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Electronically Submitted
4/9/2021 4:01 PM
Hidalgo County Clerk
Accepted by: Ester Espinoza
CAUSE NO. CL-21-1 170-G
BLANCA ESTELA FLORES § COUNTY COURT AT LAW
§
VS. § N0. 7
§
LIANA CHEYENNE MENA §
AND JUAN CARLOS MENA § HIDALGO COUNTY, TEXAS
DEFENDANTS’ SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Defendants, LIANA CHEYENNE MENA and JUAN CARLOS MENA
("Defendants"), and file this Original Answer, and would respectfully show as follows:
I. SPECIAL EXCEPTIONS
1. Defendants specially except and object to Paragraph Count 2, sub-paragraphs 16, 17, 18,
19, 20 and 21 0f Plaintist Original Petition, wherein Plaintiff alleges Juan Carlos
Mena negligently entrusted his vehicle to Liana Cheyenne Mena. Negligent
entrustment requires; (1) entrustment 0f a vehicle by the owner (2) t0 an unlicensed,
incompetent, or reckless driver (3) that the owner knew or should have known to be
unlicensed, incompetent, 0r reckless; and (4) the driver's negligence 0n the occasion
in question (5) proximately caused the accident. Williams v. Steves Industries, Inc., 699
S. W2d 570 (TeX. 1985): Hanson v. Green, 339 S. W. 2d 381 (TeX. CiV. App. -
Texarkana 1960, writ refd): Mundy v. Pirie- Slaughter Motor C0., 206 S. W2d 587
(Tex. 1947). Plaintiff’s allegation does not specify the basis for her negligent
entrustment claim against Juan Carlos Mena. Specifically, Plaintiff fails t0 specify
facts that made Liana Cheyenne Mena a reckless, incompetent, or unlicensed
driver at the time of the entrustment, as well as facts that Juan Carlos Mena knew,
or should have known, Liana Cheyenne Mena was a reckless, incompetent, or
unlicensed driver at the time of the entrustment. This allegation is vague, general, and
indefinite. It fails to place Defendant, Juan Carlos Mena, on notice of what he Will
be required t0 defend against at the time of trial. It is therefore impossible for him t0
DEFENDANT ’S ORI GINAL AN SWER PAGE 1 OF 7
Electronically Submitted
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Hidal o County Clerk
Accepted by: ster Espinoza
properly prepare a defense against Plaintist negligent entrustment claim.
2. Furthermore, Defendants specially except and object to Plaintist Original Petition,
Paragraph 23. Plaintiff seeks to recovery exemplary damages from Defendants but fails to
properly allege what cause of action allows Plaintiff to recover exemplary damages (i.e.
fraud, malice, or gross negligence). Plaintiff has failed to properly allege gross negligence.
Gross negligence includes two elements: (1) Viewed objectively from the actor's standpoint,
the act or omission must involve an extreme degree 0f risk, considering the probability and
magnitude of the potential harm to others, and (2) the actor must have actual, subjective
awareness of the risk involved, but nevertheless proceed in conscious indifference to the
rights, safety, 0r welfare 0f others. See Transportation Ins. C0. v. Mariel, 879 S.W.2d 10,
23 §Tex.19941. Evidence of simple negligence is not enough to prove either the objective or
subjective elements of gross negligence. See Universal Servs. C0. v. Ung, 904 S.W.2d 638,
641 (Tex.1995); Mariel, 879 S.W.2d at 22-23. Under the first element, "extreme risk" is
not a remote possfloility of injury or even a high probability of minor harm, but rather the
likelihood of serious injury to the plaintiff. See Ung, 904 S.W.2d at 641; Mariel, 879
S.W.2d at 22. Under the second element, actual awareness means that the defendant knew
about the peril, but its acts or omissions demonstrated that he did not care. See Wal-Mart
Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993). These allegations fail t0 state
the basis that entitles the plaintiff to recover exemplary damages. Therefore, it is
impossflale for the defendants to properly prepare their defenses. Moreover, said language
is vague, genera], indefinite, and fails to put Defendants upon notice of What relief they will
be required t0 defend against and makes it impossflale for Defendants t0 prepare a defense
herein.
3. Defendant also objects, and specially excepts, to Plaintiffs’ Original Petition, paragraphs
DEFENDANT ’S ORI GINAL AN SWER PAGE 2 OF 7
Electronically Submitted
4/9/2021 4:01 PM
Hidalgo County Clerk
Accepted by: Ester Espinoza
25, and any, and all, attached written discovery questions, pursuant t0 Rules 192 and 194
of the Texas Rules of Civil Procedure. As promulgated by said statutes, effective
January 1, 2021, and applicable to cases filed on or after January 1, 2021, except for
those filed in Justice Court, all written Discovery is prohflaited until initial disclosures
are due, With Request for Disclosures now non-existent and replaced by Initial
Disclosures due 3O days after Defendant files his/her First Original Answer.
Additionally, Defendant respectfully requests this Honorable Court Order Plaintiff t0
amend his First Original Petition removing all written Discovery requests that are in
Violation 0f said rules.
II. GENERAL DENIAL
As is authorized by Texas Rule of Civil Procedure 92, Defendants generally deny each
and every allegation contained in Plaintist Petition, and respectfully requests that Plaintiff be
required to prove same by a preponderance of the evidence as is required by the Constitution and
laws 0f the State of Texas.
III. COMPARATIVE NEGLIGENCE-RE SPONSIB ILITY
Defendants would further show that the negligence of the Plaintiff and/or one 0r more
Co-Defendants and/or one or more third parties was/were the sole, 0r a partial, proximate cause
of the accident and the injuries and damages alleged by Plaintiff. Pursuant t0 Texas Civil
Practice & Remedies Code Chapter 33, Defendants invoke the doctrine 0f comparative
responsfloflity and would show that Defendants are entitled to an issue submitted to the jury 0n
the comparative responsflaility 0f Plaintiff and/or any Co-Defendant and/or third party
who/which caused, contnbuted, or was responsflole for this accident and the injuries and damages
alleged by Plaintiff.
DEFENDANT ’S ORI GINAL AN SWER PAGE 3 OF 7
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IV. SUDDEN EMERGENCY/UNAVOIDABLE ACCIDENT
To the extent applicable, Defendants would further show that Defendant was confronted
by an emergency arising suddenly and unexpectedly Which was not proximately caused by any
negligence 0n Defendants’ part and which, to a reasonable person, requires immediate action
without time for dehberation and that Defendant acted as a person 0f ordinary prudence would
have acted under the same 0r similar circumstances. Defendants would further show that the
collision With Plaintiff’s vehicle was an unavoidable accident without negligence 0f these
Defendants.
V. PRE-EXISTING CONDITION
To the extent applicable, Defendants would further show Plaintiff had a medical
condition Which pre-existed this accident 0r arose following this accident and did not result from
this accident. Defendants are not responsible for Plaintiff’s medical condition and damages, if
any, attributable to Plaintiff’s pre-existing 0r subsequent condition not causedby this accident.
VI. PROXIMATE CAUSE
To the extent applicable, Defendants would further show that Defendants’ acts 0r
omissions were not the proximate cause 0f Plaintiff’s injuries, as Defendants dispute that
Plaintiff sustained injury from the occurrence in question.
VII. FAILURE TO MITIGATE DAMAGES
Defendants would further show that Plaintiff failed t0 act as a person 0f ordinary
prudence would have done under the same 0r similar circumstances in caring for and treating the
injuries 0f Plaintiff, if any, that resulted from this accident and/or in failing t0 mitigate the
damages, if any, 0f Plaintiff.
DEFENDANT ’S ORI GINAL AN SWER PAGE 4 OF 7
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Hidalgo County Clerk
Accepted by: Ester Espinoza
VIII. LOSS OF EARNINGS
To the extent that the Plaintiff is seeking a recovery for loss of earnings, lost wages, loss
of earning capacity and/or loss of contrlbution of pecuniary value, Defendants would further
show that evidence 0f this alleged loss must be presented by the Plaintiff in the form 0f a net loss
after reduction for income tax payments 0r unpaid tax liability t0 any federal income tax law, as
required by Texas Civil Practice & Remedies Code § 18.091.
IX. PAID OR INCURRED MEDICAL EXPENSES LIMITATION
Defendants further specifically contend, in accordance with Texas Civil Practice &
Remedies Code § 41.0105, that recovery by Plaintiff of past medical or health care expenses, if
any, that were incurred as a result 0f the accident identified in Plaintiff’s Petition, and the
relevant evidence 0f past medical and healthcare expenses, if any, that were incurred as a result
0f the accident identified in Plaintiff’s Petition, is limited t0 amount(s) actually paid 0r incurred
by, or 0n behalf 0f, the Plaintiff. Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011).
X. TEXAS RULE OF CIVIL PROCEDURE 193.7 NOTICE
Pursuant t0 Texas Rule of Civil Procedure 193.7, Defendants may enter into evidence at
the trial 0f this matter all documents produced to Defendants in Plaintiff’s responses t0 discovery
requests.
XI. TEXAS RULE OF EVIDENCE 609(1) REQUEST
Defendants request that Plaintiff, pursuant t0 Texas Rule 0f Evidence 609(f), give
Defendants sufficient advanced written notice 0f Plaintiff’s intent t0 use evidence 0f a conviction
0f a crime under Rule 609(f) against any party or witness in this case, With failure to d0 so
resulting in inadmissflaility of the same.
DEFENDANT ’S ORI GINAL AN SWER PAGE 5 OF 7
Electronically Submitted
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Hidalgo County Clerk
Accepted by: Ester Espinoza
XII. JURY DEMAND
Pursuant t0 Texas Rule of Civil Procedure 216, Defendants demand a jury trial. The
appropriate jury fee has been 0r will be paid t0 the clerk of the court within thirty (30) days in
advance 0f the trial setting.
XIII. PRAYER
WHEREFORE PREMISES CONSIDERED, Defendants prays that Plaintiff take
nothing by way 0f this suit, and that these Defendants have such other and further relief, both
general and special, at law 0r in equity, t0 Which these Defendants may be justly entitled.
Respectfully submitted,
W
LAW OFFICE OF ROGELIO GARCIA
HECTOR TORRES
SBN: 20143250
200 South 10th Street, Suite 405
McAllen, Texas 78501
Telephone: 956-686-9090
Facsimile: 956-686-9093
Email: HTorres@geic0. com
ATTORNEY FOR DEFENDANTS
DEFENDANT ’S ORI GINAL AN SWER PAGE 6 OF 7
Electronically Submitted
4/9/2021 4:01 PM
Hidalgo County Clerk
Accepted by: Ester Espinoza
CERTIFICATE OF SERVICE
I hereby certify that on this the __9th___ day 0f April, 2021, a true and correct copy of
the foregoing instrument has been sent to all counsel of record pursuant to the Texas Rules of
Civil Procedure:
VIA E-service: filopez@m vrgvlawverxom
Fernando Lopez
The Lopez Law Group, PLLC
2611 N. Texas Blvd, Suite 1
Weslaco, TX 78599
Attorney for Plaintiff
HECTOR TORRES
W
DEFENDANT ’S ORI GINAL AN SWER PAGE 7 OF 7
Preview
Electronically Submitted 4/9/2021 4:01 PM Hidalgo County Clerk Accepted by: Ester Espinoza CAUSE NO. CL-21-1 170-G BLANCA ESTELA FLORES § COUNTY COURT AT LAW § VS. § N0. 7 § LIANA CHEYENNE MENA § AND JUAN CARLOS MENA § HIDALGO COUNTY, TEXAS DEFENDANTS’ SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: COME NOW Defendants, LIANA CHEYENNE MENA and JUAN CARLOS MENA ("Defendants"), and file this Original Answer, and would respectfully show as follows: I. SPECIAL EXCEPTIONS 1. Defendants specially except and object to Paragraph Count 2, sub-paragraphs 16, 17, 18, 19, 20 and 21 0f Plaintist Original Petition, wherein Plaintiff alleges Juan Carlos Mena negligently entrusted his vehicle to Liana Cheyenne Mena. Negligent entrustment requires; (1) entrustment 0f a vehicle by the owner (2) t0 an unlicensed, incompetent, or reckless driver (3) that the owner knew or should have known to be unlicensed, incompetent, 0r reckless; and (4) the driver's negligence 0n the occasion in question (5) proximately caused the accident. Williams v. Steves Industries, Inc., 699 S. W2d 570 (TeX. 1985): Hanson v. Green, 339 S. W. 2d 381 (TeX. CiV. App. - Texarkana 1960, writ refd): Mundy v. Pirie- Slaughter Motor C0., 206 S. W2d 587 (Tex. 1947). Plaintiff’s allegation does not specify the basis for her negligent entrustment claim against Juan Carlos Mena. Specifically, Plaintiff fails t0 specify facts that made Liana Cheyenne Mena a reckless, incompetent, or unlicensed driver at the time of the entrustment, as well as facts that Juan Carlos Mena knew, or should have known, Liana Cheyenne Mena was a reckless, incompetent, or unlicensed driver at the time of the entrustment. This allegation is vague, general, and indefinite. It fails to place Defendant, Juan Carlos Mena, on notice of what he Will be required t0 defend against at the time of trial. It is therefore impossible for him t0 DEFENDANT ’S ORI GINAL AN SWER PAGE 1 OF 7 Electronically Submitted 4/9/2021 4:01 PM Hidal o County Clerk Accepted by: ster Espinoza properly prepare a defense against Plaintist negligent entrustment claim. 2. Furthermore, Defendants specially except and object to Plaintist Original Petition, Paragraph 23. Plaintiff seeks to recovery exemplary damages from Defendants but fails to properly allege what cause of action allows Plaintiff to recover exemplary damages (i.e. fraud, malice, or gross negligence). Plaintiff has failed to properly allege gross negligence. Gross negligence includes two elements: (1) Viewed objectively from the actor's standpoint, the act or omission must involve an extreme degree 0f risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, 0r welfare 0f others. See Transportation Ins. C0. v. Mariel, 879 S.W.2d 10, 23 §Tex.19941. Evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence. See Universal Servs. C0. v. Ung, 904 S.W.2d 638, 641 (Tex.1995); Mariel, 879 S.W.2d at 22-23. Under the first element, "extreme risk" is not a remote possfloility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff. See Ung, 904 S.W.2d at 641; Mariel, 879 S.W.2d at 22. Under the second element, actual awareness means that the defendant knew about the peril, but its acts or omissions demonstrated that he did not care. See Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993). These allegations fail t0 state the basis that entitles the plaintiff to recover exemplary damages. Therefore, it is impossflale for the defendants to properly prepare their defenses. Moreover, said language is vague, genera], indefinite, and fails to put Defendants upon notice of What relief they will be required t0 defend against and makes it impossflale for Defendants t0 prepare a defense herein. 3. Defendant also objects, and specially excepts, to Plaintiffs’ Original Petition, paragraphs DEFENDANT ’S ORI GINAL AN SWER PAGE 2 OF 7 Electronically Submitted 4/9/2021 4:01 PM Hidalgo County Clerk Accepted by: Ester Espinoza 25, and any, and all, attached written discovery questions, pursuant t0 Rules 192 and 194 of the Texas Rules of Civil Procedure. As promulgated by said statutes, effective January 1, 2021, and applicable to cases filed on or after January 1, 2021, except for those filed in Justice Court, all written Discovery is prohflaited until initial disclosures are due, With Request for Disclosures now non-existent and replaced by Initial Disclosures due 3O days after Defendant files his/her First Original Answer. Additionally, Defendant respectfully requests this Honorable Court Order Plaintiff t0 amend his First Original Petition removing all written Discovery requests that are in Violation 0f said rules. II. GENERAL DENIAL As is authorized by Texas Rule of Civil Procedure 92, Defendants generally deny each and every allegation contained in Plaintist Petition, and respectfully requests that Plaintiff be required to prove same by a preponderance of the evidence as is required by the Constitution and laws 0f the State of Texas. III. COMPARATIVE NEGLIGENCE-RE SPONSIB ILITY Defendants would further show that the negligence of the Plaintiff and/or one 0r more Co-Defendants and/or one or more third parties was/were the sole, 0r a partial, proximate cause of the accident and the injuries and damages alleged by Plaintiff. Pursuant t0 Texas Civil Practice & Remedies Code Chapter 33, Defendants invoke the doctrine 0f comparative responsfloflity and would show that Defendants are entitled to an issue submitted to the jury 0n the comparative responsflaility 0f Plaintiff and/or any Co-Defendant and/or third party who/which caused, contnbuted, or was responsflole for this accident and the injuries and damages alleged by Plaintiff. DEFENDANT ’S ORI GINAL AN SWER PAGE 3 OF 7 Electronically Submitted 4/9/2021 4:01 PM Hidalgo County Clerk Accepted by: Ester Espinoza IV. SUDDEN EMERGENCY/UNAVOIDABLE ACCIDENT To the extent applicable, Defendants would further show that Defendant was confronted by an emergency arising suddenly and unexpectedly Which was not proximately caused by any negligence 0n Defendants’ part and which, to a reasonable person, requires immediate action without time for dehberation and that Defendant acted as a person 0f ordinary prudence would have acted under the same 0r similar circumstances. Defendants would further show that the collision With Plaintiff’s vehicle was an unavoidable accident without negligence 0f these Defendants. V. PRE-EXISTING CONDITION To the extent applicable, Defendants would further show Plaintiff had a medical condition Which pre-existed this accident 0r arose following this accident and did not result from this accident. Defendants are not responsible for Plaintiff’s medical condition and damages, if any, attributable to Plaintiff’s pre-existing 0r subsequent condition not causedby this accident. VI. PROXIMATE CAUSE To the extent applicable, Defendants would further show that Defendants’ acts 0r omissions were not the proximate cause 0f Plaintiff’s injuries, as Defendants dispute that Plaintiff sustained injury from the occurrence in question. VII. FAILURE TO MITIGATE DAMAGES Defendants would further show that Plaintiff failed t0 act as a person 0f ordinary prudence would have done under the same 0r similar circumstances in caring for and treating the injuries 0f Plaintiff, if any, that resulted from this accident and/or in failing t0 mitigate the damages, if any, 0f Plaintiff. DEFENDANT ’S ORI GINAL AN SWER PAGE 4 OF 7 Electronically Submitted 4/9/2021 4:01 PM Hidalgo County Clerk Accepted by: Ester Espinoza VIII. LOSS OF EARNINGS To the extent that the Plaintiff is seeking a recovery for loss of earnings, lost wages, loss of earning capacity and/or loss of contrlbution of pecuniary value, Defendants would further show that evidence 0f this alleged loss must be presented by the Plaintiff in the form 0f a net loss after reduction for income tax payments 0r unpaid tax liability t0 any federal income tax law, as required by Texas Civil Practice & Remedies Code § 18.091. IX. PAID OR INCURRED MEDICAL EXPENSES LIMITATION Defendants further specifically contend, in accordance with Texas Civil Practice & Remedies Code § 41.0105, that recovery by Plaintiff of past medical or health care expenses, if any, that were incurred as a result 0f the accident identified in Plaintiff’s Petition, and the relevant evidence 0f past medical and healthcare expenses, if any, that were incurred as a result 0f the accident identified in Plaintiff’s Petition, is limited t0 amount(s) actually paid 0r incurred by, or 0n behalf 0f, the Plaintiff. Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011). X. TEXAS RULE OF CIVIL PROCEDURE 193.7 NOTICE Pursuant t0 Texas Rule of Civil Procedure 193.7, Defendants may enter into evidence at the trial 0f this matter all documents produced to Defendants in Plaintiff’s responses t0 discovery requests. XI. TEXAS RULE OF EVIDENCE 609(1) REQUEST Defendants request that Plaintiff, pursuant t0 Texas Rule 0f Evidence 609(f), give Defendants sufficient advanced written notice 0f Plaintiff’s intent t0 use evidence 0f a conviction 0f a crime under Rule 609(f) against any party or witness in this case, With failure to d0 so resulting in inadmissflaility of the same. DEFENDANT ’S ORI GINAL AN SWER PAGE 5 OF 7 Electronically Submitted 4/9/2021 4:01 PM Hidalgo County Clerk Accepted by: Ester Espinoza XII. JURY DEMAND Pursuant t0 Texas Rule of Civil Procedure 216, Defendants demand a jury trial. The appropriate jury fee has been 0r will be paid t0 the clerk of the court within thirty (30) days in advance 0f the trial setting. XIII. PRAYER WHEREFORE PREMISES CONSIDERED, Defendants prays that Plaintiff take nothing by way 0f this suit, and that these Defendants have such other and further relief, both general and special, at law 0r in equity, t0 Which these Defendants may be justly entitled. Respectfully submitted, W LAW OFFICE OF ROGELIO GARCIA HECTOR TORRES SBN: 20143250 200 South 10th Street, Suite 405 McAllen, Texas 78501 Telephone: 956-686-9090 Facsimile: 956-686-9093 Email: HTorres@geic0. com ATTORNEY FOR DEFENDANTS DEFENDANT ’S ORI GINAL AN SWER PAGE 6 OF 7 Electronically Submitted 4/9/2021 4:01 PM Hidalgo County Clerk Accepted by: Ester Espinoza CERTIFICATE OF SERVICE I hereby certify that on this the __9th___ day 0f April, 2021, a true and correct copy of the foregoing instrument has been sent to all counsel of record pursuant to the Texas Rules of Civil Procedure: VIA E-service: filopez@m vrgvlawverxom Fernando Lopez The Lopez Law Group, PLLC 2611 N. Texas Blvd, Suite 1 Weslaco, TX 78599 Attorney for Plaintiff HECTOR TORRES W DEFENDANT ’S ORI GINAL AN SWER PAGE 7 OF 7