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CAUSE NO. 22-05-05791
STEVIE JENNINGS and IN THE DISTRICT COURT OF
JAMES GRAHAM,
Plaintiffs
v. MONTGOMERY COUNTY, TEXAS
ALLAN BIRKNER,
Defendant TH JUDICIAL DISTRICT
DEFENDANT ALLAN BIRKNER’S OBJECTION AND RESPONSE
TO PLAINTIFFS’ UNTIMELY MOTION TO REINSTATE AND,
SUBJECT TO HIS OBJECTION AND RESPONSE, ORIGINAL ANSWER
Defendant Allan Birkner files his Objection and Response to Plaintiffs’ Untimely Motion
to Reinstate and, Subject to His Objection and Response, Original Answer and would respectfully
show the Court as follows:
OBJECTION AND RESPONSE TO PLAINTIFF’S [SIC]
VERFIED MOTION TO REINSTATE
his Court’s plenary power expired before Plaintiffs’ motion to reinstate was filed;
accordingly, this lawsuit cannotbe reinstated as a matter of law .
On September 30, 2022, this Court signed an Order of Dismissal for Want of Prosecution,
dismissing Plaintiffs’ lawsuit for want of prosecution for a second time Pursuant to Texas Rule of
Civil Procedure 165a(3), Plaintiffs’ deadline to file a verified motion for reinstatement, if they
anted to attempt to have this lawsuit reinstated and could meet the legal standard for
reinstatement, was within 30 days after the order of dismissal was signed. Id. The 30 day after
September 30, 2022 was October 30, 2022. Because October 30, 2022 was a Sunday, Texas Rule
of Civil Procedure 4 extended the deadline for Plaintiffs to file their motion to reinstate until the
next day, which was Monday, October 31, 2022. Id. However, Plaintiffs neglected to file their
There are two plaintiffs in this lawsuit.
EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND
UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 9 4866 8342 0228
Verified Motion to Reinstate until November 3, 2022, which was three days too late, and after this
Court’s plenary power had already expired.
The Texas Supreme Court “has repeatedly held that the time limits provided in [R]ule 165a
are mandatory and jurisdictional Walker v. Harrison, 597 S.W.d 913, 915 (Tex. 1980)
trial court has plenary power to reinstate a case that has been dismissed for want of prosecution
within 30 days after it signs a dismissal order. 165a(3); In re Valliance Bank
S.W.3d 722, 725 (Tex. App. Fort Worth 2012, orig. proceeding) op. on reh’g en banc
Thereafter, the trial court’s plenary power expires unless a verified motion to reinstate is filed
within 30 days of the date the dismissal for want of prosecution order was entered. In the
Interest of G.H.D., No. 01 CV, 2005 Tex. App. LEXIS 8680, at *12 (Tex. App.
Houston [1 Dist.] 2005, orig. proceeding) (mem. op.) Accordingly, an attempt to move for
reinstatement more than 30 days after an order dismissing the for want of prosecution has been
signed “is void because the court is without jurisdiction.” Walker, at 915 see In the Interest of
G.H.D at *12 14 (noting that if no motion to reinstate or other plenary power extending motion
is filed within 30 days of when the order of dismissal for want of prosecution is entered, a trial
court has no jurisdiction to reinstate the case and an order reinstating the case is void). As such,
this Court cannot grant Plaintiffs’ untimely filed motion to reinstate.
Even if Plaintiffs’ motion to reinstate had been timely filed while this Court still had
plenary power, Plaintiffs fail to make the requisite showing for reinstating the case
Plaintiffs’ motion to reinstate appears to argue that the lawsuit should not have been
dismissed (twice) because Plaintiffs’ counsel did not act with conscious indifference in failing to
appear twice for show cause hearings. After both the first dismissal for want of prosecution, which
was entered on August 26, 2022, and the second dismissal for want of prosecution, which was
entered on September 30, 2022, Plaintiffs’ counsel offered the same bare bones xplanation in
EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND
UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 4866 8342 0228
Plaintiffs’ motion to reinstate supposed scheduling errors “causing counsel to be overbooked on
said day of hearing.” But this explanation, even if taken at face value, does not justify the lack of
diligence in ensuringthat Defendant was served in a timely manner.
A trial court has broad discretion to dismiss a case for want of prosecution when the
plaintiffs fail to prosecute their case with due diligence. Butler v. Bank of Am., No. 01
CV, 2020 Tex. App. LEXIS 4910, at * (Tex. App. Houston [1 Dist.] 2020, no pet. (mem.
op.); Frederick v. Layton, No. 05 CV, 2019 Tex. App. LEXIS 9614, at *3 4 (Tex. App.
Dallas 2019, no pet.) (mem. op.). Texas courts have consistently held that lack of diligence may
be shown based on unexplained lapses of time between the filing of suit, issuance of the citation,
and service of process. Frederick *4; see Butler, at *4. The plaintiffs, as the parties requesting
citation, also bear the responsibility for exercising due diligence in seeing that the petition is timely
served. Butler, at *4 5; see 99(a). If not adequately explained, a delay of
unreasonable duration raises a conclusive presumption of abandonment by the plaintiffs of their
lawsuit.In re Connor , 458 S.W.3d 532, 534 (Tex. 2015)(per curiam) Butler , at *4.
Here, Plaintiffs filed suit on May 6, 2022, shortly before limitations ran on their negligence
claims arising from a motor vehicle accident of May 22, 202 However, Plaintiffs did not request
service of process until June 13, 2022, more than two weeks after limitations had run, and did no
actually get Defendant served until November 29, 2022 , more than six months after filing suit,
more tha six months after limitations had run, and after this lawsuit had already been dismissed
twice for want of prosecution. And, still, Plaintiffs’ motion to reinstate does not make any attempt
Compare Plaintiff’s [sic] Verified Motion to Reinstate, filed on August 30, 2022, at Section I with Plaintiff’s [sic]
Verified Motion to Reinstate, filed on November 3, 2022, at Section I.
Plaintiff’s [sic] Verified Motion to Reinstate asserts that, “Defendant in this case was properly served citation on
July 14, 2022.” That statement is not correct. The Return of Service on file with the Court, which was executed by
process server William Davis, states that Mr. Davis delivered the citation and petition to Defendant Birkner on
November 29, 2022. Citation was issued on July 14, 2022, bu service was delayed for four and half more months.
EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND
UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 4866 8342 0228
to show they acted diligently in prosecuting their lawsuit by getting Defendant served with process
in a timely manner. Accordingly, Plaintiffs have failed to justify reinstatement of a lawsuit which
was justifiably dismissed due to their unexplained months long delay in getting Defendant served.
DEFENDANT’S ORIGINAL ANSWER, FILED SUBJECT TO HIS OBJECTION
AND RESPONSE TO PLAINITFF’S [SIC] VERIFIED MOTION TO REINSTATE
Subject to is Objection and Response to Plaintiff’s Verified Motion to Reinstate, although
an answer should not be required since this Court’s plenary power ha expired, out of an
abundance of caution, should an answer be required, Defendant asserts the following defenses:
GENERALDENIAL
Defendant generally denies the allegations contained in Plaintiffs’ Original Petition and
any subsequent amendments thereof, pursuant to Texas Rule of Civil Procedure 92, and demands
strict proof thereof by a preponderance of the credible evidence.
STATUTE OF LIMITATIONS
Defendant contends that Plaintiffs’ claims against him are barred by limitations. Plaintiffs’
lawsuit arises from a motor vehicle accident of May 22, 2020. A two year statute of limitations
applies to personal injury claims such as the negligence claims asserted by Plaintiffs. T
RAC ODE § 16.003. Although Plaintiffs filed suit before May 22, 2022, they failed to
exercise due diligence in getting Defendant served thereafter Defendant was not served until
Plaintiffs had previously filed suit against Defendant Allan Birkner asserting the same negligence claims arising
from the same motor vehicle accident in Cause No. 21 01745, in the 284 District Court of Montgomery County,
Texas. Plaintiffs’ prior lawsuit was filed on February 4, 2021. Defendant Birkner answered in the prior lawsuit on
March 5, 2021. Thereafter, the parties had nine months in which to conduct discovery, during which time both
Plaintiffs and the Conroe Police Officer Cody Thorp, who investigated the accident, were deposed. Trial was set for
April 4, 2022, on a two week rolling docket. On March 18, 2022, both sides announced they were ready for trial in
Plaintiffs’ and Defendant’s Joint Notice Filing with the 284 District Court. On March 21, 2022, in preparation for
trial, Defendant filed his exhibit list, witness list, deposition excerpts, motion in limine, and proposed jury charge.
However, on March 23, 2022, less than two weeks before trial was supposed to start, Plaintiffs filed a motion to
nonsuit their claims in Cause No. 21 01745 without prejudice to re filing, and the 284 District Court entered an
order granting Plaintiffs’ motion for nonsuit the same day.
EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND
UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 9 4866 8342 0228
November 29, 2022, more than six months after limitations ran. Accordingly, Plaintiffs claims are
barred by limitations.
LIMIT OF RECOVERY
Texas Civil Practice and Remedies Code Section 41.0105 applies, and medical and health
care damages awarded, if any, are subject to the statutory limits set forth therein, other applicable
statutory authority, and common law. Accordingly, Defendant pleads that Plaintiffs’ recovery of
medical or health care expenses, if any, be limited to those which are both reasonable and
necessary, and further, that said recovery, if any, be limited to a sum no greater than the amounts
actually paid or actually incurred by Plaintiffs, excluding sums which were reduced, adjusted,
discounted, and/or written off.
Defendant also alleges that any prejudgment interest recoverable be limited in accordance
with the terms of Texas Finance Code Annotated Sections 304.101, et seq.
In addition, in the event Plaintiffs are found to be entitled to any damages in this matter,
Plaintiffs are not entitled to recover prejudgment interest on any future damages.
Moreover Defendant alleges that any prejudgment interest recoverable be limited pursuant
to Section 304.003(c) of the Texas Finance Code.
PROOF OF CERTAIN LOSSES
n accordance with Texas Civil Practice and Remedies Code Section 18.091(a), Defendant
pleads that with respect to any damages for loss of earnings and/or loss of earning capacity,
Plaintiffs be required to prove such loss or losses after reduction for income tax payments or unpaid
tax liability pursuant to any federal income tax law.
See Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011). Defendant further objects to the introduction of any
medical bills that reflect amounts other than the net amount of medical expenses after reductions, adjustments,
discounts, and/or write offs.
EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND
UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 9 4866 8342 0228
CONTRIBUTORY NEGLIGENCE INCLUDING NEGLIGENCE PER SE
s an affirmative defense pursuant to Texas Rule of Civil Procedure 94, Defendant alleges
that Plaintiff Stevie Jennings claims are barred, in whole or in part, due to Plaintiff Stevie
Jennings own negligence in that the motor vehicle accident of May 22, 2020 was Plaintiff Stevie
Jennings’s fault.More specifically, Plaintiff Stevie Jennings was negligent in the operation of her
vehicle in at least the following respects:
(1) by failing to yield the right of way at a stop sign found by the Conroe Police
Officer who investigated the accident
(2) by moving her vehicle into the intersection of FM 3083 even though it was not safe
to do so at the time
(3) by failing to yield the right of way that belonged to Defendant;
(4) by failing to maintain a proper lookout and/or failing to maintain situational
awareness while driving her vehicle; in particular, Plaintiff Stevie Jennings
admitted to Defendant during his 911 call and to the Conroe Police Officer who
investigated the accident that she did not see Defendant’s vehicle before she entered
the accident intersection;
(5) by failing to control her vehicle’s movement, trajectory, and speed s was necessary
to avoid a collision with Defendant’s vehicle and/or to clear the intersection without
causing a collision
(6) by failing to take proper corrective and/or evasive action to avoid a collision; and
(7) by failing to operate her vehicle in a reasonable and prudent manner.
By failing to do what an ordinary prudent person would have done or refrained from doing under
the same or similar circumstances, Plaintiff Stevie Jennings proximately caused, in whole or in
part, her own injuries and damages, if any, as well as the injuries and damages, if any, of her
passenger, Plaintiff James Graham.
Furthermore, the driving acts and/or omissions of Plaintiff Stevie Jennings amounted to
negligence per se in that she violated Texas Transportation Code Section 545.failing to
EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND
UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 4866 8342 0228
yield the right of way at her stop sign and, instead, proceed into the intersection of FM 3083
when doing so was not safe to do so and interfered with Defendant’s lawful movement of his
vehicle on FM 3083, for which Defendant did not have a stop sign or other traffic control device
Moreover, because of the ensuing collision at an intersection to whom the right of way was to be
given to Defendant, the presumption of Texas Transportation Code Section 545.151(f) applies and
Plaintiff Stevie Jennings is presumed to have not yielded the right of way.
Accordingly, Defendant pleads that the trier of fact determine Plaintiff Stevie Jennings’s
percentage of responsibility with respect to causing or contributing to cause in any way the harm
for which recovery of damages is sought in accordance with Texas Civil Practice and Remedies
Code Section 33.003.
PREEXISTING CONDITIONS OF PLAINTIFF JAMES GRAHAM
For further answer, if needed, Defendant contends that Plaintiff James Graham’s claims
are barred, in whole or in part, and/or Plaintiff James Graham’s damages should be reduced
accordingly due to preexisting conditions and/or injuries arising from his prior four wheeler
accident in which the four wheeler on which he was riding crashed into a ditch, evidently resulting
in a traumatic cervicothoracic compression fracture and/or a prior motor vehicle accident in 2012
in which he was rear ended, apparently causing neck and back injuries.
RULE 193.7 NOTICE
Pursuant to Texas Rule of Civil Procedure 193.7, Defendant notifies Plaintiff and their
counsel that intends to use documents that Plaintiff produce in response to written discovery
in this lawsuit against Plaintiff in any pretrial proceeding and/or at trial and intends to rely upon
the self authentication provisions of Rule 193.7.
EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND
UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 4866 8342 0228
DISCLOSURES REQUIRED
In the event that this Court reinstates Plaintiffs’ lawsuit, Defendant directs Plaintiffs’
attention to Texas Rule of Civil Procedure 194.1 and Plaintiffs’ duty to disclose, without awaiting
a discovery request, the information or material described in Texas Rules of Civil Procedure 194.2,
194.3, and 194.4.
JURY DEMAND
In the event that this Court reinstates Plaintiffs’ lawsuit, Defendant requests a trial by jury
of this lawsuit.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant Allan Birkner respectfully prays
that Plaintiff sic] Verified Motion to Reinstate be overruled by operation of law since it was
untimely filed after the Court’s plenary power had expired and since Plaintiffs failed to show
diligence or cause to reinstate this twice dismissed lawsuit In the event that Plaintiffs’ motion to
reinstate is not overruled Defendant prays that Plaintiff take nothing, that Defendant recover all
his costs, and that Defendant be granted all other relief, at law and in equity, to which may be
justly entitled.
EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND
UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 4866 8342 0228
Respectfully submitted,
ULKERSON OTZ
By:
Christopher A. Lotz
State Bar No. 24031630
4511 Yoakum Blvd., Suite 200
Houston, Texas 77006
713-654-5800 (telephone)
713-654-5855 (direct)
713-654-5801 (facsimile)
clotz@fulkersonlotz.com
Counsel for Defendant Allan Birkner
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Defendant Allan Birkner’s
Objection and Response to Plaintiff Untimely Motion to Reinstate and, Subject to His Objection
and Response, Original Answer was served by electronic service on the day of December
2022, upon the following counsel of record:
David K. Mestemaker
Norman Straub
Jonathan B. Zumwalt
ESTEMAKER TRAUB UMWALT
3100 Timmons Lane, Suite 455
Houston, Texas 77027
contact@mandsattorneys.com
Christopher A. Lotz
Defendant’s counsel advises the Court, the District Clerk, and Plaintiffs’ counsel that Plaintiffs, in prior pleadings
and electronic filings, ha erroneously listed Mr. Lotz’s email address as clotz@fulkeronlotz.com [sic], missing an
“s”; his correct email address is clotz@fulker onlotz.com.
EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND
UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 9 4866 8342 0228
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CAUSE NO. 22-05-05791 STEVIE JENNINGS and IN THE DISTRICT COURT OF JAMES GRAHAM, Plaintiffs v. MONTGOMERY COUNTY, TEXAS ALLAN BIRKNER, Defendant TH JUDICIAL DISTRICT DEFENDANT ALLAN BIRKNER’S OBJECTION AND RESPONSE TO PLAINTIFFS’ UNTIMELY MOTION TO REINSTATE AND, SUBJECT TO HIS OBJECTION AND RESPONSE, ORIGINAL ANSWER Defendant Allan Birkner files his Objection and Response to Plaintiffs’ Untimely Motion to Reinstate and, Subject to His Objection and Response, Original Answer and would respectfully show the Court as follows: OBJECTION AND RESPONSE TO PLAINTIFF’S [SIC] VERFIED MOTION TO REINSTATE his Court’s plenary power expired before Plaintiffs’ motion to reinstate was filed; accordingly, this lawsuit cannotbe reinstated as a matter of law . On September 30, 2022, this Court signed an Order of Dismissal for Want of Prosecution, dismissing Plaintiffs’ lawsuit for want of prosecution for a second time Pursuant to Texas Rule of Civil Procedure 165a(3), Plaintiffs’ deadline to file a verified motion for reinstatement, if they anted to attempt to have this lawsuit reinstated and could meet the legal standard for reinstatement, was within 30 days after the order of dismissal was signed. Id. The 30 day after September 30, 2022 was October 30, 2022. Because October 30, 2022 was a Sunday, Texas Rule of Civil Procedure 4 extended the deadline for Plaintiffs to file their motion to reinstate until the next day, which was Monday, October 31, 2022. Id. However, Plaintiffs neglected to file their There are two plaintiffs in this lawsuit. EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 9 4866 8342 0228 Verified Motion to Reinstate until November 3, 2022, which was three days too late, and after this Court’s plenary power had already expired. The Texas Supreme Court “has repeatedly held that the time limits provided in [R]ule 165a are mandatory and jurisdictional Walker v. Harrison, 597 S.W.d 913, 915 (Tex. 1980) trial court has plenary power to reinstate a case that has been dismissed for want of prosecution within 30 days after it signs a dismissal order. 165a(3); In re Valliance Bank S.W.3d 722, 725 (Tex. App. Fort Worth 2012, orig. proceeding) op. on reh’g en banc Thereafter, the trial court’s plenary power expires unless a verified motion to reinstate is filed within 30 days of the date the dismissal for want of prosecution order was entered. In the Interest of G.H.D., No. 01 CV, 2005 Tex. App. LEXIS 8680, at *12 (Tex. App. Houston [1 Dist.] 2005, orig. proceeding) (mem. op.) Accordingly, an attempt to move for reinstatement more than 30 days after an order dismissing the for want of prosecution has been signed “is void because the court is without jurisdiction.” Walker, at 915 see In the Interest of G.H.D at *12 14 (noting that if no motion to reinstate or other plenary power extending motion is filed within 30 days of when the order of dismissal for want of prosecution is entered, a trial court has no jurisdiction to reinstate the case and an order reinstating the case is void). As such, this Court cannot grant Plaintiffs’ untimely filed motion to reinstate. Even if Plaintiffs’ motion to reinstate had been timely filed while this Court still had plenary power, Plaintiffs fail to make the requisite showing for reinstating the case Plaintiffs’ motion to reinstate appears to argue that the lawsuit should not have been dismissed (twice) because Plaintiffs’ counsel did not act with conscious indifference in failing to appear twice for show cause hearings. After both the first dismissal for want of prosecution, which was entered on August 26, 2022, and the second dismissal for want of prosecution, which was entered on September 30, 2022, Plaintiffs’ counsel offered the same bare bones xplanation in EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 4866 8342 0228 Plaintiffs’ motion to reinstate supposed scheduling errors “causing counsel to be overbooked on said day of hearing.” But this explanation, even if taken at face value, does not justify the lack of diligence in ensuringthat Defendant was served in a timely manner. A trial court has broad discretion to dismiss a case for want of prosecution when the plaintiffs fail to prosecute their case with due diligence. Butler v. Bank of Am., No. 01 CV, 2020 Tex. App. LEXIS 4910, at * (Tex. App. Houston [1 Dist.] 2020, no pet. (mem. op.); Frederick v. Layton, No. 05 CV, 2019 Tex. App. LEXIS 9614, at *3 4 (Tex. App. Dallas 2019, no pet.) (mem. op.). Texas courts have consistently held that lack of diligence may be shown based on unexplained lapses of time between the filing of suit, issuance of the citation, and service of process. Frederick *4; see Butler, at *4. The plaintiffs, as the parties requesting citation, also bear the responsibility for exercising due diligence in seeing that the petition is timely served. Butler, at *4 5; see 99(a). If not adequately explained, a delay of unreasonable duration raises a conclusive presumption of abandonment by the plaintiffs of their lawsuit.In re Connor , 458 S.W.3d 532, 534 (Tex. 2015)(per curiam) Butler , at *4. Here, Plaintiffs filed suit on May 6, 2022, shortly before limitations ran on their negligence claims arising from a motor vehicle accident of May 22, 202 However, Plaintiffs did not request service of process until June 13, 2022, more than two weeks after limitations had run, and did no actually get Defendant served until November 29, 2022 , more than six months after filing suit, more tha six months after limitations had run, and after this lawsuit had already been dismissed twice for want of prosecution. And, still, Plaintiffs’ motion to reinstate does not make any attempt Compare Plaintiff’s [sic] Verified Motion to Reinstate, filed on August 30, 2022, at Section I with Plaintiff’s [sic] Verified Motion to Reinstate, filed on November 3, 2022, at Section I. Plaintiff’s [sic] Verified Motion to Reinstate asserts that, “Defendant in this case was properly served citation on July 14, 2022.” That statement is not correct. The Return of Service on file with the Court, which was executed by process server William Davis, states that Mr. Davis delivered the citation and petition to Defendant Birkner on November 29, 2022. Citation was issued on July 14, 2022, bu service was delayed for four and half more months. EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 4866 8342 0228 to show they acted diligently in prosecuting their lawsuit by getting Defendant served with process in a timely manner. Accordingly, Plaintiffs have failed to justify reinstatement of a lawsuit which was justifiably dismissed due to their unexplained months long delay in getting Defendant served. DEFENDANT’S ORIGINAL ANSWER, FILED SUBJECT TO HIS OBJECTION AND RESPONSE TO PLAINITFF’S [SIC] VERIFIED MOTION TO REINSTATE Subject to is Objection and Response to Plaintiff’s Verified Motion to Reinstate, although an answer should not be required since this Court’s plenary power ha expired, out of an abundance of caution, should an answer be required, Defendant asserts the following defenses: GENERALDENIAL Defendant generally denies the allegations contained in Plaintiffs’ Original Petition and any subsequent amendments thereof, pursuant to Texas Rule of Civil Procedure 92, and demands strict proof thereof by a preponderance of the credible evidence. STATUTE OF LIMITATIONS Defendant contends that Plaintiffs’ claims against him are barred by limitations. Plaintiffs’ lawsuit arises from a motor vehicle accident of May 22, 2020. A two year statute of limitations applies to personal injury claims such as the negligence claims asserted by Plaintiffs. T RAC ODE § 16.003. Although Plaintiffs filed suit before May 22, 2022, they failed to exercise due diligence in getting Defendant served thereafter Defendant was not served until Plaintiffs had previously filed suit against Defendant Allan Birkner asserting the same negligence claims arising from the same motor vehicle accident in Cause No. 21 01745, in the 284 District Court of Montgomery County, Texas. Plaintiffs’ prior lawsuit was filed on February 4, 2021. Defendant Birkner answered in the prior lawsuit on March 5, 2021. Thereafter, the parties had nine months in which to conduct discovery, during which time both Plaintiffs and the Conroe Police Officer Cody Thorp, who investigated the accident, were deposed. Trial was set for April 4, 2022, on a two week rolling docket. On March 18, 2022, both sides announced they were ready for trial in Plaintiffs’ and Defendant’s Joint Notice Filing with the 284 District Court. On March 21, 2022, in preparation for trial, Defendant filed his exhibit list, witness list, deposition excerpts, motion in limine, and proposed jury charge. However, on March 23, 2022, less than two weeks before trial was supposed to start, Plaintiffs filed a motion to nonsuit their claims in Cause No. 21 01745 without prejudice to re filing, and the 284 District Court entered an order granting Plaintiffs’ motion for nonsuit the same day. EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 9 4866 8342 0228 November 29, 2022, more than six months after limitations ran. Accordingly, Plaintiffs claims are barred by limitations. LIMIT OF RECOVERY Texas Civil Practice and Remedies Code Section 41.0105 applies, and medical and health care damages awarded, if any, are subject to the statutory limits set forth therein, other applicable statutory authority, and common law. Accordingly, Defendant pleads that Plaintiffs’ recovery of medical or health care expenses, if any, be limited to those which are both reasonable and necessary, and further, that said recovery, if any, be limited to a sum no greater than the amounts actually paid or actually incurred by Plaintiffs, excluding sums which were reduced, adjusted, discounted, and/or written off. Defendant also alleges that any prejudgment interest recoverable be limited in accordance with the terms of Texas Finance Code Annotated Sections 304.101, et seq. In addition, in the event Plaintiffs are found to be entitled to any damages in this matter, Plaintiffs are not entitled to recover prejudgment interest on any future damages. Moreover Defendant alleges that any prejudgment interest recoverable be limited pursuant to Section 304.003(c) of the Texas Finance Code. PROOF OF CERTAIN LOSSES n accordance with Texas Civil Practice and Remedies Code Section 18.091(a), Defendant pleads that with respect to any damages for loss of earnings and/or loss of earning capacity, Plaintiffs be required to prove such loss or losses after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law. See Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011). Defendant further objects to the introduction of any medical bills that reflect amounts other than the net amount of medical expenses after reductions, adjustments, discounts, and/or write offs. EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 9 4866 8342 0228 CONTRIBUTORY NEGLIGENCE INCLUDING NEGLIGENCE PER SE s an affirmative defense pursuant to Texas Rule of Civil Procedure 94, Defendant alleges that Plaintiff Stevie Jennings claims are barred, in whole or in part, due to Plaintiff Stevie Jennings own negligence in that the motor vehicle accident of May 22, 2020 was Plaintiff Stevie Jennings’s fault.More specifically, Plaintiff Stevie Jennings was negligent in the operation of her vehicle in at least the following respects: (1) by failing to yield the right of way at a stop sign found by the Conroe Police Officer who investigated the accident (2) by moving her vehicle into the intersection of FM 3083 even though it was not safe to do so at the time (3) by failing to yield the right of way that belonged to Defendant; (4) by failing to maintain a proper lookout and/or failing to maintain situational awareness while driving her vehicle; in particular, Plaintiff Stevie Jennings admitted to Defendant during his 911 call and to the Conroe Police Officer who investigated the accident that she did not see Defendant’s vehicle before she entered the accident intersection; (5) by failing to control her vehicle’s movement, trajectory, and speed s was necessary to avoid a collision with Defendant’s vehicle and/or to clear the intersection without causing a collision (6) by failing to take proper corrective and/or evasive action to avoid a collision; and (7) by failing to operate her vehicle in a reasonable and prudent manner. By failing to do what an ordinary prudent person would have done or refrained from doing under the same or similar circumstances, Plaintiff Stevie Jennings proximately caused, in whole or in part, her own injuries and damages, if any, as well as the injuries and damages, if any, of her passenger, Plaintiff James Graham. Furthermore, the driving acts and/or omissions of Plaintiff Stevie Jennings amounted to negligence per se in that she violated Texas Transportation Code Section 545.failing to EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 4866 8342 0228 yield the right of way at her stop sign and, instead, proceed into the intersection of FM 3083 when doing so was not safe to do so and interfered with Defendant’s lawful movement of his vehicle on FM 3083, for which Defendant did not have a stop sign or other traffic control device Moreover, because of the ensuing collision at an intersection to whom the right of way was to be given to Defendant, the presumption of Texas Transportation Code Section 545.151(f) applies and Plaintiff Stevie Jennings is presumed to have not yielded the right of way. Accordingly, Defendant pleads that the trier of fact determine Plaintiff Stevie Jennings’s percentage of responsibility with respect to causing or contributing to cause in any way the harm for which recovery of damages is sought in accordance with Texas Civil Practice and Remedies Code Section 33.003. PREEXISTING CONDITIONS OF PLAINTIFF JAMES GRAHAM For further answer, if needed, Defendant contends that Plaintiff James Graham’s claims are barred, in whole or in part, and/or Plaintiff James Graham’s damages should be reduced accordingly due to preexisting conditions and/or injuries arising from his prior four wheeler accident in which the four wheeler on which he was riding crashed into a ditch, evidently resulting in a traumatic cervicothoracic compression fracture and/or a prior motor vehicle accident in 2012 in which he was rear ended, apparently causing neck and back injuries. RULE 193.7 NOTICE Pursuant to Texas Rule of Civil Procedure 193.7, Defendant notifies Plaintiff and their counsel that intends to use documents that Plaintiff produce in response to written discovery in this lawsuit against Plaintiff in any pretrial proceeding and/or at trial and intends to rely upon the self authentication provisions of Rule 193.7. EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 4866 8342 0228 DISCLOSURES REQUIRED In the event that this Court reinstates Plaintiffs’ lawsuit, Defendant directs Plaintiffs’ attention to Texas Rule of Civil Procedure 194.1 and Plaintiffs’ duty to disclose, without awaiting a discovery request, the information or material described in Texas Rules of Civil Procedure 194.2, 194.3, and 194.4. JURY DEMAND In the event that this Court reinstates Plaintiffs’ lawsuit, Defendant requests a trial by jury of this lawsuit. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant Allan Birkner respectfully prays that Plaintiff sic] Verified Motion to Reinstate be overruled by operation of law since it was untimely filed after the Court’s plenary power had expired and since Plaintiffs failed to show diligence or cause to reinstate this twice dismissed lawsuit In the event that Plaintiffs’ motion to reinstate is not overruled Defendant prays that Plaintiff take nothing, that Defendant recover all his costs, and that Defendant be granted all other relief, at law and in equity, to which may be justly entitled. EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 4866 8342 0228 Respectfully submitted, ULKERSON OTZ By: Christopher A. Lotz State Bar No. 24031630 4511 Yoakum Blvd., Suite 200 Houston, Texas 77006 713-654-5800 (telephone) 713-654-5855 (direct) 713-654-5801 (facsimile) clotz@fulkersonlotz.com Counsel for Defendant Allan Birkner CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant Allan Birkner’s Objection and Response to Plaintiff Untimely Motion to Reinstate and, Subject to His Objection and Response, Original Answer was served by electronic service on the day of December 2022, upon the following counsel of record: David K. Mestemaker Norman Straub Jonathan B. Zumwalt ESTEMAKER TRAUB UMWALT 3100 Timmons Lane, Suite 455 Houston, Texas 77027 contact@mandsattorneys.com Christopher A. Lotz Defendant’s counsel advises the Court, the District Clerk, and Plaintiffs’ counsel that Plaintiffs, in prior pleadings and electronic filings, ha erroneously listed Mr. Lotz’s email address as clotz@fulkeronlotz.com [sic], missing an “s”; his correct email address is clotz@fulker onlotz.com. EFENDANT LLAN IRKNER BJECTION AND ESPONSE TO LAINTIFFS NTIMELY OTION TO EINSTATE AND UBJECT TO IS BJECTION AND ESPONSE RIGINAL NSWER AGE OF 9 4866 8342 0228