Motion to Amend in PARKSIDE COMMON ASSOCIATION et al vs. PARKSIDE LAND WEST LP et al| Trellis.Law

On May 18, 2022 a Answer was filed involving a dispute between Parkside Common Association, Parkside Neighborhood Homeowner'S Association, and Apex Retaining Walls, Falkofske Engineering, Inc., Hines Holdings, Inc., Hines Interests Limited Partnership, Hines Parkside Land East Associates Limited Partnership, Hines Parkside Land Gp Ii Llc, Hines Parkside Land Gp Llc, Hines Parkside Land West Associates Limited Partnership, Parkside Land East Lp, Parkside Land West Lp, Rpm Xconstruction, Llc, Xpress Erosion Solutions Llc, for CONSTRUCTION in the District Court of Dallas County.

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FILED
5/4/2023 1:43 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Brandon Keys DEPUTY

CAUSE NO. DC-2205293

PARKSIDE COMMON ASSOCIATION IN THE DISTRICT COURT

§§§§§§§§§§§§§§§§§§§§§§§§§§
and PARKSIDE NEIGHBORHOOD
HOMEOWNER’S ASSOCIATION
Plaintiﬁv

VS. DALLAS COUNTY, TEXAS

PARKSIDE LAND WEST LP;
PARKSIDE LAND EAST LP;
HINES PARKSIDE LAND EAST
ASSOCIATES LIMITED
PARTNERSHIP; HINES PARKSIDE
LAND WEST ASSOCIATES LIMITED
PARTNERSHIP;
HINES PARKSIDE GP II LLC;
HINES PARKSIDE LAND GP LLC;
HINES INTERESTS LIMITED
PARTNERSHIP;
HINES HOLDINGS, INC. a.k.a.
HINES HOLDINGS LLC;
FALKOFSKE ENGINEERING, INC;
RPM XCONSTRUCTION, LLC a.k.a
RPMX CONSTRUCTION;
XPRESS EROSION SOLUTIONS LLC;
and APEX RETAINING WALLS,
Defendants 14TH JUDICIAL DISTRICT

DEFENDANT XPRESS EROSION SOLUTIONS LLC’S
FIRST AMENDED ANSWER AND SPECIAL EXCEPTIONS
TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Defendant XPRESS EROSION SOLUTIONS LLC (“Defendant” or

“Xpress”), and ﬁles this First Amended Answer and Special Exceptions, and would respectfully

show the Court as follows:

I
GENERAL DENIAL
As provided in Rule 92, TEX. R. CIV. P., Xpress enters a general denial of all matters pled

by Plaintiffs and demands strict proof hereof by preponderance of the credible evidence and asks
that these matters be properly decided by this Honorable Court and Jury.

II.
THIRD PARTIES

The acts or omissions of third parties over Whom Xpress had no control were the sole cause

and/or a proximate cause of the occurrence which made the basis of this suit.

III.
RESPONSIBLE THIRD PARTIES

Xpress states that they are entitled to have the trier of fact determine the percentage of

responsibility of all parties, tortfeasors and responsible third parties who caused or contributed to

cause the accident and alleged damages sustained by Plaintiffs, if any. TEX. CIV. PRAC. & REM.
CODE § 33.004. Xpress is entitled to an offset, credit or percentage reduction based upon a

determination of the relative fault of all persons and tortfeasors.

IV.
CONTRIBUTORY NEGLIGENCE/COMPARATIVE FAULT

Plaintiffs failed to exercise that degree of care which persons or entities of ordinary care

would have exercised in the same or similar circumstances. Their wrongful acts or omissions were

a proximate cause of the accident and their damages, if any. Xpress pleads and invokes the

proportionate responsibility provisions of Chapters 33.001 et seq, TEX. CIV. PRAC. & REM. CODE,

and states that Plaintiffs’ recovery, if any, should be reduced or denied pursuant to these provisions.
V.
NEW. INDEPENDENT INTERVENING AND SUPERSEDING CAUSE

The acts, omissions, or conduct of a separate and independent individual, agency or

tortfeasor, whose conduct was not reasonably foreseeable, destroyed the causal connection, if any,
between any act or omission by Xpress, if any, and thereby became the new, independent and/or

intervening cause of the accident and Plaintiffs’ damages, if any.
VI.
CONTRIBUTION

In the unlikely event that Plaintiffs recover against Xpress, then Xpress would be entitled

to contribution of and from the Co-Defendants pursuant to the provisions of Chapter 32.001, et

seq, and Sections 33.011, 33.012, 33.015 and 33.016, TEX. CIV. PRAC. & REM. CODE, and the

common law of the State of Texas for any damages, if any, assessed against Xpress.
VII.
PROPORTIONATE RESPONSIBILITY

Xpress invokes Section 33.001 and 33.003, TEX. CIV. PRAC. & REM. CODE, and states that

the trier of fact must determine the percentage of responsibility of each plaintiff, defendant, settling

person or responsible third parties who have been designated under Section 33.004, TEX. CIV.

PRAC. & REM. CODE, for causing or contributing to Plaintiffs’ damages, if any.
VIII.
LIMITATIONS

Plaintiffs’ claims are barred, in Whole or in part, by the applicable statute of limitations.

TEX. CIV. PRAC. & REM. CODE § 16.002, 16.004; TEX. BUS. & COM. CODE § 17.565.

IX.
ECONOMIC LOSS RULE

Plaintiffs’ non-contractual claims are barred by the economic loss rule. Sharyland Water

Supply Corp. v. City 0f Alton, 354 S.W.3d 407, 417 (TeX. 2011); Southwestern Bell Tel. v.

Delanney, 809 S.W.2d 493, 494 (Tex. 1991).

X.
OPPORTUNITY TO CURE

Plaintiffs failed or refused to allow Xpress an opportunity to cure. As such, this suit should

be dismissed and/or abated. Hull v. S. Coast Catamaran, 365 S.W.3d 35, 43-44 (Tex. App.—

Houston [1st Dist.] 2011, pet. denied); U.S. Tire-Tech v. Boeran, 110 S.W.3d 194, 200 (Tex.
App .—Houston [lst Dist] 2003, pet. denied).

XI.
DEFENSES UNDER THE RCLA

Xpress invokes the defenses under Section 27.003, 27.0031, 27.006, TEX. PROP. CODE

(“Texas Residential Construction Liability Act”), and states that they are not liable for the conduct

of any other party; for any failure to mitigate or maintain the property; or for normal wear, tear,

deterioration, or shrinkage. Further, Plaintiff must prove that Xpress’ conduct, if any, proximately
caused Plaintiffs’ damages, if any.
XII.
SANCTIONS FOR PURSUING FRIVOLOUS CLAIM

At the time Plaintiffs brought suit they knew or should have known that their suit against

Xpress was groundless and/or lacked a legal or factual basis, was brought in bad faith or for an

improper purpose, including to harass, or needlessly increase litigation costs. TEX. R. CIV. P. § 13;

TEX. CIV. PRAC. & REM. CODE § 10; TEX. PROP. CODE § 27.0031. Additionally, after a sufﬁcient

time for discovery, Plaintiffs have learned that Xpress has no liability for the circumstances of this

lawsuit but have persisted in prosecuting their lawsuit against and propounding discovery to

Xpress which has resulted unnecessary, frivolous, harassing, costly and oppressive discovery. TEX.

R. CIV. P. § 215 .3; Nath v. Tex. Children ’s Hosp, 446 S.W.3d 355, 369-70 (Tex. 2014); Monroe

v. Grider, 884 S.W.2d 811, 819 (Tex. App—Dallas 1994, writ denied). As such, Plaintiffs’ lawsuit

against Xpress should be dismissed and/or Xpress is entitled to reimbursement for its reasonable

attomey’s fees and litigation costs.

XIII.
FAILURE TO SATISFY CONDITIONS PRECEDENT

Xpress denies that Plaintiffs have satisﬁed all conditions precedent to bringing suit. As

such, this suit should be dismissed and/or abated until such time as Plaintiffs have satisﬁed all
conditions precedent.

XIV.
SETTLEMENT CREDIT
Insofar as Plaintiffs have or will settle with any defendant, party or tortfeasor, Xpress

invokes Section 33.012, TEX. CIV. PRAC. & REM. CODE, and states that they are entitled to a dollar-

for-dollar credit and/or offset for the amount of any settlements entered into by Plaintiffs. Xpress

requests that Court reduce the amount of damages awarded to Plaintiffs, if any, by the amount of

all settlements entered into by Plaintiffs.

XV.
PRE-EXISTING OR SUBSEOUENT CONDITION
Plaintiffs’ alleged damages, if any, were the result of some prior or subsequent condition
for which Defendant is not responsible and which constitutes some new and independent cause.

XVI.
FAILURE TO MITIGATE
Plaintiffs failed to mitigate their damages. As such, their damages are barred, in Whole or

in part, by their failure to mitigate. Gunn Inﬁnitz‘ v. O’Byme, 996 S.W.2d 854, 857 (Tex. 1999).

XVII.
SPECIAL EXCEPTIONS
1. Pursuant to Rule 90 and 91, TEX. R. CIV. P., Xpress specially excepts to Plaintiffs’

First Amended Petition as follows:

2. Section “IV. STATEMENT OF FACTUAL ALLEGATIONS,” and speciﬁcally

Paragraph 4.09 and 4.16, in that Plaintiffs have not adequately or sufﬁciently described What

occurred, the date of any occurrence and when the cause of action accrued, and how or in what

manner Xpress caused or contributed to the damages, if any, incurred by Plaintiffs. In other words,
there does not appear to be, based on Plaintiffs’ pleadings, any act or omission by Xpress,
speciﬁcally, that caused Plaintiffs’ damages, if any. Plaintiffs’ allegations are vague, conclusory,

ambiguous and fail to give Xpress sufﬁcient notice of their claims. “Texas follows a ‘fair notice’

standard for pleading, which looks to whether the opposing party can ascertain from the pleading

the nature and basic issues of the controversy and what testimony will be relevant.” Horizon/CMS

Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). “The purpose of this rule is to give the

opposing party information sufﬁcient to enable him to prepare a defense.” Id. Xpress cannot

determine, based on the pleadings, what happened, when the events happened, or how or in what

manner Xpress caused or contributed to the damages, if any. Plaintiffs must re-plead.
3. Section V., Subsection A. Negligence 1H] 5.02-5.09, and Subsection B. Negligence

Per Se 1H] 5.10-5. 16, insofar as those claims are barred by the economic loss rule. Shara/land Water

Supply Corp. v. City of Alton, 354 S.W.3d 407, 417 (Tex. 2011); Southwestern Bell Tel. v.

Delanney, 809 S.W.2d 493, 494 (Tex. 1991). Under the facts and pleadings of this case, those

claims are not permitted under Texas law. As such, those claims should be dismissed.

4. Section IX. Prayer for Relief, where Plaintiffs pray for exemplary damages.

Plaintiffs have not pled any cause of action or facts that would justify an award of punitive

damages. TEX. CIV. PRAC. & REM. CODE § 41.003; Safeshred, Inc. v. Martinez, 365 S.W.3d 655,

659 (Tex. 2012) (breach of contract); Safeway Managing Gen. Agency v. Cooper, 952 S.W.2d 861,

869-70 (Tex. App—Amarillo 1997, no writ). As such, Plaintiffs request for exemplary damages

should be denied.

XVIII.
RIGHT TO AMEND

Xpress reserves its right to amend its answer following further discovery in this cause and

as allowed by Texas law.
XIX.
NOTICE OF INTENT TO USE DOCUMENTS

Pursuant to Rule 193.7, TEX. R. CIV. P., Xpress hereby gives notice to Plaintiffs and all co-

defendants of intent to use all documents produced in the course of this litigation as exhibits in any

pre-trial or trial proceeding.

XX.
REQUEST FOR DEPOSITION

Xpress hereby requests the depositions of Plaintiffs, and/or their corporate representatives.

XXI.
JURY REQUEST AND PAYMENT
Pursuant to Section 216, TEX. R. CIV. P., Xpress requests a trial by jury. Payment for the

jury fee is attached to this Answer.

WHEREFORE, PREMISES CONSIDERED, Defendant XPRESS EROSION

SOLUTIONS LLC prays that Plaintiffs takes nothing by reason of this suit; that Plaintiffs re-plead

their petition and/or alternatively, that Plaintiffs’ suit against Xpress be dismissed; that Xpress

recover its reasonable attorney fees and litigation costs; and for such other and further relief, at

law and in equity, to which Xpress may be justly entitled.

{SIGNATURE ON FOLLOWING PAGE}
Respectfully submitted,

COX P.L.L.C.

@2on
Clinton V. Cox, IV
Texas Bar No. 24040738
Bill W. Sanford
Texas Bar No. 24041864
8144 Walnut Hill Lane, Suite 1090
Dallas, Texas 75231
Telephone: (469) 340-1205
Facsimile: (469)340-1884
Email: ccox@coxpllc.com
Email: bsanford@coxpllceom

ATTORNEYS FOR DEFENDANT
XPRESS EROSION SOLUTIONS LLC

CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Answer was served upon counsel of record in
compliance with the Texas Rules of Civil Procedure by e-service, e-mail, certiﬁed mail, return
receipt requested, telephonic communications, hand delivery and/or U.S. Mail on this the 4th day
of May, 2023.

Clinton V. Cox
V@
Bill W. Sanford
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.

Christie Bunch on behalf of Clint Cox
Bar No. 24040738
cbunch@coxpllc.com
Envelope ID: 75319299
Filing Code Description: Amended Answer - Amended General Denial
Filing Description: AND SPECIAL EXCEPTIONS, XPRESS
Status as of 5/4/2023 3:20 PM CST

Associated Case Party: PARKSIDE COMMON ASSOCIATION

Name BarNumber Email TimestampSubmitted Status
Danita Glenn dglenn@kerranestorz.com 5/4/2023 1:43:11 PM SENT
Jeffrey Kerrane jkerrane@kerranestorz.com 5/4/2023 1:43:11 PM SENT
Allie Renteria arenteria@kerranestorz.com 5/4/2023 1:43:11 PM SENT
Madison Bell mbell@kerranestorz.com 5/4/2023 1:43:11 PM SENT

Associated Case Party: RPM XCONSTRUCTION, LLC

Name BarNumber Email TimestampSubmitted Status

Jay R.Downs jdowns@downsstanford.com 5/4/2023 1:43:11 PM SENT
Joseph MGregory Joseph.Gregory@libertymutual.com 5/4/2023 1:43:11 PM SENT
Rodney M.Patterson rpatterson@downsstanford.com 5/4/2023 1:43:11 PM SENT
CD lrvingCD Mail lrvingCDMail@LibertyMutual.com 5/4/2023 1:43:11 PM SENT
Adrean Johnson ajohnson@downsstanford.com 5/4/2023 1:43:11 PM SENT
Tracy Cheeks tcheeks@downsstanford.com 5/4/2023 1:43:11 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status
Clint V.Cox ccox@coxpllc.com 5/4/2023 1:43:11 PM SENT
Christie Bunch cbunch@coxpllc.com 5/4/2023 1:43:11 PM SENT
Cori Ellis Cori.Ellis@uwlaw.com 5/4/2023 1:43:11 PM SENT
Bill Sanford bsanford@coxpllc.com 5/4/2023 1:43:11 PM SENT

Associated Case Party: HINES PARKSIDE LAND EAST ASSOCIATES LIMITED
PARTNERSHIP
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.

Associated Case Party: HINES PARKSIDE LAND EAST ASSOCIATES LIMITED
PARTNERSHIP

Name BarNumber Email TimestampSubmitted Status
John Kenefick jkenefick@macdonalddevin.com 5/4/2023 1:43:11 PM SENT
Jason Jung jjung@macdonalddevin.com 5/4/2023 1:43:11 PM SENT
Jamie Modelo jmodelo@macdonalddevin.com 5/4/2023 1:43:11 PM SENT
Virginia Alvarez Valvarez@macdonalddevin.com 5/4/2023 1:43:11 PM SENT
Read Reily rreily@macdonalddevin.com 5/4/2023 1:43:11 PM SENT
Jan Ellison JEIIison@macdonalddevin.com 5/4/2023 1:43:11 PM SENT
Karen lMorgan Kmorgan@macdonalddevin.com 5/4/2023 1:43:11 PM SENT

Associated Case Party: FALKOFSKE ENGINEERING, INC.

Name BarNumber Email TimestampSubmitted Status
Richard Schellhammer res@uwlaw.com 5/4/2023 1:43:11 PM SENT
Brad Timms brad.timms@uwlaw.com 5/4/2023 1:43:11 PM SENT

Associated Case Party: NORTH TEXAS HARDSCAPE INC

Name BarNumber Email TimestampSubmitted Status
Tia Harris tharris@mayerllp.com 5/4/2023 1:43:11 PM SENT
Wesley Alost walost@mayerllp.com 5/4/2023 1:43:11 PM SENT
Crystal Lash clash@mayerllp.com 5/4/2023 1:43:11 PM SENT
Miranda KRoberts mroberts@mayerllp.com 5/4/2023 1:43:11 PM SENT

Associated Case Party: RATLIFF HARDSCAPTE LTD
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.

Associated Case Party: RATLIFF HARDSCAPTE LTD

Name BarNumber Email TimestampSubmitted Status
Soﬁa J.Garcia sjgarcia@grsm.com 5/4/2023 1:43:11 PM SENT
VLS DFW Support VLS_DFWSupport@grsm.com 5/4/2023 1:43:11 PM SENT
Audrey G.Busby abusby@grsm.com 5/4/2023 1:43:11 PM SENT
Denise Houser dhouser@grsm.com 5/4/2023 1:43:11 PM SENT
Caroline J.Baird cbaird@grsm.com 5/4/2023 1:43:11 PM SENT

Case Info

Judge

MOYE', ERIC Track Judge’s New Case

Case No.

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Document Filed Date

May 04, 2023

Case Filing Date

May 18, 2022

County

Parties

APEX RETAINING WALLS Defendant
DOWNS, JAY REYNOLDS Attorney for the Defendant
FALKOFSKE ENGINEERING, INC. Defendant
GLENN, DANITA Attorney for the Plaintiff
GREGORY, JOSEPH M Attorney for the Defendant
HINES HOLDINGS, INC. Defendant
HINES INTERESTS LIMITED PARTNERSHIP Defendant
HINES PARKSIDE LAND EAST ASSOCIATES LIMITED PARTNERSHIP Defendant
HINES PARKSIDE LAND GP II LLC Defendant
HINES PARKSIDE LAND GP LLC Defendant
HINES PARKSIDE LAND WEST ASSOCIATES LIMITED PARTNERSHIP Defendant
KENEFICK, JOHN S Attorney for the Defendant
PARKSIDE COMMON ASSOCIATION Plaintiff
PARKSIDE LAND EAST LP Defendant
PARKSIDE LAND WEST LP Defendant
PARKSIDE NEIGHBORHOOD HOMEOWNER'S ASSOCIATION Plaintiff
RPM XCONSTRUCTION, LLC Defendant
SCHELLHAMMER, RICHARD E Attorney for the Defendant
XPRESS EROSION SOLUTIONS LLC Defendant
Madison Bell Attorneys for Plaintiffs
Christopher Kurzner Attorneys for Defendants
Jeffrey Kerrane Attorneys for Plaintiffs
Rodney Patterson Attorney
Wesley Alost
Miranda Roberts
Jason Jung Attorneys for Defendants
Read Reily Attorneys for Defendants
Sona Garcia Attorney
Caroline Baird Attorney
Clinton Cox Attorneys for Defendants
Bill Sanford Attorneys for Defendants
Bradley Timms Attorneys for Defendants
Jamie Modelo Attorneys for Defendants
J. Lincer Attorney

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Answer: PARKSIDE COMMON ASSOCIATION et al vs. PARKSIDE LAND WEST LP et al

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