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FILED
4/28/2023 3:41 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
CAUSE NO. DC-21-04901
TONY EVANS SR., and ARETHA EVANS, IN THE DISTRICT COURT
Individually and on behalf of his minor son,
T.E., deceased, FAITH TANKSLEY on behalf of
minor T.E., III, Individually and on behalf of
His father, T.E., deceased and
DEON WILLIAMS,
Plaintiffs,
1628? JUDICIAL DISTRICT
TASACOM REAL ESTATE, LLC d/b/a
HAWTHORN SUITES DALLAS LOVE FIELD
HAWTHORN SUITES FRANCHISING, INC.,
WYNDHAM HOTELS & RESORTS, INC.,
MOHAMMAD SADIQ NOSHAHI,
DIAMOND STAFFING SERVICES, LLC,
WYNDHAM HOTEL GROUP, LLC,
TASACOM TECHNOLOGIES, INC.,
SANJEEV JAIN, and
MMAROOFUL CHOUDHURY,
Defendants. DALLAS COUNTY, TEXAS
DEFENDANT TASACOM REAL ESTATE, LLC D/B/A HAWTHORN SUITES DALLAS
LOVE FIELD’S SECOND AMENDED ANSWER AND AFFIRMATIVE DEFENSES
TO THE HONORABLE JUDGE:
Defendant Tasacom Real Estate, LLC d/b/a Hawthorn Suites Dallas Love Field,
hereinafter referred to below as “Defendant,” in the above styled and numbered case, files this
Second Amended Answer and Affirmative Defenses, and would respectfully show the Court as
follows:
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I
GENERAL DENIAL
1.01 Pursuant to Rule 92 of the TEXAS RULES OF CIVIL PROCEDURE, Defendant denies
all and singular, each and every material allegation contained in Plaintiffs’ Fifth Amended
Petition and any subsequent petition filed by Plaintiffs and demands strict proof of the same by a
preponderance of the evidence.
IL.
AFFIRMATIVE DEFENSES
2.01 Defendant incorporates by reference as if fully restated herein all paragraphs of
this Answer, including Paragraph 1.01 above.
2.02 Pursuant to Rule 94 of the TEXAS RULES OF CIVIL PROCEDURE, Defendant asserts
the affirmative defense of contributory negligence. If there is a party in this case that was
negligent, which Defendant vehemently deny that it was negligent, Defendant asserts that minor
T.E., and Plaintiff DEON WILLIAMS’ own negligence caused and/or contributed to the cause of
the incident in question.
2.03 Defendant raises the affirmative defense pursuant to Rule 94 of the TEXAS RULES
OF CIVIL PROCEDURE of sole proximate cause. That is, the acts and/or omissions giving rise to
the causes of action were caused by the sole negligence of another party and not this Defendant.
2.04 Pursuant to Chapter 33 of the TEX. Civ. PRAC. & REM. CODE ANN., this Defendant
tequests a submission of comparative negligence and comparative negligence causation as
provided in Chapter 33 of the TEX. Clv. PRAC. & REM. CODE ANN. Specifically, Defendant
intends to submit the negligence of minor, T.E., Plaintiff DEON WILLIAMS, all settling parties,
and any and all Responsible Third Parties.
2.05 Defendant asserts that the damages of which Plaintiffs complain, if any, were
proximately caused by independent, intervening, or superseding causes, including acts and
2
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omissions of others over which Defendant had no control or right of control and which events
were unrelated to any conduct of Defendant. Specifically, the incident in question was
specifically caused by the criminal acts and/or criminal conduct committed by KRESHAWN
EVANTA HARRIS and/or other unknown assailants.
2.06 For further Answer, if such be necessary, Defendant alleges that in accordance
with TEX. Civ. PRAC. & REM. CODE ANN. § 33.013, Defendant may not be held jointly and
severally liable for any amount of damages claimed herein unless the percentage of
responsibility of, and as to, this Defendant, when compared with that of each defendant, settling
party, and each responsible third party, is greater than fifty percent (50%).
2.07 Defendant asserts his rights under common law, and Chapters 32-33 of the TEx.
Civ. PRAC. & REM. CODE ANN., to receive an offset, credit, and/or reduction in judgment based
on any settlement Plaintiffs have made or may make with any other person or entity or for any
amounts of money collected from any other person or entity by settlement, compromise, or
agreement, or in payment or in partial payment, of any judgment entered in this case. In
accordance with Chapter 33 of the TEX. PRAC. & REM. CODE ANN., specifically TEX. Civ. PRAC.
& REM. CODE ANN. § 33.012, Defendant seeks a settlement credit as to all sums paid by any and
all settling parties. Accordingly, if Plaintiffs are awarded any amount as damages in this cause,
the award must be reduced by the dollar amount of any and all settlements or by a dollar credit
determined by applying the statutory formula credit set forth in TEX. PRAC. & REM. CODE ANN. §
33.012.
2.08 In the unlikely event that liability is imposed upon this Defendant, Defendant
invokes his right to contribution, pursuant to Chapter 33 of the TEX. Civ. PRAC. & REM. CODE
ANN.
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2.09 Defendant asserts that his right to a reduction or bar of Plaintiffs’ recovery based
on the determination of comparative responsibility of any other party, Responsible Third Party,
or settling person, pursuant to Chapter 33 of the TEx. Civ. PRAC. & REM. CODE ANN. generally,
and specifically, TEX. Civ. PRAC. & REM. CODE ANN. §§ 33.001, 33.003, 33.012, and 33.013.
2.10 For further Answer, Defendant asserts that Plaintiffs’ recovery of medical or
health care expenses, if any, is limited to the amount actually paid or incurred by or on behalf of
T.E. and Plaintiffs, pursuant to TEX. Civ. PRAC. & REM. CODE ANN. § 41.0105.
2.11 Defendant alleges that Plaintiffs have failed to allege conduct warranting
imposition of exemplary or punitive damages under applicable Texas law.
2.12 Defendant asserts that any award of exemplary or punitive damages to Plaintiffs
are subject to the limitations and caps imposed by Chapter 41 of the TEX. Civ. PRAC. & REM.
CODE ANN.
2.13 For further Answer, Defendant asserts that an award of punitive damages or
exemplary damages in this case would be inconsistent with, and would violate Defendant’ rights
under, the United States and Texas Constitutions as follows:
A An award of exemplary or punitive damages would violate Defendant’s right to
due process and equal protection as guaranteed by the Fourteenth Amendment to the
United States Constitution, and Article 1, Section 19 of the Texas Constitution, in that:
1 No provision of Texas law provides any adequate or meaningful standard
or guide for fixing, determining, or reviewing the amount of an award of punitive
or exemplary damages. Defendant neither has notice of nor means of ascertaining
the amount of the penalty that they would be or might be subject to for the
conduct upon which the award is ostensibly to be based;
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2. Under the laws of the State of Texas, the determination of whether to
award punitive or exemplary damages is left to the arbitrary discretion of the trier
of fact. There is no adequate or meaningful standard or guide for exercising said
discretion;
3 No provision of Texas law provides any adequate or meaningful standard
or guide for determining the nature of the conduct upon which an award of
exemplary damages may be based. Defendant has neither notice of nor means of
ascertaining the nature of the conduct for which they might be held subject to a
punitive damages or an exemplary damages award;
4 No provision of Texas law provides adequate procedural safeguards for
the imposition of an award of punitive and exemplary damages; and
5 The very concept of punitive and exemplary damages, whereby an award
is made to a private plaintiff not by way of compensation, but by way of a
windfall incident to punishing a defendant, represents the taking of property
without due process of law.
B An award for punitive or exemplary damages would violate the prohibition
against excessive fines contained in the Eight Amendment to the United States
Constitution as embodied within the due process of law clause of the Fourteenth
Amendment to said Constitution, and to Article 1, Section 19 of the Texas Constitution.
2.14 Pursuant to TEX. CIv. PRAC. & REM. CODE ANN. § 41.005(a), Defendant asserts
that punitive damages are not available to the Plaintiffs in this case. Specifically, in an action
arising from harm resulting from an assault or other criminal act, a Court may not award punitive
or exemplary damages against a defendant because of the criminal acts of another.
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2.15 Further, pursuant to Article 1, Section 26 of the TEXAS CONSTITUTION, a parent is
not entitled to an award of exemplary or punitive damages for an allegation of wrongful death of
that child, or an heir of the body. As such, Plaintiffs TONY EVANS, SR. and ARETHA EVANS
are not entitled to recover punitive damages as no such recovery is allowed under Chapter 71 of
the TEX. CIV. PRAC. & REM. CODE ANN.
2.16 Defendant asserts that Plaintiff WILLIAMS has failed to mitigate his alleged
damages in myriad ways.
2.17 Defendant asserts that, pursuant to TEX. R. CIv. P. 54, all conditions precedent for
a suit under the TEXAS DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTIONS ACT, codified
at TEX. Bus. & COM. CODE ANN. §§ 17.01-17.955, have not been performed, or have not
occurred, specifically as to the pre-suit notice requirement of TEx. BUS. & COM. CODE ANN. §
17.505. Therefore, Plaintiffs’ claims for treble damages and attorney’s fees must fail, until such
time as their claims under the TEXAS DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTION
ACT have been properly abated. Furthermore, Plaintiffs’ claims for breach of warranty and
misrepresentation fail under this same notice statute and provision. Texas law further specifically
excludes from the TEXAS DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTION ACT, TEX.
Bus. & CoM. CODE ANN. § 17.49(e), any “cause of action for bodily injury or death or for the
infliction of mental anguish.” It should also be noted that for the purposes of the TEXAS
DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTION ACT, minor T.E., and Plaintiffs are not
considered consumers to any transaction relating to the payment for the hotel room at issue in
this case, nor has any proof been provided by Plaintiffs showing any payments were made on
behalf of, or by, minor T.E. and Plaintiff WILLIAMS for use of the hotel room.
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2.18 The injuries and damages alleged by Plaintiffs, if any, were caused in whole or in
part by a new and independent cause, specifically, the criminal acts and/or conduct of
KEYSHAWN EVANTA HARRIS and/or unknown assailants.
2.19 Defendant asserts and alleges that, pursuant to TEX. R. CIv. P. 39, Plaintiffs have
failed to join one or more indispensable parties necessary for the proper adjudication of this
action. Specifically, Plaintiffs conveniently disregard TEX. R. Civ. P. 39(c), which states, in
pertinent part, that “[a] pleading asserting a claim for relief shall state the names, if known to the
pleader, of any persons described in subdivision (a)(1)-(2) hereof who are not joined, and the
reasons why they are not joined.” Defendant asserts and alleges that the name of KEYSHAWN
EVANTA HARRIS is well known to the Plaintiffs to be the person charged with the shooting of
Plaintiff WILLIAMS.
2.20 Defendant asserts and alleges that minor T.E. and Plaintiff WILLIAMS were not
invitees nor licensees to the premises at the time the subject incident occurred. Minor T.E. and
Plaintiff WILLIAMS were not registered guests of the hotel, nor were they staying with a
registered guest of the hotel. Defendant seeks a judicial determination as to the status of minor
T.E. and Plaintiff WILLIAMS at the time of the incident made the basis of this lawsuit.
2.21 Defendant specifically denies that it was engaged in a civil conspiracy or “joint
enterprise” with any other Defendant. Defendant pleads that there is no basis to disregard the
corporate form of the corporate Defendants in this case, nor is there any basis to hold each
Defendant liable for the acts of another.
2.22 Any right to recovery by Plaintiffs in this action, and any liability on the part of
Defendant, which is hereby expressly and vehemently denied, is limited in accordance with the
provisions of the applicable wrongful death statute. Recovery under the wrongful death statutes
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under Texas law, pursuant to TEX. CIV. PRAC. & REM. CODE §§ 71.001-71.051, is the exclusive
remedy for the Plaintiffs asserting causes of action for wrongful death in this case.
2.23 Defendant further alleges that Plaintiffs, on behalf of minor T.E., Plaintiff
WILLIAMS, and all Plaintiffs have no standing to bring a claim against Defendant for
misrepresentation, breach of warranty, or any deceptive trade practice under the TEXAS
DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTION ACT, codified at TEX. Bus. & CoM.
CODE ANN. §§ 17.01-17.955.
2.24 To the extent that Plaintiffs are attempting to assert a breach of contract claim
against Defendant arising from the Franchise Agreement or any other agreements to which
Plaintiffs, and minor T.E., are not a party, Plaintiffs cannot establish that they are third-party
beneficiaries to such agreement(s) and thus cannot establish that they have any standing to bring
such claims against Defendant. Nor can Plaintiffs establish that at the time of the incident made
the basis of this lawsuit, minor T.E. and Plaintiff WILLIAMS were third-party beneficiaries to
such agreement(s) and thus cannot establish that minor T.E. and Plaintiff WILLIAMS have or
had any standing to bring such claims against Defendant.
2.25 Plaintiffs are not entitled to recovery under his claim for misrepresentation, which
is also a recovery under TEXAS DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTION ACT,
codified at TEx. Bus. & Com. CODE ANN. §§ 17.01—17.955, because there was no transactional
privity or relationship by and between Defendant, and minor T.E. and Plaintiff WILLIAMS and
Plaintiffs, because Plaintiffs, minor T.E., and Plaintiff WILLIAMS were not registered guests of
the hotel nor were they staying with a registered guest of the hotel.
2.26 Defendant specifically denies that there is evidence that any other Defendant in
this case acted as the alter ego of Tasacom Real Estate, LLC d/b/a Hawthorn Suites Dallas Love
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Field. Defendant further specifically denies that there is evidence that any funds of Defendant
Tasacom Real Estate, LLC d/b/a Hawthorn Suites Dallas Love Field’s funds were comingled
with those funds of any other corporate entity, any other person, or any other Defendant.
2.27 Defendant specifically denies that the underlying criminal act by a third party was
foreseeable and, therefore, Defendant denies proximate cause between any act and/or omission
on his part and the injuries in question. Upon information and belief, the underlying subject
crime was targeted and unrelated to the fact that T.E. and Deon Williams were present on the
subject property.
Hl.
JURY DEMAND
3.01 Pursuant to Rule 216 of the TEXAS RULES OF CIVIL PROCEDURE, Defendant
hereby demands a trial by jury.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Plaintiffs take
nothing by his suit and that Defendant have judgment for his costs, and for such other and further
relief to which they may be justly entitled, at law or in equity.
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Respectfully submitted,
THOMPSON, COE, COUSINS & IRONS, L.L.P.
: id. Ct0~
{L
By
Tasha L. Barnes
State Bar No. 00796163
Eva DeLeon
State Bar No. 24074774
Morgan J. Wells
State Bar No. 24106562
Benjamin Paul Dunn
State Bar No. 24124581
2801 Via Fortuna, Suite 300
Austin, Texas 78746
(512) 708-8200 — Telephone
(512) 708-8777 — Fax
tbarnes@thompsoncoe.com
edeleon@thompsoncoe.com
mwells@thompsoncoe.com
jeffers@thompsoncoe.com
bdunn@thomposoncoe.com
ATTORNEYS FOR DEFENDANT
TASACOM REAL ESTATE, LLC D/B/A
HAWTHORN SUITES DALLAS LOVE FIELD
10
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CERTIFICATE OF SERVICE
By my signature above, I hereby certify that a true and correct copy of the foregoing has
been delivered on this the 28th day of April, 2023, to the following counsel of record via e-mail:
Nuru Witherspoon Jason Hopkins
Emily Taylor DLA PIPER LLP (US)
The Witherspoon Law Group, PLLC 1900 N. Pearl St., Suite 2200
5565 Deer Creek, Unit A Dallas, Texas 75201
Dallas, Texas 75228 Jason.hopkins@dlapiper.com
witherspoon@twlglawyers.com
taylor@twlglawyers.com And
ATTORNEYS FOR PLAINTIFF
Christopher B. Donovan
DLA PIPER LLP (US)
1000 Louisiana Street, Suite 2800
Houston, Texas 77002
Christopher.b.donovan@dlapiper.com
ATTORNEYS FOR DEFENDANT
HAWTHORN SUITES FRANCHISING,
INC. AND WYNDHAM HOTELS &
RESORTS, INC.
11
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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.
Kiyomi Armistead on behalf of Tasha Barnes
Bar No. 00796163
KArmistead@thompsoncoe.com
Envelope ID: 75143771
Filing Code Description: Amended Answer - Amended General Denial
Filing Description: Choudhury 1A Answer
Status as of 5/1/2023 3:08 PM CST
Associated Case Party: TASACOM REAL ESTATE, LLC
Name BarNumber Email TimestampSubmitted | Status
Tasha LBarnes tbarnes@thompsoncoe.com | 4/28/2023 3:41:39 PM | SENT
Associated Case Party: HAWTHORN SUITES FRANCHISING, INC.
Name BarNumber Email TimestampSubmitted Status
Christopher BDonovan Christopher.B.Donovan@dlapiper.com 4/28/2023 3:41:39 PM SENT
Jason Hopkins 24059969 jason.hopkins@dlapiper.com 4/28/2023 3:41:39 PM SENT
Ronald DHinds rdhinds@verizon.net 4/28/2023 3:41:39 PM SENT
Associated Case Party: WYNDHAM HOTELS & RESORTS, INC.
Name BarNumber Email TimestampSubmitted Status
Christopher BDonovan Christopher.B.Donovan@dlapiper.com 4/28/2023 3:41:39 PM SENT
Jason Hopkins 24059969 jason.hopkins@dlapiper.com 4/28/2023 3:41:39 PM SENT
Ronald DHinds rdhinds@verizon.net 4/28/2023 3:41:39 PM SENT
Taylor Reed Taylor.reed@us.dlapiper.com 4/28/2023 3:41:39 PM SENT
Associated Case Party: MONIQUE PERKINS
Name BarNumber Email TimestampSubmitted | Status
RoseMarie Chambers rose.chambers@dlapiper.com 4/28/2023 3:41:39 PM SENT
sherry M.faulkner sherry.faulkner@us.dlapiper.com 4/28/2023 3:41:39 PM SENT
Sally Jones sally jones@dlapiper.com 4/28/2023 3:41:39 PM SENT
NURU WITHERSPOON witherspoon@twlglawyers.com 4/28/2023 3:41:39 PM SENT
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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.
Kiyomi Armistead on behalf of Tasha Barnes
Bar No. 00796163
KArmistead@thompsoncoe.com
Envelope ID: 75143771
Filing Code Description: Amended Answer - Amended General Denial
Filing Description: Choudhury 1A Answer
Status as of 5/1/2023 3:08 PM CST
Associated Case Party: MOHAMMADSADIQNOSHAHI
Name BarNumber Email TimestampSubmitted | Status
Ronald DHinds rdhinds@verizon.net 4/28/2023 3:41:39 PM | SENT
Eva DeLeon edeleon@thompsoncoe.com | 4/28/2023 3:41:39 PM | SENT
Case Contacts
Name BarNumber Email TimestampSubmitted | Status
Ronald DHinds rdhinds@verizon.net 4/28/2023 3:41:39 PM | SENT
Morgan Wells mwells@thompsoncoe.com | 4/28/2023 3:41:39 PM | SENT
Associated Case Party: TONY EVANS
Name BarNumber Email TimestampSubmitted Status
Nuru Witherspoon litigation@twlglawyers.com 4/28/2023 3:41:39 PM SENT
Emily Taylor taylor@twlglawyers.com 4/28/2023 3:41:39 PM SENT
Aubrey "Nick" Pittman pittman@thepittmanlawfirm.com 4/28/2023 3:41:39 PM SENT
Associated Case Party: T. E.
Name BarNumber Email TimestampSubmitted Status
Aubrey "Nick" Pittman pittman@thepittmanlawfirm.com 4/28/2023 3:41:39 PM SENT
Emily Taylor taylor@twiglawyers.com 4/28/2023 3:41:39 PM SENT
Nuru Witherspoon litigation@twiglawyers.com 4/28/2023 3:41:39 PM SENT
Associated Case Party: ARETHA EVANS
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.
Kiyomi Armistead on behalf of Tasha Barnes
Bar No. 00796163
KArmistead@thompsoncoe.com
Envelope ID: 75143771
Filing Code Description: Amended Answer - Amended General Denial
Filing Description: Choudhury 1A Answer
Status as of 5/1/2023 3:08 PM CST
Associated Case Party: ARETHA EVANS
Name BarNumber | Email TimestampSubmitted Status
Nuru Witherspoon litigation@twlglawyers.com 4/28/2023 3:41:39 PM SENT
Emily Taylor taylor@twlglawyers.com 4/28/2023 3:41:39 PM SENT
Aubrey "Nick" Pittman pittman@thepittmanlawfirm.com | 4/28/2023 3:41:39 PM SENT
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FILED 4/28/2023 3:41 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY CAUSE NO. DC-21-04901 TONY EVANS SR., and ARETHA EVANS, IN THE DISTRICT COURT Individually and on behalf of his minor son, T.E., deceased, FAITH TANKSLEY on behalf of minor T.E., III, Individually and on behalf of His father, T.E., deceased and DEON WILLIAMS, Plaintiffs, 1628? JUDICIAL DISTRICT TASACOM REAL ESTATE, LLC d/b/a HAWTHORN SUITES DALLAS LOVE FIELD HAWTHORN SUITES FRANCHISING, INC., WYNDHAM HOTELS & RESORTS, INC., MOHAMMAD SADIQ NOSHAHI, DIAMOND STAFFING SERVICES, LLC, WYNDHAM HOTEL GROUP, LLC, TASACOM TECHNOLOGIES, INC., SANJEEV JAIN, and MMAROOFUL CHOUDHURY, Defendants. DALLAS COUNTY, TEXAS DEFENDANT TASACOM REAL ESTATE, LLC D/B/A HAWTHORN SUITES DALLAS LOVE FIELD’S SECOND AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO THE HONORABLE JUDGE: Defendant Tasacom Real Estate, LLC d/b/a Hawthorn Suites Dallas Love Field, hereinafter referred to below as “Defendant,” in the above styled and numbered case, files this Second Amended Answer and Affirmative Defenses, and would respectfully show the Court as follows: 12377262v1 12777.002 I GENERAL DENIAL 1.01 Pursuant to Rule 92 of the TEXAS RULES OF CIVIL PROCEDURE, Defendant denies all and singular, each and every material allegation contained in Plaintiffs’ Fifth Amended Petition and any subsequent petition filed by Plaintiffs and demands strict proof of the same by a preponderance of the evidence. IL. AFFIRMATIVE DEFENSES 2.01 Defendant incorporates by reference as if fully restated herein all paragraphs of this Answer, including Paragraph 1.01 above. 2.02 Pursuant to Rule 94 of the TEXAS RULES OF CIVIL PROCEDURE, Defendant asserts the affirmative defense of contributory negligence. If there is a party in this case that was negligent, which Defendant vehemently deny that it was negligent, Defendant asserts that minor T.E., and Plaintiff DEON WILLIAMS’ own negligence caused and/or contributed to the cause of the incident in question. 2.03 Defendant raises the affirmative defense pursuant to Rule 94 of the TEXAS RULES OF CIVIL PROCEDURE of sole proximate cause. That is, the acts and/or omissions giving rise to the causes of action were caused by the sole negligence of another party and not this Defendant. 2.04 Pursuant to Chapter 33 of the TEX. Civ. PRAC. & REM. CODE ANN., this Defendant tequests a submission of comparative negligence and comparative negligence causation as provided in Chapter 33 of the TEX. Clv. PRAC. & REM. CODE ANN. Specifically, Defendant intends to submit the negligence of minor, T.E., Plaintiff DEON WILLIAMS, all settling parties, and any and all Responsible Third Parties. 2.05 Defendant asserts that the damages of which Plaintiffs complain, if any, were proximately caused by independent, intervening, or superseding causes, including acts and 2 12377262v1 12777.002 omissions of others over which Defendant had no control or right of control and which events were unrelated to any conduct of Defendant. Specifically, the incident in question was specifically caused by the criminal acts and/or criminal conduct committed by KRESHAWN EVANTA HARRIS and/or other unknown assailants. 2.06 For further Answer, if such be necessary, Defendant alleges that in accordance with TEX. Civ. PRAC. & REM. CODE ANN. § 33.013, Defendant may not be held jointly and severally liable for any amount of damages claimed herein unless the percentage of responsibility of, and as to, this Defendant, when compared with that of each defendant, settling party, and each responsible third party, is greater than fifty percent (50%). 2.07 Defendant asserts his rights under common law, and Chapters 32-33 of the TEx. Civ. PRAC. & REM. CODE ANN., to receive an offset, credit, and/or reduction in judgment based on any settlement Plaintiffs have made or may make with any other person or entity or for any amounts of money collected from any other person or entity by settlement, compromise, or agreement, or in payment or in partial payment, of any judgment entered in this case. In accordance with Chapter 33 of the TEX. PRAC. & REM. CODE ANN., specifically TEX. Civ. PRAC. & REM. CODE ANN. § 33.012, Defendant seeks a settlement credit as to all sums paid by any and all settling parties. Accordingly, if Plaintiffs are awarded any amount as damages in this cause, the award must be reduced by the dollar amount of any and all settlements or by a dollar credit determined by applying the statutory formula credit set forth in TEX. PRAC. & REM. CODE ANN. § 33.012. 2.08 In the unlikely event that liability is imposed upon this Defendant, Defendant invokes his right to contribution, pursuant to Chapter 33 of the TEX. Civ. PRAC. & REM. CODE ANN. 12377262v1 12777.002 2.09 Defendant asserts that his right to a reduction or bar of Plaintiffs’ recovery based on the determination of comparative responsibility of any other party, Responsible Third Party, or settling person, pursuant to Chapter 33 of the TEx. Civ. PRAC. & REM. CODE ANN. generally, and specifically, TEX. Civ. PRAC. & REM. CODE ANN. §§ 33.001, 33.003, 33.012, and 33.013. 2.10 For further Answer, Defendant asserts that Plaintiffs’ recovery of medical or health care expenses, if any, is limited to the amount actually paid or incurred by or on behalf of T.E. and Plaintiffs, pursuant to TEX. Civ. PRAC. & REM. CODE ANN. § 41.0105. 2.11 Defendant alleges that Plaintiffs have failed to allege conduct warranting imposition of exemplary or punitive damages under applicable Texas law. 2.12 Defendant asserts that any award of exemplary or punitive damages to Plaintiffs are subject to the limitations and caps imposed by Chapter 41 of the TEX. Civ. PRAC. & REM. CODE ANN. 2.13 For further Answer, Defendant asserts that an award of punitive damages or exemplary damages in this case would be inconsistent with, and would violate Defendant’ rights under, the United States and Texas Constitutions as follows: A An award of exemplary or punitive damages would violate Defendant’s right to due process and equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution, and Article 1, Section 19 of the Texas Constitution, in that: 1 No provision of Texas law provides any adequate or meaningful standard or guide for fixing, determining, or reviewing the amount of an award of punitive or exemplary damages. Defendant neither has notice of nor means of ascertaining the amount of the penalty that they would be or might be subject to for the conduct upon which the award is ostensibly to be based; 12377262v1 12777.002 2. Under the laws of the State of Texas, the determination of whether to award punitive or exemplary damages is left to the arbitrary discretion of the trier of fact. There is no adequate or meaningful standard or guide for exercising said discretion; 3 No provision of Texas law provides any adequate or meaningful standard or guide for determining the nature of the conduct upon which an award of exemplary damages may be based. Defendant has neither notice of nor means of ascertaining the nature of the conduct for which they might be held subject to a punitive damages or an exemplary damages award; 4 No provision of Texas law provides adequate procedural safeguards for the imposition of an award of punitive and exemplary damages; and 5 The very concept of punitive and exemplary damages, whereby an award is made to a private plaintiff not by way of compensation, but by way of a windfall incident to punishing a defendant, represents the taking of property without due process of law. B An award for punitive or exemplary damages would violate the prohibition against excessive fines contained in the Eight Amendment to the United States Constitution as embodied within the due process of law clause of the Fourteenth Amendment to said Constitution, and to Article 1, Section 19 of the Texas Constitution. 2.14 Pursuant to TEX. CIv. PRAC. & REM. CODE ANN. § 41.005(a), Defendant asserts that punitive damages are not available to the Plaintiffs in this case. Specifically, in an action arising from harm resulting from an assault or other criminal act, a Court may not award punitive or exemplary damages against a defendant because of the criminal acts of another. 12377262v1 12777.002 2.15 Further, pursuant to Article 1, Section 26 of the TEXAS CONSTITUTION, a parent is not entitled to an award of exemplary or punitive damages for an allegation of wrongful death of that child, or an heir of the body. As such, Plaintiffs TONY EVANS, SR. and ARETHA EVANS are not entitled to recover punitive damages as no such recovery is allowed under Chapter 71 of the TEX. CIV. PRAC. & REM. CODE ANN. 2.16 Defendant asserts that Plaintiff WILLIAMS has failed to mitigate his alleged damages in myriad ways. 2.17 Defendant asserts that, pursuant to TEX. R. CIv. P. 54, all conditions precedent for a suit under the TEXAS DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTIONS ACT, codified at TEX. Bus. & COM. CODE ANN. §§ 17.01-17.955, have not been performed, or have not occurred, specifically as to the pre-suit notice requirement of TEx. BUS. & COM. CODE ANN. § 17.505. Therefore, Plaintiffs’ claims for treble damages and attorney’s fees must fail, until such time as their claims under the TEXAS DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTION ACT have been properly abated. Furthermore, Plaintiffs’ claims for breach of warranty and misrepresentation fail under this same notice statute and provision. Texas law further specifically excludes from the TEXAS DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTION ACT, TEX. Bus. & CoM. CODE ANN. § 17.49(e), any “cause of action for bodily injury or death or for the infliction of mental anguish.” It should also be noted that for the purposes of the TEXAS DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTION ACT, minor T.E., and Plaintiffs are not considered consumers to any transaction relating to the payment for the hotel room at issue in this case, nor has any proof been provided by Plaintiffs showing any payments were made on behalf of, or by, minor T.E. and Plaintiff WILLIAMS for use of the hotel room. 12377262v1 12777.002 2.18 The injuries and damages alleged by Plaintiffs, if any, were caused in whole or in part by a new and independent cause, specifically, the criminal acts and/or conduct of KEYSHAWN EVANTA HARRIS and/or unknown assailants. 2.19 Defendant asserts and alleges that, pursuant to TEX. R. CIv. P. 39, Plaintiffs have failed to join one or more indispensable parties necessary for the proper adjudication of this action. Specifically, Plaintiffs conveniently disregard TEX. R. Civ. P. 39(c), which states, in pertinent part, that “[a] pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined.” Defendant asserts and alleges that the name of KEYSHAWN EVANTA HARRIS is well known to the Plaintiffs to be the person charged with the shooting of Plaintiff WILLIAMS. 2.20 Defendant asserts and alleges that minor T.E. and Plaintiff WILLIAMS were not invitees nor licensees to the premises at the time the subject incident occurred. Minor T.E. and Plaintiff WILLIAMS were not registered guests of the hotel, nor were they staying with a registered guest of the hotel. Defendant seeks a judicial determination as to the status of minor T.E. and Plaintiff WILLIAMS at the time of the incident made the basis of this lawsuit. 2.21 Defendant specifically denies that it was engaged in a civil conspiracy or “joint enterprise” with any other Defendant. Defendant pleads that there is no basis to disregard the corporate form of the corporate Defendants in this case, nor is there any basis to hold each Defendant liable for the acts of another. 2.22 Any right to recovery by Plaintiffs in this action, and any liability on the part of Defendant, which is hereby expressly and vehemently denied, is limited in accordance with the provisions of the applicable wrongful death statute. Recovery under the wrongful death statutes 12377262v1 12777.002 under Texas law, pursuant to TEX. CIV. PRAC. & REM. CODE §§ 71.001-71.051, is the exclusive remedy for the Plaintiffs asserting causes of action for wrongful death in this case. 2.23 Defendant further alleges that Plaintiffs, on behalf of minor T.E., Plaintiff WILLIAMS, and all Plaintiffs have no standing to bring a claim against Defendant for misrepresentation, breach of warranty, or any deceptive trade practice under the TEXAS DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTION ACT, codified at TEX. Bus. & CoM. CODE ANN. §§ 17.01-17.955. 2.24 To the extent that Plaintiffs are attempting to assert a breach of contract claim against Defendant arising from the Franchise Agreement or any other agreements to which Plaintiffs, and minor T.E., are not a party, Plaintiffs cannot establish that they are third-party beneficiaries to such agreement(s) and thus cannot establish that they have any standing to bring such claims against Defendant. Nor can Plaintiffs establish that at the time of the incident made the basis of this lawsuit, minor T.E. and Plaintiff WILLIAMS were third-party beneficiaries to such agreement(s) and thus cannot establish that minor T.E. and Plaintiff WILLIAMS have or had any standing to bring such claims against Defendant. 2.25 Plaintiffs are not entitled to recovery under his claim for misrepresentation, which is also a recovery under TEXAS DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTION ACT, codified at TEx. Bus. & Com. CODE ANN. §§ 17.01—17.955, because there was no transactional privity or relationship by and between Defendant, and minor T.E. and Plaintiff WILLIAMS and Plaintiffs, because Plaintiffs, minor T.E., and Plaintiff WILLIAMS were not registered guests of the hotel nor were they staying with a registered guest of the hotel. 2.26 Defendant specifically denies that there is evidence that any other Defendant in this case acted as the alter ego of Tasacom Real Estate, LLC d/b/a Hawthorn Suites Dallas Love 12377262v1 12777.002 Field. Defendant further specifically denies that there is evidence that any funds of Defendant Tasacom Real Estate, LLC d/b/a Hawthorn Suites Dallas Love Field’s funds were comingled with those funds of any other corporate entity, any other person, or any other Defendant. 2.27 Defendant specifically denies that the underlying criminal act by a third party was foreseeable and, therefore, Defendant denies proximate cause between any act and/or omission on his part and the injuries in question. Upon information and belief, the underlying subject crime was targeted and unrelated to the fact that T.E. and Deon Williams were present on the subject property. Hl. JURY DEMAND 3.01 Pursuant to Rule 216 of the TEXAS RULES OF CIVIL PROCEDURE, Defendant hereby demands a trial by jury. WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Plaintiffs take nothing by his suit and that Defendant have judgment for his costs, and for such other and further relief to which they may be justly entitled, at law or in equity. 12377262v1 12777.002 Respectfully submitted, THOMPSON, COE, COUSINS & IRONS, L.L.P. : id. Ct0~ {L By Tasha L. Barnes State Bar No. 00796163 Eva DeLeon State Bar No. 24074774 Morgan J. Wells State Bar No. 24106562 Benjamin Paul Dunn State Bar No. 24124581 2801 Via Fortuna, Suite 300 Austin, Texas 78746 (512) 708-8200 — Telephone (512) 708-8777 — Fax tbarnes@thompsoncoe.com edeleon@thompsoncoe.com mwells@thompsoncoe.com jeffers@thompsoncoe.com bdunn@thomposoncoe.com ATTORNEYS FOR DEFENDANT TASACOM REAL ESTATE, LLC D/B/A HAWTHORN SUITES DALLAS LOVE FIELD 10 12377262v1 12777.002 CERTIFICATE OF SERVICE By my signature above, I hereby certify that a true and correct copy of the foregoing has been delivered on this the 28th day of April, 2023, to the following counsel of record via e-mail: Nuru Witherspoon Jason Hopkins Emily Taylor DLA PIPER LLP (US) The Witherspoon Law Group, PLLC 1900 N. Pearl St., Suite 2200 5565 Deer Creek, Unit A Dallas, Texas 75201 Dallas, Texas 75228 Jason.hopkins@dlapiper.com witherspoon@twlglawyers.com taylor@twlglawyers.com And ATTORNEYS FOR PLAINTIFF Christopher B. Donovan DLA PIPER LLP (US) 1000 Louisiana Street, Suite 2800 Houston, Texas 77002 Christopher.b.donovan@dlapiper.com ATTORNEYS FOR DEFENDANT HAWTHORN SUITES FRANCHISING, INC. AND WYNDHAM HOTELS & RESORTS, INC. 11 12377262v1 12777.002 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. Kiyomi Armistead on behalf of Tasha Barnes Bar No. 00796163 KArmistead@thompsoncoe.com Envelope ID: 75143771 Filing Code Description: Amended Answer - Amended General Denial Filing Description: Choudhury 1A Answer Status as of 5/1/2023 3:08 PM CST Associated Case Party: TASACOM REAL ESTATE, LLC Name BarNumber Email TimestampSubmitted | Status Tasha LBarnes tbarnes@thompsoncoe.com | 4/28/2023 3:41:39 PM | SENT Associated Case Party: HAWTHORN SUITES FRANCHISING, INC. Name BarNumber Email TimestampSubmitted Status Christopher BDonovan Christopher.B.Donovan@dlapiper.com 4/28/2023 3:41:39 PM SENT Jason Hopkins 24059969 jason.hopkins@dlapiper.com 4/28/2023 3:41:39 PM SENT Ronald DHinds rdhinds@verizon.net 4/28/2023 3:41:39 PM SENT Associated Case Party: WYNDHAM HOTELS & RESORTS, INC. Name BarNumber Email TimestampSubmitted Status Christopher BDonovan Christopher.B.Donovan@dlapiper.com 4/28/2023 3:41:39 PM SENT Jason Hopkins 24059969 jason.hopkins@dlapiper.com 4/28/2023 3:41:39 PM SENT Ronald DHinds rdhinds@verizon.net 4/28/2023 3:41:39 PM SENT Taylor Reed Taylor.reed@us.dlapiper.com 4/28/2023 3:41:39 PM SENT Associated Case Party: MONIQUE PERKINS Name BarNumber Email TimestampSubmitted | Status RoseMarie Chambers rose.chambers@dlapiper.com 4/28/2023 3:41:39 PM SENT sherry M.faulkner sherry.faulkner@us.dlapiper.com 4/28/2023 3:41:39 PM SENT Sally Jones sally jones@dlapiper.com 4/28/2023 3:41:39 PM SENT NURU WITHERSPOON witherspoon@twlglawyers.com 4/28/2023 3:41:39 PM 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. Kiyomi Armistead on behalf of Tasha Barnes Bar No. 00796163 KArmistead@thompsoncoe.com Envelope ID: 75143771 Filing Code Description: Amended Answer - Amended General Denial Filing Description: Choudhury 1A Answer Status as of 5/1/2023 3:08 PM CST Associated Case Party: MOHAMMADSADIQNOSHAHI Name BarNumber Email TimestampSubmitted | Status Ronald DHinds rdhinds@verizon.net 4/28/2023 3:41:39 PM | SENT Eva DeLeon edeleon@thompsoncoe.com | 4/28/2023 3:41:39 PM | SENT Case Contacts Name BarNumber Email TimestampSubmitted | Status Ronald DHinds rdhinds@verizon.net 4/28/2023 3:41:39 PM | SENT Morgan Wells mwells@thompsoncoe.com | 4/28/2023 3:41:39 PM | SENT Associated Case Party: TONY EVANS Name BarNumber Email TimestampSubmitted Status Nuru Witherspoon litigation@twlglawyers.com 4/28/2023 3:41:39 PM SENT Emily Taylor taylor@twlglawyers.com 4/28/2023 3:41:39 PM SENT Aubrey "Nick" Pittman pittman@thepittmanlawfirm.com 4/28/2023 3:41:39 PM SENT Associated Case Party: T. E. Name BarNumber Email TimestampSubmitted Status Aubrey "Nick" Pittman pittman@thepittmanlawfirm.com 4/28/2023 3:41:39 PM SENT Emily Taylor taylor@twiglawyers.com 4/28/2023 3:41:39 PM SENT Nuru Witherspoon litigation@twiglawyers.com 4/28/2023 3:41:39 PM SENT Associated Case Party: ARETHA EVANS 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. Kiyomi Armistead on behalf of Tasha Barnes Bar No. 00796163 KArmistead@thompsoncoe.com Envelope ID: 75143771 Filing Code Description: Amended Answer - Amended General Denial Filing Description: Choudhury 1A Answer Status as of 5/1/2023 3:08 PM CST Associated Case Party: ARETHA EVANS Name BarNumber | Email TimestampSubmitted Status Nuru Witherspoon litigation@twlglawyers.com 4/28/2023 3:41:39 PM SENT Emily Taylor taylor@twlglawyers.com 4/28/2023 3:41:39 PM SENT Aubrey "Nick" Pittman pittman@thepittmanlawfirm.com | 4/28/2023 3:41:39 PM SENT