On July 29, 2022 a
POLY-AMERICA GP LLC ANSWER TO SECOND AMENDED PETITION - 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.
Preview
FILED
10/4/2022 3:33 PM
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 POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL
EXCEPTIONS TO PLAIN TIFF S’ SECOND AMENDED PETITION
COMES NOW, POLY-AMERICA GP, LLC (Defendant), Defendant in the above-styled
matter, and files its Original Answer and Special Exceptions to Plaintiffs’ Second Amended Petition,
and would respectfully show unto the Court as follows:
I. SPECIAL EXCEPTIONS FOR THE SECOND AMENDED PETITION
1. Defendant specially excepts to Section X of the Second Amended Petition where
Plaintiffs reference Violations of the Texas Health and Safety Code (THSC) §§ 341.002 et a1.,
361.001 et a1., 382.002 et a1., as well as Violations of the Texas Water Code § 26.001 et a1. As a
general matter, "et a1." means "and others." The use of this term after the specific statute section is
overly broad and obscure. Importantly, it does not give fair notice of Plaintiffs‘ claims under this
cause of action. 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, from 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...." Coffey v. Johnson, 142 S.W.3d 414, 417 (TeX.App.—East1and
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE 1
2004, no pet). By merely alleging that Defendant's conduct amounts to "Violations of" several
code sections, Plaintiffs have failed to state any of the elements of a negligence per se cause of
action, therefore causing Defendant to be unable to ascertain the nature of the claims against it—
a violation of Texas' "fair notice" standard. Plaintiffs should be required to replead with specificity.
Of which special exception, Defendant prays judgment of the Court. Specifically,
a. Chapter 341 of the THSC falls under Title 5 Sanitation and Environmental Quality
and sets out the Rules of Sanitation and Health Protection. It is unclear how this
chapter applies to the factual allegations and, if so, which section Plaintiffs are
claiming Defendant violated to support this cause of action. This is not fair notice.
b. Chapter 361 of the THSC is the Solid Waste Disposal Act. Nothing in Plaintiffs'
factual allegations refers to Defendant's solid waste disposal. So, it is unclear how
this chapter applies to the factual allegations and, if so, which section Plaintiffs are
claiming Defendant violated to support this cause of action. This is not fair notice.
c. Chapter 753 of the THSC covers Flammable Liquids. Nothing in Plaintiffs‘ factual
allegations refers to Defendant's use of flammable liquids. So, like above, it is
unclear how this chapter applies to the factual allegations and, if so, which section
Plaintiffs are claiming Defendant violated to support this cause of action. This is
not fair notice.
d. Chapter 26 of the Texas Water Code deals with Water Quality Control. While there
seem to be allegations that Defendant contaminated water, we are left speculating
which specific section(s) Defendant allegedly violated. This is not fair notice.
2. Defendant specially excepts to Section XIV of the Second Amended Petition where
Plaintiffs allege nuisance. According to the Supreme Court of Texas, a plaintiff may only prevail
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE 2
on a nuisance allegation when the defendant proximately causes substantial interference with the
use of enjoyment of land owned or occupied by the plaintiff that is substantial and unreasonable
under the circumstances. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 592—595
(Tex. 2016). An injury without a wrong does not create a cause of action; to establish a cause of
action, a plaintiff must show a legal wrong—a Violation of a legal right and a breach of a legal
duty. Id. at 601. To prove intentional nuisance, the plaintiff must establish that the defendant
deliberately caused the interference, not just that the defendant intentionally engaged in the
conduct that caused the interference. Id. Here, Plaintiffs allege that Defendant is strictly liable but
make no factual allegation that Defendant's use of its facilities is unreasonable or that it
intentionally engaged in conduct that caused an interference. There is no causal link between
Defendant's lawful, reasonable use of its facilities and Plaintiffs’ alleged injuries. Plaintiffs allege,
in the alternative, that Defendant negligently created a nuisance. The Court in Crosstex explained
that, among other things, a plaintiff must show the existence of and the breach of a legal duty to
prove nuisance under a negligence theory. Id. at 606-07. Here, Plaintiffs have not alleged that
Defendant did or failed to do what a person of ordinary prudence in the same circumstance would
have done or not done to repair or abate the condition which caused the alleged nuisance.
3. Defendant specially excepts to Section XV of the Second Amended Petition where
Plaintiffs allege premises liability. For a premises liability case, the plaintiff must prove: (l) the
defendant had actual or constructive knowledge of some condition on the premises; (2) the
condition posed an unreasonable risk of harm; (3) the defendant did not exercise reasonable care
to reduce or eliminate the risk; and (4) the owner's failure proximately caused the plaintiffs
injuries. See Texas Utilities Elec. C0. v. Timmons, 947 S.W.Zd 191, 193—194 (Tex. 1997). Applied
to these elements, the factual allegation that Defendant's "Facility abruptly exploded causing a
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE 3
significant quantity of toxic fumes to pour into the air, water, real property, and the surrounding
area" fails as a matter of law. In general, premises liability involves a plaintiff getting injured While
on the defendant's property, which would not apply to most Plaintiffs here. Also, according to
Plaintiffs' factual allegations, they are all residents of Dallas County, and "[a]t the time of this
explosion and subsequent fire, Plaintiffs were residents of the surrounding area who unwillingly
inhaled said toxic fumes and contaminants, which then seeped into the surrounding area for hours
after the explosion." Then, under this cause of action, Plaintiffs baselessly assert that some of them
"entered Defendant's premises in response to Defendant‘s invitation and for their mutual benefit.
Some Plaintiffs were on the premises for employment or business-related reasons." At a minimum,
Defendant needs notice of which Plaintiffs claim they were on Defendant‘s premises as employees
or for business-related reasons.
4. Defendant specially excepts to Section XVI of the Second Amended Petition where
Plaintiffs allege battery. A civil battery is an intentional tort and shares the same elements as a
criminal battery: (l) intentionally, knowingly, or recklessly (2) causing bodily injury to another,
threatening another with imminent bodily injury, or causing physical contact with another when
you know or should reasonably believe that the other will regard the contact as offensive or
provocative. See Tex. Pen. Code § 22.01(a); Wafile House, Inc. v. Williams, 313 S.W.3d 796, 801
n.4 (Tex. 2010); Johnson v. Johnson, 869 S.W.2d 490, 492—493 (Tex. App.—Eastland 1993, writ
denied). Plaintiffs have failed to plead any facts which would support a battery cause of action
against Defendant.
5. Defendant specially excepts to Sections XVIII—XXIII of the Second Amended
Petition where Plaintiffs allege Defendant is liable for wrongful death and survivorship damages
for three plaintiffs. Plaintiffs have attempted to claim wrongful death and survivorship damages
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE 4
Without first pleading the underlying cause of action (wrongful death). Plaintiffs had made no
factual allegations of when anyone died, their cause of death, and most importantly, Plaintiffs have
made no effort to link any misconduct on Defendant's part to their deaths. Because Defendant's
counsel cannot determine the nature of the controversy and the testimony that would probably be
relevant and because a court cannot, from the pleadings alone, ascertain the cause of action and
the relief sought with sufficient particularly, Plaintiffs have not supplied Defendant with fair notice
under the Cofley standard in Sections XVIII—XXIII of their Second Amended Petition.
6. Defendant specially expects to Section XXIV of the Second Amended Petition
where Plaintiffs allege products liability. As the title of the cause of action provides, such cases
require claims that one of Defendant's products contains a defect. See Tex. Civ. Prac. & Rem. Code
§ 82.00 l (2). In Texas, a products liability action is "any action against a manufacturer or seller for
recovery of damages arising out of personal injury, death, or property damage allegedly caused by
a defective product." Id. (emphasis added). The defect may lie in the product‘s design,
manufacturing, or in the defendant's failure to warn of a dangerous aspect of the product. See
Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 383 (TeX. 1995); Ford Motor Co. v. Ledesma, 242
S.W.3d 32, 41—42 (Tex. 2007); Munoz v. Gulf Oil C0., 732 S.W.2d 62, 65 (Tex. App—Houston
[14th Dist.] 1987, writ refd). Here, Plaintiffs did not create a products liability claim when they
asserted that Defendant's "failure to properly produce polyethylene and other products created a
defect that caused a fire that harmed Plaintiffs[,]" nor did they create one when they asserted, in
the alternative, "the Defendants created a manufacturing defect when their product deviated in
construction and/ or quality from the specifications of the product." The main flaw in Section XXIV
of Plaintiffs' Second Amended Petition is that Plaintiffs did not provide what products Defendant
produces that allegedly injured. Without this information, the Petition does not provide Defendant
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE 5
with fair notice. Further, Plaintiffs fail to make any allegation that there was a defective design in
any of Defendant's products, that any of Defendant's products injured them due to how it was
manufactured, or that Defendant failed to warn them about possible dangers with one of its
products.
II. GENERAL DENIAL
l. 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
2. Pleading further, Defendant affirmatively alleges that as to this Defendant, Plaintifi‘s’
Petition fails to state claims upon which relief can be granted.
3. Pleading filrther, 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.
4. 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.
5. 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
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE 6
apportionment of fault, if any, as to other defendants and cross-defendants and/or third parties and
is entitled to judgment against them for contribution and/or indemnity and/or a percentage
reduction in accordance with the apportionment of fault.
6. 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.
7. Pleading fiirther, 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.
8. 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;
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE 7
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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE 8
14. 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
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.
15. Defendant breached no duty of care to Plaintiffs, if any.
16. 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.
17. 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.
18. 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.
19. 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.
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE 9
20. 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 fiirther 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.
21. Pleading further, and Without waiver of the foregoing, Defendant denies it
committed any act or omission constituting gross negligence against Plaintiffs.
22. 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 4l of the Texas Civil Practice and Remedies Code.
23. 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.
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE 10
(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,
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 bifurcation 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.
(i) 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,
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE ll
would Violate Defendant’s due process rights as guaranteed by the Foulteenth
Amendment to the United States Constitution and by Article I, Section l9, of the
Texas Constitution, as well as by the public policy and common law of this State.
24. 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.,
both in terms 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.
25. 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.
26. Defendant adopts and asserts any affirmative defenses raised or asserted by other
defendants, if any, to this action that are also applicable to Defendant.
27. 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
28. 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.
V. JURY DEMAND
31. Pursuant to Texas Rule of Civil Procedure 216, Defendant demands a jury trial and
the appropriate fee has been paid.
DEFENDANT POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE 12
VL PRAVER
WHEREFORE, PREMISES CONSIDERED, Defendant POLY-AMERICA GP, LLC 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.
Respectfiilly 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
By: /s/ Pamela J. Williams
GARY D. ELLISTON
Texas State Bar No. 6584700
PAMELA J. WILLIAMS
Texas State Bar No. 00791936
ATTORNEYS FOR DEFENDANT
POLY-AMERICA GP, LLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on October 4, 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 POLY-AMERICA GP, LLC’S ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO
PLAINTIFFS’ SECOND AMENDED PETITION AND JURY DEMAND PAGE l3
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Cris Page on behalf of Pamela Williams
Bar No. 791936
cpage@dehay.com
Envelope ID: 68893011
Status as of 10/5/2022 9:44 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Pamela J.Williams pwilliams@dehay.com 10/4/2022 3:33:51 PM SENT
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The rules governing certificates of service have not changed. Filers must still provide a certificate
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Cris Page on behalf of Pamela Williams
Bar No. 791936
cpage@dehay.com
Envelope ID: 68893011
Status as of 10/5/2022 9:44 AM CST
Associated Case Party: LEN ACKIN
Name BarNumber Email TimestampSubmitted Status
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