Preview
Filed: 1/4/2021 8:59 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 49352338
By: Shailja Dixit
1/4/2021 9:03 AM
CAUSE NO. 20-CV-1704
RAYMOND D. JETT AND SUE E. JETT, § IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS TRUSTEE OF §
THE SPARKS FAMILY LIVING TRUST §
§
Plaintiffs §
§
v. GALVESTON COUNTY
§
WIMBISH KELLY CONSTRUCTION, LLC §
D/B/A PUTNAM BUILDERS §
§
Defendant § 122ND DISTRICT COURT
DEFENDANT WIMBISH KELLY CONSTRUCTION, LLC, D/B/A PUTNAM
BUILDERS’ ORIGINAL ANSWER AND REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES DEFENDANT WIMBISH KELLY CONSTRUCTION, LLC, D/B/A
PUTNAM BUILDERS (hereinafter “Defendant”), Defendant in the above entitled and numbered
cause, and files this, its Original Answer and Request for Disclosure.
GENERAL DENIAL
1. Pursuant to Rule 92, Texas Rules of Civil Procedure, Defendant denies each and every,
all and singular, the material allegations in Plaintiffs’ pleadings, except such allegations as may
hereafter be admitted on the trial thereof, and demands strict proof thereof by a preponderance of
the evidence.
SPECIFIC DENIALS
2. Defendant specifically denies that violations of the DTPA were “intentionally and
knowingly committed”, as Plaintiffs allege in paragraph 22 of Plaintiffs’ Original Petition.
3. Defendant specifically denies that it “was negligent in its demolition of the existing
improvement on the Property, because of its failure to properly plan and protect the existing trees
before beginning its construction Work”, as alleged in paragraph 23 of Plaintiffs’ Original
Petition.
AFFIRMATIVE DEFENSES
4. Some or all of Plaintiffs’ claims are barred by the doctrine of accord and satisfaction.
Plaintiffs negotiated and accepted at discount in the final price of the house for the issue
regarding slab height now complained of in this lawsuit.
5. Some or all of Plaintiffs’ claims are barred by the doctrine of estoppel. Plaintiffs
negotiated and accepted at discount in the final price of the house for the issue regarding slab
height now complained of in this lawsuit.
EXEMPLARY DAMAGES
6. Pleading further, alternatively, and by way of affirmative defense, Defendant pleads the
defense of unconstitutionality, in that any award of punitive or exemplary damages would
constitute the imposition of a criminal penalty without the safeguards guaranteed by the Fifth,
Sixth, Eighth and Fourteenth Amendments of the Constitution of the United States, and similar
provisions of the Texas Constitution. Furthermore, the imposition of such punitive or exemplary
damages constitutes an excessive fine under the Eighth Amendment, denies Defendant equal
protection of the law under the Fourteenth Amendment, and violates the due process clause of
the Fifth and Fourteenth Amendments.
7. Defendant pleads that any claim by Plaintiffs for punitive or exemplary damages should
be stricken as unconstitutional and that any award of punitive or exemplary damages should be
set aside for the reasons stated above. Defendant further pleads that some or all of Plaintiffs’
claims for punitive damages are barred by the Texas Constitution.
8. Pleading further, alternatively, and by way of affirmative defense, Defendant would show
that the imposition of punitive damages sought by Plaintiffs violates Defendant’s rights to due
process and equal protection under the Fourteenth Amendment of the United States Constitution,
to due course of law and equal protection under Article 1, sections 3 and 19 of the Texas
Constitution, and the prohibition against excessive fines in Article 1, section 13 of the Texas
Constitution, in that:
(a) Texas law and the Texas punitive damage scheme, both facially and as applied in this
case, provide no constitutionally adequate or meaningful standards to guide a jury or the
court in determining whether, and if so in what amount, to award punitive damages; there
is no sufficiently clear definition of the conduct or mental state that makes punitive
damages permissible, and no sufficiently clear standard for determining the appropriate
size of an award. Texas law and the Texas punitive damage scheme leave the
determination whether to award and, if so, the amount of punitive damages to the
arbitrary discretion of the trier of fact without providing adequate or meaningful
guidelines for or limits to the exercise of that discretion.
(b) Defendant had no notice of or means of ascertaining whether, or if so in what amount,
it might be subject to a penalty for the conduct alleged by Plaintiffs in this case. That lack
of notice was compounded by the absence of any adequate or meaningful standards as to
the kind of conduct that might subject Defendant to punitive damages or as to the
potential amount of such an award.
(c) Under Texas law and the Texas punitive damage scheme, the jury is not instructed on
the limits on punitive damages imposed by the purposes for which such damages are
assessed.
(d) Under Texas law and the Texas punitive damage scheme, the jury is not expressly
prohibited from awarding punitive damages, in whole or in part, on the basis of
invidiously discriminatory characteristics, including the corporate status of a defendant.
(f) Texas law and the Texas punitive damage scheme do not provide for adequate post-
trial review of punitive damage awards or the amount thereof, and do not provide
objective standards for such review.
(g) Texas law and the Texas punitive damage scheme do not provide for adequate
appellate review of punitive damage awards or the amount thereof, and do not provide
objective standards for such review. Those inadequacies are compounded by the
constraints upon review of such awards by the Texas Supreme Court, including Article 5,
section 6 of the Texas Constitution and section 22.225 of the Texas Government Code.
(h) In the admission of evidence, the standards provided the trier of fact (including
jury instructions), and post-trial and appellate review, Texas law and the Texas
punitive damage scheme, including sections 41.001 through 41.013 of the Texas
Civil Practice & Remedies Code, place undue emphasis on a defendant’s wealth as
a basis for making and enhancing a punitive damage award, and do not require
that the award not be based on any desire to redistribute wealth.
(i) Under Texas law and the Texas punitive damage scheme, there is no limit on the
number of times Defendant could be held accountable for punitive damages based on the
same alleged conduct as that alleged in this case.
9. Pleading further, alternatively, and by way of affirmative defense, Defendant would show
that the net effect of Texas’ punitive damage system is to impose punitive damages in an
arbitrary and discriminatory manner. The lack of adequate guidelines or review and undue
emphasis on defendant’s wealth inevitably lead to variations in result without any rational basis
for differentiation, and without serving any legitimate governmental purpose or interest. As a
result, the federal and state (U.S. Const. Amend 14; Texas Const. Art. 1, § 3) constitutional
mandates for equal protection are violated. Insofar as the lodestone of the Texas punitive damage
system is in the depth of the defendant’s pockets, that invidious discrimination is itself an affront
to the federal and state constitutions’ equal protection mandates.
10. Pleading further, alternatively, and by way of affirmative defense, Defendant would show
that insofar as the punitive damage award sought by Plaintiffs seeks to impose punitive damages
under Texas law for conduct in other states, the award violates:
(a) Defendant’s rights to due process and due course of law under the Fourteenth
Amendment of the United States Constitution and Article 1, section 19 of the Texas
Constitution;
(b) the dormant or negative commerce clause derived from Article 1, section 8, clause 3
of the United States Constitution;
(c) the Full Faith and Credit Clause of Article IV, section 1 of the United States
Constitution;
(d) the requirement of the United States Constitution that a state respect the autonomy of
other states within their spheres; and
(e) the prohibition against excessive fines in Article 1, section 13 of the Texas
Constitution.
LIMITATION ON EXEMPLARY/PUNITIVE DAMAGES
11. Defendant pleads and asserts that the amount of any exemplary damages that may
be awarded against Defendant must be capped as set forth in Section 41.008, Texas Civil
Practice and Remedies Code. More specifically, Defendant pleads and asserts that any
exemplary damages that may be awarded against it may not exceed an amount equal to
the greater of:
a. i. two (2) times the amount of economic damages; plus
ii. an amount equal to any non-economic damages found by the jury,
not to exceed $750,000.00; or
b. $200,000.00.
DETERMINATION OF PERCENTAGE OF RESPONSIBILITY
12. Pursuant to §33.003, of the Texas Civil Practice and Remedies Code, Defendant asserts
its right to have the trier of fact, as to each cause of action asserted, determine the percentage of
responsibility of each Plaintiff, each Defendant, each settling person, and each responsible third
party who has been joined under Section 33.004, Texas Civil Practice and Remedies Code, with
respect to each said party causing or contributing to cause in any way, the harm for which
recovery of damages is sought, whether by negligent act or omission, by other conduct or
activity that violates an applicable legal standard, or by any combination of the foregoing.
Further, pursuant to §33.013, Texas Civil Practice and Remedies Code, if Defendants, or any of
them, or any responsible third party are found to be liable in this cause, their respective liability
must be only a percentage of damages equal to each party’s percentage of responsibility, if any,
found by the trier of fact.
CONTRIBUTION AND INDEMNIFICATION
13. In the unlikely event that a jury finds Defendant liable for any of the damages the
Plaintiffs are seeking, Defendant shall seek contribution or indemnification from the Co-
Defendant(s).
NOTICE OF SELF-AUTHENTICATION
14. Defendant invokes self-authentication rights pursuant to Tex. R. Civ. P. 193.7, and
specifically that documents/items made available by the opposing party through the discovery
process may be used at trial and/or in pre-trial proceedings.
REQUESTS FOR DISCLOSURE
15. Under Texas Rule of Civil Procedure 194, Defendant requests that Plaintiffs disclose,
within 30 days of the service of this request, the information or materials described in Rule
194.2.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant prays:
1. that Plaintiffs take nothing by this suit;
2. that Defendant be allowed damages, costs of court, attorney’s fees as allowed
by contract or law, pre and post judgment interest;
3. for such other and further relief, both at law and in equity, general or special,
to which Defendant may be entitled.
Respectfully submitted,
CHUNN PRICE & HARRIS, PLLC
1150 N. Loop 1604 W., Suite 108-467
San Antonio, Texas 78248
Phone: (210) 308-6677
Fax: (210 525-0960
_________________________________
DAVID G. HARRIS
State Bar No. 24029600
dharris@cphattorneys.com
ATTORNEYS FOR DEFENDANT
WIMBISH KELLY CONSTRUCTION,
LLC, D/B/A PUTNAM BUILDERS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has
been served in accordance with Rule 21(a) of the Texas Rules of Civil Procedure to the
following:
J. Daniel Long VIA E-SERVICE
State Bar No. 24036985
Email: dlong@cjmlaw.com
Kendall Valenti Speer
State Bar No. 24077954
Email: kspeer@cjmlaw.com
CRADY JEWETT McCULLEY & HOUREN
LLP
2727 Allen Parkway, Suite 1700
Houston, Texas 77019-2125
(713) 739-7007 – Telephone
(713) 739-8403 – Facsimile
Attorneys for Plaintiffs, Raymond D. Jett
and Sue E. Jett, Individually and as
Trustee of the Sparks Family Trust
on this the 4th day of January, 2021.
_________________________________________
DAVID G. HARRIS
Preview
Filed: 1/4/2021 8:59 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 49352338 By: Shailja Dixit 1/4/2021 9:03 AM CAUSE NO. 20-CV-1704 RAYMOND D. JETT AND SUE E. JETT, § IN THE DISTRICT COURT OF INDIVIDUALLY AND AS TRUSTEE OF § THE SPARKS FAMILY LIVING TRUST § § Plaintiffs § § v. GALVESTON COUNTY § WIMBISH KELLY CONSTRUCTION, LLC § D/B/A PUTNAM BUILDERS § § Defendant § 122ND DISTRICT COURT DEFENDANT WIMBISH KELLY CONSTRUCTION, LLC, D/B/A PUTNAM BUILDERS’ ORIGINAL ANSWER AND REQUEST FOR DISCLOSURE TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES DEFENDANT WIMBISH KELLY CONSTRUCTION, LLC, D/B/A PUTNAM BUILDERS (hereinafter “Defendant”), Defendant in the above entitled and numbered cause, and files this, its Original Answer and Request for Disclosure. GENERAL DENIAL 1. Pursuant to Rule 92, Texas Rules of Civil Procedure, Defendant denies each and every, all and singular, the material allegations in Plaintiffs’ pleadings, except such allegations as may hereafter be admitted on the trial thereof, and demands strict proof thereof by a preponderance of the evidence. SPECIFIC DENIALS 2. Defendant specifically denies that violations of the DTPA were “intentionally and knowingly committed”, as Plaintiffs allege in paragraph 22 of Plaintiffs’ Original Petition. 3. Defendant specifically denies that it “was negligent in its demolition of the existing improvement on the Property, because of its failure to properly plan and protect the existing trees before beginning its construction Work”, as alleged in paragraph 23 of Plaintiffs’ Original Petition. AFFIRMATIVE DEFENSES 4. Some or all of Plaintiffs’ claims are barred by the doctrine of accord and satisfaction. Plaintiffs negotiated and accepted at discount in the final price of the house for the issue regarding slab height now complained of in this lawsuit. 5. Some or all of Plaintiffs’ claims are barred by the doctrine of estoppel. Plaintiffs negotiated and accepted at discount in the final price of the house for the issue regarding slab height now complained of in this lawsuit. EXEMPLARY DAMAGES 6. Pleading further, alternatively, and by way of affirmative defense, Defendant pleads the defense of unconstitutionality, in that any award of punitive or exemplary damages would constitute the imposition of a criminal penalty without the safeguards guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments of the Constitution of the United States, and similar provisions of the Texas Constitution. Furthermore, the imposition of such punitive or exemplary damages constitutes an excessive fine under the Eighth Amendment, denies Defendant equal protection of the law under the Fourteenth Amendment, and violates the due process clause of the Fifth and Fourteenth Amendments. 7. Defendant pleads that any claim by Plaintiffs for punitive or exemplary damages should be stricken as unconstitutional and that any award of punitive or exemplary damages should be set aside for the reasons stated above. Defendant further pleads that some or all of Plaintiffs’ claims for punitive damages are barred by the Texas Constitution. 8. Pleading further, alternatively, and by way of affirmative defense, Defendant would show that the imposition of punitive damages sought by Plaintiffs violates Defendant’s rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution, to due course of law and equal protection under Article 1, sections 3 and 19 of the Texas Constitution, and the prohibition against excessive fines in Article 1, section 13 of the Texas Constitution, in that: (a) Texas law and the Texas punitive damage scheme, both facially and as applied in this case, provide no constitutionally adequate or meaningful standards to guide a jury or the court in determining whether, and if so in what amount, to award punitive damages; there is no sufficiently clear definition of the conduct or mental state that makes punitive damages permissible, and no sufficiently clear standard for determining the appropriate size of an award. Texas law and the Texas punitive damage scheme leave the determination whether to award and, if so, the amount of punitive damages to the arbitrary discretion of the trier of fact without providing adequate or meaningful guidelines for or limits to the exercise of that discretion. (b) Defendant had no notice of or means of ascertaining whether, or if so in what amount, it might be subject to a penalty for the conduct alleged by Plaintiffs in this case. That lack of notice was compounded by the absence of any adequate or meaningful standards as to the kind of conduct that might subject Defendant to punitive damages or as to the potential amount of such an award. (c) Under Texas law and the Texas punitive damage scheme, the jury is not instructed on the limits on punitive damages imposed by the purposes for which such damages are assessed. (d) Under Texas law and the Texas punitive damage scheme, the jury is not expressly prohibited from awarding punitive damages, in whole or in part, on the basis of invidiously discriminatory characteristics, including the corporate status of a defendant. (f) Texas law and the Texas punitive damage scheme do not provide for adequate post- trial review of punitive damage awards or the amount thereof, and do not provide objective standards for such review. (g) Texas law and the Texas punitive damage scheme do not provide for adequate appellate review of punitive damage awards or the amount thereof, and do not provide objective standards for such review. Those inadequacies are compounded by the constraints upon review of such awards by the Texas Supreme Court, including Article 5, section 6 of the Texas Constitution and section 22.225 of the Texas Government Code. (h) In the admission of evidence, the standards provided the trier of fact (including jury instructions), and post-trial and appellate review, Texas law and the Texas punitive damage scheme, including sections 41.001 through 41.013 of the Texas Civil Practice & Remedies Code, place undue emphasis on a defendant’s wealth as a basis for making and enhancing a punitive damage award, and do not require that the award not be based on any desire to redistribute wealth. (i) Under Texas law and the Texas punitive damage scheme, there is no limit on the number of times Defendant could be held accountable for punitive damages based on the same alleged conduct as that alleged in this case. 9. Pleading further, alternatively, and by way of affirmative defense, Defendant would show that the net effect of Texas’ punitive damage system is to impose punitive damages in an arbitrary and discriminatory manner. The lack of adequate guidelines or review and undue emphasis on defendant’s wealth inevitably lead to variations in result without any rational basis for differentiation, and without serving any legitimate governmental purpose or interest. As a result, the federal and state (U.S. Const. Amend 14; Texas Const. Art. 1, § 3) constitutional mandates for equal protection are violated. Insofar as the lodestone of the Texas punitive damage system is in the depth of the defendant’s pockets, that invidious discrimination is itself an affront to the federal and state constitutions’ equal protection mandates. 10. Pleading further, alternatively, and by way of affirmative defense, Defendant would show that insofar as the punitive damage award sought by Plaintiffs seeks to impose punitive damages under Texas law for conduct in other states, the award violates: (a) Defendant’s rights to due process and due course of law under the Fourteenth Amendment of the United States Constitution and Article 1, section 19 of the Texas Constitution; (b) the dormant or negative commerce clause derived from Article 1, section 8, clause 3 of the United States Constitution; (c) the Full Faith and Credit Clause of Article IV, section 1 of the United States Constitution; (d) the requirement of the United States Constitution that a state respect the autonomy of other states within their spheres; and (e) the prohibition against excessive fines in Article 1, section 13 of the Texas Constitution. LIMITATION ON EXEMPLARY/PUNITIVE DAMAGES 11. Defendant pleads and asserts that the amount of any exemplary damages that may be awarded against Defendant must be capped as set forth in Section 41.008, Texas Civil Practice and Remedies Code. More specifically, Defendant pleads and asserts that any exemplary damages that may be awarded against it may not exceed an amount equal to the greater of: a. i. two (2) times the amount of economic damages; plus ii. an amount equal to any non-economic damages found by the jury, not to exceed $750,000.00; or b. $200,000.00. DETERMINATION OF PERCENTAGE OF RESPONSIBILITY 12. Pursuant to §33.003, of the Texas Civil Practice and Remedies Code, Defendant asserts its right to have the trier of fact, as to each cause of action asserted, determine the percentage of responsibility of each Plaintiff, each Defendant, each settling person, and each responsible third party who has been joined under Section 33.004, Texas Civil Practice and Remedies Code, with respect to each said party causing or contributing to cause in any way, the harm for which recovery of damages is sought, whether by negligent act or omission, by other conduct or activity that violates an applicable legal standard, or by any combination of the foregoing. Further, pursuant to §33.013, Texas Civil Practice and Remedies Code, if Defendants, or any of them, or any responsible third party are found to be liable in this cause, their respective liability must be only a percentage of damages equal to each party’s percentage of responsibility, if any, found by the trier of fact. CONTRIBUTION AND INDEMNIFICATION 13. In the unlikely event that a jury finds Defendant liable for any of the damages the Plaintiffs are seeking, Defendant shall seek contribution or indemnification from the Co- Defendant(s). NOTICE OF SELF-AUTHENTICATION 14. Defendant invokes self-authentication rights pursuant to Tex. R. Civ. P. 193.7, and specifically that documents/items made available by the opposing party through the discovery process may be used at trial and/or in pre-trial proceedings. REQUESTS FOR DISCLOSURE 15. Under Texas Rule of Civil Procedure 194, Defendant requests that Plaintiffs disclose, within 30 days of the service of this request, the information or materials described in Rule 194.2. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant prays: 1. that Plaintiffs take nothing by this suit; 2. that Defendant be allowed damages, costs of court, attorney’s fees as allowed by contract or law, pre and post judgment interest; 3. for such other and further relief, both at law and in equity, general or special, to which Defendant may be entitled. Respectfully submitted, CHUNN PRICE & HARRIS, PLLC 1150 N. Loop 1604 W., Suite 108-467 San Antonio, Texas 78248 Phone: (210) 308-6677 Fax: (210 525-0960 _________________________________ DAVID G. HARRIS State Bar No. 24029600 dharris@cphattorneys.com ATTORNEYS FOR DEFENDANT WIMBISH KELLY CONSTRUCTION, LLC, D/B/A PUTNAM BUILDERS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been served in accordance with Rule 21(a) of the Texas Rules of Civil Procedure to the following: J. Daniel Long VIA E-SERVICE State Bar No. 24036985 Email: dlong@cjmlaw.com Kendall Valenti Speer State Bar No. 24077954 Email: kspeer@cjmlaw.com CRADY JEWETT McCULLEY & HOUREN LLP 2727 Allen Parkway, Suite 1700 Houston, Texas 77019-2125 (713) 739-7007 – Telephone (713) 739-8403 – Facsimile Attorneys for Plaintiffs, Raymond D. Jett and Sue E. Jett, Individually and as Trustee of the Sparks Family Trust on this the 4th day of January, 2021. _________________________________________ DAVID G. HARRIS