Preview
Electronically Filed
2/14/2022 9:14 AM
Hidalgo County District Clerks
Reviewed By: Nancy Delgado
CAUSE NO. C-4979-21-D
NESTOR ELIZONDO § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § HIDALGO COUNTY, TEXAS
§
VINTAGE TILE & STONE, LLC, §
WILKINSON WALLS COMMERICAL §
CONTRACTING COMPANY LLC, §
AMERICAN MULTI-CINEMA, INC. §
D/B/A AMC EDINBURG 18, and §
FRIEMEL CONSTRUCTION §
COMPANY INC. §
Defendants. § 206TH JUDICIAL DISTRICT
DEFENDANT’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, FRIEMEL CONSTRUCTION COMPANY INC., Defendant in the above
entitled and numbered cause, and files this, its Original Answer to Plaintiff’s Second Amended
Petition, and respectfully shows the Court as follows:
I. ORIGINAL ANSWER
GENERAL DENIAL
1. Subject to such stipulations and/or admissions that may hereinafter be made,
Defendant enters this general denial pursuant to Rule 92 of the Texas Rules of Civil Procedure,
thereby denying every allegation against Defendant contained in Plaintiff’s live petition and
demanding strict proof thereof as required by the laws of the State of Texas.
AFFIRMATIVE DEFENSES
2. Further, and/or in the alternative, to the extent that an unreasonably dangerous
condition existed on the premises, Defendant pleads that an unknown third-party altered the
condition, took unforeseeable action to create a hazard, failed to properly maintain, or made the
carpet tile transition dangerous.
Electronically Filed
2/14/2022 9:14 AM
Hidalgo County District Clerks
Reviewed By: Nancy Delgado
3. Further, and/or in the alternative, Defendant is not liable herein because the injuries
claimed by Plaintiff were not caused, proximately or otherwise, by Defendant’s acts or omissions,
or by the acts or omissions of an employee of Defendant. Defendant further asserts that any
complained of damages by Plaintiff were not caused by the actions of Defendant as it performed
no carpet installation, which is the complained-of causation component of Plaintiff’s cause of
action.
4. Further, Defendant asserts that any alleged defects in the property at issue in this
matter are obvious and as such, Defendant asserts it owed no duty to Plaintiff and therefore cannot
be liable for Plaintiff’s injuries.
5. Further, and/or in the alternative, Defendant affirmatively pleads the defenses of
contribution and proportionate responsibility pursuant to Chapters 32 and 33 of the Texas Civil
Practice & Remedies Code and asserts that the alleged damage in question was caused in whole or
in part by the acts, omissions, comparative negligence, and/or contributory negligence of Plaintiff,
other parties, and/or non-parties over which Defendant exercised no control. Accordingly,
Defendant respectfully requests the Court and/or jury compare the relative percentages of fault of
all parties to this lawsuit and any negligent, culpable and/or strictly liable third party and/or
responsible third party, whether a party to this suit or otherwise, pursuant to the doctrine of
proportionate responsibility. See TEX. CIV. PRAC. & REM. CODE §§ 33.001-33.017.
6. Further, and/or in the alternative, Plaintiff’s injuries, if any, existed prior to the
incident made the basis of this lawsuit. Plaintiff bears the burden of showing that he was injured
and that his injuries were proximately caused by Defendant’s negligence, and not a pre-existing
condition.
2
Electronically Filed
2/14/2022 9:14 AM
Hidalgo County District Clerks
Reviewed By: Nancy Delgado
7. Further, and/or in the alternative, Defendant invokes the statutory limitation on the
recovery of medical or health care expenses under the provisions of TEX. CIV. PRAC. & REM. CODE
§ 41.0105.
8. Pleading in the alternative, if such be necessary, Defendant claims all statutory,
common law, and contractual rights to credits and/or offsets for monies paid to Plaintiff, or on his
behalf including, but not limited to, medical expenses and wages as a result of any on-the-job
incident.
9. Pleading in the alternative, if such be necessary, Defendant affirmatively pleads
that Plaintiff has failed to mitigate his damages.
10. Further, and/or in the alternative, to the extent Plaintiff is asserting recovery of lost
earnings, loss earning capacity, loss contribution of pecuniary value or loss of inheritance, the
limitations of TEX. CIV. PRAC. & REM. CODE § 18.091 apply.
11. Further, and/or in the alternative, Defendant invokes their rights under the Eighth
and Fourteenth Amendments of the United States Constitution and respectfully request that this
Court disallow the award of punitive and/or exemplary damages inasmuch as an award in this case
would constitute a violation of Defendant’s Constitutional Rights.
II. SPECIAL EXCEPTIONS
12. Pursuant to TEXAS RULES OF CIVIL PROCEDURE 90 & 91, Defendant hereafter
describes the defects in Plaintiff’s Original Petition. Defendant explicitly reserves their right to set
these special exceptions for hearing and secure a ruling on the same.
13. Defendant specially excepts to Sections VIII and X in Plaintiff’s Original Petition.
In Sections VIII and X, Plaintiff merely asserts that conduct falls within the gross negligence
standard but fails to identify with any specificity what conduct rises to that standard.
3
Electronically Filed
2/14/2022 9:14 AM
Hidalgo County District Clerks
Reviewed By: Nancy Delgado
III. RIGHT TO AMEND
14. Defendant reserves the right to amend its answer and defenses herein as matters are
more fully developed.
IV. PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant FRIEMEL CONSTRUCTION
COMPANY INC respectfully prays that the relief sought in Plaintiff’s Second Amended Petition
be DENIED, that Plaintiff take nothing, and that Defendant FRIEMEL CONSTRUCTION
COMPANY INC goes hence without delay with its costs and all such other and further relief to
which it may be justly entitled to receive.
Respectfully submitted,
EGGLESTON & BRISCOE, LLP
333 Clay Street, Suite 4800
Houston, Texas 77002
(713) 659-5100 – Telephone
(713) 951-9920 – Facsimile
By: /s/ David K. Loveless
David K. Loveless
State Bar No. 24060192
dkl@egglestonbriscoe.com
w/e-service copy to: lmb@egglestonbriscoe.com
4
Electronically Filed
2/14/2022 9:14 AM
Hidalgo County District Clerks
Reviewed By: Nancy Delgado
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was forwarded via facsimile and/or
electronic notification, or any other method approved by the Texas Rules of Civil Procedure on
this the 14th day of February 2022, to:
Anthony Buzbee
Ryan S. Pigg
The Buzbee Law Firm
JP Morgan Chase Tower
600 Travis, Suite 7300
Houston, Texas 77002
tbuzbee@txattorneys.com
rpigg@txattorneys.com
Richard A. Hinojosa
Jason H. Caswell
Ricka N. Martin-Tijerina
Hinojosa Law, PLLC
3904 Brandt Street
Houston, Texas 77006
richardhinojosa@hinojosalaw.com
jcasell@hinojosalaw.com
rtijerina@hinojosalaw.com
/s/ David K. Loveless
David K. Loveless
5
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.
Nancy Gresham on behalf of David Loveless
Bar No. 24060192
nsg@egglestonbriscoe.com
Envelope ID: 61703387
Status as of 2/14/2022 10:24 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Roxanne Hinojosa roxannehinojosa@hinojosalaw.com 2/14/2022 9:14:21 AM SENT
Melissa Brown mbrown@hinojosalaw.com 2/14/2022 9:14:21 AM SENT
Jason Casell jcasell@hinojosalaw.com 2/14/2022 9:14:21 AM SENT
Hinojosa Law e-service@hinojosalaw.com 2/14/2022 9:14:21 AM SENT
Richard Hinojosa richardhinojosa@hinojosalaw.com 2/14/2022 9:14:21 AM SENT
Ricka Martin-Tijerina rtijerina@hinojosalaw.com 2/14/2022 9:14:21 AM SENT
Alexandra Thomas athomas@hinojosalaw.com 2/14/2022 9:14:21 AM SENT
Anthony Buzbee tbuzbee@txattorneys.com 2/14/2022 9:14:21 AM SENT
Ryan Pigg rpigg@txattorneys.com 2/14/2022 9:14:21 AM SENT
Associated Case Party: Vintage Tile & Stone LLC
Name BarNumber Email TimestampSubmitted Status
Daniel Madden Dmadden@foxrothschild.com 2/14/2022 9:14:21 AM SENT
Monica Rodriguez monicarodriguez@foxrothschild.com 2/14/2022 9:14:21 AM SENT
Felicia Q.Harris fharris@foxrothschild.com 2/14/2022 9:14:21 AM SENT
Associated Case Party: Nestor Elizondo
Name BarNumber Email TimestampSubmitted Status
RICHARD HINOJOSA e-service@hinojosalaw.com 2/14/2022 9:14:21 AM SENT
Preview
Electronically Filed 2/14/2022 9:14 AM Hidalgo County District Clerks Reviewed By: Nancy Delgado CAUSE NO. C-4979-21-D NESTOR ELIZONDO § IN THE DISTRICT COURT OF Plaintiff, § § v. § HIDALGO COUNTY, TEXAS § VINTAGE TILE & STONE, LLC, § WILKINSON WALLS COMMERICAL § CONTRACTING COMPANY LLC, § AMERICAN MULTI-CINEMA, INC. § D/B/A AMC EDINBURG 18, and § FRIEMEL CONSTRUCTION § COMPANY INC. § Defendants. § 206TH JUDICIAL DISTRICT DEFENDANT’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, FRIEMEL CONSTRUCTION COMPANY INC., Defendant in the above entitled and numbered cause, and files this, its Original Answer to Plaintiff’s Second Amended Petition, and respectfully shows the Court as follows: I. ORIGINAL ANSWER GENERAL DENIAL 1. Subject to such stipulations and/or admissions that may hereinafter be made, Defendant enters this general denial pursuant to Rule 92 of the Texas Rules of Civil Procedure, thereby denying every allegation against Defendant contained in Plaintiff’s live petition and demanding strict proof thereof as required by the laws of the State of Texas. AFFIRMATIVE DEFENSES 2. Further, and/or in the alternative, to the extent that an unreasonably dangerous condition existed on the premises, Defendant pleads that an unknown third-party altered the condition, took unforeseeable action to create a hazard, failed to properly maintain, or made the carpet tile transition dangerous. Electronically Filed 2/14/2022 9:14 AM Hidalgo County District Clerks Reviewed By: Nancy Delgado 3. Further, and/or in the alternative, Defendant is not liable herein because the injuries claimed by Plaintiff were not caused, proximately or otherwise, by Defendant’s acts or omissions, or by the acts or omissions of an employee of Defendant. Defendant further asserts that any complained of damages by Plaintiff were not caused by the actions of Defendant as it performed no carpet installation, which is the complained-of causation component of Plaintiff’s cause of action. 4. Further, Defendant asserts that any alleged defects in the property at issue in this matter are obvious and as such, Defendant asserts it owed no duty to Plaintiff and therefore cannot be liable for Plaintiff’s injuries. 5. Further, and/or in the alternative, Defendant affirmatively pleads the defenses of contribution and proportionate responsibility pursuant to Chapters 32 and 33 of the Texas Civil Practice & Remedies Code and asserts that the alleged damage in question was caused in whole or in part by the acts, omissions, comparative negligence, and/or contributory negligence of Plaintiff, other parties, and/or non-parties over which Defendant exercised no control. Accordingly, Defendant respectfully requests the Court and/or jury compare the relative percentages of fault of all parties to this lawsuit and any negligent, culpable and/or strictly liable third party and/or responsible third party, whether a party to this suit or otherwise, pursuant to the doctrine of proportionate responsibility. See TEX. CIV. PRAC. & REM. CODE §§ 33.001-33.017. 6. Further, and/or in the alternative, Plaintiff’s injuries, if any, existed prior to the incident made the basis of this lawsuit. Plaintiff bears the burden of showing that he was injured and that his injuries were proximately caused by Defendant’s negligence, and not a pre-existing condition. 2 Electronically Filed 2/14/2022 9:14 AM Hidalgo County District Clerks Reviewed By: Nancy Delgado 7. Further, and/or in the alternative, Defendant invokes the statutory limitation on the recovery of medical or health care expenses under the provisions of TEX. CIV. PRAC. & REM. CODE § 41.0105. 8. Pleading in the alternative, if such be necessary, Defendant claims all statutory, common law, and contractual rights to credits and/or offsets for monies paid to Plaintiff, or on his behalf including, but not limited to, medical expenses and wages as a result of any on-the-job incident. 9. Pleading in the alternative, if such be necessary, Defendant affirmatively pleads that Plaintiff has failed to mitigate his damages. 10. Further, and/or in the alternative, to the extent Plaintiff is asserting recovery of lost earnings, loss earning capacity, loss contribution of pecuniary value or loss of inheritance, the limitations of TEX. CIV. PRAC. & REM. CODE § 18.091 apply. 11. Further, and/or in the alternative, Defendant invokes their rights under the Eighth and Fourteenth Amendments of the United States Constitution and respectfully request that this Court disallow the award of punitive and/or exemplary damages inasmuch as an award in this case would constitute a violation of Defendant’s Constitutional Rights. II. SPECIAL EXCEPTIONS 12. Pursuant to TEXAS RULES OF CIVIL PROCEDURE 90 & 91, Defendant hereafter describes the defects in Plaintiff’s Original Petition. Defendant explicitly reserves their right to set these special exceptions for hearing and secure a ruling on the same. 13. Defendant specially excepts to Sections VIII and X in Plaintiff’s Original Petition. In Sections VIII and X, Plaintiff merely asserts that conduct falls within the gross negligence standard but fails to identify with any specificity what conduct rises to that standard. 3 Electronically Filed 2/14/2022 9:14 AM Hidalgo County District Clerks Reviewed By: Nancy Delgado III. RIGHT TO AMEND 14. Defendant reserves the right to amend its answer and defenses herein as matters are more fully developed. IV. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant FRIEMEL CONSTRUCTION COMPANY INC respectfully prays that the relief sought in Plaintiff’s Second Amended Petition be DENIED, that Plaintiff take nothing, and that Defendant FRIEMEL CONSTRUCTION COMPANY INC goes hence without delay with its costs and all such other and further relief to which it may be justly entitled to receive. Respectfully submitted, EGGLESTON & BRISCOE, LLP 333 Clay Street, Suite 4800 Houston, Texas 77002 (713) 659-5100 – Telephone (713) 951-9920 – Facsimile By: /s/ David K. Loveless David K. Loveless State Bar No. 24060192 dkl@egglestonbriscoe.com w/e-service copy to: lmb@egglestonbriscoe.com 4 Electronically Filed 2/14/2022 9:14 AM Hidalgo County District Clerks Reviewed By: Nancy Delgado CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was forwarded via facsimile and/or electronic notification, or any other method approved by the Texas Rules of Civil Procedure on this the 14th day of February 2022, to: Anthony Buzbee Ryan S. Pigg The Buzbee Law Firm JP Morgan Chase Tower 600 Travis, Suite 7300 Houston, Texas 77002 tbuzbee@txattorneys.com rpigg@txattorneys.com Richard A. Hinojosa Jason H. Caswell Ricka N. Martin-Tijerina Hinojosa Law, PLLC 3904 Brandt Street Houston, Texas 77006 richardhinojosa@hinojosalaw.com jcasell@hinojosalaw.com rtijerina@hinojosalaw.com /s/ David K. Loveless David K. Loveless 5 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. Nancy Gresham on behalf of David Loveless Bar No. 24060192 nsg@egglestonbriscoe.com Envelope ID: 61703387 Status as of 2/14/2022 10:24 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Roxanne Hinojosa roxannehinojosa@hinojosalaw.com 2/14/2022 9:14:21 AM SENT Melissa Brown mbrown@hinojosalaw.com 2/14/2022 9:14:21 AM SENT Jason Casell jcasell@hinojosalaw.com 2/14/2022 9:14:21 AM SENT Hinojosa Law e-service@hinojosalaw.com 2/14/2022 9:14:21 AM SENT Richard Hinojosa richardhinojosa@hinojosalaw.com 2/14/2022 9:14:21 AM SENT Ricka Martin-Tijerina rtijerina@hinojosalaw.com 2/14/2022 9:14:21 AM SENT Alexandra Thomas athomas@hinojosalaw.com 2/14/2022 9:14:21 AM SENT Anthony Buzbee tbuzbee@txattorneys.com 2/14/2022 9:14:21 AM SENT Ryan Pigg rpigg@txattorneys.com 2/14/2022 9:14:21 AM SENT Associated Case Party: Vintage Tile & Stone LLC Name BarNumber Email TimestampSubmitted Status Daniel Madden Dmadden@foxrothschild.com 2/14/2022 9:14:21 AM SENT Monica Rodriguez monicarodriguez@foxrothschild.com 2/14/2022 9:14:21 AM SENT Felicia Q.Harris fharris@foxrothschild.com 2/14/2022 9:14:21 AM SENT Associated Case Party: Nestor Elizondo Name BarNumber Email TimestampSubmitted Status RICHARD HINOJOSA e-service@hinojosalaw.com 2/14/2022 9:14:21 AM SENT