Preview
FILED
DALLAS COUNTY
10/1 1/2019 4:30 PM
FELICIA PITRE
DISTRICT CLERK
Jeremy Jones
CAUSE NO. DC—16—O6185
MARIA R. FRANCHESCHY, § IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS NEXT §
FRIEND OF ].F AND ].R., MINORS, AND §
AS REPRESENTATIVE OF THE ESTATE §
OF JUAN PABLO RUIZ AND ALONDRA §
GUADALUPE MONTEALVO §
VILLANUEVA §
§
Plain tifls, §
§
V. § DALLAS COUNTY, TEXAS
§
EAST TEXAS PRECAST, LLC., §
GULF COAST PRECAST ERECTORS, §
LLC, WCG CONCRETE STRUCTURES, §
21 TRANSPORT, and DAMON PITRE, §
§
§
Defendants. § 95TH JUDICIAL DISTRICT
PLAINTIFFS’ FIFTH AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT
COMES NOW MARIA R. FRANCHESCHY, INDIVIDUALLY AND AS
NEXT FRIEND OF ].F, A MINOR, AND ].R., A MINOR, AND AS
REPRESENTATIVE OF THE ESTATE OF JUAN PABLO RUIZ ON BEHALF OF
ALL STATUTORY WRONGFUL DEATH BENEFICIARIES UNDER TEX. CIV.
PRAC. & REM. CODE CHAPTER 71, ET. SEQ. 1
AND ALONDRA
1
The Texas Wrongful Death Act expressly limited, for their ”exclusive benefit”, the Class of
persons entitled to bring a Claim: (1) surviving spouse, (2) Children and (3) parents. Any one 0f
them may bring suit, but when less than all 0f them join in the suit, it must appear that they are
suing for the benefit 0f all. While the suit may be brought for the benefit of those not actually
GUADELOUPE MONTEALVO VILLANUEVA, INDIVIDUALLY, hereinafter
”Plaintiffs” in the above—captioned case, filing this their Fifth Amended Original
Petition against EAST TEXAS PRECAST, GULF COAST PRECAST ERECTORS,
WCG CONCRETE STRUCTURES, LLC, 21 TRANSPORT and DAMON PITRE,
collectively ”Defendants”, and as grounds therefore would show this Court the
following:
I.
SUMMARY OF CASE
1.1 Juan Pablo Ruiz Arciso (”Decedent”) was killed 0n May 11, 2016 as a
result 0f numerous breaches of construction industry standards 0f care,
particularly, a complete lack of safety training, safety compliance/enforcement
and supervision by qualified construction site personnel that were in control of
the construction site at issue — a $60 million dollar luxury apartment complex in
Rowlett, Texas, the Terra Lago Apartments. As a result of the failure 0f the
entities all the way up the chain of command in control 0f the work site to
implement and enforce basic safety standards, Decedent was asked/authorized
to operate a 15—t0n telescopic forklift in an unreasonably dangerous manner and
without having the necessary qualifications and mandated safety training.
prosecuting the claim without their knowledge 0r consent, the beneficiaries Who are
prosecuting the Claim must nevertheless intend to bring their wrongful death Claim for all
putative beneficiaries. Maria Francheschy is bringing this action 0n behalf 0f all putative
beneficiaries, including Pablo Ruiz Palomares, the decedent’s father.
Further, the Defendants in control of the construction site and the forklift at issue
failed t0 conduct reasonable safety training and failed to develop reasonable site
management/ supervision/protocol regarding the operation 0f heavy equipment
throughout the job site. Further, the shipper, a Defendant motor carrier under
both federal and state law, negligently entrusted its trailer and heavy load t0 an
disqualified driver over whom it exercised control. Said shipper also violated
federal and state law with regard t0 improper and illegal loading of shipments
0n interstate highways. As a result 0f these and many other Violations of federal
workplace regulations and longstanding construction industry standards,
Decedent was crushed underneath the forklift.
1.2 Had the Defendants followed and adhered to reasonable safety
standards and complied with well—known workplace safety regulations on the
construction premises, Decedent would be alive today. Defendants’ failure to
adhere to the standards and construction and motor carrier regulations was not
only negligent, but grossly negligent, and Plaintiffs seek exemplary damages
under the laws 0f the state 0f Texas. Further, due t0 conducting an unreasonably
unsafe activity, as defined by law, the Defendants are strictly liable.
II.
DISCOVERY CONTROL PLAN
2.1 Pursuant t0 Rule 190.3 0f the Texas Rules 0f Civil Procedure,
Plaintiffs request that discovery in this case be conducted under Level 2 of this
Rule.
III.
PARTIES
3.1 Plaintiff, Maria R. Francheschy resides in Houston, Harris County,
Texas. This Plaintiff is suing (1) in her individual capacity as the wife 0f Juan
Pablo Ruiz Arciso, (2) as the next friend of Juliana Elizabetta Ruiz Francheschy, a
minor, and Jimena Ruiz, a minor, and (3) as representative of the Estate of Juan
Pablo Ruiz Arciso, deceased, 0n behalf 0f all statutory beneficiaries under the
Texas Wrongful Death Act.
3.2 Plaintiff, Alondra Guadalupe Montealvo Villanueva, resides in San
Luis Potosi, Mexico. This Plaintiff is suing in her individual capacity and may be
served with pleadings and discovery at the office of the undersigned counsel.
3.3 Defendant East Texas Precast Co., Ltd. (”ETP”) is a Texas limited
partnership with its principal office located at 44855 Old Houston Highway,
Hempstead, Texas 77445. This Defendant may be served with process through
its registered agent, Elizabeth M. Deballion, COKINOS, BOSIEN 8: YOUNG, Four
Houston Center, 1221 Lamar, 16th Floor, Houston, Texas 77010. This Defendant
may also be served through its general partners Harlow Management, LLC and
Stites Management, LLC. Harlow Management LLC’S principal office is located
at Old Houston Highway, 1/4 Mile West 0f FM 1096, Prairie View, Texas 77446.
This Defendant may be served through its registered agent, Robert W. Diakiw,
8725 FM 362 Brookshire, Texas 77423. Stites Management, LLC’s principal office
is located at Old Houston Highway, 1/4 Mile West of FM 1096, Prairie View, Texas
77446. This Defendant may be served through its registered agent Dale Stites, at
Old Houston Highway, 1/4 Mile West 0f FM 1096, Prairie View, Texas 77446. This
Defendant has appeared and filed an answer herein.
3.4 Defendant Gulf Coast Precast Erectors, LLC (”Gulf Coast Precast”) is
a Texas limited liability corporation with its principal office located at 44855 Old
Houston Highway, Hempstead, Texas 77445. This Defendant may be served
with process through Elizabeth M. Deballion, COKINOS, BOSIEN 8t YOUNG, Four
Houston Center, 1221 Lamar, 16th Floor, Houston, Texas 77010. This Defendant
has appeared and filed an answer herein.
3.5 Defendant WCG Concrete Structures, LLC is a Texas limited liability
company entity with its principal place of business located at 2 Horizon Ct,
Heath, Texas 75032. This Defendant may be served with process by and through
its registered agent for service Jack Robinson at 1 Horizon Ct, Heath, Texas
75032. This Defendant has appeared and filed an answer herein.
3.6 Defendant 21 Transport is a Texas entity with its principal place 0f
business located at 4946 Eppes Street, Houston, Texas 77021. This Defendant has
appeared and filed an answer herein.
3.7 Defendant Damon Pitre is an individual residing in Houston, Harris
County, Texas and may be served at his home address 0r at his job, 21 Transport
at its business address. This Defendant has appeared and filed an answer herein.
IV.
JURISDICTION AND VENUE
4.1 This Court has jurisdiction in this cause since the damages of
Plaintiffs exceed the minimum jurisdictional limits of this Court.
4.2 Venue is proper in Dallas County, Texas pursuant to § 15.002(a)(2)
0f the Texas Civil Practice & Remedies Code because this incident occurred in
Dallas County, and, at the time this cause 0f action occurred, the Defendants
were conducting business, had principal offices, agents and/or representatives
in, and the transactions or 0ccurrence(s) made the basis 0f this suit occurred in
Dallas County, Texas. Additionally, the venue facts show that for convenience 0f
the parties and witnesses and in the interest of justice, Dallas County is one of
proper venue.
V.
FACTS
5.1 On May 11, 2016 Juan Pablo Ruiz Arciso (”Decedent”) was
seriously injured and ultimately died from the injuries sustained at a
construction site when a 15-t0n JCB 510.56 telescopic forklift overturned falling
on top of him pinning him underneath (the ”Occurrence”). Decedent lived for
several minutes after being pinned underneath the boom of the forklift suffering
significant conscious pain, anxiety and mental anguish while several of his co—
workers attempted to render aid t0 him.
5.2 The Occurrence was proximately caused by the Defendants’
breaches 0f well-known construction standards of care and Violations 0f federal
and state motor carrier regulations related to the safe loading and transport of
materials. The Defendants also violated several workplace and occupational
regulations each of which proximately caused the injuries/death 0f Decedent.
The Defendants were acting jointly t0 achieve a common business purpose and,
therefore, are jointly and severally liable. Further, the Defendant East Texas
Precast is vicariously liable for the acts and omissions of their statutory
employee, the driver 0f the 18 wheeler at issue.
5.3 Furthermore, the Decedent, who was not properly and adequately
trained to operate the specific forklift at issue, was
required/ asked/allowed/ authorized by the Defendants to operate the forklift in
a manner inconsistent with its intended purpose and in Violation of the warnings
provided by the manufacturer. As a result, the forklift overturned when a
tractor/ trailer operated by 21 Transport pulled the forklift in the wrong direction
causing the forklift t0 lose its center of gravity and capsize on the driver’s side,
crushing the Decedent underneath and killing him.
5.4 The construction project, a 447—unit luxury apartment complex, was
behind schedule, causing the Defendants to disregard and otherwise overlook
safety measures that would have prevented the Occurrence. The Defendants’
conduct, which when Viewed objectively from the standpoint 0f the Defendants
at the time of the Occurrence involved an extreme degrees of risk, when
considering the probability and magnitude 0f the potential harm/ death to
others; and of which the Defendants had actual, subjective awareness 0f the risks
involved, but nevertheless disregarded those risks proceeding with conscious
indifference t0 the rights, safety, 0r welfare 0f others in an effort to stay 0n a
construction schedule. The Defendants’ conduct demonstrates a conscious
disregard 0f the rights, welfare and safety 0f the Decedent.
VI.
CAUSES OF ACTION
A. Negligence - Construction Standards of Care
6.1 Each of the Defendants owed Decedent a duty 0f ordinary care 0f a
reasonably prudent company in the construction industry.
6.2 East Texas Precast and Gulf Coast Precast Erectors acted together,
jointly, as contractors 0f the garage construction project and jointly
controlled/managed/ supervised the job site and the work performed 0n the site.
Both East Texas Precast and Gulf Coast Precast Erectors failed t0 act as
reasonably prudent contractors and such failure proximately caused
injuries/ death t0 Decedent.
B. Negligence — Motor Carrier Violations - Statutory Employee
6.3 Defendant ETP, transporting precast concrete walls on an 18—
wheeler expandable pole trailer, owed a duty t0 the Decedent. Further, because
ETP controlled the load and manner/method 0f Damon Pitre/21 Transport’s
activities — and caused Pitre and 21 Transport to engage in intrastate
transportation of its loads, ETP is the statutory employer of Pitre and is
vicariously liable for his acts and omissions that proximately caused the death of
the decedent. Defendant ETP failed t0 exercise ordinary care. Defendant ETP’S
breach 0f its duties t0 the Decedent proximately caused injuries/death to
Decedent.
C. Negligence - Failure t0 Exercise Ordinary Care
6.4 Through the acts of their employees and agents, the Defendants
failed t0 exercise ordinary care of reasonably prudent individuals/companies
under the same or similar circumstances. Defendants’ failure t0 exercise
ordinary care proximately caused the injuries and subsequent death 0f the
decedent.
D. Gross Negligence - Conscious Disregard
6.5 Reasonable safety standards on the construction project were wholly
lacking. A complete breach in the chain 0f command occurred that amounted t0
the failure to comply with known construction job site standards. The
breakdowns were so significant that they were reasonably likely to be caused by
willful and wonton acts and omissions constituting gross negligence as to all
Defendants, as the term ”gross negligence” is defined under the Chapter 41 of
the Texas Civil Practice and Remedies Code. T0 wit: The Defendants’ conduct,
which when viewed objectively from the standpoint of the Defendants at the
time 0f the Occurrence involved an extreme degree 0f risk, considering the
probability and magnitude of the potential harm t0 others; and of which the
Defendants had actual, subjective awareness 0f the risk involved, but
nevertheless proceeded with conscious indifference t0 the rights, safety, or
welfare 0f others. The Defendants’ conduct demonstrates a conscious disregard
0f the rights, welfare and safety of the Decedent. The Plaintiffs suffered damages
as a result 0f the Defendants’ gross negligence. The Plaintiffs’ damages are
within the jurisdictional limits of this Court.
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E. Wrongful Death.
6.6 Plaintiffs fully incorporate Paragraphs 6.1—6.6 by reference. The
Defendants are liable under the Texas Wrongful Death Act, TEX. CIV. PRAC. &
REM. CODE Sections 71.001 t0 71.012.
6.7 Plaintiff Maria R. Francheschy, the wife 0f the Decedent, is a
statutory beneficiary of the Decedent. Plaintiff Maria R. Francheschy is the
mother of two minor children 0f Decedent and is acting through this action
individually and as their next friend. Further, Maria R. Francheschy is the
representative of the Estate of Juan Pablo Ruiz Arciso. Plaintiff Alondra
Guadalupe Montalvo Villanueva is the natural born adult daughter of Decedent
and, also, is a statutory beneficiary of the Decedent. Decedent’s father is a
statutory beneficiary whose interest is also represented by Maria Francheschy.
6.8 The Defendants are statutory corporations.
6.9 The Defendants’ wrongful acts caused the death of the Decedent.
6.10 The Plaintiffs suffered actual injury.
6.13 The Decedent did not have any debts at the time 0f his death. N0
administration 0f his estate is pending and none is necessary.
G. Survival Action
6.14 Plaintiffs incorporate Paragraphs 5.1 through 5.5 by reference.
Defendants are liable under the Texas Survival Statute, TEX. CIV. PRAC. 8t REM.
CODE §71.021.
11
6.15 The Plaintiff is the legal representative 0f the Decedent’s estate;
6.16 The Decedent had a cause 0f action for bodily injury before he died;
6.17 The Decedent would have been entitled t0 bring an action for his
injuries had he lived;
6.18 The Defendants’ wrongful acts and omissions caused the Decedent’s
injuries.
H. Negligence Per Se - Damon Pitre, 21 Transportation, LLC and ETP
6.19 Defendants Pitre and 21 Transportation’s conduct described herein
constitutes an unexcused breach of duty imposed by the Federal Motor Carrier
Safety Administration 49 CFR § 391 et seq. Specifically, Defendants’ breached 49
CFR § 391.15(c)(2)(iii) and (v).
6.20 Plaintiffs are members 0f the Class that 49 CFR § 391 et seq. were
designated to protect.
6.21 Defendants’ unexcused breach 0f the duties imposed proximately
caused Plaintiffs’ injuries described herein.
6.22 Further, because ETP controlled the activities 0f Pitre and 21
Transport, ETP is the statutory employer of Pitre despite claiming he is an
independent contractor. ETP intentionally overloaded Pitre’s load, attempted t0
assist Pitre in circumventing the motor carrier statutes, and hired an unqualified
driver t0 haul overweight loads across Texas roads in Violation 0f both federal
and Texas state motor carrier laws. Accordingly, ETP is legally and vicariously
12
liable for Pitre and 21 Transport’s wrongful activities. Defendants Pitre, 21
Transport and ETP’s Violation 0f motor carrier statutes proximately caused the
injuries and ultimate death 0f the decedent.
VII.
APPLICATION FOR TEMPORARY RESTRAINING ORDER
7.1 The facts pled above demonstrate the irreparable harm that
Plaintiffs will suffer unless the Defendants are ordered to preserve certain
evidence and allow an immediate inspection of (1) the forklift involved in the
Occurrence; (2) the Chain and chain(s) involved in the Occurrence; (3) the tractor
and trailer owned/maintained by ETP involved in the Occurrence; (4) the job
site; (5) job site sign—in and sign—out forms/sheets; (6) job site safety training
forms/ documents; (7) Videotapes 0f construction site at or near the time 0f the
Occurrence; (8) any and all still photographs 0f the job site at 0r near the time of
the Occurrence; (9) any and all ”witness statements” as defined under Tex. R.
Civ. P. 192.3(h). Materially, Plaintiff requests an order from this Court to close
the construction site until the Defendants allow an inspection 0f the site and the
equipment involved in this incident. After a short closure from May 11 to May
13, Defendants have re—opened the construction site, increasing the probability
that evidence will deteriorate 01‘ become lost. There is a substantial likelihood
that important evidence will deteriorate and that spoliation 0f other evidence is
13
likely (i.e., Videotape 0f incident) unless this Court issues the ex part6 relief
requested in this application.
7.2 TEX. R. CIV. P. 680 provides:
Notemporary restraining order shall be granted without
notice to the adverse party unless it clearly appears from specific
facts shown by affidavit or by the verified complaint that
immediate and irreparable injury, loss, or damage will result to
the applicant before notice can be served and a hearing had
thereon. Every restraining order granted without notice shall be
endorsed with the date and hour of issuance; shall be filed
forthwith in the clerk’s office and entered of record; shall define
the injury and state why it is irreparable and why the order was
granted without notice; and shall expire by its terms within such
time after signing, not to exceed fourteen days, as the court fixes,
unless within the time so fixed the order, for good cause shown, is
extended for a like period or unless the party against whom the
order is directed consents that it may be extended for a longer
period. The reasons for the extension shall be entered of record.
No more than one extension may be granted unless subsequent
extensions are unopposed. In case a temporary restraining order is
granted without notice, the application for a temporary injunction
shall be set down for hearing at the earliest possible date and
takes precedence of all matters except older matters of the same
character; and When the application comes on for hearing the party
who obtained the temporary restraining order shall proceed with
the application for temporary injunction and, if he does not do so,
the court shall dissolve the temporary restraining order. On two
days’ notice to the party who obtained the temporary restraining
order without notice or on such shorter notice to that party as the
court may prescribe, the adverse party may appear and move its
dissolution or modification and in that event the court shall
proceed to hear and determine such motion as expeditiously as the
ends of justice require.
Every restraining order shall include an order setting a certain date for hearing
on the temporary or permanent injunction sought. (emphasis added).
14
7.3 Pursuant t0 Dallas County Local Rule 2.02(a), Plaintiffs’ counsel
notified the Defendants or their counsel of Plaintiffs’ intention to present this
application for emergency, ex part6, relief t0 the Court at least 2 hours before this
application was filed and proposed order are presented to the Court. Plaintiffs’
counsel attempted last week t0 conference in writing with the Defendants or
their legal counsel to resolve the matters set forth in this application by
agreement (See Exhibit A); however n0 such agreement t0 preserve the status quo
could be reached making this application necessary. Maintenance of the status
qua is necessary for the protection 0f Plaintiffs or irreparable harm is reasonably
probable.
7.4 The Plaintiffs request a hearing on their application for temporary
injunction as soon as reasonably practicable from the date 0f issuance 0f the
temporary restraining order, if entered.
7.5 Plaintiffs request that if the temporary restraining order is granted
by the Court that a reasonable bond be set in the amount of $100.00.
VIII.
DAMAGES
8.1 As a direct and proximate result 0f the conduct of Defendants,
Plaintiffs suffered the following damages:
(a) Pecuniary losses — loss 0f household services, wages, earnings
and earning capacity, advice of counsel, services, care,
15
maintenance, support, love and reasonable contributions 0f a
pecuniary value in the past and future.
Expenses for past medical treatment or medical
expenses that are reasonably probable to occur in the
future;
Funeral expenses;
Mental Anguish in the past and future;
Loss of companionship and society in the past and future;
Conscious pain and suffering and mental anguish of
Decedent;
Pre-judgment interest;
Post-judgment interest;
Costs 0f Court;
8.2 Pursuant to Tex. R. Civ. P. 47(C) Plaintiffs plead that they seek
monetary relief in excess of $1,000,000.00.
IX.
EXEMPLARY DAMAGES
9.1 The acts and omissions described in the preceding paragraphs
constitute gross negligence and malice as that term is defined by Texas Civil
Practice and Remedies Code §41.003(11). The acts or omissions 0f the Defendant,
when Viewed objectively from the Defendant’s standpoint at the time it occurred,
16
involved an extreme degree 0f risk, considering the probability and magnitude
0f the potential harm to others. Further, the Defendants had actual, subjective
awareness 0f the risks involved, but nevertheless disregarded those risks
proceeding with conscious indifference t0 the rights, safety, 0r welfare of others
in an effort to stay on the construction schedule.
9.2 As a result, the Plaintiffs request imposition of exemplary damages
in an amount not to exceed Fifty-Nine Million Dollars ($59,000,000.00) or the caps
set forth in TEX. CIV. PRAC. & REM. CODE §41.008(b) — whichever is greater.
X.
JURY DEMAND
10.1 Plaintiff demands a trial by jury. The requisite jury fee accompanies
this request.
XI.
REQUEST FOR DISCLOSURE
11.1 Pursuant to Rule 194 0f the Texas Rules of Civil Procedure,
Defendants are requested to disclose the information and material described in
Rule 194.2 within fifty (50) days 0f the service of this request at the office 0f the
undersigned.
17
XII.
REQUEST FOR PRODUCTION
12.1 Pursuant to Rule 196 0f the Texas Rules of Civil Procedure,
Defendants are requested to produce the following documents within fifty (50)
days of the service 0f this request at the office of the undersigned:
1. A11 sign—in sheets/forms/ documents for the construction site, Terra
Lago, for each day construction took place through the date of your
response.
A11 contracts existing between any Defendant concerning work
performed 0n the construction site, Terra Lago, at issue.
A11 Videotapes 0r other photographic evidence depicting 0r showing
the scene of the Occurrence on May 11, 2016.
A11 reports any investigation or inspection of the job site,
of
witnesses, 0r equipment/ tangible things involved in the Occurrence.
A11 correspondence to or from any other Defendant concerning the
Occurrence.
The forklift involved in the Occurrence.
The tractor involved in the Occurrence.
The trailer involved in the Occurrence.
The chain(s) involved in the Occurrence.
10. The crane pads involved in the Occurrence.
11. A11 safety training sign—in sheets 0n the day of the Occurrence.
12. A11 safety training sign—in sheets 0n the day preceding the
Occurrence.
18
13. A11 safety training sign-in sheets following the Occurrence.
14. A11 safety training from the beginning
sign—in sheets 0f the
construction project through the date of your response to this
request.
15. A11 safety training Videotapes shown to contractors on the Terra
Lago project.
16. A11 safety training brochures 0r materials given t0 contractors 0n the
Terra Lago project.
17. Any and all written safety standards for the Terra Lago project.
18. Documents reflecting Violations of the written safety standards of
the Terra Lago project by any contractor working on the jobsite.
19. Documents concerning the employment 0f Juan Pablo Ruiz Arciso,
including his complete employment file, pay records from January 1,
2010 through present, discipline, promotions, and other
employment documents.
20. Any and documents, tangible things 0r reports prepared by a
all
consulting expert that has been reviewed by a testifying expert as
that term is defined under Rule 194.
21. The rental agreement or ownership history (including title) of the
telescopic forklift involved in the Occurrence.
22. The rental agreement or ownership history (including title) 0f the
trailer involved in the Occurrence.
23. The maintenance records of the telescopic forklift at issue from
January 1, 2013 to May 11, 2016.
24. The maintenance records of the trailer at issue from January 1, 2013
to present.
25. The maintenance records of the tractor at issue from January 1, 2013
to present.
19
26. The rental agreement or ownership history (including title) of the
tractor involved in the Occurrence.
27. The rental agreement for the Consolidated crane on the job site and
any correspondence to 0r from Consolidated related to the crane on
the Terra Lago construction site.
28. Photographs, video, or electronic images of the construction site
from the commencement date 0f construction project until present.
29. The AIA 0r other construction agreement between Portfolio
Development, LLC and Cobalt Construction Company and/or
Wade Construction Group (or a joint venture of both).
30. The subcontract agreements between Cobalt Construction Company
and/or Wade Construction Group (or a joint venture of both) and
any subcontractor performing work 0n the project.
31. A11 policies of insurance or insuring agreements covering You or any
additional insured for the Occurrence, including Primary
Commercial General Liability (CGL), excess or secondary liability
coverage 01' umbrella coverage.
32. A11 agreements between Cobalt Construction Company and Wade
Construction Group regarding a joint venture of general contractor
responsibilities on the construction project.
33. Any and correspondence to or from the Occupational Health
all 8:
Safety Administration (OSHA).
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants
be Cited to appear and answer herein, that upon final trial and other hearing of
this cause, that Plaintiffs recover damages from Defendants in accordance with
the evidence, and as the jury deems them deserving, that Plaintiffs recover costs
0f court herein expended; that Plaintiffs recover interest to which Plaintiffs are
20
justly entitled under the law, both pre—judgment and post-judgment, and for
such other further relief, both general and special, both in law and in equity, to
which Plaintiffs may be justly entitled.
Respectfully submitted,
ROBERTS MARKLAND LLP
/s/ Sean A. Roberts
SEAN A. ROBERTS
State Bar N0. 00797328
R. CLIVE MARKLAND
State Bar N0. 24027475
ROBERTO O. CANTU
State BarN0. 24094580
2555 North MacGregor, Suite 200
Houston, Texas 77004
(713) 630—0900 (Telephone)
(713) 630-0991 (Fax)
sr@r0bertsmarkland.c0m
ATTORNEYS FOR PLAINTIFF
VERIFICATION
Sean A. Roberts, counsel for Plaintiff and officer of the Court, hereby
I,
verify under penalty of perjury that the facts stated herein in support of
Plaintiffs’ Application for Temporary Restraining Order are true and correct.
/s/ Sean A. Roberts
Sean A. Roberts
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CERTIFICATE OF SERVICE
I hereby certify that a true and correctcopy of the foregoing instrument
was transmitted t0 all counsel of record in accordance with Tex. R. Civ. P. 21a on
this 11th day of October, 2019.
/s/ Sean A. Roberts
Sean A. Roberts
22
Preview
FILED DALLAS COUNTY 10/1 1/2019 4:30 PM FELICIA PITRE DISTRICT CLERK Jeremy Jones CAUSE NO. DC—16—O6185 MARIA R. FRANCHESCHY, § IN THE DISTRICT COURT OF INDIVIDUALLY AND AS NEXT § FRIEND OF ].F AND ].R., MINORS, AND § AS REPRESENTATIVE OF THE ESTATE § OF JUAN PABLO RUIZ AND ALONDRA § GUADALUPE MONTEALVO § VILLANUEVA § § Plain tifls, § § V. § DALLAS COUNTY, TEXAS § EAST TEXAS PRECAST, LLC., § GULF COAST PRECAST ERECTORS, § LLC, WCG CONCRETE STRUCTURES, § 21 TRANSPORT, and DAMON PITRE, § § § Defendants. § 95TH JUDICIAL DISTRICT PLAINTIFFS’ FIFTH AMENDED PETITION TO THE HONORABLE JUDGE OF SAID COURT COMES NOW MARIA R. FRANCHESCHY, INDIVIDUALLY AND AS NEXT FRIEND OF ].F, A MINOR, AND ].R., A MINOR, AND AS REPRESENTATIVE OF THE ESTATE OF JUAN PABLO RUIZ ON BEHALF OF ALL STATUTORY WRONGFUL DEATH BENEFICIARIES UNDER TEX. CIV. PRAC. & REM. CODE CHAPTER 71, ET. SEQ. 1 AND ALONDRA 1 The Texas Wrongful Death Act expressly limited, for their ”exclusive benefit”, the Class of persons entitled to bring a Claim: (1) surviving spouse, (2) Children and (3) parents. Any one 0f them may bring suit, but when less than all 0f them join in the suit, it must appear that they are suing for the benefit 0f all. While the suit may be brought for the benefit of those not actually GUADELOUPE MONTEALVO VILLANUEVA, INDIVIDUALLY, hereinafter ”Plaintiffs” in the above—captioned case, filing this their Fifth Amended Original Petition against EAST TEXAS PRECAST, GULF COAST PRECAST ERECTORS, WCG CONCRETE STRUCTURES, LLC, 21 TRANSPORT and DAMON PITRE, collectively ”Defendants”, and as grounds therefore would show this Court the following: I. SUMMARY OF CASE 1.1 Juan Pablo Ruiz Arciso (”Decedent”) was killed 0n May 11, 2016 as a result 0f numerous breaches of construction industry standards 0f care, particularly, a complete lack of safety training, safety compliance/enforcement and supervision by qualified construction site personnel that were in control of the construction site at issue — a $60 million dollar luxury apartment complex in Rowlett, Texas, the Terra Lago Apartments. As a result of the failure 0f the entities all the way up the chain of command in control 0f the work site to implement and enforce basic safety standards, Decedent was asked/authorized to operate a 15—t0n telescopic forklift in an unreasonably dangerous manner and without having the necessary qualifications and mandated safety training. prosecuting the claim without their knowledge 0r consent, the beneficiaries Who are prosecuting the Claim must nevertheless intend to bring their wrongful death Claim for all putative beneficiaries. Maria Francheschy is bringing this action 0n behalf 0f all putative beneficiaries, including Pablo Ruiz Palomares, the decedent’s father. Further, the Defendants in control of the construction site and the forklift at issue failed t0 conduct reasonable safety training and failed to develop reasonable site management/ supervision/protocol regarding the operation 0f heavy equipment throughout the job site. Further, the shipper, a Defendant motor carrier under both federal and state law, negligently entrusted its trailer and heavy load t0 an disqualified driver over whom it exercised control. Said shipper also violated federal and state law with regard t0 improper and illegal loading of shipments 0n interstate highways. As a result 0f these and many other Violations of federal workplace regulations and longstanding construction industry standards, Decedent was crushed underneath the forklift. 1.2 Had the Defendants followed and adhered to reasonable safety standards and complied with well—known workplace safety regulations on the construction premises, Decedent would be alive today. Defendants’ failure to adhere to the standards and construction and motor carrier regulations was not only negligent, but grossly negligent, and Plaintiffs seek exemplary damages under the laws 0f the state 0f Texas. Further, due t0 conducting an unreasonably unsafe activity, as defined by law, the Defendants are strictly liable. II. DISCOVERY CONTROL PLAN 2.1 Pursuant t0 Rule 190.3 0f the Texas Rules 0f Civil Procedure, Plaintiffs request that discovery in this case be conducted under Level 2 of this Rule. III. PARTIES 3.1 Plaintiff, Maria R. Francheschy resides in Houston, Harris County, Texas. This Plaintiff is suing (1) in her individual capacity as the wife 0f Juan Pablo Ruiz Arciso, (2) as the next friend of Juliana Elizabetta Ruiz Francheschy, a minor, and Jimena Ruiz, a minor, and (3) as representative of the Estate of Juan Pablo Ruiz Arciso, deceased, 0n behalf 0f all statutory beneficiaries under the Texas Wrongful Death Act. 3.2 Plaintiff, Alondra Guadalupe Montealvo Villanueva, resides in San Luis Potosi, Mexico. This Plaintiff is suing in her individual capacity and may be served with pleadings and discovery at the office of the undersigned counsel. 3.3 Defendant East Texas Precast Co., Ltd. (”ETP”) is a Texas limited partnership with its principal office located at 44855 Old Houston Highway, Hempstead, Texas 77445. This Defendant may be served with process through its registered agent, Elizabeth M. Deballion, COKINOS, BOSIEN 8: YOUNG, Four Houston Center, 1221 Lamar, 16th Floor, Houston, Texas 77010. This Defendant may also be served through its general partners Harlow Management, LLC and Stites Management, LLC. Harlow Management LLC’S principal office is located at Old Houston Highway, 1/4 Mile West 0f FM 1096, Prairie View, Texas 77446. This Defendant may be served through its registered agent, Robert W. Diakiw, 8725 FM 362 Brookshire, Texas 77423. Stites Management, LLC’s principal office is located at Old Houston Highway, 1/4 Mile West of FM 1096, Prairie View, Texas 77446. This Defendant may be served through its registered agent Dale Stites, at Old Houston Highway, 1/4 Mile West 0f FM 1096, Prairie View, Texas 77446. This Defendant has appeared and filed an answer herein. 3.4 Defendant Gulf Coast Precast Erectors, LLC (”Gulf Coast Precast”) is a Texas limited liability corporation with its principal office located at 44855 Old Houston Highway, Hempstead, Texas 77445. This Defendant may be served with process through Elizabeth M. Deballion, COKINOS, BOSIEN 8t YOUNG, Four Houston Center, 1221 Lamar, 16th Floor, Houston, Texas 77010. This Defendant has appeared and filed an answer herein. 3.5 Defendant WCG Concrete Structures, LLC is a Texas limited liability company entity with its principal place of business located at 2 Horizon Ct, Heath, Texas 75032. This Defendant may be served with process by and through its registered agent for service Jack Robinson at 1 Horizon Ct, Heath, Texas 75032. This Defendant has appeared and filed an answer herein. 3.6 Defendant 21 Transport is a Texas entity with its principal place 0f business located at 4946 Eppes Street, Houston, Texas 77021. This Defendant has appeared and filed an answer herein. 3.7 Defendant Damon Pitre is an individual residing in Houston, Harris County, Texas and may be served at his home address 0r at his job, 21 Transport at its business address. This Defendant has appeared and filed an answer herein. IV. JURISDICTION AND VENUE 4.1 This Court has jurisdiction in this cause since the damages of Plaintiffs exceed the minimum jurisdictional limits of this Court. 4.2 Venue is proper in Dallas County, Texas pursuant to § 15.002(a)(2) 0f the Texas Civil Practice & Remedies Code because this incident occurred in Dallas County, and, at the time this cause 0f action occurred, the Defendants were conducting business, had principal offices, agents and/or representatives in, and the transactions or 0ccurrence(s) made the basis 0f this suit occurred in Dallas County, Texas. Additionally, the venue facts show that for convenience 0f the parties and witnesses and in the interest of justice, Dallas County is one of proper venue. V. FACTS 5.1 On May 11, 2016 Juan Pablo Ruiz Arciso (”Decedent”) was seriously injured and ultimately died from the injuries sustained at a construction site when a 15-t0n JCB 510.56 telescopic forklift overturned falling on top of him pinning him underneath (the ”Occurrence”). Decedent lived for several minutes after being pinned underneath the boom of the forklift suffering significant conscious pain, anxiety and mental anguish while several of his co— workers attempted to render aid t0 him. 5.2 The Occurrence was proximately caused by the Defendants’ breaches 0f well-known construction standards of care and Violations 0f federal and state motor carrier regulations related to the safe loading and transport of materials. The Defendants also violated several workplace and occupational regulations each of which proximately caused the injuries/death 0f Decedent. The Defendants were acting jointly t0 achieve a common business purpose and, therefore, are jointly and severally liable. Further, the Defendant East Texas Precast is vicariously liable for the acts and omissions of their statutory employee, the driver 0f the 18 wheeler at issue. 5.3 Furthermore, the Decedent, who was not properly and adequately trained to operate the specific forklift at issue, was required/ asked/allowed/ authorized by the Defendants to operate the forklift in a manner inconsistent with its intended purpose and in Violation of the warnings provided by the manufacturer. As a result, the forklift overturned when a tractor/ trailer operated by 21 Transport pulled the forklift in the wrong direction causing the forklift t0 lose its center of gravity and capsize on the driver’s side, crushing the Decedent underneath and killing him. 5.4 The construction project, a 447—unit luxury apartment complex, was behind schedule, causing the Defendants to disregard and otherwise overlook safety measures that would have prevented the Occurrence. The Defendants’ conduct, which when Viewed objectively from the standpoint 0f the Defendants at the time of the Occurrence involved an extreme degrees of risk, when considering the probability and magnitude 0f the potential harm/ death to others; and of which the Defendants had actual, subjective awareness 0f the risks involved, but nevertheless disregarded those risks proceeding with conscious indifference t0 the rights, safety, 0r welfare 0f others in an effort to stay 0n a construction schedule. The Defendants’ conduct demonstrates a conscious disregard 0f the rights, welfare and safety 0f the Decedent. VI. CAUSES OF ACTION A. Negligence - Construction Standards of Care 6.1 Each of the Defendants owed Decedent a duty 0f ordinary care 0f a reasonably prudent company in the construction industry. 6.2 East Texas Precast and Gulf Coast Precast Erectors acted together, jointly, as contractors 0f the garage construction project and jointly controlled/managed/ supervised the job site and the work performed 0n the site. Both East Texas Precast and Gulf Coast Precast Erectors failed t0 act as reasonably prudent contractors and such failure proximately caused injuries/ death t0 Decedent. B. Negligence — Motor Carrier Violations - Statutory Employee 6.3 Defendant ETP, transporting precast concrete walls on an 18— wheeler expandable pole trailer, owed a duty t0 the Decedent. Further, because ETP controlled the load and manner/method 0f Damon Pitre/21 Transport’s activities — and caused Pitre and 21 Transport to engage in intrastate transportation of its loads, ETP is the statutory employer of Pitre and is vicariously liable for his acts and omissions that proximately caused the death of the decedent. Defendant ETP failed t0 exercise ordinary care. Defendant ETP’S breach 0f its duties t0 the Decedent proximately caused injuries/death to Decedent. C. Negligence - Failure t0 Exercise Ordinary Care 6.4 Through the acts of their employees and agents, the Defendants failed t0 exercise ordinary care of reasonably prudent individuals/companies under the same or similar circumstances. Defendants’ failure t0 exercise ordinary care proximately caused the injuries and subsequent death 0f the decedent. D. Gross Negligence - Conscious Disregard 6.5 Reasonable safety standards on the construction project were wholly lacking. A complete breach in the chain 0f command occurred that amounted t0 the failure to comply with known construction job site standards. The breakdowns were so significant that they were reasonably likely to be caused by willful and wonton acts and omissions constituting gross negligence as to all Defendants, as the term ”gross negligence” is defined under the Chapter 41 of the Texas Civil Practice and Remedies Code. T0 wit: The Defendants’ conduct, which when viewed objectively from the standpoint of the Defendants at the time 0f the Occurrence involved an extreme degree 0f risk, considering the probability and magnitude of the potential harm t0 others; and of which the Defendants had actual, subjective awareness 0f the risk involved, but nevertheless proceeded with conscious indifference t0 the rights, safety, or welfare 0f others. The Defendants’ conduct demonstrates a conscious disregard 0f the rights, welfare and safety of the Decedent. The Plaintiffs suffered damages as a result 0f the Defendants’ gross negligence. The Plaintiffs’ damages are within the jurisdictional limits of this Court. 10 E. Wrongful Death. 6.6 Plaintiffs fully incorporate Paragraphs 6.1—6.6 by reference. The Defendants are liable under the Texas Wrongful Death Act, TEX. CIV. PRAC. & REM. CODE Sections 71.001 t0 71.012. 6.7 Plaintiff Maria R. Francheschy, the wife 0f the Decedent, is a statutory beneficiary of the Decedent. Plaintiff Maria R. Francheschy is the mother of two minor children 0f Decedent and is acting through this action individually and as their next friend. Further, Maria R. Francheschy is the representative of the Estate of Juan Pablo Ruiz Arciso. Plaintiff Alondra Guadalupe Montalvo Villanueva is the natural born adult daughter of Decedent and, also, is a statutory beneficiary of the Decedent. Decedent’s father is a statutory beneficiary whose interest is also represented by Maria Francheschy. 6.8 The Defendants are statutory corporations. 6.9 The Defendants’ wrongful acts caused the death of the Decedent. 6.10 The Plaintiffs suffered actual injury. 6.13 The Decedent did not have any debts at the time 0f his death. N0 administration 0f his estate is pending and none is necessary. G. Survival Action 6.14 Plaintiffs incorporate Paragraphs 5.1 through 5.5 by reference. Defendants are liable under the Texas Survival Statute, TEX. CIV. PRAC. 8t REM. CODE §71.021. 11 6.15 The Plaintiff is the legal representative 0f the Decedent’s estate; 6.16 The Decedent had a cause 0f action for bodily injury before he died; 6.17 The Decedent would have been entitled t0 bring an action for his injuries had he lived; 6.18 The Defendants’ wrongful acts and omissions caused the Decedent’s injuries. H. Negligence Per Se - Damon Pitre, 21 Transportation, LLC and ETP 6.19 Defendants Pitre and 21 Transportation’s conduct described herein constitutes an unexcused breach of duty imposed by the Federal Motor Carrier Safety Administration 49 CFR § 391 et seq. Specifically, Defendants’ breached 49 CFR § 391.15(c)(2)(iii) and (v). 6.20 Plaintiffs are members 0f the Class that 49 CFR § 391 et seq. were designated to protect. 6.21 Defendants’ unexcused breach 0f the duties imposed proximately caused Plaintiffs’ injuries described herein. 6.22 Further, because ETP controlled the activities 0f Pitre and 21 Transport, ETP is the statutory employer of Pitre despite claiming he is an independent contractor. ETP intentionally overloaded Pitre’s load, attempted t0 assist Pitre in circumventing the motor carrier statutes, and hired an unqualified driver t0 haul overweight loads across Texas roads in Violation 0f both federal and Texas state motor carrier laws. Accordingly, ETP is legally and vicariously 12 liable for Pitre and 21 Transport’s wrongful activities. Defendants Pitre, 21 Transport and ETP’s Violation 0f motor carrier statutes proximately caused the injuries and ultimate death 0f the decedent. VII. APPLICATION FOR TEMPORARY RESTRAINING ORDER 7.1 The facts pled above demonstrate the irreparable harm that Plaintiffs will suffer unless the Defendants are ordered to preserve certain evidence and allow an immediate inspection of (1) the forklift involved in the Occurrence; (2) the Chain and chain(s) involved in the Occurrence; (3) the tractor and trailer owned/maintained by ETP involved in the Occurrence; (4) the job site; (5) job site sign—in and sign—out forms/sheets; (6) job site safety training forms/ documents; (7) Videotapes 0f construction site at or near the time 0f the Occurrence; (8) any and all still photographs 0f the job site at 0r near the time of the Occurrence; (9) any and all ”witness statements” as defined under Tex. R. Civ. P. 192.3(h). Materially, Plaintiff requests an order from this Court to close the construction site until the Defendants allow an inspection 0f the site and the equipment involved in this incident. After a short closure from May 11 to May 13, Defendants have re—opened the construction site, increasing the probability that evidence will deteriorate 01‘ become lost. There is a substantial likelihood that important evidence will deteriorate and that spoliation 0f other evidence is 13 likely (i.e., Videotape 0f incident) unless this Court issues the ex part6 relief requested in this application. 7.2 TEX. R. CIV. P. 680 provides: Notemporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after signing, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. No more than one extension may be granted unless subsequent extensions are unopposed. In case a temporary restraining order is granted without notice, the application for a temporary injunction shall be set down for hearing at the earliest possible date and takes precedence of all matters except older matters of the same character; and When the application comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for temporary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. Every restraining order shall include an order setting a certain date for hearing on the temporary or permanent injunction sought. (emphasis added). 14 7.3 Pursuant t0 Dallas County Local Rule 2.02(a), Plaintiffs’ counsel notified the Defendants or their counsel of Plaintiffs’ intention to present this application for emergency, ex part6, relief t0 the Court at least 2 hours before this application was filed and proposed order are presented to the Court. Plaintiffs’ counsel attempted last week t0 conference in writing with the Defendants or their legal counsel to resolve the matters set forth in this application by agreement (See Exhibit A); however n0 such agreement t0 preserve the status quo could be reached making this application necessary. Maintenance of the status qua is necessary for the protection 0f Plaintiffs or irreparable harm is reasonably probable. 7.4 The Plaintiffs request a hearing on their application for temporary injunction as soon as reasonably practicable from the date 0f issuance 0f the temporary restraining order, if entered. 7.5 Plaintiffs request that if the temporary restraining order is granted by the Court that a reasonable bond be set in the amount of $100.00. VIII. DAMAGES 8.1 As a direct and proximate result 0f the conduct of Defendants, Plaintiffs suffered the following damages: (a) Pecuniary losses — loss 0f household services, wages, earnings and earning capacity, advice of counsel, services, care, 15 maintenance, support, love and reasonable contributions 0f a pecuniary value in the past and future. Expenses for past medical treatment or medical expenses that are reasonably probable to occur in the future; Funeral expenses; Mental Anguish in the past and future; Loss of companionship and society in the past and future; Conscious pain and suffering and mental anguish of Decedent; Pre-judgment interest; Post-judgment interest; Costs 0f Court; 8.2 Pursuant to Tex. R. Civ. P. 47(C) Plaintiffs plead that they seek monetary relief in excess of $1,000,000.00. IX. EXEMPLARY DAMAGES 9.1 The acts and omissions described in the preceding paragraphs constitute gross negligence and malice as that term is defined by Texas Civil Practice and Remedies Code §41.003(11). The acts or omissions 0f the Defendant, when Viewed objectively from the Defendant’s standpoint at the time it occurred, 16 involved an extreme degree 0f risk, considering the probability and magnitude 0f the potential harm to others. Further, the Defendants had actual, subjective awareness 0f the risks involved, but nevertheless disregarded those risks proceeding with conscious indifference t0 the rights, safety, 0r welfare of others in an effort to stay on the construction schedule. 9.2 As a result, the Plaintiffs request imposition of exemplary damages in an amount not to exceed Fifty-Nine Million Dollars ($59,000,000.00) or the caps set forth in TEX. CIV. PRAC. & REM. CODE §41.008(b) — whichever is greater. X. JURY DEMAND 10.1 Plaintiff demands a trial by jury. The requisite jury fee accompanies this request. XI. REQUEST FOR DISCLOSURE 11.1 Pursuant to Rule 194 0f the Texas Rules of Civil Procedure, Defendants are requested to disclose the information and material described in Rule 194.2 within fifty (50) days 0f the service of this request at the office 0f the undersigned. 17 XII. REQUEST FOR PRODUCTION 12.1 Pursuant to Rule 196 0f the Texas Rules of Civil Procedure, Defendants are requested to produce the following documents within fifty (50) days of the service 0f this request at the office of the undersigned: 1. A11 sign—in sheets/forms/ documents for the construction site, Terra Lago, for each day construction took place through the date of your response. A11 contracts existing between any Defendant concerning work performed 0n the construction site, Terra Lago, at issue. A11 Videotapes 0r other photographic evidence depicting 0r showing the scene of the Occurrence on May 11, 2016. A11 reports any investigation or inspection of the job site, of witnesses, 0r equipment/ tangible things involved in the Occurrence. A11 correspondence to or from any other Defendant concerning the Occurrence. The forklift involved in the Occurrence. The tractor involved in the Occurrence. The trailer involved in the Occurrence. The chain(s) involved in the Occurrence. 10. The crane pads involved in the Occurrence. 11. A11 safety training sign—in sheets 0n the day of the Occurrence. 12. A11 safety training sign—in sheets 0n the day preceding the Occurrence. 18 13. A11 safety training sign-in sheets following the Occurrence. 14. A11 safety training from the beginning sign—in sheets 0f the construction project through the date of your response to this request. 15. A11 safety training Videotapes shown to contractors on the Terra Lago project. 16. A11 safety training brochures 0r materials given t0 contractors 0n the Terra Lago project. 17. Any and all written safety standards for the Terra Lago project. 18. Documents reflecting Violations of the written safety standards of the Terra Lago project by any contractor working on the jobsite. 19. Documents concerning the employment 0f Juan Pablo Ruiz Arciso, including his complete employment file, pay records from January 1, 2010 through present, discipline, promotions, and other employment documents. 20. Any and documents, tangible things 0r reports prepared by a all consulting expert that has been reviewed by a testifying expert as that term is defined under Rule 194. 21. The rental agreement or ownership history (including title) of the telescopic forklift involved in the Occurrence. 22. The rental agreement or ownership history (including title) 0f the trailer involved in the Occurrence. 23. The maintenance records of the telescopic forklift at issue from January 1, 2013 to May 11, 2016. 24. The maintenance records of the trailer at issue from January 1, 2013 to present. 25. The maintenance records of the tractor at issue from January 1, 2013 to present. 19 26. The rental agreement or ownership history (including title) of the tractor involved in the Occurrence. 27. The rental agreement for the Consolidated crane on the job site and any correspondence to 0r from Consolidated related to the crane on the Terra Lago construction site. 28. Photographs, video, or electronic images of the construction site from the commencement date 0f construction project until present. 29. The AIA 0r other construction agreement between Portfolio Development, LLC and Cobalt Construction Company and/or Wade Construction Group (or a joint venture of both). 30. The subcontract agreements between Cobalt Construction Company and/or Wade Construction Group (or a joint venture of both) and any subcontractor performing work 0n the project. 31. A11 policies of insurance or insuring agreements covering You or any additional insured for the Occurrence, including Primary Commercial General Liability (CGL), excess or secondary liability coverage 01' umbrella coverage. 32. A11 agreements between Cobalt Construction Company and Wade Construction Group regarding a joint venture of general contractor responsibilities on the construction project. 33. Any and correspondence to or from the Occupational Health all 8: Safety Administration (OSHA). PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be Cited to appear and answer herein, that upon final trial and other hearing of this cause, that Plaintiffs recover damages from Defendants in accordance with the evidence, and as the jury deems them deserving, that Plaintiffs recover costs 0f court herein expended; that Plaintiffs recover interest to which Plaintiffs are 20 justly entitled under the law, both pre—judgment and post-judgment, and for such other further relief, both general and special, both in law and in equity, to which Plaintiffs may be justly entitled. Respectfully submitted, ROBERTS MARKLAND LLP /s/ Sean A. Roberts SEAN A. ROBERTS State Bar N0. 00797328 R. CLIVE MARKLAND State Bar N0. 24027475 ROBERTO O. CANTU State BarN0. 24094580 2555 North MacGregor, Suite 200 Houston, Texas 77004 (713) 630—0900 (Telephone) (713) 630-0991 (Fax) sr@r0bertsmarkland.c0m ATTORNEYS FOR PLAINTIFF VERIFICATION Sean A. Roberts, counsel for Plaintiff and officer of the Court, hereby I, verify under penalty of perjury that the facts stated herein in support of Plaintiffs’ Application for Temporary Restraining Order are true and correct. /s/ Sean A. Roberts Sean A. Roberts 21 CERTIFICATE OF SERVICE I hereby certify that a true and correctcopy of the foregoing instrument was transmitted t0 all counsel of record in accordance with Tex. R. Civ. P. 21a on this 11th day of October, 2019. /s/ Sean A. Roberts Sean A. Roberts 22