Preview
Electronically Filed
8/8/2022 11:51 AM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
CAUSE NO.: C-2765-22-G
ROSBEL DE LA FUENTE § IN THE DISTRICT COURT
§
v. § 370th JUDICIAL DISTRICT
§
JOSE LUIS ALMENDAREZ SANTIBANEZ § HIDALGO COUNTY, TEXAS
ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, Jose Luis Almendarez Santibanez, makes the following Original Answer, and
in support thereof, would show the Court as follows:
I.
This Defendant generally denies the material allegations of Plaintiff’s Original Petition
and all Amended Petitions and demand proof thereof as required by the TEXAS RULES OF CIVIL
PROCEDURE and reserves the right to plead further and in greater particularity as the case
progresses should such be indicated.
II.
Defendant further affirmatively pleads the provisions of the TEXAS CIVIL PRACTICE &
REMEDIES CODE, including §§41.007 and 41.008, which limit the amount of exemplary damages
which may be awarded against Defendant.
III.
Defendant further intends and reserves the right to controvert at trial any and all claims
reflected in any and all affidavits served by Plaintiff that the charged amount for a service was
reasonable at the time and place that the service was provided and that the service was
necessary, as provided by the TEXAS RULES OF CIVIL PROCEDURE §18.001(f).
Electronically Filed
8/8/2022 11:51 AM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
IV.
Further this Defendant asserts his legal right to a reduction of any dollar verdict which
may be rendered in this cause by credit for payments made by other persons or entities or by
percentage reductions to which this Defendant would be entitled as a result of jury findings
against other persons or entities. In this connection, this Defendant reserves the right to submit
issues against parties who may be present in the case or absent from the case at the time the
matter is submitted to the jury for fact determinations.
V.
Defendant asserts in the unlikely event Plaintiff recovers a judgment in this case,
Defendant is entitled to an offset or credit against such judgment based upon the total amount
of qualifying settlements received by Plaintiff herein.
VI.
Defendant further asserts his rights under the proportionate responsibility provisions of
Chapter 33 of the TEXAS CIVIL PRACTICE & REMEDIES CODE, including but not limited to:
(a) the right to received the appropriate credit, offset, or reduction in
judgment based upon any settlement Defendant’s insurers or for any
amount of money collected from any other Defendant (or their insurers)
by settlement, compromise, or agreement, or in payment of any judgment
entered in this case; and
(b) the right to a separate determination by the trier of fact of the percentage
of responsibility for each claimant, each Defendant, each settling person,
and each responsible third party.
-2-
Electronically Filed
8/8/2022 11:51 AM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
VII.
Defendant would assert that the actions or omissions of one or more Co-Defendants
and/or third parties, either acting singularly or in combination, were the proximate cause,
contributing cause, the sole proximate or intervening cause(s) of Plaintiff’s alleged injuries, if
any.
VIII.
Defendant hereby pleads a cause of action against any and all Defendants who may
settle for the purpose of permitting the settling Defendant’s liability to be submitted to the jury,
in as such as a pleading is required.
IX.
Defendant asserts that in addition to any other limitation under law, recovery of medical
or healthcare expenses is limited to the amount actually paid or incurred by or on behalf of the
claimant pursuant to TEXAS CIVIL PRACTICE & REMEDIES CODE §41.0105.
X.
Defendant asserts that prejudgment interest may not be assessed or recovered on an
award of future damages, if any. V.T.C.A., Finance Code §304.1045.
XI.
Defendant asserts his rights under §18.091 of the TEXAS CIVIL PRACTICE & REMEDIES CODE
pertaining to the required proof of alleged loss of earnings, loss of earnings capacity, or loss of
contributions of a pecuniary value, as well as the jury instructions regarding the same.
-3-
Electronically Filed
8/8/2022 11:51 AM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
XII.
Should Plaintiff make a claim for punitive damages at any time, this Defendant further
invokes his rights under the Due Process Clause and Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution and affirmatively pleads that the Plaintiff’s
pleading for punitive and/or exemplary damages is violative of the Fourteenth Amendment
inasmuch as punitive and/or exemplary damages can be assessed:
1. in an amount left to the discretion of the jury and judge;
2. in assessing such sums, the decision of the jury need only be based
on a vote of ten jurors and does not require a unanimous verdict;
3. in assessing such penalty or exemplary awards, plaintiff need only
prove the theory of gross negligence on a “preponderance of the
evidence” standard and not on a “beyond a reasonable doubt”
standard, as should be required in assessing a punishment award;
4. further, the defendants who are subject to the award do not have
the right to refuse to testify against themselves, but must, in fact,
take the stand and/or give deposition testimony or subject
themselves to the consequences of a default judgment;
5. the assessment of such a punishment and/or exemplary award is
not based upon a clearly defined statutory enactment setting forth
a specific mens rea requirement and/or other prerequisites of a
criminal fine and, in effect allows the assessment of such awards
even though there are not specific standards, limits or other
statutory requirements set forth which define the mens rea and
scope and limit of such awards. Therefore, the awards are unduly
vague and do not meet the requirements of due process;
6. in essence, this defendant is subjected to all the hazards and risks
of what amounts to a fine and, in fact, such awards often exceed
normal criminal fines; but this defendant receives none of the basic
rights afforded a criminal defendant when being subjected to
possible criminal penalties; and
-4-
Electronically Filed
8/8/2022 11:51 AM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
7. the assessment of punitive and/or exemplary damages differs from
defendant to defendant and treats similar defendants in dissimilar
ways.
Further, if such be necessary, this Defendant further affirmatively pleads that the
assessment and award of punitive and/or exemplary damages is violative of the Eighth
Amendment of the United States Constitution as it is applied to the States through the
Fourteenth Amendment of the United States Constitution in that such awards potentially
constitute an excessive fine imposed without the protections of fundamental due process.
XIII.
Accordingly, this Defendant invokes his rights under the Eighth and Fourteenth
Amendments of the United States Constitution and respectfully requests that this Court disallow
the award of punitive and/or exemplary damages inasmuch as an award in this case would be
violative of the Defendant’s United States constitutional rights.
XIV.
Defendant affirmatively asserts that Plaintiff failed to take reasonable steps to reduce
or minimize his damages. Additionally, if Plaintiff maintained Medicare, Medicaid, and/or health
insurance, and failed to utilize his health benefits, then Plaintiff has failed to mitigate his
damages.
XV.
Defendant would further invoke his right under the Fifth Amendment to the United States
Constitution wherein it reads in part, “No person shall be . . . deprived of . . . property, without
due process of law; . . .” for the same reasons enumerated above.
-5-
Electronically Filed
8/8/2022 11:51 AM
Hidalgo County District Clerks
Reviewed By: Valerie Garza
WHEREFORE, PREMISES CONSIDERED, Defendant, Jose Luis Almendarez Santibanez,
prays that Plaintiff takes nothing by reason of this suit, that Defendant recovers his costs, and
for such other and further relief, both at law and in equity, to which he may show himself justly
entitled.
Respectfully submitted,
GONZALEZ CASTILLO MOYA, LLP
By: /s/ Linda Cavazos Castillo
Edward J. Castillo
SBN: 24040658
Ezequiel “Zeke” Moya, Jr.
SBN: 24092865
Linda Cavazos Castillo
SBN: 24045632
1317 E. Quebec Avenue
McAllen, Texas 78503
(956) 618-0115
FAX: (956) 618-0445
Email: law@valleyfirm.com
ATTORNEYS FOR DEFENDANT,
JOSE LUIS ALMENDAREZ
SANTIBANEZ
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has
been forwarded to Plaintiff counsel via electronic filing services and electronic mail, on this 8th
day of August, 2022.
/s/ Linda Cavazos Castillo
Linda Cavazos Castillo
E:\Data\data\APOLLO\D\De La Fuente, R. v. Almendarez, J. 72.256\original answer.bg.wpd
-6-
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.
Bryanna Gonzales on behalf of Linda Marie Cavazos
Bar No. 24045632
bgonzales@valleyfirm.com
Envelope ID: 67053855
Status as of 8/8/2022 1:31 PM CST
Associated Case Party: JoseLuisAlmendarez Santibanez
Name BarNumber Email TimestampSubmitted Status
Bryanna Gonzales bgonzales@valleyfirm.com 8/8/2022 11:51:53 AM SENT
Linda Cavazos Castillo lcavazos@valleyfirm.com 8/8/2022 11:51:53 AM SENT
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.
Bryanna Gonzales on behalf of Linda Marie Cavazos
Bar No. 24045632
bgonzales@valleyfirm.com
Envelope ID: 67053855
Status as of 8/8/2022 1:31 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
RUY MIRELES ruymdlaw@gmail.com 8/8/2022 11:51:53 AM SENT
MARIO DAVILA MDLawLitigation@gmail.com 8/8/2022 11:51:53 AM SENT
Alma Stutzner almasmdlaw@gmail.com 8/8/2022 11:51:53 AM SENT
Preview
Electronically Filed 8/8/2022 11:51 AM Hidalgo County District Clerks Reviewed By: Valerie Garza CAUSE NO.: C-2765-22-G ROSBEL DE LA FUENTE § IN THE DISTRICT COURT § v. § 370th JUDICIAL DISTRICT § JOSE LUIS ALMENDAREZ SANTIBANEZ § HIDALGO COUNTY, TEXAS ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: Defendant, Jose Luis Almendarez Santibanez, makes the following Original Answer, and in support thereof, would show the Court as follows: I. This Defendant generally denies the material allegations of Plaintiff’s Original Petition and all Amended Petitions and demand proof thereof as required by the TEXAS RULES OF CIVIL PROCEDURE and reserves the right to plead further and in greater particularity as the case progresses should such be indicated. II. Defendant further affirmatively pleads the provisions of the TEXAS CIVIL PRACTICE & REMEDIES CODE, including §§41.007 and 41.008, which limit the amount of exemplary damages which may be awarded against Defendant. III. Defendant further intends and reserves the right to controvert at trial any and all claims reflected in any and all affidavits served by Plaintiff that the charged amount for a service was reasonable at the time and place that the service was provided and that the service was necessary, as provided by the TEXAS RULES OF CIVIL PROCEDURE §18.001(f). Electronically Filed 8/8/2022 11:51 AM Hidalgo County District Clerks Reviewed By: Valerie Garza IV. Further this Defendant asserts his legal right to a reduction of any dollar verdict which may be rendered in this cause by credit for payments made by other persons or entities or by percentage reductions to which this Defendant would be entitled as a result of jury findings against other persons or entities. In this connection, this Defendant reserves the right to submit issues against parties who may be present in the case or absent from the case at the time the matter is submitted to the jury for fact determinations. V. Defendant asserts in the unlikely event Plaintiff recovers a judgment in this case, Defendant is entitled to an offset or credit against such judgment based upon the total amount of qualifying settlements received by Plaintiff herein. VI. Defendant further asserts his rights under the proportionate responsibility provisions of Chapter 33 of the TEXAS CIVIL PRACTICE & REMEDIES CODE, including but not limited to: (a) the right to received the appropriate credit, offset, or reduction in judgment based upon any settlement Defendant’s insurers or for any amount of money collected from any other Defendant (or their insurers) by settlement, compromise, or agreement, or in payment of any judgment entered in this case; and (b) the right to a separate determination by the trier of fact of the percentage of responsibility for each claimant, each Defendant, each settling person, and each responsible third party. -2- Electronically Filed 8/8/2022 11:51 AM Hidalgo County District Clerks Reviewed By: Valerie Garza VII. Defendant would assert that the actions or omissions of one or more Co-Defendants and/or third parties, either acting singularly or in combination, were the proximate cause, contributing cause, the sole proximate or intervening cause(s) of Plaintiff’s alleged injuries, if any. VIII. Defendant hereby pleads a cause of action against any and all Defendants who may settle for the purpose of permitting the settling Defendant’s liability to be submitted to the jury, in as such as a pleading is required. IX. Defendant asserts that in addition to any other limitation under law, recovery of medical or healthcare expenses is limited to the amount actually paid or incurred by or on behalf of the claimant pursuant to TEXAS CIVIL PRACTICE & REMEDIES CODE §41.0105. X. Defendant asserts that prejudgment interest may not be assessed or recovered on an award of future damages, if any. V.T.C.A., Finance Code §304.1045. XI. Defendant asserts his rights under §18.091 of the TEXAS CIVIL PRACTICE & REMEDIES CODE pertaining to the required proof of alleged loss of earnings, loss of earnings capacity, or loss of contributions of a pecuniary value, as well as the jury instructions regarding the same. -3- Electronically Filed 8/8/2022 11:51 AM Hidalgo County District Clerks Reviewed By: Valerie Garza XII. Should Plaintiff make a claim for punitive damages at any time, this Defendant further invokes his rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and affirmatively pleads that the Plaintiff’s pleading for punitive and/or exemplary damages is violative of the Fourteenth Amendment inasmuch as punitive and/or exemplary damages can be assessed: 1. in an amount left to the discretion of the jury and judge; 2. in assessing such sums, the decision of the jury need only be based on a vote of ten jurors and does not require a unanimous verdict; 3. in assessing such penalty or exemplary awards, plaintiff need only prove the theory of gross negligence on a “preponderance of the evidence” standard and not on a “beyond a reasonable doubt” standard, as should be required in assessing a punishment award; 4. further, the defendants who are subject to the award do not have the right to refuse to testify against themselves, but must, in fact, take the stand and/or give deposition testimony or subject themselves to the consequences of a default judgment; 5. the assessment of such a punishment and/or exemplary award is not based upon a clearly defined statutory enactment setting forth a specific mens rea requirement and/or other prerequisites of a criminal fine and, in effect allows the assessment of such awards even though there are not specific standards, limits or other statutory requirements set forth which define the mens rea and scope and limit of such awards. Therefore, the awards are unduly vague and do not meet the requirements of due process; 6. in essence, this defendant is subjected to all the hazards and risks of what amounts to a fine and, in fact, such awards often exceed normal criminal fines; but this defendant receives none of the basic rights afforded a criminal defendant when being subjected to possible criminal penalties; and -4- Electronically Filed 8/8/2022 11:51 AM Hidalgo County District Clerks Reviewed By: Valerie Garza 7. the assessment of punitive and/or exemplary damages differs from defendant to defendant and treats similar defendants in dissimilar ways. Further, if such be necessary, this Defendant further affirmatively pleads that the assessment and award of punitive and/or exemplary damages is violative of the Eighth Amendment of the United States Constitution as it is applied to the States through the Fourteenth Amendment of the United States Constitution in that such awards potentially constitute an excessive fine imposed without the protections of fundamental due process. XIII. Accordingly, this Defendant invokes his rights under the Eighth and Fourteenth Amendments of the United States Constitution and respectfully requests that this Court disallow the award of punitive and/or exemplary damages inasmuch as an award in this case would be violative of the Defendant’s United States constitutional rights. XIV. Defendant affirmatively asserts that Plaintiff failed to take reasonable steps to reduce or minimize his damages. Additionally, if Plaintiff maintained Medicare, Medicaid, and/or health insurance, and failed to utilize his health benefits, then Plaintiff has failed to mitigate his damages. XV. Defendant would further invoke his right under the Fifth Amendment to the United States Constitution wherein it reads in part, “No person shall be . . . deprived of . . . property, without due process of law; . . .” for the same reasons enumerated above. -5- Electronically Filed 8/8/2022 11:51 AM Hidalgo County District Clerks Reviewed By: Valerie Garza WHEREFORE, PREMISES CONSIDERED, Defendant, Jose Luis Almendarez Santibanez, prays that Plaintiff takes nothing by reason of this suit, that Defendant recovers his costs, and for such other and further relief, both at law and in equity, to which he may show himself justly entitled. Respectfully submitted, GONZALEZ CASTILLO MOYA, LLP By: /s/ Linda Cavazos Castillo Edward J. Castillo SBN: 24040658 Ezequiel “Zeke” Moya, Jr. SBN: 24092865 Linda Cavazos Castillo SBN: 24045632 1317 E. Quebec Avenue McAllen, Texas 78503 (956) 618-0115 FAX: (956) 618-0445 Email: law@valleyfirm.com ATTORNEYS FOR DEFENDANT, JOSE LUIS ALMENDAREZ SANTIBANEZ CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been forwarded to Plaintiff counsel via electronic filing services and electronic mail, on this 8th day of August, 2022. /s/ Linda Cavazos Castillo Linda Cavazos Castillo E:\Data\data\APOLLO\D\De La Fuente, R. v. Almendarez, J. 72.256\original answer.bg.wpd -6- 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. Bryanna Gonzales on behalf of Linda Marie Cavazos Bar No. 24045632 bgonzales@valleyfirm.com Envelope ID: 67053855 Status as of 8/8/2022 1:31 PM CST Associated Case Party: JoseLuisAlmendarez Santibanez Name BarNumber Email TimestampSubmitted Status Bryanna Gonzales bgonzales@valleyfirm.com 8/8/2022 11:51:53 AM SENT Linda Cavazos Castillo lcavazos@valleyfirm.com 8/8/2022 11:51:53 AM SENT 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. Bryanna Gonzales on behalf of Linda Marie Cavazos Bar No. 24045632 bgonzales@valleyfirm.com Envelope ID: 67053855 Status as of 8/8/2022 1:31 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status RUY MIRELES ruymdlaw@gmail.com 8/8/2022 11:51:53 AM SENT MARIO DAVILA MDLawLitigation@gmail.com 8/8/2022 11:51:53 AM SENT Alma Stutzner almasmdlaw@gmail.com 8/8/2022 11:51:53 AM SENT