On July 29, 2022 a ORIGINAL ANSWER - MARS PARTNERS, LTD - SPECIAL EXCEPTIONS was filed involving a dispute between Ackin, Len, Adjei, Ella, Anderson, Preshas, Belmorris, Joshua, Berry, Ernest, Boozer, Antwuan, Bradix, Dorothy, Brewer, Chautaugua, Brown, Alvin, Brown, Katrina, Brown, Kenneth, Brown, Lauren, Bustillos, Orlando, Carnell, Johnny, Chester, Kjatha, Cisse, Sekou, Cisses, Sekou, Crawford, September, Crosley, Tyler, Davis, Kimberly, Diggs, Jake, Duncan, Ronnie, Elhadi, Jihad Abd, Ferguson, Lily, Fisher, Rudolph, Fisher, Sheila, Fonteno, Bobby, Ii, Gaston, Lastesha, Gates, Rondalus, Green, Ashley, Greene, Pamela, Harris, Jaquan, Harrison, Carol, Harrison, Charles, Harrison, Edward, Harrison, Joyce M., Harrison, Latasha, Harrison, Latoya, Harrison, Sharon, Henry, Donmonique, Howard, Rafael, Issah, Willie, Jackson, Marcus, Johnson, Robert, Johnson, Trenton, Jones, Brandon, Jones, Cedric, Jones, Cheryl, Jones, Edward, Jones, Toshi, Jones, Valencia, Kelley, Mildred, Kelley, Raven, Knight-Trigg, Tamara, Lara, Ephraim, Lard, Lazerick, Lee, Jada, Lee, Laquesha, Lee, Mariah, Lester, Ella, Luckey, Angela, Martinez, Jose, Mccray, Cornelius, Mcpherson, Aaron, Mcqueen, Dominika, Mims, Stacey, Mitchell, Benjamin, Montgomery, Jaqueisha, Mosley, Phyllis, Muoka, Margaret, Nixon, Latoya, Nzioka, Joseph, Oldacre, Donald, Oldacre, Glory, Olivarez, Gloria, Pena, Epifani, Pipkins, Sherry, Porter, Michelle, Purifoy, Wakeisha, Rodriguez, Amber, Rodriguez, Jazun, Ross, Edward, Scott, Benjamin, Scott, Hasani, Shelby, Kenneth, Smith, Jermaine, Smith, Sabrina, Stoker, Lester, Swope, Janice, Talley, Kelvin, The Estate Of Cheryl Jones, Tienda, Alexa, Tittel, Michael, Walker, Latasha, Ware, Addonais, Ware, Tara, Ware, T'Ara, Washington, Eartha, Wells, Kristy, West, Laquita, White, Carolyn, White, Darla, Whitemon, Bobby, Whitemon, Dorothy, White, Quinton, White, Sandra, Williams, Calap, Iii, Williams, Jackie, Jr, Woodard, Vickie, Young, Ariel, Young, Pamela, and Brewer, Chautaugua, Davis, Kimberly, Mars Partners, Ltd, Oncor Electric Delivery Company Llc, Oncor Electric Delivery Company, Llc, Poly-America Gp, Llc, Poly America Inc, Poly-America Inc, Poly-America International Inc., Poly-America Lp, for PROPERTY in the District Court of Dallas County.
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FILED 8/24/2022 11:55 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Debra Clark DEPUTY CAUSE NO. DC-22-08610 LEN ACKIN, Individually, et al., IN THE DISTRICT COURT §§§§§§§§§§§§ Plaintiflk, VS. 191“ JUDICML DISTRICT POLY AMERICA INTERNATIONAL INC, POLY-AMERICA, INC., POLY-AMERICA GP, LLC., POLY-AMERICA LP, and MARS PARTNERS, LTD, Defendants. DALLAS COUNTY, TEXAS DEFENDANT MARS PARTNERS, LTD’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO PLAIN TIFF S’ ORIGINAL PETITION AND JURY DEMAND COMES NOW, MARS PARTNERS, LTD (Defendant), Defendant in the above-styled matter, and files its Original Answer and Special Exceptions to Plaintiffs’ Original Petition, and would respectfully show unto the Court as follows: I. SPECIAL EXCEPTIONS 1. Defendant specially excepts to paragraph 1 of the Petition wherein Plaintiffs reference “Violations of statutory law”. It is unclear whether Plaintiffs are alleging a cause of action based on negligence only, or negligence per se. Texas Rule of Civil Procedure 45 “requires that a petition give fair notice of the plaintifi’ s claims. The test of fair notice is whether an opposing attorney of reasonable competence, with the pleadings before him, can determine the nature of the controversy and the testimony that would probably be relevant. A court must be able, form an examination of the plaintiff s pleadings alone, to ascertain with reasonable certainty the elements of a cause of action and the relief sought with sufficient particularity. . ..” Cofley v. Johnson, 142 S.W.3d 414, 417 (Tex.App.- Eastland 2004, no pet.) Plaintiffs have failed to state any of the elements of a negligence per se cause of action. Under Texas’ “fair notice” standard, Defendant is unable to ascertain fiom the pleading the DEFENDANT MARS PARTNERS, LTD.’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO PLAINTE‘FS’ ORIGINAL PETITION AND JURY DEMAND — PAGE 1 nature of Plaintiffs’ claims against it. Plaintiffs should be required to replead with specificity. Of which special exception, Defendant prays judgment of the Court. II. GENERAL DENIAL 2. Defendant denies each and every, all and singular, the material allegations contained within Plaintiffs’ pleadings and demands strict proof thereof. III. AFFIRMATIVE AND OTHER DEFENSES 3. Pleading further, Defendant affirmatively alleges that as to this Defendant, Plaintiffs’ Petition fails to state claims upon which relief can be granted. 4. Pleading further, and without waiver of the foregoing, Defendant had no duty to protect Plaintiffs from the criminal acts of a third person. These acts were unforeseeable to Defendant. As such, the criminal conduct is a superseding and intervening cause that relieves Defendant of liability. 5. Pleading further, and without waiver of the foregoing, Defendant would show that any injuries and damages allegedly sustained by Plaintiffs were caused in whole or in part by the acts, omissions, or defects of third-parties or other defendants, conditions, or tangible items over whom Defendant had no supervision or control and for whom Defendant is not legally responsible; those acts, omissions, or defects were a proximate, producing, sole, or new and independent cause of the incident and alleged damages; and there was no damage related to any alleged acts and/or omissions on the part of Defendant or its employees. 6. Pleading further, and without waiver of the foregoing, under Sections 33.013 and 33.015 of the Texas Civil Practice and Remedies Code, Defendant is entitled to a comparative apportionment of fault, if any, as to other defendants and cross-defendants and/or third parties and DEFENDANT MARS PARTNERS, LTD.’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO PLAINTE‘FS’ ORIGINAL PETITION AND JURY DEMAND — PAGE 2 is entitled to judgment against them for contribution and/or indemnity and/or a percentage reduction in accordance with the apportionment of fault. 7. Pleading further, and Without waiver of the foregoing, Plaintiffs’ claims are barred by the doctrines of contributory negligence, comparative negligence, comparative responsibility, and/or comparative causation. Pursuant to Texas Civil Practice and Remedies Code Section 33.001, et. seq., and the laws of Texas, Defendant invokes the law and doctrine of comparative responsibility and specifically pleads a right of contribution from Plaintiffs and further pleads that the Court should reduce the amount of damages to be recovered by Plaintiffs, if any, by a percentage equal to Plaintiffs’ percentage of responsibility. 8. Pleading further, and without waiver of the foregoing, Defendant denies any and all liability on its part to Plaintiffs. However, in the unlikely event this Court or jury should find Defendant was negligent, then Defendant would respectfully ask this Court to enter judgment for contribution among Defendant and any responsible third parties, as that term is defined in Texas Civil Practice and Remedies Code Chapter 33, not a party to this lawsuit pursuant to Texas Civil Practice and Remedies Code Section 33.001, et. seq., or any other applicable statute or common law rule. 9. Pleading further, and Without waiver of the foregoing, Defendant invokes the provisions of Chapter 33 of the Texas Civil Practice and Remedies Code, including: A. Section 33 .003, which requires the determination of the percentage of responsibility of each party and settling defendant; B. Section 33.001, which provides that the plaintiff may not recover damages if his percentage of responsibility is greater than 50 percent; C. Section 33.013(a), which provides that the defendant is liable to the plaintiff only for the percentage of damages found by the trier of fact equal to the defendant’s percentage of responsibility. DEFENDANT MARS PARTNERS, LTD.’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO PLAINTE‘FS’ ORIGINAL PETITION AND JURY DEMAND — PAGE 3 10. Pleading further, in the alternative and Without waiver of the foregoing, Defendant denies it knew or should have known of the alleged danger or condition that Plaintiffs allege resulted in personal injury to Plaintiffs. 11. Pleading further, in the alternative and without waiver of the foregoing, Defendant alleges that the risks of harm Plaintiffs allege to have suffered, if any, were not known or reasonably knowable at the time of the incident made the basis of Plaintiffs’ claim. Thus, any risk of harm was not reasonably foreseeable, and Defendant should not be held liable for Plaintiffs’ damages, if any. 12. Defendant invokes the limitation on economic damages imposed by Texas Civil Practice and Remedies Code § 41.0105, limiting such damages, and evidence thereof, to expenses that are actually paid or incurred by or on behalf of Plaintiffs. 13. Defendant affirmatively pleads the limitations of damages provisions contained in Chapter 304 of the Texas Finance Code, as superseded by § 311.031(c) of the Texas Government Code. Specifically, Defendant asserts that prejudgment interest shall not accrue until the earlier of 180 days after the date Defendant received notice of this claim or the date suit was filed, and that the same is calculated as simple interest compounded annually. 14. Plaintiffs’ alleged injuries and damages, if any, were proximately caused by superseding and/or intervening acts that disrupted the chain of causation and were wholly beyond the scope and/or control of Defendant. Under such circumstances, Defendant prays its entitlement to submit all appropriate issues supported by such evidence. 15. Plaintiffs’ injuries complained of in this suit were brought about wholly by a new and independent cause or causes not reasonably foreseeable by Defendant, and therefore such new and independent cause or causes became the immediate and efficient cause or causes of injury to DEFENDANT MARS PARTNERS, LTD.’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO PLAINTE‘FS’ ORIGINAL PETITION AND JURY DEMAND — PAGE 4 the extent any and all of the alleged negligent acts and/or omissions complained of by Plaintiffs as against Defendant were Wholly remote and non-causative of the injuries complained of by Plaintiffs. Under such circumstances, Defendant prays its entitlement to submit all appropriate issues supported by such evidence. 16. Defendant breached no duty of care to Plaintiffs, if any. 17. Defendant affirmatively pleads that Plaintiffs’ alleged damages, if any, in Whole or in part, were proximately caused by physical and/or mental conditions existing before the occurrence in question. 18. Plaintiffs’ claims are barred by negligence and/or the comparative/contributory negligence of Plaintiff or others, and/or by the assumption of risks, if any, inherent in the activities alleged to be at issue. 19. Defendant further invokes Texas Civil Practice & Remedies Code § 18.091 and would show that any claimant seeking recovery for loss of earnings, loss of earning capacity, loss of contribution of a pecuniary value, or loss of inheritance should be required to be presented in the form of a net loss after reduction for income tax payments and Defendant will further request jury instructions regarding whether recoveries are subject to Federal or State income taxes. 20. Pleading fiirther, in the unlikely event Defendant is found at fault, the amount recovered for past medical or health care expenses incurred by Plaintiffs is limited by Section 41.0105 of the Texas Civil Practice and Remedies Code. 21. Defendant asserts that if Plaintiffs have failed to make and perfect any available claim for health insurance or worker’s compensation insurance or any other available method for reducing the cost of necessary medical care, then Plaintiffs have failed to mitigate Plaintiffs’ damages as required, and recovery for such damages, if any, should be reduced on that basis. DEFENDANT MARS PARTNERS, LTD.’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO PLAINTE‘FS’ ORIGINAL PETITION AND JURY DEMAND — PAGE 5 Defendant fulther asserts the terms and conditions of the Affordable Care Act requiring all persons to carry and use health and medical insurance coverage. Accordingly, Plaintiffs’ failure to do so, if any, amounts to a failure to mitigate the costs of Plaintiffs’ health and medical care and treatment, both past and future. 22. Pleading further, and without waiver of the foregoing, Defendant denies it committed any act or omission constituting gross negligence against Plaintiffs. 23. Pleading further, and without waiver of the foregoing, Defendant specifically denies it is liable for exemplary damages. Nevertheless, Defendant requests that this Court give proper definitions and instructions on standards for recovery of exemplary damages, and further pleads and invokes the limitations on the amount of recovery for exemplary and punitive damages set forth in Chapter 41 of the Texas Civil Practice and Remedies Code. 24. Pleading further, and without waiver of the foregoing, Defendant affirmatively alleges that Plaintiffs’ claims for gross negligence and/or punitive or exemplary damages are barred, because any award of such damages in unconstitutional under the Constitutions of Texas and the United States. In support of this allegation, Defendant specially avers without limitation: (a) The retrospective imposition of punitive damages under a new cause of action violates the rights of this Defendant under the Contracts Clause of Article I, Section 10 of the United States Constitution. (b) The imposition of punitive damages violates the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution as incorporated by the Fourteenth Amendment of the United States Constitution. (c) Due process requires proof of gross negligence and punitive damages by a standard greater than the preponderance of the evidence standard. (d) Due process requires proof of such claims by proof beyond a reasonable doubt or, alternatively, by clear and convincing evidence. (e) The assessment of punitive damages, a remedy that is essentially criminal in nature, without safeguards greater than that afforded by Texas civil procedure and law, DEFENDANT MARS PARTNERS, LTD.’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO PLAINTE‘FS’ ORIGINAL PETITION AND JURY DEMAND — PAGE 6 constitutes infliction of a criminal penalty Without the safeguards guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. (f) Any award of punitive damages against Defendant, without bifiircation and separate trial of the exemplary damages issues and all other issues in this case, would further Violate Defendant’s due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and by Article I, Section 19, of the Texas Constitution, as well as by the public policy and common law of this State. (g) Any award of punitive damages against Defendant, without requiring the jury to find every element of a cause or causes of action for punitive damages by clear and convincing evidence, and without specifically and expressly charging the jury that they must find every element of that cause or those causes of action by clear and convincing evidence, would violate Defendant’s due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and by Article I, Section 19, of the Texas Constitution, as well as by the public policy and common law of this State. (h) Any award of punitive damages against Defendant, Without requiring the jury to consider the several factors established by the Texas Supreme Court for imposition of punitive damages, and without specifically and expressly charging the jury to consider those factors (namely, the nature of the wrong, the character of the conduct involved, the degree of culpability of the wrongdoer, the situation and sensibilities of the parties concerned, and the extent to which the conduct offends a public sense ofjustice and propriety) would violate Defendant’s due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and by Article I, Section 19, of the Texas Constitution, as well as by the public policy and common law of this State. (i) Any award of punitive damages against Defendant, without any cap or limit whatsoever placed upon the amount of punitive damages that may be awarded, would violate Defendant’s due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and by Article I, Section 19, of the Texas Constitution, as well as by the public policy and common law of this State. (j) Any award of punitive damages against Defendant, which may be based upon any conduct not specifically alleged as the basis for Plaintiff’s claim in this action, would violate Defendant’s due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and by Article I, Section 19, of the Texas Constitution, as well as by the public policy and common law of this State. 25. Defendant invokes the limitations upon punitive damages established pursuant to Texas Rule of Civil Procedure 94 and Texas Civil Practice and Remedies Code § 41.001 et seq., DEFENDANT MARS PARTNERS, LTD.’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO PLAINTE‘FS’ ORIGINAL PETITION AND JURY DEMAND — PAGE 7 both in tenns of the maximum amount of damages that can be awarded pursuant to that statute, and in terms of the procedural safeguards guaranteed by the above-referenced provisions. 26. Defendant pleads all affirmative defenses available under Texas law to the extent such defenses are supported by the evidence as adduced upon the completion of discovery. 27. Defendant adopts and asserts any affirmative defenses raised or asserted by other defendants, if any, to this action that are also applicable to Defendant. 28. Defendant reserves the right to assert any and all additional defenses that become available or appear during discovery proceedings in this action, and Defendant specifically reserves the right to amend its answer for the purpose of asserting such additional affirmative defenses. IV. TRCP 193.7 NOTICE 29. Pursuant to Texas Rule of Civil Procedure 193.7, Defendant hereby gives actual notice to Plaintiffs that any and all documents produced may be used against Plaintiffs or any other party at any pretrial proceeding and/or at the trial of this matter without the necessity of authenticating documents. JURV DEMAND 30. Pursuant to Texas Rule of Civil Procedure 216, Defendant demands a jury trial and the appropriate fee has already been paid by another party to the lawsuit. VL PRAVER WHEREFORE, PREMISES CONSIDERED, Defendant MARS PARTNERS, LTD. prays that Plaintiffs take nothing by this action and that Defendant be dismissed with its costs, and for such other relief, both general and specific, at law or in equity, to which Defendant may be justly entitled. DEFENDANT MARS PARTNERS, LTD.’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO PLAINTE‘FS’ ORIGINAL PETITION AND JURY DEMAND — PAGE 8 Respectfully submitted, DEHAY & ELLISTON, L.L.P. 3500 Bank of America Plaza 901 Main Street Dallas, TX 75202-3736 Telephone: (214) 210-2400 Fax: (214) 210-2500 pwilliams@dehay.com By: /S/ Pamela J. Williams GARY D. ELLISTON Texas State Bar No. 6584700 PAMELA J. WILLIAMS Texas State Bar N0. 00791936 ATTORNEYS FOR DEFENDANT MARS PARTNERS, LTD. CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on August 24, 2022, a true and correct copy of the foregoing instrument has been provided to all counsel of record Via e-filing, in accordance with the Texas Rules of Civil Procedure, to all counsel of record. /s/ Pamela J. Williams PAMELA J. WILLIAMS DEFENDANT MARS PARTNERS, LTD.’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO PLAINTE‘FS’ ORIGINAL PETITION AND JURY DEMAND — PAGE 9 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. Cris Page on behalf of Pamela Williams Bar No. 791936 cpage@dehay.com Envelope ID: 67611806 Status as of 8/24/2022 12:10 PM CST Associated Case Party: LEN ACKIN Name BarNumber Email TimestampSubmitted Status Jennifer Kinder 787837 jkinder@justca|lkinder.net 8/24/2022 11:55:17 AM SENT