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CAUSE NO. 11269
DENNIS MUSTARD AND D RLENE IN THE COUNTY COURT
Plaintiffs
AT LAW NO. 6
DUCKY RECOVERY, LLC
Defendant MONTGOMERY COUNTY, TEXAS
NOTICE OF REMOVAL
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant Ducky Recovery, LLC Ducky Recovery gives notice that
it has filed a Notice of Removal of this matter with the United States District Court for the
District of Texas, Division. A copy of the Notice and all accompanying
exhibits are attached to this filing
Respectfully submitted,
ERMER PLLC
/s/ Adrian P. Senyszyn
Adrian P. Senyszyn
State Bar No. 24060585
asenyszyn@germer sa.com
Daniel D. Schick
State Bar No. 24098387
chick@germer sa.com
Plaza Las Campana
1826 North Loop 1604 West, Suite 300
San Antonio, Texas 78248
Phone: (210) 640
Fax: (512) 472
ATTORNEYS DEFENDANT
Defendant’s Notice of Removal Filed in State Court Page of
CERTIFICATE OF SERVICE
I hereby certify pursuant to the Texas Rules of Civil Procedure that, on the day of
ptember, 2023, a true and correct copy of the foregoing was served on the following counsel
of record via the EFile and EService system:
Via E Service:
William J. Downs
ARKLEY AW ROUP
336 North Main Street, Suite 209
Conroe, Texas 77301
/s/ Daniel D. Schick
Daniel D. Schick
Defendant’s Notice of Removal Filed in State Court Page of
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHER DISTRICT OF TEXAS
HOUSTON DIVISION
DENNIS MUSTARD AND DARLENE
DUCKY RECOVERY, LLC
NOTICE OF REMOVAL
PLEASE TAKE NOTICE THAT Defendant Ducky Recovery, LLC Defendant
“Ducky Recovery” while fully reserving all rights and defenses, file this Notice of Removal to
the United States District Court for the Southern District of Texas, Division. Removal is
proper under 28 U.S.C. §§1332 and 1441(a) because this is an action over which the United States
District Court for the Southern District of Texas, Houston Division, has original diversity
jurisdiction as it is an action between citizens of different states and the amount in controversy
exceeds $75,000 , exclusive of interest and costs. In support of its Notice of Removal,
Defendant respectfully would show as follows:
GROUNDS FOR REMOVAL
This case is removable to this Court based on diversity jurisdiction under 28 U.S.C.
1332 and 1441(a)
Plaintiff ennis and Darlene Mustard (“Plaintiff are individual are
citizen of Texas and resident Montgomery County, Texas.
Defendant Ducky Recovery, LLC is a limited liability company organized under
the laws of Louisiana with its principal place of business in Louisiana
As described more fully below, Plaintiff seek to recover from Defendant an
amount in excess of $75,000 , excluding interest and costs, state court action.
PENDING STATE SUIT
, 2023, Plaintiff filed a civil action against Defendant in Cause No.
Dennis Mustard and Darlene Mustard v. Ducky Recovery, LLC in the County
Court at Law No. 6 Montgomery County, Texas.
According to Plaintiffs Original Petition, Ducky Recovery allegedly breached its
contract and warranties with Plaintiff arising out of certain remediation work performed at
Plaintiffs’ home, resulting in alleged damages
The name and address of the t from which the case is being removed is:
County Court at Law 6
Montgomery County Courthouse
301 North Main, Suite 107
Conroe, Texas 77301
STATE COURT DOCUMENTS
The following documents are attached to this Notice of Removal:
Exhibit Plaintiffs Original Petition
Exhibit Return on Service
Exhibit Defendant s Original Answer
Exhibit ndex of atters eing iled
Copy of the State ourt Docket Sheet/Record
Copy of Process
ist of all counsel of record, addresses, telephone numbers, and
parties
Civil Cover Sheet
See Plaintiff’s Original Petition attached hereto as Exhibit A.
Id.
TIMING OF REMOVAL
Defendant was served with Plaintiff Original Petition or after August 10,
This Notice of Removal is being filed within 30 days of service of the Orig etition
Defendant and is timely filed under 28 U.S.C. § 446(b).
JURISDICTION
Pursuant to 28 U.S.C. §1332, a Defendant has a right to remove a case to federal
court if the case involves a dispute between completely diverse parties and the amount in
controversy, excluding interes and costs, exceeds $75,000
Plaintiff asserted that he seeks damages no more than 0,000.00
Based on the allegations in Plaintiffs Original Petition, this matter is removable to this Court
under 28 U.S.C. §1332 because the amount in controversy, excluding interests and costs, exceeds
Plaintiff also allege in Original Petition that they are resident of Texas.
Defendant is a limited liability company organized under the laws of Louisiana
its principal business office located in Louisiana Its members are not residents of Texas.
Accordingly, there exists complete diversity of citizenship between Plaintiff and
Defendant under 28 U.S.C. §
VENUE
Pursuant to 28 U.S.C. §1441(a), venue for this action is proper in the United States
District Court for the Southern District of Texas, Division as it is the federal judicial
district that encompasses the County Court at Law No. 6 of Montgomery County, Texas, where
See Return on Service attached hereto as Exhibit B.
See Exhibit A, p. 1
Id.
the state action was originally filed.
NOTICE TO ADVERSE PARTIES AND TO STATE COURT
As the removing party, Defendant will give Plaintiff prompt written notice of this
Notice of Removal as required by 28 U.S.C. §1446(d).
Defendant will also file a copy of this Notice of Removal with the County Court at
Law No. 6 of Montgomery County, Texas, where the state court action is currently pending, as
required by 28 U.S.C. §1446(d).
MOTION TO TRANSFER VENUE AND ANSWER
Defendant timely filed a Motion to Transfer Venue and wer in the state court
action. By removing this action to this Court, Defendant not waive any defenses, objections
or motions available to it under state or federal law, and will timely file responsive pleading
Plaintiffs Original Petition n this Court as well should the Court require
PRAYER
For these reasons and in conformity with 28 U.S.C. §1446, Defendant respectfully
remove civil action styled Dennis Mustard and Darlene Mustard v. Ducky Recovery, LLC
and bearing Cause No. on the docket of County Court at Law No. 6 of
Montgomery County, Texas. Defendant pray for such other and further relief, both general and
special, at law and in equity, to which may show itself justly entitled.
Respectfully submitted,
/s/ Adrian P. Senyszyn
Adrian P. Senyszyn
Attorney Charge
State Bar No. 24060585
Federal I.D. No. 1734180
asenyszyn@germer sa.com
COUNSEL:
Daniel D. Schick
State Bar No. 24098387
Federal I.D. No. 2979655
dschick@germer sa.com
ERMER PLLC
Plaza Las Campanas
North Loop 1604 West, Suite 300
San Antonio, Texas 78248
Phone: (210) 640
Fax: (512) 472
ATTORNEYS FOR DEFENDANT
DUCKY RECOVERY, LLC
CERTIFICATE OF SERVICE
I hereby certify that on this day of September, 2023, a copy of the above and
foregoing was filed electronically with the Clerk of Court using the CM/ECF system, which
will send a notice of electronic filing to all CM/ECF participants. I also certify that I have
forwarded this filing by regular U.S. Mail, postage pre paid, this same day to all non CM/ECF
participants.
Via E Service:
William J. Downs
ARKLEY AW ROUP
336 North Main Street, Suite 209
Conroe, Texas 77301
/s/ Daniel D. Schick
Daniel D. Schick
EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A
TIDRD CAUSE OF ACTION
Breach of
in the
left 10-11" inches
used to keep water out
rainwater flooded caused mold further entered
concrete surrounding the
on the
wall. The caulking water from
19. The mold caused by made the home uninhabitable
both have compromised lung conditions are negatively by mold.
a jury
CONDITIONS PRECEDENT
21. All conditions precedent to claim for been performed
VII. ATTORNEYS FEES
22. Plaintiffs are recover reasonable under the
Code Chapter 38 because is a suit for an oral and
written contract.
VIIl. REQUEST FOR
Page 5 of 6
EXHIBIT A
EXHIBIT A
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EXHIBIT B
CAUSE NO. 23-08-11269
DENNIS MUSTARD and
DARLENE MUSTARD, IN THE DISTRICT COURT
Plaintiff ,
v. COUNTY COURT AT LAW NO. 6
DUCKY RECOVERY, LLC
Defendant. MONTGOMERY COUNTY, TEXAS
DEFENDANT ORIGINAL ANSWER
THE ONORABLE OURT:
Defendant DUCKY RECOVERY, LLC “Defendant”), files this Original Answer to
Plaintiff Original Petition and respectfully shows the following:
ENERAL ENIAL
Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant generally denies
each and every fact, allegation, claim and cause of action in Plaintiff’s Original Petition and any
amendment/supplement thereto and demands strict proof thereof.
ISCOVERY EVEL
This case is not appropriate for Level 1. It should be set Level 3 pursuant to Texas Rule of
Civil Procedure 190.4.
EFENSES
Defendant states that at all relevant times, it was acting in a reasonable and prudent manner,
exercising ordinary care as would be expected under the same or similar circumstances in
Mongomery County, Texas; and it fully performed its legal responsibilities, or alternatively
substantially performed said responsibilities.
Defendant’s Original Answer Page 1
EXHIBIT C
The reconstruction Scope of Work was presented to the Plaintiffs by the Texas General
Land Office (“GLO”), and the Plaintiffs approved it and all changes. Further, the Homeowners
Association (“HOA”) required changes to the project, which were approved by the GLO, for which
Plaintiffs now complain.
Pleading alternatively, Defendant would state that it did not breach any legal duty, if any,
owed to Plaintiffs.
Defendant specifically denies that all necessary conditions precedent to the filing of the
suit, presentment of claim, or recovery by Plaintiffs occurred as required by law or was excused.
Pursuant to Section 27.003 of the Texas Property Code, Defendant is not liable for any
percentage of damages caused by: (A) negligence of a person other than the Defendant or an agent,
employee, or subcontractor of the Defendant; (B) failure of a person other than the Defendant or
an agent, employee, or subcontractor of the contractor to: (i) take reasonable action to mitigate the
damages; or (ii) take reasonable action to maintain the residence; (C) normal wear, tear, or
deterioration; or (D) normal shrinkage due to drying or settlement of construction components
within the tolerance of building standards.
Defendant affirmatively pleads that the Economic Loss Rule bars any recovery by
Plaintiffs for tort claims.
Defendant affirmatively pleads that any party seeking relief in this matter is entitled only
to One, Single Satisfaction of their claims.
Defendant affirmatively pleads that the damages in this case, if any, should be limited to
only the cost of repair or cost of market value, whichever is less.
Defendant denies Plaintiffs are entitled to attorney’s fees or costs.
Defendant’s Original Answer Page 2
EXHIBIT C
Defendant affirmatively pleads the Doctrine of Betterment, and any recovery should not
provide for the enhancement of the materials, labor, or design not specified in the original plans,
specifications, construction contract, or building codes as it would lead to unjust enrichment.
Further, to the extent damages are awarded, such damages should be reduced to reflect the
extended life expectancy of such component.
Defendant affirmatively pleads that prejudgment interest, if any, is limited in accordance
with Section 304.104, et seq. of the Texas Finance Code.
Defendant affirmatively pleads that any claim for prejudgment interest, insofar as it
includes interest on any future damages beyond the time of verdict, is barred by the Texas
Constitution, the Due Process Clause of the 14th Amendment, and also the excessive fines and
penalties clause of the 8th Amendment of the Constitution of the United States of America.
Defendant reserves the right to amend this Original Answer pursuant to the Texas Rules of Civil
Procedure.
IV. URY EMAND
Defendant hereby demands a jury trial.
LAINTIFF ISCLOSURES
Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiff is requested to
disclose to Defendant, within 30 days of the filing of this answer, the information or material
described in Rule 194.2.
WHEREFORE, PREMESIS CONSIDERED, Defendant respectfully prays that, upon final
hearing, judgment be entered that Plaintiffs take nothing by reason of this suit, and Defendant is
discharged with prejudice and shall recover all costs of Court. Defendant further prays for such other
and relief, both at law and in equity, to which Defendant is justly entitled.
Defendant’s Original Answer Page 3
EXHIBIT C
Respectfully submitted,
ERMER PLLC
/s/ Adrian P. Senyszyn
Adrian P. Senyszyn
State Bar No. 24060585
asenyszyn@germer sa.com
Mark A. Zamora
State Bar No. 24098651
mzamora@germer -sa.com
Plaza Las Campanas
1826 North Loop 1604 West, Suite 300
San Antonio, Texas 78248
Phone: (210) 640-1650
Fax: (512) 472-0721
Attorneys for Defendant
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Defendant’s Motion to Transfer Venue and Original
Answer in the above and foregoing case has been forwarded to the following attorney of record in
accordance with the Texas Rules of Civil Procedure on this 1st day of September, 2023.
William J. Downs
P336 North Main Street, Suite 209
Conroe, Texas 77301
Phone: (936755-4130
Fax: ( 24-56886
Email: bill@barkleylawgroup.com
Attorney for Plaintiffs
/s/ Adrian P. Senyszyn
Adrian P. Senyszyn
Defendant’s Original Answer Page 4
EXHIBIT C
odyssey.mctx.org/Unsecured/CaseDetail.aspx?CaseID=2629873
My Account Location : All Courts
A
23-08-11269
Dennis Mustard and Darlene Mustard vs. Ducky Recovery, LLC
Case Type:
Ducky Recovery, LLC Adrian P. Senyszyn
Registered Agent Capitol Corporate Services,
1501 S Mopac Expressway, Suite 220
Austin, TX 78746
OTHER EVENTS AND HEARINGS
Jury Trial Requested
Ducky Recovery, LLC
Motion to Transfer to Another County
Original Answer
Total Financial Assessment
Total Payments and Credits
Transaction Assessment
EXHIBIT D-1
odyssey.mctx.org/Unsecured/CaseDetail.aspx?CaseID=2629873 1/1
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EXHIBIT D-2
EXHIBIT D-2
EXHIBIT D-2
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DENNIS MUSTARD AND DARLENE
CASE NO. __________
DUCKY RECOVERY, LLC
COUNSEL OF RECORD
ATTORNEY DENNIS AND DARLENE MUSTARD
William J. Downs
ARKLEY AW ROUP
336 North Main Street, Suite 209
Conroe, Texas
Phone: 936) 755
Fax: 619) 924
bill@barkleylawgroup.com
ATTORNEYS FOR DEFENDANT DUCKY RECOVERY, LLC
Adrian P. Senyszyn
Daniel D. Schick
ERMER PLLC
Plaza Las Campanas
1826 North Loop 1604 West, Suite 300
San Antonio, Texas 78248
Phone: (210)
Fax: (512) 472
asenyszyn@germer sa.com
dschick@germer sa.com
EXHIBIT D
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CAUSE NO. 11269 DENNIS MUSTARD AND D RLENE IN THE COUNTY COURT Plaintiffs AT LAW NO. 6 DUCKY RECOVERY, LLC Defendant MONTGOMERY COUNTY, TEXAS NOTICE OF REMOVAL TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant Ducky Recovery, LLC Ducky Recovery gives notice that it has filed a Notice of Removal of this matter with the United States District Court for the District of Texas, Division. A copy of the Notice and all accompanying exhibits are attached to this filing Respectfully submitted, ERMER PLLC /s/ Adrian P. Senyszyn Adrian P. Senyszyn State Bar No. 24060585 asenyszyn@germer sa.com Daniel D. Schick State Bar No. 24098387 chick@germer sa.com Plaza Las Campana 1826 North Loop 1604 West, Suite 300 San Antonio, Texas 78248 Phone: (210) 640 Fax: (512) 472 ATTORNEYS DEFENDANT Defendant’s Notice of Removal Filed in State Court Page of CERTIFICATE OF SERVICE I hereby certify pursuant to the Texas Rules of Civil Procedure that, on the day of ptember, 2023, a true and correct copy of the foregoing was served on the following counsel of record via the EFile and EService system: Via E Service: William J. Downs ARKLEY AW ROUP 336 North Main Street, Suite 209 Conroe, Texas 77301 /s/ Daniel D. Schick Daniel D. Schick Defendant’s Notice of Removal Filed in State Court Page of IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHER DISTRICT OF TEXAS HOUSTON DIVISION DENNIS MUSTARD AND DARLENE DUCKY RECOVERY, LLC NOTICE OF REMOVAL PLEASE TAKE NOTICE THAT Defendant Ducky Recovery, LLC Defendant “Ducky Recovery” while fully reserving all rights and defenses, file this Notice of Removal to the United States District Court for the Southern District of Texas, Division. Removal is proper under 28 U.S.C. §§1332 and 1441(a) because this is an action over which the United States District Court for the Southern District of Texas, Houston Division, has original diversity jurisdiction as it is an action between citizens of different states and the amount in controversy exceeds $75,000 , exclusive of interest and costs. In support of its Notice of Removal, Defendant respectfully would show as follows: GROUNDS FOR REMOVAL This case is removable to this Court based on diversity jurisdiction under 28 U.S.C. 1332 and 1441(a) Plaintiff ennis and Darlene Mustard (“Plaintiff are individual are citizen of Texas and resident Montgomery County, Texas. Defendant Ducky Recovery, LLC is a limited liability company organized under the laws of Louisiana with its principal place of business in Louisiana As described more fully below, Plaintiff seek to recover from Defendant an amount in excess of $75,000 , excluding interest and costs, state court action. PENDING STATE SUIT , 2023, Plaintiff filed a civil action against Defendant in Cause No. Dennis Mustard and Darlene Mustard v. Ducky Recovery, LLC in the County Court at Law No. 6 Montgomery County, Texas. According to Plaintiffs Original Petition, Ducky Recovery allegedly breached its contract and warranties with Plaintiff arising out of certain remediation work performed at Plaintiffs’ home, resulting in alleged damages The name and address of the t from which the case is being removed is: County Court at Law 6 Montgomery County Courthouse 301 North Main, Suite 107 Conroe, Texas 77301 STATE COURT DOCUMENTS The following documents are attached to this Notice of Removal: Exhibit Plaintiffs Original Petition Exhibit Return on Service Exhibit Defendant s Original Answer Exhibit ndex of atters eing iled Copy of the State ourt Docket Sheet/Record Copy of Process ist of all counsel of record, addresses, telephone numbers, and parties Civil Cover Sheet See Plaintiff’s Original Petition attached hereto as Exhibit A. Id. TIMING OF REMOVAL Defendant was served with Plaintiff Original Petition or after August 10, This Notice of Removal is being filed within 30 days of service of the Orig etition Defendant and is timely filed under 28 U.S.C. § 446(b). JURISDICTION Pursuant to 28 U.S.C. §1332, a Defendant has a right to remove a case to federal court if the case involves a dispute between completely diverse parties and the amount in controversy, excluding interes and costs, exceeds $75,000 Plaintiff asserted that he seeks damages no more than 0,000.00 Based on the allegations in Plaintiffs Original Petition, this matter is removable to this Court under 28 U.S.C. §1332 because the amount in controversy, excluding interests and costs, exceeds Plaintiff also allege in Original Petition that they are resident of Texas. Defendant is a limited liability company organized under the laws of Louisiana its principal business office located in Louisiana Its members are not residents of Texas. Accordingly, there exists complete diversity of citizenship between Plaintiff and Defendant under 28 U.S.C. § VENUE Pursuant to 28 U.S.C. §1441(a), venue for this action is proper in the United States District Court for the Southern District of Texas, Division as it is the federal judicial district that encompasses the County Court at Law No. 6 of Montgomery County, Texas, where See Return on Service attached hereto as Exhibit B. See Exhibit A, p. 1 Id. the state action was originally filed. NOTICE TO ADVERSE PARTIES AND TO STATE COURT As the removing party, Defendant will give Plaintiff prompt written notice of this Notice of Removal as required by 28 U.S.C. §1446(d). Defendant will also file a copy of this Notice of Removal with the County Court at Law No. 6 of Montgomery County, Texas, where the state court action is currently pending, as required by 28 U.S.C. §1446(d). MOTION TO TRANSFER VENUE AND ANSWER Defendant timely filed a Motion to Transfer Venue and wer in the state court action. By removing this action to this Court, Defendant not waive any defenses, objections or motions available to it under state or federal law, and will timely file responsive pleading Plaintiffs Original Petition n this Court as well should the Court require PRAYER For these reasons and in conformity with 28 U.S.C. §1446, Defendant respectfully remove civil action styled Dennis Mustard and Darlene Mustard v. Ducky Recovery, LLC and bearing Cause No. on the docket of County Court at Law No. 6 of Montgomery County, Texas. Defendant pray for such other and further relief, both general and special, at law and in equity, to which may show itself justly entitled. Respectfully submitted, /s/ Adrian P. Senyszyn Adrian P. Senyszyn Attorney Charge State Bar No. 24060585 Federal I.D. No. 1734180 asenyszyn@germer sa.com COUNSEL: Daniel D. Schick State Bar No. 24098387 Federal I.D. No. 2979655 dschick@germer sa.com ERMER PLLC Plaza Las Campanas North Loop 1604 West, Suite 300 San Antonio, Texas 78248 Phone: (210) 640 Fax: (512) 472 ATTORNEYS FOR DEFENDANT DUCKY RECOVERY, LLC CERTIFICATE OF SERVICE I hereby certify that on this day of September, 2023, a copy of the above and foregoing was filed electronically with the Clerk of Court using the CM/ECF system, which will send a notice of electronic filing to all CM/ECF participants. I also certify that I have forwarded this filing by regular U.S. Mail, postage pre paid, this same day to all non CM/ECF participants. Via E Service: William J. Downs ARKLEY AW ROUP 336 North Main Street, Suite 209 Conroe, Texas 77301 /s/ Daniel D. Schick Daniel D. Schick EXHIBIT A EXHIBIT A EXHIBIT A EXHIBIT A TIDRD CAUSE OF ACTION Breach of in the left 10-11" inches used to keep water out rainwater flooded caused mold further entered concrete surrounding the on the wall. The caulking water from 19. The mold caused by made the home uninhabitable both have compromised lung conditions are negatively by mold. a jury CONDITIONS PRECEDENT 21. All conditions precedent to claim for been performed VII. ATTORNEYS FEES 22. Plaintiffs are recover reasonable under the Code Chapter 38 because is a suit for an oral and written contract. VIIl. REQUEST FOR Page 5 of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`#a40#N"K1b"NQRM#O"WK1M0#1Q2*I '=@<);)3S EXHIBIT B CAUSE NO. 23-08-11269 DENNIS MUSTARD and DARLENE MUSTARD, IN THE DISTRICT COURT Plaintiff , v. COUNTY COURT AT LAW NO. 6 DUCKY RECOVERY, LLC Defendant. MONTGOMERY COUNTY, TEXAS DEFENDANT ORIGINAL ANSWER THE ONORABLE OURT: Defendant DUCKY RECOVERY, LLC “Defendant”), files this Original Answer to Plaintiff Original Petition and respectfully shows the following: ENERAL ENIAL Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant generally denies each and every fact, allegation, claim and cause of action in Plaintiff’s Original Petition and any amendment/supplement thereto and demands strict proof thereof. ISCOVERY EVEL This case is not appropriate for Level 1. It should be set Level 3 pursuant to Texas Rule of Civil Procedure 190.4. EFENSES Defendant states that at all relevant times, it was acting in a reasonable and prudent manner, exercising ordinary care as would be expected under the same or similar circumstances in Mongomery County, Texas; and it fully performed its legal responsibilities, or alternatively substantially performed said responsibilities. Defendant’s Original Answer Page 1 EXHIBIT C The reconstruction Scope of Work was presented to the Plaintiffs by the Texas General Land Office (“GLO”), and the Plaintiffs approved it and all changes. Further, the Homeowners Association (“HOA”) required changes to the project, which were approved by the GLO, for which Plaintiffs now complain. Pleading alternatively, Defendant would state that it did not breach any legal duty, if any, owed to Plaintiffs. Defendant specifically denies that all necessary conditions precedent to the filing of the suit, presentment of claim, or recovery by Plaintiffs occurred as required by law or was excused. Pursuant to Section 27.003 of the Texas Property Code, Defendant is not liable for any percentage of damages caused by: (A) negligence of a person other than the Defendant or an agent, employee, or subcontractor of the Defendant; (B) failure of a person other than the Defendant or an agent, employee, or subcontractor of the contractor to: (i) take reasonable action to mitigate the damages; or (ii) take reasonable action to maintain the residence; (C) normal wear, tear, or deterioration; or (D) normal shrinkage due to drying or settlement of construction components within the tolerance of building standards. Defendant affirmatively pleads that the Economic Loss Rule bars any recovery by Plaintiffs for tort claims. Defendant affirmatively pleads that any party seeking relief in this matter is entitled only to One, Single Satisfaction of their claims. Defendant affirmatively pleads that the damages in this case, if any, should be limited to only the cost of repair or cost of market value, whichever is less. Defendant denies Plaintiffs are entitled to attorney’s fees or costs. Defendant’s Original Answer Page 2 EXHIBIT C Defendant affirmatively pleads the Doctrine of Betterment, and any recovery should not provide for the enhancement of the materials, labor, or design not specified in the original plans, specifications, construction contract, or building codes as it would lead to unjust enrichment. Further, to the extent damages are awarded, such damages should be reduced to reflect the extended life expectancy of such component. Defendant affirmatively pleads that prejudgment interest, if any, is limited in accordance with Section 304.104, et seq. of the Texas Finance Code. Defendant affirmatively pleads that any claim for prejudgment interest, insofar as it includes interest on any future damages beyond the time of verdict, is barred by the Texas Constitution, the Due Process Clause of the 14th Amendment, and also the excessive fines and penalties clause of the 8th Amendment of the Constitution of the United States of America. Defendant reserves the right to amend this Original Answer pursuant to the Texas Rules of Civil Procedure. IV. URY EMAND Defendant hereby demands a jury trial. LAINTIFF ISCLOSURES Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiff is requested to disclose to Defendant, within 30 days of the filing of this answer, the information or material described in Rule 194.2. WHEREFORE, PREMESIS CONSIDERED, Defendant respectfully prays that, upon final hearing, judgment be entered that Plaintiffs take nothing by reason of this suit, and Defendant is discharged with prejudice and shall recover all costs of Court. Defendant further prays for such other and relief, both at law and in equity, to which Defendant is justly entitled. Defendant’s Original Answer Page 3 EXHIBIT C Respectfully submitted, ERMER PLLC /s/ Adrian P. Senyszyn Adrian P. Senyszyn State Bar No. 24060585 asenyszyn@germer sa.com Mark A. Zamora State Bar No. 24098651 mzamora@germer -sa.com Plaza Las Campanas 1826 North Loop 1604 West, Suite 300 San Antonio, Texas 78248 Phone: (210) 640-1650 Fax: (512) 472-0721 Attorneys for Defendant CERTIFICATE OF SERVICE I certify that a true and correct copy of Defendant’s Motion to Transfer Venue and Original Answer in the above and foregoing case has been forwarded to the following attorney of record in accordance with the Texas Rules of Civil Procedure on this 1st day of September, 2023. William J. Downs P336 North Main Street, Suite 209 Conroe, Texas 77301 Phone: (936755-4130 Fax: ( 24-56886 Email: bill@barkleylawgroup.com Attorney for Plaintiffs /s/ Adrian P. Senyszyn Adrian P. Senyszyn Defendant’s Original Answer Page 4 EXHIBIT C odyssey.mctx.org/Unsecured/CaseDetail.aspx?CaseID=2629873 My Account Location : All Courts A 23-08-11269 Dennis Mustard and Darlene Mustard vs. Ducky Recovery, LLC Case Type: Ducky Recovery, LLC Adrian P. Senyszyn Registered Agent Capitol Corporate Services, 1501 S Mopac Expressway, Suite 220 Austin, TX 78746 OTHER EVENTS AND HEARINGS Jury Trial Requested Ducky Recovery, LLC Motion to Transfer to Another County Original Answer Total Financial Assessment Total Payments and Credits Transaction Assessment EXHIBIT D-1 odyssey.mctx.org/Unsecured/CaseDetail.aspx?Case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`#a40#N"K1b"NQRM#O"WK1M0#1Q2*I '=@<);)3S EXHIBIT D-2 EXHIBIT D-2 EXHIBIT D-2 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DENNIS MUSTARD AND DARLENE CASE NO. __________ DUCKY RECOVERY, LLC COUNSEL OF RECORD ATTORNEY DENNIS AND DARLENE MUSTARD William J. Downs ARKLEY AW ROUP 336 North Main Street, Suite 209 Conroe, Texas Phone: 936) 755 Fax: 619) 924 bill@barkleylawgroup.com ATTORNEYS FOR DEFENDANT DUCKY RECOVERY, LLC Adrian P. Senyszyn Daniel D. Schick ERMER PLLC Plaza Las Campanas 1826 North Loop 1604 West, Suite 300 San Antonio, Texas 78248 Phone: (210) Fax: (512) 472 asenyszyn@germer sa.com dschick@germer sa.com EXHIBIT D