David Yates Oct. 4, 2013, 2:13pm

A defendant in a wrongful death suit brought over a March 2011 automobile collision claims it should have never been sued in the first place.

On behalf of the estate of Kyle Thornburg, Doug and Robin Thornburg filed suit against Emcor Group, Ohmstede Ltd. and Carlos and Tiffany Pena, as representatives of the estate of Joseph Pena, on March 20 in Jefferson County District Court.

The suit says that at the time of the incident Joseph Pena was employed by Emcor and Ohmstede.

However, according to a motion to dismiss for lack of prosecution, Ohmstede says it was not Pena’s employer and the company did not own the vehicle involved.

The motion also states the plaintiffs’ former attorney, Paul Ferguson Jr. of the Provost Umphrey Law Firm, withdrew as counsel in June and the plaintiffs have not found new representation.

Because of those stated reasons, and that the case was filed two years to the day after the incident and no action has been taken since the suit was filed, Ohmstede should be dismissed, the motion states.

This is not the first defendant sued by a client of Ferguson claiming they should have never been sued.

As previously reported, on July 6 Roberta Leyendecker, the widow of Barry Leyendecker, filed a wrongful death suit in Jefferson County District Court against Cynthia and Larry Chandlers, alleging they owned the recreational vehicle that caused a fatal automobile collision.

However, the Chandlers sold their recreational vehicle in 2011. Several months later, the new owners of the RV were in a collision that killed Leyendecker and led to a lawsuit against the couple.

Court records show that on Oct. 11 Roberta Leyendecker filed a notice of non-suit, stating that she no longer wished to pursue her claim against that couple and requesting that all costs be assessed against the party incurring same.

A month earlier, the couple had paid a visit to the office of Ferguson, counsel for the plaintiff, and delivered documents clearly showing the Chandlers sold the vehicle before the incident, the Chandlers had told the Southeast Texas Record.

In the Thornburgs’ lawsuit, on March 23, 2011, Kyle Thornburg was traveling on Interstate 70 in Kansas when Joseph Pena, who was allegedly intoxicated and traveling the wrong way, collided with his vehicle. The collision ultimately killed both individuals, according to the suit.

The suit faults the corporate defendants with negligent entrustment.

Carlos Pena owned the vehicle Joseph was driving, the suit states.

The plaintiffs are suing for their mental anguish, loss of companionship and Kyle’s funeral expenses.

Sugar Land attorney James Gascoyne of Gascoyne & Bullion represents Ohmstede.

Judge Donald Floyd, 172nd District Court, is assigned to the case.

Case No. E194-175

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