to great lengths focusing on where Herz votes, where he registers his car, where he maintains his “primary home,” where he claims a Homestead exemption, where he offices and multiple other inquiries that have NOTHING to do with where he has one or more residences for purposes of the venue analysis before this Honorable Court. The analyses to determine one’s “residence” versus one’s “domicile” are two very different inquiries. The residence analysis is straightforward and simple. When an individual owns a fixed abode—here a condominium—for more than nineteen years with no intention to sell; a place he frequents with his spouse two to three times a month for two days or more at a time for those nineteen years; a place where he pays $1,800 a month in dues, pays for routine maintenance and upkeep, pays for periodic improvements, a place where he keeps clothes, kitchen supplies, bathroom supplies, a home phone, and toys for his grandchildren—that abode overwhelmingly qualifies as a residence for purposes of venue under Texas case law, regardless whether he claims it as his primary or secondary home. Defendants’ focus on whether Herz’s Houston home is his “domicile” (Homestead, voting and car registration, primary home, etc.), is misleading, irrelevant, and to be frank, insulting to this Court and its staff. In support of their Motions to Transfer, Defendants rely on a series of exhibits filed by Herz and others in arguing that Harris County is not a proper venue and instead Galveston County is the only county of proper venue because Herz (allegedly) does not reside in Harris County, only resides in Galveston County, Texas, and a substantial part of the acts or omissions giving rise to -8- em s the claim did not occur in Harris County.* GHA also attached a detailed affidavit from a GHA employee as evidence of these same issues, and GHA argues at length that “Venue is not proper in Harris County.” Defendants’ efforts border on hysterical, but, clearly are irrelevant to the present analysis. For the reasons that follow, all of Defendants’ proffered “evidence” is not only irrelevant, but such is contrary to the procedure with which the Court is to analyze the existing Motions. Defendants’ Motions border on being frivolous, and should be denied. II. Venue Standard: The Plaintiff's Choice of Venue Controls if it Is a County of Proper Venue. 10 “In Texas, the plaintiff has the right to choose venue in the first instance. If “a mandatory venue provision permits suit in one of several counties, the plaintiff may choose from voll among the permissible counties. “The ultimate goal in any venue-transfer analysis is first to determine whether the plaintiff's choice is appropriate. If so, that choice must be upheld, even if the venue the defendant ® Herz cites to the following exhibits to show that “venuc in Harris County would be improper,” “none of the Defendants reside in Harris County,” and “a substantial party of the alleged actions that gave rise to this litigation did not occur in Harris County.” Specifically, Exhibit 1 (former lawsuit brought by Plaintiff in Galveston County); Exhibit 2 (former lawsuit brought by Plaintiff in Galveston County); Exhibit 3 (former lawsuit brought by Plaintiff in Galveston County); Exhibit 4 (texts messages Herz claims show Bobby Moody, Jr. is “trying a new forum”); Exhibit 5 (prior lawsuit Herz. claims show Bobby Moody, Jr. is “trying a new forum”); Exhibit 6 (trust agreements Herz. claims show that the Trust was executed or amended in Galveston); and Exhibit 7 (declaration of Irwin Herz, intending to show that he resides only in Galveston County and does not reside in Harris County, the situs of administration is in Galveston, the beneficiaries in reside in various counties, and the location of various trust-related assets.). While Ross Moody does not cite any evidence in his Motion and joins in Herz’s Motion, Ross Moody does argue at length and cite to Herz’s evidence in arguing that Herz does not reside in Harris County for the reasons set forth in Herz’s Motion. ° See GHA’s Motion, p. 6, subsection entitled “Venue is Not Proper in Harris County,” and citing to Exhibit 1, 11, 12, 13, 14 the affidavit of Andrew Mytelka, claiming Herz does not reside in Harris County and only resides in Galveston County. '0 \oveforfree.com, Inc. v. David Hetrick, Inc., 288 $.W.3d 539, 541 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 260 (Tex. 1994) (The plaintiff is given the first choice in the filing of the lawsuit.”). "In re Hannah, 431 S.W.3d 801, 807 (Tex. App.—Houston {14th Dist.] 2014, no pet.) (orig. proceeding). -9- eS a suggests would have also been appropriate if chosen by the plaintiff”'? “In other words, if both 13 counties at issue would be appropriate venue choices, the plaintiffs choice controls. If the county where the suit was filed is a county of proper venue, then the motion to transfer venue must be denied.“4 The motion cannot be granted unless the county where the plaintiff filed the case is not a county of proper venue.'> “Absent such circumstances, venue in any county other than the plaintiff's choice is improper as a matter of law.”'© “If any probative evidence supports the plaintiff's choice, then transferring venue is reversible error, mandating a oT new trial. 2 Moveforfree.com, Inc., 288 §.W.3d at 542. 3 Moveforfree.com, Inc., 288 S.W.3d at 542. "In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding); TEX. Civ. PRAC. & REM. CODE § 15.063 (“The court, on motion filed and served concurrently with or before the filing of the answer, shall transfer an action to another county of proper venue if: (1) the county in which the action is pending is not a proper county as provided by this chapter”). 'S In re Team Rocket, L.P., 256 S.W.3d at 259. 16 Moveforfree.com, Inc., 288 S.W.3d at 541. '" Moveforfree.com, Inc., 288 S.W.3d at 541-42, TEX. Clv. PRAC. & REM. CODE § 15.064(b) (“On appeal from the trial on the merits, if venuc was improper it shall in no cvent be harmless crror and shall be reversible crror.”) Rosales v. H.E.B Grocery Co., 905 $.W.2d 745, 749 (Tex. App.—San Antonio, 1995, no motion for rehearing denied) (“The trial court’s assessment will be upheld on appeal so long as there “is any probative evidence in the entire record that venue was proper in the county where judgment was rendered.”). -10- eS a A. Courts Conduct a Three-Step Analysis in Determining Proper Venue. 1. Step One: Defendants Only Tool to Object to Harris County Is Through Specific Denials. The general rule when analyzing a venue motion is that “All venue facts when properly pleaded shall be taken as true unless specifically denied.”'® A ‘specific denial” of a venue fact requires that the fact itself must be denied.? “Global” or “general” denials of venue allegations do not suffice as specific denials under the rules of civil procedure.”° Statements such as “Defendant specifically denies those venue facts pled in Plaintiffs Petition” do not constitute a specific denial as required by Tex. R. Civ. P. 87.7! 2. Step Two: Plaintiff Must Present Prima Facie Evidence Regarding Denied Venue Facts. Only as to the facts that have been specifically denied, Plaintiff is required to provide minimal, prima facie proof of his venue facts: Prima facie proof is made when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such pleading. TEX. R. Clv. P. 87(2)(a); see also Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 72 (Tex.App.—Houston [Ist Dist.] 1998, pet. denied) (“A_prima_ facie case '8 Tex. R. Civ. P. 87(3)(a) [emphasis added]. 19 In re Socorro Indep. Sch. Dist., 2010 Tex. App. LEXIS 2126, *8 (Tex. App.—Edinburg Mar. 22, 2010, no pet.), quoting Afaranatha Temple, Inc. y. Enter. Prod. Co., 833 S.W.2d 736, 740 (Tex. App.—Houston [Ist Dist.] 1992, writ denied); State v. Life Partners, Inc., 243 S.W.3d 236, 239 (Tex. App.—Waco 007, pet. denied), Sanes v. Clark, 25 S.W.3d 800, 803 (Tex. App.—Waco 2000, pet. denied): Pevsen v. Dawson, 974 S.W.2d 377, 380 (Tex. App.— a San Antonio 1998, no pet.); see also Bleeker v. Villarreal, 941 S.W.2d 163, 175 (Tex. App.—Corpus Christi 1996, writ dism’d by agr.). ?° In re Socorro Indep. Sch. Dist., 2010 Tex. App. LEXIS 2126 at *8. [emphasis added] 21 Jd [internal citations omitted].; see also Jackson v. Jackson, 2016 Tex. App. LEXIS 10444, *10 (Tex. App.—Fort Worth, Sept. 22, 2016, no pet.) (“Andrew never specifically denied that he communicated with John in Tarrant County or that he did so in conformity with the customary practice among the parties that John would share the information with the other family members. Accordingly, in the absence of a specific denial, we take that fact as true . Appellant’s motion to transfer specifically dnies that the cause of action arose in the county of suit .. . However, it does not specifically deny that appellant contracted to pay the note in San Patricio County. Therefore, .. . Appellee established proper permissive venue in that county.”). 2 In re Socorro Indep. Sch. Dist., 2010 Tex. App. LEXIS 2126 at *8. -ll- tS . represents the minimum quantity of evidence necessary to support a rational inference that the allegation of fact is true.”).?3 Once provided, the venue analysis ends. In other words, “Rule 87 of the rules of civil procedure requires trial courts to make venue determinations on the basis of prima facie proof only and does not require or even affirmatively permit trial courts to assess the credibility of conflicting affiants.”™* In fact, it is irrelevant “whether the evidence as a whole shows that the prima facie proof was wrong or misleading.”?> Put plainly: The laintiff’s prima facie proof is not subject to rebuttal, cross-examination impeachment, or disproof. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993). When ruling on a motion to transfer venue, the trial court must assume the pleadings are true . . . If the plaintiff adequately pleads and provides prima facie proof that venue is proper in the amount of suit, then the trial court must not transfer the case. Tex. R. Civ. P. 87(3)(c); see also Wilson, 886 S.W.2d at 261 (“Together, Rule 87(3)(c) and Section 15.063(1) requires that a lawsuit pleaded and proved to be filed in a county of proper venue may not be transferred.” In such a situation, no other county can be a proper county of venue, even if the county of transfer also would have been proper had it been originally chosen by the plaintiff. Wilson, 886, S.W.2d at 261.” “This rule—that plaintiff is given the first choice in the filing of the lawsuit—gives effect to the plaintiff's right to select a proper venue.””’ And therefore, if Plaintiff provides prima facie 28 proof that venue is proper in the forum, “then there can be no other proper venue in that case. 33 Id, [emphasis added] ™ Rosales v. H.E Butt Grocery Co., 905 $.W.2d 745, 749 (Tex.App.—San Antonio, 1995, no motion for hearing denied). 5 Rosales., 905 S.W.2d at 749, citing Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993). 26 In re Socorro Indep. Sch. Dist., 2010 Tex. App. LEXIS 2126 at **7-8. [emphasis added] 27 Rosales., 905 S.W.2d at 748. 28 Id. -12- eS 3. Step Three: If Plaintiff Cannot Raise Prima Facie Proof to Support Venue in the County of Suit, Only Then Can a Defendant Produce Evidence that Venue Is Proper in Another County. If, and only if, this Court finds that Plaintiff failed to produce minimal prima facie evidence to establish that venue is proper in Harris County, this Court may then transfer venue to Galveston County if “Defendant[s] prove[] that venue is maintainable in the county to which venue is sought” (Galveston).”’ In other words, Defendants may only cite evidence to support venue in Galveston County. What Defendants cannot do is cite evidence to support their argument that venue is improper in Harris County because “[P]laintiff's prima facie proof is not subject to rebuttal, cross-examination, impeachment, or disproof” and the only tool to dispute venue in Harris County is a specific denial.”*° In other words, only if a plaintiff cannot establish proper venue in the forum of suit may the court consider a defendant’s alternative evidence that another forum may be proper.*! Yet, this is exactly what these Defendants attempt to do and it is improper. III. This Court Should Strike Defendants’ Evidence Intending to Show that Venue is Improper in Harris County Because Such Evidence is Irrelevant to the Court’s Inquiry. This is not a contested evidentiary hearing. 29 Rosales v. H.E. Butt Grocery Co., 905 §.W.2d at 747 (“If the plaintiff fails to meet this burden, the trial court must transfer the lawsuit to another specified county of proper venue if the defendant then proves that venue is maintainable inthe county to which transfer is sought.”). 30 Ruiz v. Conoco, Inc., 868 §.W.2d 752, 757 (Tex. 1993). | Jackson, 2016 Tex.App. LEXIS 10444 at *12 (‘In Andrew’s third issue, he contends that the trial court erred by denying his motion to transfer venuc because he showed that Midland County was a county of proper venue . . . But, as long as the forum is a proper one, it is the plaintiffs privilege to choose the forum. Only if venue had not been established as to any plaintiff would we need to address Andrew's proposed transfer to Midland County.”). Rosales y. H.E.B Grocery Co., 905 S.W.2d at 749. (Indeed, appellees cite a long list of evidence from which they arguc that Rosales Maintaincd his only residence in Bexar County. The cvidence cited by Appellccs challenges the validity of Rosales’s evidence produced in response to the motion to transfer venue. This is actually the type of conflict in evidence that would be decided by the trier of fact in a typical civil trial. This is a venue challenge, however, and the rules applicable to a typical civil trial do not apply.”). -13- eS Yet, Herz’s Motion, joined by Ross Moody and GHA, includes a trove of evidence—not to alternatively show that Galveston County may be a proper venue to the extent Plaintiff fails to produce minimal, prima facie evidence showing proper venue in Harris County— but instead, to show “that Harris County is not a proper venue,” “Defendants do not reside in Harris County,” nor did “a substantial part of the events giving rise to this suit occur in Harris. County.”*? GHA, likewise, cites to Exhibit 1, a detailed affidavit in arguing that “Venue is not proper in Harris County.” But, as explained above, Defendants have only one “move” to address Plaintiff's facts relating to Harris County—to specifically deny them, and if denied, the venue analysis ends once Plaintiff puts forth prima facie evidence of proper venue and such “is not subject to rebutta 1 Because Defendants’ evidence and arguments attack the validity of Harris County as a proper venue, all of Defendants’ arguments and evidence as to this issue are improper and should be stricken.*> What Defendants are arguing is that this Court should completely disregard the proper framework of a proper venue analysis and commit reversible error. Thus, Plaintiff requests that this Court strike Herz’s exhibits 1-7 and GHA’s exhibit 1 and disregard arguments in support of said evidence because this evidence has been proffered improperly for the purpose of disproving venue in Harris County. IV. Argument and Authorities. a As show below, Defendants’ Motions fail for a host of reasons. Defendants failed to specifically deny a host of venue-related facts. These facts should be taken as true. When taken as true, Plaintiff s venue allegations regarding Herz’s residence are more » Herz’s Motion to Transfer, p. 1-2. 33 GHA’s Motion to Transfer, p. 6-7. + See footnote 26. 35 See footnote 8. -14- eS . than sufficient to establish that venue is proper in Harris County—the forum of Plaintiff's choosing. Even if this Court finds Defendants’ sloppy, haphazard, and generalized venue denials to be sufficient—which they are not—Plaintiff submits prima facie proof that venue is proper in Harris County under both mandatory and permissive venue rules. The analysis stops there. Specifically, Defendants and Plaintiff agree that the mandatory venue provision § 115.002 of the Texas Trust Code controls because this is a lawsuit against Trustee Herz regarding his actions as trustee.*° Under § 115.002, a suit “by or against a trustee and all proceedings concerning 2966 trusts shall be brought in the county in which” “the trustee resides or has resided at any time during the four-year period preceding the date the action is filed.”*” This is the primary venue allegation plead by Plaintiff. Plaintiff has never disputed that Herz has a residence in Galveston County; Plaintiff submit prima facie evidence, and in fact proves, however, that Herz also has a residence in Harris County, because he owns a condominium in Houston where he regularly stays, has routinely and frequently stayed for nineteen years, and has no intention to sell.** Because Herz also resides in Harris County, Harris County is a county of mandatory venue under § 115.002 of the Texas Trust Code.” Under the good-as-to-one, good-as-to-all rule, venue is proper in Harris County against all Defendants because it is proper in Harris County as to Herz." *6 Tex. PROP. CODE § 115.002; Ross Moody Motion at 2-3; Herz Motion at 9-15; GHA Motion at 3-4; Plaintiff's First Amended Petition, p. 5, pleads mandatory venue provision TPC § 115.002. 37 Tex. PROP. CODE § 115.001(a)(1); TEX. Prop. CODE § 115.002(b) (“(b) If there is a single, noncorporate trustee, an action shall be brought in the county in which: (1) the trustee resides or has resided at any time during the four-year period preceding the date the action is filed; or (2) the situs of administration of the trust is maintained or has been maintained at any time during the four-year period preceding the date the action is filed.”). 38 See Herz Motion Ex. 7. 39 See § II(B) below. 4° See § II(C) below. -[5- e As part of their shotgun approach, the Defendants argue that if the permissive-venue statute applies, then venue is proper only in Galveston County.*! But the permissive-venue statute does not apply when a mandatory-venue provision statute applies, so permissive venue does not control in this case.*? Even if mandatory venue does not apply, permissive venue would also be proper in Plaintiff's chosen forum under TEX. CIV. PRAC. & REM. CODE § 15.002(a)(2) and (a)(1) because Herz resides in Harris County and uadisputed factual allegations establish that a substantial part of the events occurred in Harris County. Finally, as a Hail Mary, the Defendants argue that even if this Court determines that Harris County is a county of mandatory venue, this Court should still transfer this case to Galveston 43 County for the convenience of the parties. The Defendants have not carried their burden of establishing that keeping this case in Harris County would work an injustice to them, so a convenience transfer would be improper." A. Defendants Failed to Specifically Deny Numerous Facts Plaintiff Pled in Support of Venue. This Failure Proves Fatal to All of Defendants’ Motions. 1. Plaintiff's Pled Venue Facts. Plaintiff's live pleading* alleges that venue is proper in Harris County, Texas under mandatory venue statute Texas Property Code § 115.002 or, alternatively, under permissive venue *t Ross Moody: Motion at 2-3. 2 See § II(D) below. ‘3 Herz Motion at 19-20; GHA Motion at 8, TEX. PRop. CODE § 115.002(d); Tex. Civ. Prac. & Rem. Code § 15.002(b). 44 See § II(E) below * See Plaintiffs First Amended Petition, generally. See Jn re Fluor Enters., 2011 Tex. App. LEXIS 4496, *10-11 (Tex. App.—Corpus Christi, June 13, 2011, no pet.) (*[Plaintiff] was clearly entitled to amend his pleadings at Icast seven days before the hearing on the motion transfer. Tex. R. Civ. P. 63; JVatson v. Citv of Odessa, 893 S.W.2d 197, 199-200 (Tex. App.—El Paso 1995, writ denied), see also A foriarty v. Williams, 752 S.W.2d 610, 61 (Tex. App.—El Paso 1988, writ denied”)). -16- te . statute Texas Civil Practice & Remedies § 15.002 because Trustee/Defendant Herz resides in Harris County.*¢ 247 Specifically, Plaintiff alleges that “Herz has resided in Harris County for many years. Plaintiff alleges that Herz’s home “is a fixed place of abode within [Herz’s] possession.”** Plaintiff alleges that Herz’s “Houston residence is occupied, has been occupied for many years, and is intended to be occupied over a substantial period of time.”*? Plaintiff alleges that Herz’s residence 50 is “permanent. Plaintiff also alleges that venue is proper in Harris County because a substantial part of the events or omissions giving rise to the claim occurred in Harris County.*! Plaintiff pleads that this includes “bank branches, substantial monies, and nursing homes, a substantial portion of Defendant Buddy Herz’s wrongful conduct occurred here, substantial assets are being managed and mismanaged here, substantial Trust assets are being damaged here, the wrongful conduct described herein impacted substantial trust assets in Harris County, and one of the contingent 52 beneficiaries of the Trust described herein resides in Harris County and is being damaged here. 2. Defendants’ Specific Denials are only General Denials. As addressed in some detail above, “global” or “general” denials, for example: “Defendant specifically denies those venue facts pled in Plaintiff’s petition” or that a named defendant “does 46 See Pet., p. 5. 47 Id