ACCEPTED 14-15-00401-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 5/4/2015 12:45:30 PM CHRISTOPHER PRINE CLERK
NO. __________-CV __________________________________________________________________ IN THE COURT OF APPEALS FILED IN 14th COURT OF APPEALS FOR THE FIRST OR FOURTEENTH DISTRICT OFHOUSTON, TEXAS TEXAS __________________________________________________________________ 5/4/2015 12:45:30 PM CHRISTOPHER A. PRINE Clerk IN RE JOSE GOMEZ AND EDUARDO GOMEZ, INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH & LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. F/K/A MCCARTY TRUCK WASH & LUBE, INC. AND BROTHERS TIRE SERVICES, INC. D/B/A MCCARTY TRUCK WASH, LUBE AND TIRES __________________________________________________________________
ORIGINAL PROCEEDING IN THE 215TH DISTRICT COURT OF HARRIS COUNTY, TEXAS CAUSE NO. 2010-56104 THE HONORABLE JUDGE ELAINE H. PALMER, PRESIDING __________________________________________________________________
RELATORS’ MOTION FOR EMERGENCY STAY _________________________________________________________________ Steve M. Williard Texas Bar No. 00788684 The Williard Law Firm, L.P. 1920 N. Memorial Way, Suite 207 Houston, Texas 77007 Phone: (713) 529-6300 Fax: (713) 529-6315 E-mail: steve@williardlaw.com ATTORNEY FOR RELATORS, JOSE GOMEZ AND EDUARDO GOMEZ, INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH & LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. F/K/A MCCARTY TRUCK WASH & LUBE, INC. AND BROTHERS TIRE SERVICES, INC. D/B/A MCCARTY TRUCK WASH, LUBE AND TIRES NO. ____________-CV __________________________________________________________________
IN THE COURT OF APPEALS FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS __________________________________________________________________
IN RE JOSE GOMEZ AND EDUARDO GOMEZ, INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH & LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. F/K/A MCCARTY TRUCK WASH & LUBE, INC. AND BROTHERS TIRE SERVICES, INC. D/B/A MCCARTY TRUCK WASH, LUBE AND TIRES __________________________________________________________________
ORIGINAL PROCEEDING IN THE 215TH DISTRICT COURT OF HARRIS COUNTY, TEXAS CAUSE NO. 2010-56104 THE HONORABLE JUDGE ELAINE H. PALMER, PRESIDING __________________________________________________________________
RELATORS’ MOTION FOR EMERGENCY STAY __________________________________________________________________
Relators, JOSE GOMEZ AND EDUARDO GOMEZ, INDIVIDUALLY AND
AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH & LUBE,
INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. F/K/A MCCARTY
TRUCK WASH & LUBE, INC. AND BROTHERS TIRE SERVICES, INC. D/B/A
MCCARTY TRUCK WASH, LUBE AND TIRES, asks the Court for an emergency
stay.
2 A. INTRODUCTION
1. Relators are JOSE GOMEZ AND EDUARDO GOMEZ,
INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY
TRUCK WASH & LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE,
INC. F/K/A MCCARTY TRUCK WASH & LUBE, INC. AND BROTHERS TIRE
SERVICES, INC. D/B/A MCCARTY TRUCK WASH, LUBE AND TIRES
(collectively “Relators”). Real Parties In Interest are MANUEL D. PINEDA,
SUCCESSOR TO MCCARTY TRUCK WASH & LUBE, INC. (“Pineda”),
MCCARTY TRUCK WASH & LUBE, L.L.C. (“McCarty”) and JUAN MUNOZ
(“Munoz”) (Pineda, McCarty and Munoz collectively “Real Parties In Interest”).
Respondent is HONORABLE JUDGE ELAINE H. PALMER (“Respondent”).
2. Relators have simultaneously filed their Petition for Writ of Mandamus,
in which it asks the Court to direct Respondent, the Honorable Judge Elaine H.
Palmer, 215th District Court, Harris County, Texas, to vacate an order signed by
Respondent on September 26, 2014 (“Order”). (App. Tab No. 1).
3. Relators attach a certificate of compliance certifying that on May 4,
2015, they notified Respondent and Real Parties In Interest by expedited means (fax,
email and/or telephone) that a motion for temporary relief would be filed. Tex. R.
App. P. 52.10(a).
3 4. This original proceeding and request for emergency stay arises out of an
order granting sanctions against Relators.
5. On August 1, 2014, Real Parties In Interest filed their First Supplemental
Motion for Sanctions and to Strike Counter-Defendants’ Answer to Counter-
Plaintiffs’ Counter-Claim and Plaintiffs’ Fifth Amended Petition and Application for
Permanent Injunction (“Motion”). (App. Tab No. 2).
6. On September 23, 2014, Relators filed their Response to Defendants’
First Supplemental Motion for Sanctions and to Strike Counter-Defendants’ Answer
to Counter-Plaintiffs’ Counter-Claim and Plaintiffs’ Fifth Amended Petition and
Application for Permanent Injunction (“Response to Motion”). (App. Tab No. 3).
7. On September 26, 2014, without a hearing being conducted at the time
stated in Real Parties In Interest’s notice of hearing, the Court signed the Order
granting Real Parties In Interest’s Motion. The Order ordered, inter alia, that (1) all
tax and Secretary of State documents related to the Reinstatement and any testimony
related thereto are excluded; (2) that any argument to the effect that Relators are the
senior holder of the name or mark of McCarty Truck Wash & Lube is prohibited; and
(3) striking the pleading entitled Counter-Defendants’ Answer to Counter-Plaintiff’s
Counter-Claims and Plaintiff’s Fifth Amended Petition and Application for
Permanent Injunction.
4 8. Relators filed a Verified Motion for Reconsideration of the Court’s
Order of September 26, 2014 (“Motion for Reconsideration”) which has not been
ruled on by the trial court. This matter is currently set for trial on May 18, 2015.
9. Relators contend the trial court abused its discretion when it granted
sanctions against Relators based upon the fact that (a) the trial court failed to conduct
a hearing at the time scheduled; (b) there is no evidence in the record to suggest that
any of the allegations contained in the Motion are true; and (c) the trial court failed
to consider lesser remedies.
B. ARGUMENTS & AUTHORITIES
10. The Court may grant temporary relief pending its determination of an
original proceeding. Tex. R. App. P. 52.10(b).
11. This emergency stay is necessary to maintain the status quo of the parties
and to preserve the Court’s jurisdiction to consider the merits of the trial court’s
Order. In re Reed, 901 S.W.2d 604, 609 (Tex. App. - San Antonio 1995, original
proceeding).
12. For the reasons set forth in Relators’ Petition for Writ of Mandamus, the
trial court abused its discretion when it signed the Order granting sanctions against
Relators for amending their pleading in response to Real Parties In Interest’s
amending their court-suit six (6) days before trial alleging for the first time a breach
5 of an alleged contract and/or producing fifty (50) boxes of records nine (9) months
before trial. To enable the Court to fully consider the arguments and record, Relators
request a stay of the Order until such time as the Court issues a final ruling on the
Petition for Writ of Mandamus.
C. CONCLUSION
13. A stay of the Order which granted Real Parties In Interest’s Motion is
necessary to preserve Relators’ rights and to prevent Relators from being subjected
to Respondent’s abuse of discretion.
D. PRAYER
14. For the reasons stated in this motion, Relators ask the Court for an
emergency stay to maintain the status quo of the parties and preserve the Court’s
jurisdiction to consider the merits of Relators’ Petition for Writ of Mandamus.
6 Respectfully submitted,
/s/ Steve M. Williard Steve M. Williard Texas Bar No. 00788684 The Williard Law Firm, L.P. 1920 N. Memorial Way, Suite 207 Houston, Texas 77007 Phone: (713) 529-6300 Fax: (713) 529-6315 E-mail: steve@williardlaw.com
ATTORNEY FOR RELATORS, JOSE GOMEZ AND EDUARDO GOMEZ, INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH & LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. F/K/A MCCARTY TRUCK WASH & LUBE, INC. AND BROTHERS TIRE SERVICES, INC. D/B/A MCCARTY TRUCK WASH, LUBE AND TIRES
7 CERTIFICATE OF CONFERENCE
I certify that I have conferred with counsel for the Real Parties In Interest
regarding the requested relief and counsel for the Real Parties In Interest has not
agreed and is opposed to the filing of this motion.
/s/ Steve M. Williard Steve M. Williard
8 CERTIFICATE OF SERVICE
I certify that a copy of the foregoing document was served on all parties and/or
counsel as required by the Texas Rules of Appellate Procedure by U.S. mail, fax,
and/or personal delivery on May 4, 2015 as follows:
Via Certified Mail/RRR #7014 3490 0000 1008 6157 Ms. Elizabeth Burkhardt Saenz & Burkhardt, P.L.L.C. 5503 Lawndale Houston, Texas 77023 Phone: (832) 922-2919 Fax: (713) 468-5932 E-mail: Elizabeth@SaenzBurkhardt.com Attorney for Real Parties In Interest: Manuel D. Pineda, Successor to McCarty Truck Wash and Lube, Inc., McCarty Truck Wash & Lube, L.L.C. and Juan Munoz
Via Certified Mail/RRR #7014 3490 0000 1008 6164 The Honorable Judge Elaine H. Palmer 215th Harris County District Court 201 Caroline, Floor 13 Houston, Texas 77002 Phone: (713) 368-6330 Respondent
9 CERTIFICATE OF COMPLIANCE
Under Texas Rule of Appellate Procedure 52.10(a), I certify that I have made
a diligent effort to notify all parties by telephone and/or facsimile that a motion for
temporary relief would be filed.
10 NO. ____________-CV __________________________________________________________________
IN THE COURT OF APPEALS FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS __________________________________________________________________
IN RE JOSE GOMEZ AND EDUARDO GOMEZ, INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH & LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. F/K/A MCCARTY TRUCK WASH & LUBE, INC. AND BROTHERS TIRE SERVICES, INC. D/B/A MCCARTY TRUCK WASH, LUBE AND TIRES __________________________________________________________________
ORIGINAL PROCEEDING IN THE 215TH DISTRICT COURT OF HARRIS COUNTY, TEXAS CAUSE NO. 2010-56104 THE HONORABLE JUDGE ELAINE H. PALMER, PRESIDING __________________________________________________________________
RELATORS’ MOTION FOR EMERGENCY STAY _________________________________________________________________
Relators submit the following documents in support of their Motion for Emergency Stay:
Document Title Tab No.
Order Granting Defendants’ Motion for Sanctions..................................1
First Supplemental Motion for Sanctions and to Strike Counter-Defendants’ Answer to Counter-Plaintiffs’ Counter-Claim and Plaintiffs’ Fifth Amended Petition and Application for Permanent Injunction..............................................2
11 Plaintiffs’ Response to Defendants’ First Supplemental Motion for Sanctions and to Strike Counter-Defendants’ Answer to Counter-Plaintiffs’ Counter-Claim and Plaintiffs’ Fifth Amended Petition and Application for Permanent Injunction........3
12 STATE OF TEXAS $ $ COLINTY OF HARRIS $
Before me, the uncrersigned notary, on this day personary appeared Steve M. williard' the affiant, a person whose identity is known to rne. After I adrninistered an oath, affiant testified:
l. My narne is steve M. wiiliard. I arn over 1g years of age, of sound tnind, and capable of making this affidavit, The facts in this affidavit are within my personal knowledge and true and correcr. 2. I am the attorney for Relators. All of the facts stated in the Motion for
Ernergency Stay are
Furlher, affiant sayeth not.
Steve M. Williard
SUBSCRIBED AND SWORN TO befo day of May,2015.
DAWN M STABLEB i NoTARY PUEL|C State of Texas Corffn. Exp.0S2j Notary and for the Print Name: My Commission Exp
F:\Filcs\conrez' EdLrarrio\Mccnrty Truck wash t,ir\Appcal lvtattcr (ficcor,ti)\02 futotion tor Emcrgcncy slfly.wD(l
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APP. TAB NO. 1 ric t Cl er k Un o ffic ial C op yO ffic e of C hr is Da nie lD ist ric t Cl er k 8/1/2014 12:43:29 PM Chris Daniel - District Clerk Harris County Envelope No. 2023257 By: GAYLE FULLER
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APP. TAB NO. 2 Un of fic ial C op yO ffic e of C hr is Da nie lD ist ric tC ler k Un of fic ial C op yO ffic e of C hr is Da nie lD ist ric tC ler k Un of fic ial C op yO ffic e of C hr is Da nie lD ist ric tC ler k Un of fic ial C op yO ffic e of C hr is Da nie lD ist ric tC ler k 9/23/2014 10:43:33 AM Chris Daniel - District Clerk Harris County Envelope No. 2585581 By: JEANETTA SPENCER
Cause No. 2010-56104
JOSE GOMEZ and § IN THE DISTRICT COURT OF EDUARDO GOMEZ d/b/a § BROTHERS TIRE SERVICES, INC. § Plaintiffs, § § vs. § HARRIS COUNTY, TEXAS §
k ler MANUEL D. PINEDA d/b/a MC CARTY § TRUCK WASH AND LUBE, INC., ET AL. §
tC Defendants. § 215TH JUDICIAL DISTRICT
ric PLAINTIFFS’ RESPONSE TO DEFENDANTS’
ist FIRST SUPPLEMENTAL MOTION FOR SANCTIONS AND TO STRIKE COUNTER-
lD DEFENDANTS’ ANSWER TO COUNTER-PLAINTIFFS’ COUNTER-CLAIM AND PLAINTIFFS’ FIFTH AMENDED PETITION AND
nie APPLICATION FOR PERMANENT INJUNCTION
TO THE HONORABLE JUDGE OF SAID COURT: Da is COMES NOW, Plaintiffs, Plaintiffs, JOSE GOMEZ and EDUARDO GOMEZ hr C
INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH of
& LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. f/k/a MCCARTY e ffic
TRUCK WASH & LUBE, INC. and BROTHERS TIRE SERVICES, INC. D/B/A MCCARTY O
TRUCK WASH, LUBE AND TIRES (collectively “Plaintiffs”) Response to Defendants, y op
MANUEL D. PINEDA, SUCCESSOR TO MCCARTY TRUCK WASH & LUBE, INC. C ial
(“Pineda”), MCCARTY TRUCK WASH & LUBE, L.L.C. (“McCarty”) and JUAN MUNOZ fic
(“Munoz”) (Pineda, McCarty and Munoz collectively “Defendants”) First Supplemental Motion of Un
for Sanctions and to Strike Counter-Defendants’ Answer to Counter-Plaintiffs’ Counter-Claim
and Plaintiffs’ Fifth Amended Petition and Application for Permanent Injunction (“Motion”).
I. RESPONSE
1. Defendants’ Motion seems to aver two (2) complaints. First, Defendants seem to
APP. TAB NO. 3 complain that Defendants have amended their pleadings from time to time. Defendants do not
cite an authority that would suggest that amending a pleading is worthy of sanctions.
2. More importantly, Defendants failed to inform the Court that (a) Defendants filed a
Motion to Enforce Settlement Agreement 21 days before trial alleging for the first time that there
was a settlement in the case that allegedly occurred around February 6, 2012 (almost 2 ½ years
k ler before Defendants filed their motion to enforce); and (b) Defendants amended their counter-
tC claim just 6 days before trial; both of which necessitated Plaintiffs to file affirmative defenses to
ric ist the newly raised allegations. As a result of Defendants’ Motion to Enforce Settlement
lD Agreement that Plaintiffs learned for the first time that Defendants were attempting to enforce an
nie unsigned settlement agreement. As a result, Plaintiffs amended their answer on July 28, 2014 to Da include ambiguity, estoppel, statute of limitations, waiver, failure to mitigate, proportionate is hr
responsibility and fraud in the inducement associated with such Motion to Enforce Settlement C of
Agreement. Further, Defendants site no authority for sanctioning a party for amending its e
pleadings. ffic O
3. Second, Defendants seem to aver Plaintiffs abused the discovery process. y
Specifically, Defendants allege that 50 boxes of receipts were presented to Defendants “Right op C
before trial”. This allegation is not true. Plaintiffs sent 2 letters dated September 12, 2013 and ial
December 17, 2013 informing Defendants that Plaintiffs had 50 boxes readily available for fic of
Defendants to review (see Exhibits “A” and “B” attached hereto and incorporated herein by Un
reference). So, Defendants had more than nine (9) months to review the documents in
preparation for trial. It is untenable to suggest that Plaintiffs did anything wrong in making the
50 boxes of records available to Defendants nine (9) months before trial.
2 4. Next, Defendants contend that somehow Plaintiffs failed to produce tax documents
that go to the “heart of the case”. This is a trademark infringement case - tax returns have
nothing to do with the “heart” of this case. As briefed by Plaintiffs, the loss of the corporate
privileges in no way dissolves a company. Specifically, a “[F]orfeiture of a corporate charter
does not extinguish the corporation as a legal entity so long as there is a statutory right to have
k ler the corporate charter reinstated.” Lighthouse Church v. Tex. Bank, 889 S.W.2d 595, 601 (Tex.
tC App. Houston [14th Dist.] 1994); see also Parker County's Squaw Creek Downs, L.P. v. Joseph
ric ist Earl Watson, 2009 Tex.App. LEXIS 2206,*18 (Tex.App. - Fort Worth[2nd Dist.]
lD 2009)(“Neither the forfeiture of corporate privileges by the comptroller nor the forfeiture of a
nie corporation's charter by the secretary of state extinguishes the corporation as an entity.”); Da Tiddies, Inc. v. Brown, 2005 U.S. Dist. LEXIS 3456 (N.D. Tex. 2005)(same). Texas Tax Code is hr
Section 171.313 provides such a statutory right: “If a corporation's charter or certificate of C of
authority is forfeited . . . a stockholder, director, or officer of the corporation at the time of the e
forfeiture . . . may request in the name of the corporation that the secretary of state set aside the ffic O
forfeiture of the charter or certificate.” Tex. Tax Code § 171.313. Furthermore, “Once the y
corporation pays the delinquent taxes and [the charter] is reinstated, the payment relates back op C
and revives the corporate rights that were forfeited.” Flameout Design & Fabrication, Inc. v. ial
Pennzoil Caspian Corp., 994 S.W.2d 830, 839 (Tex. App. Houston [1st Dist.] 1999). Thus, the fic of
Defendants arguments that (a) the Plaintiff lost its ownership of the trade name “McCarty Truck Un
Wash & Lube”; and (b) that a reinstatement of its charter somehow creates a new legal entity is
simply not true. Forfeiture of a charter does not extinguish the legal entity.
5. In Regal Construction Company, Appellant v. Phil Hansel, et ux, Appellee, 596
3 S.W.2d 150 (Tex. App. Houston [1st Dist.]) the Supreme Court of Texas has held that where the
Secretary of State has entered on the record in his office forfeiture of the right of the corporation
to do business in this state, the charter of the corporation has not thereby been cancelled nor has
the corporation been dissolved. The legal title to the assets remains in the corporation, but the
beneficial title to the assets of the corporation is in the stockholders. This being true, and since
k ler the right to sue has been denied to the corporation by the forfeiture, the stockholders, as
tC beneficial owners of the assets of the corporation, may prosecute or defend such actions in the
ric ist courts as may be necessary to protect their property rights. Humble Oil & Refining Co. v.
lD Blankenburg, 149 Tex. 498, 235 S.W.2d 891 (1951). The case of McGown v. Kittel, 480 S.W.2d
nie 47 (Tex.Civ.App. Fort Worth 1972, writ ref. n. r. e.), also cited, was an action by a shareholder Da of a corporation whose charter had been forfeited for nonpayment of franchise taxes to liquidate is hr
the corporation. Prior to the trial of the suit the corporate charter was reinstated. The significant C of
holding of the court was that the forfeiture of the corporate charter did not extinguish the e
corporation as a legal entity so long as there was a statutory right to have the corporate charter ffic O
reinstated. y
6. Further, a corporation may still continue to use and keep its trademark even if its op C
charter is forfeited. See Tiddies, Inc. v. Brown, 2005 U.S. Dist. LEXIS 3456 (N.D. Tex. 2005). In ial
Tiddies, the assignee of a trademark forfeited its charter after receiving the assignment of the fic of
trademark. Tiddies, Inc. v. Brown, 2005 U.S. Dist. LEXIS at 2. The assignor began using the Un
trademark considering that the assignee had forfeited its charter. Id. at 3. Applying Texas law,
the court held that forfeiture of a charter does not mean a corporation has abandoned a
trademark. Id. at 12. The court also held that the assignor in this case had infringed on the
4 assignee’s trademark. Id.
7. Next, Defendants seek an order “compelling production of all documents provided
by or received from the Secretary of State’s and Comptroller of Public Accounts’ offices”. First,
Defendants had to have requested documents before being compelled to produce something.
Second, such documents must be relevant. The burden to show that the tax returns are both
k ler relevant and material to the issues in the case shifts to the party seeking to obtain the documents .
tC El Centro del Barrio, Inc. v. Barlow, 894 S.W.2d 775, 779 (Tex. App.--San Antonio 1994, no
ric ist writ). "Federal income tax returns are not material if the same information can be obtained from
lD another source." In re Sullivan, 214 S.W.3d 622, 624-25 (Tex. App.--Austin 2006, orig.
nie proceeding); see also Garth, 214 S.W.3d at 194 (trial court abuses discretion by requiring Da production of tax returns when trial court's order also requires production of financial statements is hr
regarding net worth of party); Chamberlain v. Cherry, 818 S.W.2d 201, 207 (Tex. App.--Amarillo C of
1991, no writ) (holding that trial court did not abuse discretion in refusing to allow discovery of e
income tax returns because party seeking to obtain tax returns did not attempt to obtain other ffic O
evidence of net worth, such as financial statements, and made no showing that tax returns were y
relevant to determination of party's financial [**9] position); Wal-Mart Stores, Inc. v. op C
Alexander, 868 S.W.2d 322, 331 (Tex. 1993) (Gonzalez, J. concurring) ("[T]rial courts should ial
not allow discovery of private financial records, such as tax returns, when there are other fic of
adequate methods to ascertain net worth . . . ."). Moreover, tax returns may not be discovered Un
when the information sought is duplicative of information already provided. Ramirez, 824
S.W.2d at 559.
8. Further, Texas courts treat requests for production of tax returns differently than
5 requests for other types of financial records out of a concern for the privacy of the responding
party. See, e.g., In re: Beeson, 378 S.W.3d 8, 12 (Tex.App. - Houston [1st Dist.] 2011).
Requests for production of tax returns must be material and relevant to the issues in the case, and
tax returns are not material if the same information can be obtained from another source. In re:
Beeson, 378 S.W.3d at 12(holding that the party seeking production of tax returns “must carry its
k ler burden to show that the tax returns it seeks are relevant and would not duplicate information
tC already provided or available through other, less-intrusive means.”). Information is relevant if it
ric ist tends to make the existence of a fact that is of consequence to the determination of the action
lD more or less probable than it would be without the information. The requested tax returns would
nie not lead to determining whether a trademark infringement was more or less probable. Da 9. As such, Defendants Motion against Plaintiffs for amending their pleading in is hr
response to Defendants amending their counter-suit 6 days before trial alleging for the first time C of
a breach of an alleged contract that supposedly occurred on February 6, 2012 and/or producing e
50 boxes of records nine (9) months before trial and/or Defendants’ request for an order for the ffic O
production of tax returns should be denied. y op
II. C
REQUESTED RELIEF ial fic
10. The purpose of sanctions is to secure compliance with the rules, to deter future of
violations of the rules, and to punish parties that violate the rules. Chrysler Corp. v. Blackmon, Un
841 S.W.2d 844, 849 (Tex. 1992). The Court should not sanction Plaintiffs because Plaintiffs
have not violated any rule. They simply amended their pleadings in response to Defendants
alleging a breach of a putative for the first time just six (6) days before trial. When considering
6 sanctions, a court must ensure that the punishment fits the crime. TransAmerican Natural Gas
Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). When a court decides to sanction, the
sanctions must have a direct relationship to the offensive conduct, measured by a direct nexus
among the conduct, the offender, and the sanctions imposed. Am. Flood Research, Inc. v. Jones,
192 S.W.3d 581, 583 (Tex. 2006); Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003);
k ler TransAmerican, 811 S.W.2d at 917. What is the “offensive” conduct here - amending their
tC answer in response to Defendants amending their counter-claim six (6) days before trial? A court
ric ist must not impose a sanction more severe than necessary to promote full compliance with the
lD rules. Am. Flood, 192 S.W.3d at 583; Spohn Hosp., 104 S.W.3d at 882; Chrysler Corp., 841
nie S.W.2d at 849. Defendants have asked for the death-penalty sanctions against Plaintiffs. Yet Da there is no showing of any misconduct by Plaintiffs. The Court should deny Defendants’ Motion is hr
because the Motion does not cite any facts or legal authority to justify any sanctions. GTE C of
Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993). e ffic
11. The Court should deny Defendants’ Motion and order a trial on the merits of this O
case. Chrysler Corp., 841 S.W.2d at 849; see Am. Flood, 192 S.W.3d at 583; Spohn Hosp., 104 y op
S.W.3d at 882; TransAmerican, 811 S.W.2d at 917. C ial
III. fic
CONCLUSION of Un
12. For the reasons stated above, the Defendants’ Motion should be denied.
7 IV.
PRAYER
13. WHEREFORE, Plaintiffs, JOSE GOMEZ and EDUARDO GOMEZ
INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY TRUCK WASH
& LUBE, INC., GOMEZ MCCARTY TRUCK WASH & LUBE, INC. f/k/a MCCARTY
k ler TRUCK WASH & LUBE, INC. and BROTHERS TIRE SERVICES, INC. D/B/A MCCARTY
tC TRUCK WASH, LUBE AND TIRES, respectfully request that this Court deny Defendants’
ric ist Motion and such other and further relief, both general and special, at law or in equity, to which
lD Plaintiffs may show themselves to be justly entitled.
nie Da Respectfully submitted, is THE WILLIARD LAW FIRM, L.P. hr C
/s/ Steve M. Williard of
Steve M. Williard e
Texas State Bar No. 00788684 ffic
E-Mail: steve@williardlaw.com 1920 N. Memorial Way, Suite 207 O
Houston, Texas 77007 y
Phone: (713) 529-6300 op
Fax: (713) 529-6315 C
ATTORNEY FOR PLAINTIFFS, ial
JOSE GOMEZ and EDUARDO GOMEZ fic
INDIVIDUALLY AND AS FORMER REPRESENTATIVES OF MCCARTY of
TRUCK WASH & LUBE, INC., GOMEZ Un
MCCARTY TRUCK WASH & LUBE, INC. f/k/a MCCARTY TRUCK WASH & LUBE, INC. and BROTHERS TIRE SERVICES, INC. D/B/A MCCARTY TRUCK WASH, LUBE AND TIRES
I hereby certify that a true and correct copy of the above and foregoing document, Plaintiffs’ Response to Defendants’ First Supplemental Motion for Sanctions and to Strike Counter-Defendants’ Answer to Counter-Plaintiffs’ Counter-Claim and Plaintiffs’ Fifth Amended Petition and Application for Permanent Injunction has been sent via electronic filing service on this 23rd day of September, 2014, to all counsel of record as follows:
Ms. Elizabeth Burkhardt Via Electronic Filing Service
k ler 5503 Lawndale Houston, Texas 77023
tC Phone: (832) 922-2919 Fax: (713) 468-5932
ric Attorney for Defendants: Manuel D. Pineda, Successor to McCarty Truck Wash and
ist Lube, Inc., McCarty Truck Wash & Lube, L.L.C. and Juan Munoz
lD nie Da /s/ Steve M. Williard Steve M. Williard is hr C of e ffic y O op C ial fic of Un
F:\Files\G omez, Eduardo\M cC arty Truck W ash Lit\179 R esponse to First Supp. M tn. for Sanctions and to Strike.w pd