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Electronically Filed
1/21/2022 2:55 PM
Hidalgo County District Clerks
Reviewed By: Keila Hernandez
CAUSE NO. C-4979-21-D
NESTOR ELIZONDO, § IN THE DISTRICT COURT
Plaintiff, §
§
V. § HIDALGO COUNTY, TEXAS
§
VINTAGE TILE & STONE, LLC, §
WILKINSON WALLS COMMERCIAL §
CONTRACTING COMPANY LLC, §
AMERICAN MULTI-CINEMA, INC. §
D/B/A AMC EDINBURG 18, and §
FRIEMEL CONSTRUCTION §
COMPANY INC., §
Defendants. § 206th JUDICIAL DISTRICT
PLAINTIFF’S SECOND AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
Nestor Elizondo (“Plaintiff”) files his Second Amended Petition against Defendants
Vintage Tile & Stone, LLC, Wilkinson Walls Commercial Contracting Company LLC, American
Multi-Cinema, Inc. d/b/a AMC Edinburg 18, and Friemel Construction Company Inc. and would
respectfully show this Court and Jury as follows:
I. DISCOVERY CONTROL PLAN
1.1 Pursuant to Rule 190.3 of the Texas Rules of Civil Procedure, Plaintiff alleges
discovery in this case should be conducted under Level 2.
II. PARTIES
2.1 Plaintiff Nestor Elizondo is a resident of Edinburg, Hidalgo County, TX. The last
three digits of Plaintiff’s social security number are 319.
2.2 Defendant Vintage Tile & Stone LLC (“Vintage”) is a domestic for-profit company
with its principal place of business in the State of Texas. Process was served on Vintage by serving
its registered agent, Elizabeth Ramirez Govea, at 2020 W. Nolana, McAllen, Texas 78504.
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2.3 Defendant Wilkinson Walls Commercial Contracting Company LLC
(“Wilkinson”) is a foreign for-profit company with its principal place of business in the State of
Georgia. Process was served on Wilkinson by serving its owner/president, Brannon Wilkinson, at
21921 Georgia Highway 315, Waverly Hall, Georgia 31831.
2.4 Defendant American Multi-Cinema, Inc. d/b/a AMC Edinburg 18 (“AMC”) is a
foreign for-profit entity authorized to do business in the State of Texas. Process may be served on
AMC by serving its registered agent, Corporate Creations Network Inc., at 5444 Westheimer
#1000, Houston, Texas 77056.
2.5 Defendant Friemel Construction Company Inc. (“Friemel”) is a foreign for-profit
entity authorized to do business in the State of Texas. Process may be served on Friemel by serving
its registered agent, Business Filings Incorporated, 701 Brazos Street, Suite 720, Austin, Texas
78701.
III. MISNOMER/ALTER EGO
3.1 In the event any parties are misnamed or are not included herein, it is Plaintiff’s
contention that such was a “misidentification,” “misnomer,” and/or such parties are/were “alter
egos” of parties named herein. Alternatively, Plaintiff contends that such “corporate veils” should
be pierced to hold such parties properly included in the interest of justice.
IV. JURISDICTION AND VENUE
4.1 This Court has jurisdiction in this cause since Plaintiff’s damages exceed the
minimum jurisdictional limits of this Court.
4.2 Venue is proper in Hidalgo County, Texas, under Texas Civil Practice and
Remedies Code §§ 15.002(a)(2) and 15.005 because it is the county in which all or a substantial
part of the events/omissions giving rise to Plaintiff’s claim occurred.
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V. FACTS
5.1 On or about January 21, 2020, Plaintiff was at AMC Edinburg 18 located at 3003
US-281, Edinburg, Texas 78539 to watch a movie. After the movie ended, Plaintiff walked out of
the theater and into the main lobby area. As he walked over a transition area on the floor, he
suddenly and violently tripped and fell. Plaintiff immediately lost consciousness. When he came
to, Plaintiff was in excruciating pain. He noticed he was bleeding from his head as blood gushed
into his eyes. Plaintiff soon realized he could not move his arms as he attempted to wipe the blood
from his eyes. He then noticed he could not move his legs or hands and feared the worst. Plaintiff
was transported via ambulance to Doctors Renaissance Hospital in Edinburg, Texas, where he was
told he had suffered a traumatic cervical spinal cord injury, and was paralyzed from the neck down.
Since the incident occurred, Plaintiff has experienced the unimaginable, undergoing several
emergency surgical procedures to keep him alive. Plaintiff was also told he suffered a brain injury.
5.2 Based on eyewitness testimony, AMC’s employees and managers had actual
knowledge and constructive notice of the defective condition, and a reasonable inspection would
have uncovered the defective condition prior to the incident. Upon information and belief, several
years prior to the incident, AMC hired Friemel to extensively renovate the theater, including
replacing all of the carpeting and tile in the lobby. Friemel did not follow the design plans, which
specifically called for using leveling compound to make the carpet and tile flush with each other
in the area where Plaintiff fell.
5.3 Friemel subcontracted with Vintage to install the tile to be flush with the carpet,
which Vintage did not do. Friemel subcontracted with Wilkinson to install the carpet to be flush
with the tile, which Wilkinson did not do.
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5.3 Plaintiff’s fall was due to AMC’s negligence and failure to maintain its premises in
a safe condition during normal hours of operation and Friemel’s, Vintage’s, and Wilkinson’s
negligence in failing to make the carpet and tile flush with each other in the area where Plaintiff
fell.
5.4 This was a condition which posed an unreasonable risk of harm. Defendants were
grossly negligent in not informing anyone or posting sufficient signs warning of this clear and
unreasonable risk of harm. There was no information given about the dangerous carpet tile
transition. There was no information given about the dangerous condition between the carpet and
tile transition on AMC Edinburg 18’s premises, and there were no signs to warn of the dangerous
conditions. Nothing Plaintiff did or failed to do in any way contributed to his injuries.
VI. PREMISES LIABILITY AGAINST AMC
6.1 It has become necessary to bring this lawsuit by reason of injuries and damages
Plaintiff suffered on January 21, 2020, while on the premises owned, operated, possessed, and/or
maintained by AMC, located at 3003 US-281, Edinburg, Texas 78539. Plaintiff would show that
on or about that date, he was an invitee on the premises when suddenly and without warning
Plaintiff was injured due to the defective carpet tile transition, which was a dangerous condition
existing on AMC’s premises that posed an unreasonable risk of harm, causing Plaintiff serious
permanent and painful bodily injuries. AMC requested, allowed, permitted, and encouraged
Plaintiff to enter onto the premises. Consequently, Plaintiff was an invitee to whom Defendant
owed a duty to use ordinary care, including the duty to inspect, protect, and guard Plaintiff from
the unreasonable defective carpet tile transition, which was a dangerous condition existing on the
premises that posed an unreasonable risk of harm or to warn Plaintiff of its existence. Plaintiff
was exercising ordinary care when he was suddenly and unexpectedly injured. Plaintiff was
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seriously injured due to the defective carpet tile transition, which was a dangerous condition and/or
hazard existing on the premises that posed an unreasonable risk of harm, and which AMC, its
agents, servants, and employees knew or reasonably should have known existed. AMC breached
its duty of ordinary care by failing to adequately warn Plaintiff of the dangerous condition which
posed an unreasonable risk of harm and by failing to make the dangerous condition safe. As a
result of AMC’s breach, Plaintiff sustained severe and permanent injuries. Plaintiff would show
that nothing he did nor failed to do caused, or in any way contributed to cause, the occurrence in
question. Further Plaintiff would respectfully show under this Honorable Court and Jury that AMC
failed to perform the above-stated duties and, therefore, was negligent as that term is understood
under the laws of the State of Texas in one or more of the following respects:
(1) failing to monitor the condition of the carpet tile transition in the lobby;
(2) failing to properly train its employees;
(3) failing to promptly inspect the theater when it took possession of the theater;
(4) failing to promptly inspect its premises;
(5) failing to properly supervise its employees;
(6) failing to provide adequate safety procedures; and
(7) in more particularity to be shown at trial.
Each and all of the above and foregoing acts on the AMC’s part, both of omission and
commission, were negligent and constituted negligence, and were each and all a proximate cause
of the occurrence in question and the injuries and damages Plaintiff suffered.
6.2 In the alternative, and without waiving the foregoing, Plaintiff would show he was
a licensee on the premises in question occupied and/or controlled by AMC. AMC knew of its
unreasonable defective carpet tile transition existing on its premises, which posed an unreasonable
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risk of harm to the general public, including Plaintiff, but failed to make safe or adequately warn
Plaintiff of the condition. Plaintiff had no knowledge of the dangerous condition of the defective
carpet tile transition, which was a dangerous condition that posed an unreasonable risk of harm
prior to the incident in question.
VII. NEGLIGENCE AGAINST VINTAGE, WILKINSON, AND FRIEMEL
7.1 Defendants Vintage, Wilkinson, and Friemel owed a legal duty to Plaintiff.
Specifically, Friemel owed a duty to Plaintiff to follow the design plans, which specifically called
for using leveling compound to make the carpet and tile flush with each other in the area where
Plaintiff fell. Vintage owed a duty to Plaintiff to exercise reasonable care in installing the tile to
make the tile flush with the carpet at the carpet tile transition where Plaintiff fell, and Wilkinson
owed a duty to Plaintiff to exercise reasonable care in installing the carpet to make the carpet flush
with the tile at the carpet tile transition where Plaintiff fell.
7.2 Vintage, Wilkinson, and Friemel breached their duties by failing to make the tile
and carpet flush with each other in the area where Plaintiff fell. Vintage, Wilkinson, and Friemel
were negligent and proximately caused Plaintiff’s injuries by:
(1) failing to monitor the condition of the carpet tile transition in AMC’s lobby;
(2) failing to properly train their employees to correctly construct a carpet tile
transition;
(3) failing to adequately inspect the carpet tile transition;
(4) failing to properly supervise their employees;
(5) failing to provide adequate safety procedures;
(6) failing to comply with federal and state building standards
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(7) failing to adhere to or meet the requirements for a flush carpet tile transition;
and
(8) in more particularity to be shown at trial.
VIII. GROSS NEGLIGENCE AGAINST VINTAGE, WILKINSON, AND FRIEMEL
8.1 Plaintiff would further show that Defendants Vintage, Wilkinson, and Friemel were
grossly negligent, as that term is defined and applied under Texas law. Specifically, Plaintiff
would show that the negligent acts and/or omissions of Defendants, as set forth above, constitute
acts or omissions:
a. which, when viewed objectively from the standpoint of Defendants,
involved an extreme degree of risk, considering the probability and
magnitude of the potential harm to Plaintiff and/or others; and
b. of which Defendants had actual, subjective awareness of the risks involved,
but nevertheless proceeded with conscious indifference to the rights, safety
or welfare of Plaintiff and/or others.
8.2 Such gross negligence was a proximate cause of the incident made the basis of this
lawsuit and the injuries and damages Plaintiff sustained.
IX. DAMAGES
9.1 Plaintiff Nestor Elizondo has suffered damages in the form of physical pain and
injury, mental and emotional anguish, pain and suffering in the past, pain and suffering in the
future, past and future earning capacity and economic loss, past and future physical impairment,
disfigurement and past and future lost wages. Plaintiff sustained reasonable and necessary past
and future medical bills and expenses, and he will, in all reasonable probability, continue to sustain
such legal elements of damages in the future beyond the date of the trial of this cause.
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9.2 Therefore, Plaintiff maintains this suit against Defendants for each of his foregoing
legal elements of damages in a just and reasonable sum within the jurisdictional limits of this
Honorable Court, to be determined under the sound discretion of the trier of fact or jury.
X. PUNITIVE/EXEMPLARY DAMAGES
10.1 Plaintiff hereby sues Defendants for punitive/exemplary damages. The facts and
circumstances of this case allows the Court and jury to award Plaintiff punitive/exemplary
damages in that Defendants Vintage, Wilkinson, and Friemel are guilty of malice and gross
negligence. The determination of the amount of punitive/exemplary damages is left up to the
discretion of the Court and jury in this case.
XI. TOTAL DAMAGES
11.1 As a result of the incident made the basis of this lawsuit, Plaintiff seeks monetary
relief of $100,000,000.00 or less and a demand for judgment for all other relief to which Plaintiff
is entitled; however, Plaintiff reserves the right to file an amended pleading on this issue.
XII. RESERVE THE RIGHT TO AMEND AND SUPPLEMENT
12.1 These allegations against Defendants are made acknowledging that investigation
and discovery, although undertaken, are continuing in this matter. As further investigation and
discovery are conducted, additional facts will surely be uncovered that may and probably will
necessitate further, additional, and/or different allegations, including the potential of adding parties
to and/or dismissing parties from the case. The right to do so is, under Texas law, expressly
reserved.
XIII. PRE-JUDGMENT AND POST-JUDGMENT INTEREST
13.1 In addition to the above mentioned and foregoing allegations, Plaintiff further
pleads he is entitled to pre-judgment and post-judgment interest at the highest rate allowed by law.
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XIV. COURT COSTS
14.1 Plaintiff further seeks recovery of the costs of court incurred in the filing and
pendency of this action.
XV. PRESERVING EVIDENCE
15.1 Plaintiff hereby requests and demands that Defendants preserve and maintain all
evidence pertaining to any claim or defense related to the incident made the basis of this lawsuit
or the damages resulting therefrom, including statements, photographs, videotapes, audiotapes,
surveillance or security tapes or information, business or medical records, incident reports, tenant
files, periodic reports, financial statements, bills, telephone call slips or records, estimates,
invoices, checks, measurements, correspondence, facsimiles, email, voice mail, text messages, any
evidence involving the incident in question, and any electronic image or information related to the
referenced incident or damages. Failure to maintain such items will constitute “spoliation” of the
evidence.
XVI. NOTICE OF AUTHENTICATION OF DOCUMENTS
16.1 Plaintiff hereby provides actual notice to Defendants and other parties that Plaintiff
will use any or every document produced by any and all other parties in response to written
discovery and discovery in a pretrial proceeding or at trial.
16.2 Pursuant to Texas Rule of Civil Procedure 193.7, Defendants’ production of a
document in response to written discovery authenticates that document for use against Defendants
unless – within ten days or a longer or shorter time ordered by this Court – Defendants object to
the authenticity of the document, or any part of it, stating the specific basis for his objection. An
objection must be either on the record or in writing and must have a good faith factual and legal
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basis. An objection made to the authenticity of only part of a document does not affect the
authenticity of the remainder.
XVII. ALTERNATIVE PARAGRAPH NO. 1
17.1 In the alternative, Plaintiff would show that if any injury and/or condition from
which he currently suffers was pre-existing, then such condition was aggravated and/or
exacerbated by the negligence of Defendants herein.
XVIII. ALTERNATIVE PARAGRAPH NO. 2
18.1 In the alternative, Plaintiff would show that if he suffers from any subsequent injury
and/or condition, then such injury and/or condition was aggravated and/or exacerbated by the
negligence of Defendants herein.
XIX. JURY DEMAND
19.1 Pursuant to Texas Rule of Civil Procedure 504.1, Plaintiff demands a trial by jury
of all issues so triable.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Nestor Elizondo requests
Defendants be cited to appear and answer herein, that upon final trial and other hearing of this
cause, Plaintiff recover damages from Defendants, jointly and severally, in accordance with the
evidence, and as the jury deem them deserving, that Plaintiff recover costs of court herein
expended, that Plaintiff recover interest to which he is justly entitled under the law, both pre-
judgment and post-judgment interest from the date of the entry until paid, and for such other further
relief, both general and special, both in law and in equity, to which Plaintiff may be justly entitled.
Dated: January 21, 2022 Respectfully submitted,
THE BUZBEE LAW FIRM
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Hidalgo County District Clerks
Reviewed By: Keila Hernandez
By: /s/ Anthony G. Buzbee
Anthony G. Buzbee
State Bar No. 24001820
Ryan S. Pigg
State Bar No. 24088227
JP Morgan Chase Tower
600 Travis, Suite 7300
Houston, Texas 77002
Tel: (713) 223-5393
Fax: (713) 223-5909
Email: tbuzbee@txattorneys.com
Email: rpigg@txattorneys.com
HINOJOSA LAW, PLLC
By: /s/ Richard A. Hinojosa
Richard A. Hinojosa
State Bar No. 24068885
Jason H. Casell
State Bar No. 24063869
Ricka N. Martin-Tijerina
State Bar No. 24120993
3904 Brandt Street
Houston, Texas 77006
Tel: (713) 884-1663
Fax: (713) 422-2493
Email: richardhinojosa@hinojosalaw.com
Email: jcasell@hinojosalaw.com
Email: rtijerina@hinojosalaw.com
ATTORNEYS FOR PLAINTIFF
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Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Melissa Brown on behalf of Richard Hinojosa
Bar No. 24068885
mbrown@hinojosalaw.com
Envelope ID: 61042236
Status as of 1/21/2022 3:02 PM CST
Associated Case Party: Nestor Elizondo
Name BarNumber Email TimestampSubmitted Status
RICHARD HINOJOSA e-service@hinojosalaw.com 1/21/2022 2:55:19 PM SENT
Associated Case Party: Vintage Tile & Stone LLC
Name BarNumber Email TimestampSubmitted Status
Daniel Madden Dmadden@foxrothschild.com 1/21/2022 2:55:19 PM SENT
Felicia Q.Harris fharris@foxrothschild.com 1/21/2022 2:55:19 PM SENT
Monica Rodriguez monicarodriguez@foxrothschild.com 1/21/2022 2:55:19 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Roxanne Hinojosa roxannehinojosa@hinojosalaw.com 1/21/2022 2:55:19 PM SENT
Melissa Brown mbrown@hinojosalaw.com 1/21/2022 2:55:19 PM SENT
Jason Casell jcasell@hinojosalaw.com 1/21/2022 2:55:19 PM SENT
Hinojosa Law e-service@hinojosalaw.com 1/21/2022 2:55:19 PM SENT
Richard Hinojosa richardhinojosa@hinojosalaw.com 1/21/2022 2:55:19 PM SENT
Ricka Martin-Tijerina rtijerina@hinojosalaw.com 1/21/2022 2:55:19 PM SENT
Alexandra Thomas athomas@hinojosalaw.com 1/21/2022 2:55:19 PM SENT
Anthony Buzbee tbuzbee@txattorneys.com 1/21/2022 2:55:19 PM SENT
Ryan Pigg rpigg@txattorneys.com 1/21/2022 2:55:19 PM SENT
Preview
Electronically Filed 1/21/2022 2:55 PM Hidalgo County District Clerks Reviewed By: Keila Hernandez CAUSE NO. C-4979-21-D NESTOR ELIZONDO, § IN THE DISTRICT COURT Plaintiff, § § V. § HIDALGO COUNTY, TEXAS § VINTAGE TILE & STONE, LLC, § WILKINSON WALLS COMMERCIAL § CONTRACTING COMPANY LLC, § AMERICAN MULTI-CINEMA, INC. § D/B/A AMC EDINBURG 18, and § FRIEMEL CONSTRUCTION § COMPANY INC., § Defendants. § 206th JUDICIAL DISTRICT PLAINTIFF’S SECOND AMENDED PETITION TO THE HONORABLE JUDGE OF SAID COURT: Nestor Elizondo (“Plaintiff”) files his Second Amended Petition against Defendants Vintage Tile & Stone, LLC, Wilkinson Walls Commercial Contracting Company LLC, American Multi-Cinema, Inc. d/b/a AMC Edinburg 18, and Friemel Construction Company Inc. and would respectfully show this Court and Jury as follows: I. DISCOVERY CONTROL PLAN 1.1 Pursuant to Rule 190.3 of the Texas Rules of Civil Procedure, Plaintiff alleges discovery in this case should be conducted under Level 2. II. PARTIES 2.1 Plaintiff Nestor Elizondo is a resident of Edinburg, Hidalgo County, TX. The last three digits of Plaintiff’s social security number are 319. 2.2 Defendant Vintage Tile & Stone LLC (“Vintage”) is a domestic for-profit company with its principal place of business in the State of Texas. Process was served on Vintage by serving its registered agent, Elizabeth Ramirez Govea, at 2020 W. Nolana, McAllen, Texas 78504. -1- Electronically Filed 1/21/2022 2:55 PM Hidalgo County District Clerks Reviewed By: Keila Hernandez 2.3 Defendant Wilkinson Walls Commercial Contracting Company LLC (“Wilkinson”) is a foreign for-profit company with its principal place of business in the State of Georgia. Process was served on Wilkinson by serving its owner/president, Brannon Wilkinson, at 21921 Georgia Highway 315, Waverly Hall, Georgia 31831. 2.4 Defendant American Multi-Cinema, Inc. d/b/a AMC Edinburg 18 (“AMC”) is a foreign for-profit entity authorized to do business in the State of Texas. Process may be served on AMC by serving its registered agent, Corporate Creations Network Inc., at 5444 Westheimer #1000, Houston, Texas 77056. 2.5 Defendant Friemel Construction Company Inc. (“Friemel”) is a foreign for-profit entity authorized to do business in the State of Texas. Process may be served on Friemel by serving its registered agent, Business Filings Incorporated, 701 Brazos Street, Suite 720, Austin, Texas 78701. III. MISNOMER/ALTER EGO 3.1 In the event any parties are misnamed or are not included herein, it is Plaintiff’s contention that such was a “misidentification,” “misnomer,” and/or such parties are/were “alter egos” of parties named herein. Alternatively, Plaintiff contends that such “corporate veils” should be pierced to hold such parties properly included in the interest of justice. IV. JURISDICTION AND VENUE 4.1 This Court has jurisdiction in this cause since Plaintiff’s damages exceed the minimum jurisdictional limits of this Court. 4.2 Venue is proper in Hidalgo County, Texas, under Texas Civil Practice and Remedies Code §§ 15.002(a)(2) and 15.005 because it is the county in which all or a substantial part of the events/omissions giving rise to Plaintiff’s claim occurred. -2- Electronically Filed 1/21/2022 2:55 PM Hidalgo County District Clerks Reviewed By: Keila Hernandez V. FACTS 5.1 On or about January 21, 2020, Plaintiff was at AMC Edinburg 18 located at 3003 US-281, Edinburg, Texas 78539 to watch a movie. After the movie ended, Plaintiff walked out of the theater and into the main lobby area. As he walked over a transition area on the floor, he suddenly and violently tripped and fell. Plaintiff immediately lost consciousness. When he came to, Plaintiff was in excruciating pain. He noticed he was bleeding from his head as blood gushed into his eyes. Plaintiff soon realized he could not move his arms as he attempted to wipe the blood from his eyes. He then noticed he could not move his legs or hands and feared the worst. Plaintiff was transported via ambulance to Doctors Renaissance Hospital in Edinburg, Texas, where he was told he had suffered a traumatic cervical spinal cord injury, and was paralyzed from the neck down. Since the incident occurred, Plaintiff has experienced the unimaginable, undergoing several emergency surgical procedures to keep him alive. Plaintiff was also told he suffered a brain injury. 5.2 Based on eyewitness testimony, AMC’s employees and managers had actual knowledge and constructive notice of the defective condition, and a reasonable inspection would have uncovered the defective condition prior to the incident. Upon information and belief, several years prior to the incident, AMC hired Friemel to extensively renovate the theater, including replacing all of the carpeting and tile in the lobby. Friemel did not follow the design plans, which specifically called for using leveling compound to make the carpet and tile flush with each other in the area where Plaintiff fell. 5.3 Friemel subcontracted with Vintage to install the tile to be flush with the carpet, which Vintage did not do. Friemel subcontracted with Wilkinson to install the carpet to be flush with the tile, which Wilkinson did not do. -3- Electronically Filed 1/21/2022 2:55 PM Hidalgo County District Clerks Reviewed By: Keila Hernandez 5.3 Plaintiff’s fall was due to AMC’s negligence and failure to maintain its premises in a safe condition during normal hours of operation and Friemel’s, Vintage’s, and Wilkinson’s negligence in failing to make the carpet and tile flush with each other in the area where Plaintiff fell. 5.4 This was a condition which posed an unreasonable risk of harm. Defendants were grossly negligent in not informing anyone or posting sufficient signs warning of this clear and unreasonable risk of harm. There was no information given about the dangerous carpet tile transition. There was no information given about the dangerous condition between the carpet and tile transition on AMC Edinburg 18’s premises, and there were no signs to warn of the dangerous conditions. Nothing Plaintiff did or failed to do in any way contributed to his injuries. VI. PREMISES LIABILITY AGAINST AMC 6.1 It has become necessary to bring this lawsuit by reason of injuries and damages Plaintiff suffered on January 21, 2020, while on the premises owned, operated, possessed, and/or maintained by AMC, located at 3003 US-281, Edinburg, Texas 78539. Plaintiff would show that on or about that date, he was an invitee on the premises when suddenly and without warning Plaintiff was injured due to the defective carpet tile transition, which was a dangerous condition existing on AMC’s premises that posed an unreasonable risk of harm, causing Plaintiff serious permanent and painful bodily injuries. AMC requested, allowed, permitted, and encouraged Plaintiff to enter onto the premises. Consequently, Plaintiff was an invitee to whom Defendant owed a duty to use ordinary care, including the duty to inspect, protect, and guard Plaintiff from the unreasonable defective carpet tile transition, which was a dangerous condition existing on the premises that posed an unreasonable risk of harm or to warn Plaintiff of its existence. Plaintiff was exercising ordinary care when he was suddenly and unexpectedly injured. Plaintiff was -4- Electronically Filed 1/21/2022 2:55 PM Hidalgo County District Clerks Reviewed By: Keila Hernandez seriously injured due to the defective carpet tile transition, which was a dangerous condition and/or hazard existing on the premises that posed an unreasonable risk of harm, and which AMC, its agents, servants, and employees knew or reasonably should have known existed. AMC breached its duty of ordinary care by failing to adequately warn Plaintiff of the dangerous condition which posed an unreasonable risk of harm and by failing to make the dangerous condition safe. As a result of AMC’s breach, Plaintiff sustained severe and permanent injuries. Plaintiff would show that nothing he did nor failed to do caused, or in any way contributed to cause, the occurrence in question. Further Plaintiff would respectfully show under this Honorable Court and Jury that AMC failed to perform the above-stated duties and, therefore, was negligent as that term is understood under the laws of the State of Texas in one or more of the following respects: (1) failing to monitor the condition of the carpet tile transition in the lobby; (2) failing to properly train its employees; (3) failing to promptly inspect the theater when it took possession of the theater; (4) failing to promptly inspect its premises; (5) failing to properly supervise its employees; (6) failing to provide adequate safety procedures; and (7) in more particularity to be shown at trial. Each and all of the above and foregoing acts on the AMC’s part, both of omission and commission, were negligent and constituted negligence, and were each and all a proximate cause of the occurrence in question and the injuries and damages Plaintiff suffered. 6.2 In the alternative, and without waiving the foregoing, Plaintiff would show he was a licensee on the premises in question occupied and/or controlled by AMC. AMC knew of its unreasonable defective carpet tile transition existing on its premises, which posed an unreasonable -5- Electronically Filed 1/21/2022 2:55 PM Hidalgo County District Clerks Reviewed By: Keila Hernandez risk of harm to the general public, including Plaintiff, but failed to make safe or adequately warn Plaintiff of the condition. Plaintiff had no knowledge of the dangerous condition of the defective carpet tile transition, which was a dangerous condition that posed an unreasonable risk of harm prior to the incident in question. VII. NEGLIGENCE AGAINST VINTAGE, WILKINSON, AND FRIEMEL 7.1 Defendants Vintage, Wilkinson, and Friemel owed a legal duty to Plaintiff. Specifically, Friemel owed a duty to Plaintiff to follow the design plans, which specifically called for using leveling compound to make the carpet and tile flush with each other in the area where Plaintiff fell. Vintage owed a duty to Plaintiff to exercise reasonable care in installing the tile to make the tile flush with the carpet at the carpet tile transition where Plaintiff fell, and Wilkinson owed a duty to Plaintiff to exercise reasonable care in installing the carpet to make the carpet flush with the tile at the carpet tile transition where Plaintiff fell. 7.2 Vintage, Wilkinson, and Friemel breached their duties by failing to make the tile and carpet flush with each other in the area where Plaintiff fell. Vintage, Wilkinson, and Friemel were negligent and proximately caused Plaintiff’s injuries by: (1) failing to monitor the condition of the carpet tile transition in AMC’s lobby; (2) failing to properly train their employees to correctly construct a carpet tile transition; (3) failing to adequately inspect the carpet tile transition; (4) failing to properly supervise their employees; (5) failing to provide adequate safety procedures; (6) failing to comply with federal and state building standards -6- Electronically Filed 1/21/2022 2:55 PM Hidalgo County District Clerks Reviewed By: Keila Hernandez (7) failing to adhere to or meet the requirements for a flush carpet tile transition; and (8) in more particularity to be shown at trial. VIII. GROSS NEGLIGENCE AGAINST VINTAGE, WILKINSON, AND FRIEMEL 8.1 Plaintiff would further show that Defendants Vintage, Wilkinson, and Friemel were grossly negligent, as that term is defined and applied under Texas law. Specifically, Plaintiff would show that the negligent acts and/or omissions of Defendants, as set forth above, constitute acts or omissions: a. which, when viewed objectively from the standpoint of Defendants, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to Plaintiff and/or others; and b. of which Defendants had actual, subjective awareness of the risks involved, but nevertheless proceeded with conscious indifference to the rights, safety or welfare of Plaintiff and/or others. 8.2 Such gross negligence was a proximate cause of the incident made the basis of this lawsuit and the injuries and damages Plaintiff sustained. IX. DAMAGES 9.1 Plaintiff Nestor Elizondo has suffered damages in the form of physical pain and injury, mental and emotional anguish, pain and suffering in the past, pain and suffering in the future, past and future earning capacity and economic loss, past and future physical impairment, disfigurement and past and future lost wages. Plaintiff sustained reasonable and necessary past and future medical bills and expenses, and he will, in all reasonable probability, continue to sustain such legal elements of damages in the future beyond the date of the trial of this cause. -7- Electronically Filed 1/21/2022 2:55 PM Hidalgo County District Clerks Reviewed By: Keila Hernandez 9.2 Therefore, Plaintiff maintains this suit against Defendants for each of his foregoing legal elements of damages in a just and reasonable sum within the jurisdictional limits of this Honorable Court, to be determined under the sound discretion of the trier of fact or jury. X. PUNITIVE/EXEMPLARY DAMAGES 10.1 Plaintiff hereby sues Defendants for punitive/exemplary damages. The facts and circumstances of this case allows the Court and jury to award Plaintiff punitive/exemplary damages in that Defendants Vintage, Wilkinson, and Friemel are guilty of malice and gross negligence. The determination of the amount of punitive/exemplary damages is left up to the discretion of the Court and jury in this case. XI. TOTAL DAMAGES 11.1 As a result of the incident made the basis of this lawsuit, Plaintiff seeks monetary relief of $100,000,000.00 or less and a demand for judgment for all other relief to which Plaintiff is entitled; however, Plaintiff reserves the right to file an amended pleading on this issue. XII. RESERVE THE RIGHT TO AMEND AND SUPPLEMENT 12.1 These allegations against Defendants are made acknowledging that investigation and discovery, although undertaken, are continuing in this matter. As further investigation and discovery are conducted, additional facts will surely be uncovered that may and probably will necessitate further, additional, and/or different allegations, including the potential of adding parties to and/or dismissing parties from the case. The right to do so is, under Texas law, expressly reserved. XIII. PRE-JUDGMENT AND POST-JUDGMENT INTEREST 13.1 In addition to the above mentioned and foregoing allegations, Plaintiff further pleads he is entitled to pre-judgment and post-judgment interest at the highest rate allowed by law. -8- Electronically Filed 1/21/2022 2:55 PM Hidalgo County District Clerks Reviewed By: Keila Hernandez XIV. COURT COSTS 14.1 Plaintiff further seeks recovery of the costs of court incurred in the filing and pendency of this action. XV. PRESERVING EVIDENCE 15.1 Plaintiff hereby requests and demands that Defendants preserve and maintain all evidence pertaining to any claim or defense related to the incident made the basis of this lawsuit or the damages resulting therefrom, including statements, photographs, videotapes, audiotapes, surveillance or security tapes or information, business or medical records, incident reports, tenant files, periodic reports, financial statements, bills, telephone call slips or records, estimates, invoices, checks, measurements, correspondence, facsimiles, email, voice mail, text messages, any evidence involving the incident in question, and any electronic image or information related to the referenced incident or damages. Failure to maintain such items will constitute “spoliation” of the evidence. XVI. NOTICE OF AUTHENTICATION OF DOCUMENTS 16.1 Plaintiff hereby provides actual notice to Defendants and other parties that Plaintiff will use any or every document produced by any and all other parties in response to written discovery and discovery in a pretrial proceeding or at trial. 16.2 Pursuant to Texas Rule of Civil Procedure 193.7, Defendants’ production of a document in response to written discovery authenticates that document for use against Defendants unless – within ten days or a longer or shorter time ordered by this Court – Defendants object to the authenticity of the document, or any part of it, stating the specific basis for his objection. An objection must be either on the record or in writing and must have a good faith factual and legal -9- Electronically Filed 1/21/2022 2:55 PM Hidalgo County District Clerks Reviewed By: Keila Hernandez basis. An objection made to the authenticity of only part of a document does not affect the authenticity of the remainder. XVII. ALTERNATIVE PARAGRAPH NO. 1 17.1 In the alternative, Plaintiff would show that if any injury and/or condition from which he currently suffers was pre-existing, then such condition was aggravated and/or exacerbated by the negligence of Defendants herein. XVIII. ALTERNATIVE PARAGRAPH NO. 2 18.1 In the alternative, Plaintiff would show that if he suffers from any subsequent injury and/or condition, then such injury and/or condition was aggravated and/or exacerbated by the negligence of Defendants herein. XIX. JURY DEMAND 19.1 Pursuant to Texas Rule of Civil Procedure 504.1, Plaintiff demands a trial by jury of all issues so triable. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff Nestor Elizondo requests Defendants be cited to appear and answer herein, that upon final trial and other hearing of this cause, Plaintiff recover damages from Defendants, jointly and severally, in accordance with the evidence, and as the jury deem them deserving, that Plaintiff recover costs of court herein expended, that Plaintiff recover interest to which he is justly entitled under the law, both pre- judgment and post-judgment interest from the date of the entry until paid, and for such other further relief, both general and special, both in law and in equity, to which Plaintiff may be justly entitled. Dated: January 21, 2022 Respectfully submitted, THE BUZBEE LAW FIRM -10- Electronically Filed 1/21/2022 2:55 PM Hidalgo County District Clerks Reviewed By: Keila Hernandez By: /s/ Anthony G. Buzbee Anthony G. Buzbee State Bar No. 24001820 Ryan S. Pigg State Bar No. 24088227 JP Morgan Chase Tower 600 Travis, Suite 7300 Houston, Texas 77002 Tel: (713) 223-5393 Fax: (713) 223-5909 Email: tbuzbee@txattorneys.com Email: rpigg@txattorneys.com HINOJOSA LAW, PLLC By: /s/ Richard A. Hinojosa Richard A. Hinojosa State Bar No. 24068885 Jason H. Casell State Bar No. 24063869 Ricka N. Martin-Tijerina State Bar No. 24120993 3904 Brandt Street Houston, Texas 77006 Tel: (713) 884-1663 Fax: (713) 422-2493 Email: richardhinojosa@hinojosalaw.com Email: jcasell@hinojosalaw.com Email: rtijerina@hinojosalaw.com ATTORNEYS FOR PLAINTIFF -11- Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Melissa Brown on behalf of Richard Hinojosa Bar No. 24068885 mbrown@hinojosalaw.com Envelope ID: 61042236 Status as of 1/21/2022 3:02 PM CST Associated Case Party: Nestor Elizondo Name BarNumber Email TimestampSubmitted Status RICHARD HINOJOSA e-service@hinojosalaw.com 1/21/2022 2:55:19 PM SENT Associated Case Party: Vintage Tile & Stone LLC Name BarNumber Email TimestampSubmitted Status Daniel Madden Dmadden@foxrothschild.com 1/21/2022 2:55:19 PM SENT Felicia Q.Harris fharris@foxrothschild.com 1/21/2022 2:55:19 PM SENT Monica Rodriguez monicarodriguez@foxrothschild.com 1/21/2022 2:55:19 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Roxanne Hinojosa roxannehinojosa@hinojosalaw.com 1/21/2022 2:55:19 PM SENT Melissa Brown mbrown@hinojosalaw.com 1/21/2022 2:55:19 PM SENT Jason Casell jcasell@hinojosalaw.com 1/21/2022 2:55:19 PM SENT Hinojosa Law e-service@hinojosalaw.com 1/21/2022 2:55:19 PM SENT Richard Hinojosa richardhinojosa@hinojosalaw.com 1/21/2022 2:55:19 PM SENT Ricka Martin-Tijerina rtijerina@hinojosalaw.com 1/21/2022 2:55:19 PM SENT Alexandra Thomas athomas@hinojosalaw.com 1/21/2022 2:55:19 PM SENT Anthony Buzbee tbuzbee@txattorneys.com 1/21/2022 2:55:19 PM SENT Ryan Pigg rpigg@txattorneys.com 1/21/2022 2:55:19 PM SENT