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COMES NOW, Barbara Muggley
in the above styled and numbered cause of action and files
Barbara Muggley) asserts the following claims
Pursuant to the provisions of the Texas Rule of Civil Procedure 190
to conduct discovery according to Discovery Control Plan
Barbara Muggley hereinafter referred to as is an
Marcell Cook (hereinafter referred to as Plaintiff/ ounter efendant ) is an
individua residing in Montgomery County, Texas Marcell Cook initiated this lawsuit and can
be ved 24011 Richards Rd. Apt. 807, Spring, Texas 77386 Service will be process
server. Service is hereby requested.
JURISDICTION AND VENUE
This Court has jurisdiction, and venue is proper in Montgomery County, Texas
pursuant to Texas Civil Practice & medies Code section 15.002(a)( ) because Montgomery
County, Texas s the county in which Counter Claimant (Defendan resides
The causes of action herein arose from and relate to the motor vehicle accident
that formed the basis of this lawsuit
Venue is per because Marcell Cook has appeared before this Court
Defendant/ ounter Claimant has filed h Counterclaim and the Defendant/Counter Claimant
resides in Montgomery County, Texas.
FACTS
On anuary 12, 2023 Defendant/Counter Claimant was driving a Hyundai
Sonata bearing VIN No. KM8SN4HF2EU079094 and License Plate No. FGG7880 traveling
southbound on Six Pines Drive approaching Woodlands Parkway. Plaintiff/Counter Defendant
was driving a 2021 Nissan Altima earing VIN o. 1N4BL4DV1MN354198 and License Plate
No. NVT776 veling eastbound on Woodlands Park y approaching Six Pines Dr. While
distracted by the GPS, Plaintiff/Counter Defendant disregarded the red light at the intersection
Plaintiff/Counter Defendant failed to pay proper attention to the traffic signal and
failed to yield the right tiff/Counter Defendant s failure to yield the ri
caused the collision that made the basis of this lawsuit. As a result of the violent crash
Plaintiff/Counter Defendant s negligence, Defendant/Counter nt suffered se ere injuries
and r lting damages.
CAUSES OF ACTION AGAINST AINTIFF COUNTER DEFENDANT MARCELL
NEGLIGE
Defendant/ nter Claimant incorporate reference all other paragraphs of
this Petition as if fully set forth herei
Plaintiff/ unter Defendant was negligent. Plaintiff/ Defendant
wed a duty to fendant nter Claimant to use reasonable care while operating a
hicle u Plaintiff/ unter Defendant ’s direct control.
Plaintiff/ unter Defendant had a duty to exercise the degree of care that a
reasonably prudent person would use to avoid harm to others in circumstances similar to those
described herein. fendant/Counter Claiman damages were proximately caused by
Plaintiff/ unter endant s negligence, carelessness, and reckless disregard of h said
duty.
intiff/ unter Defendant ’s negligence, carelessness, and reckless
disregard of h duty consisted of the following acts and omissions, based on the information
currently available to the endant nte Claimant
Plaintiff/ unter Defendant failed to maintain a proper lookout;
Plaintiff/ unter Defendan failed to con the speed of h vehicle;
Plaintiff/ unter Defendant failed to properly exercise control of h
vehicle;
Plaintiff/ unter Defendant failed to timely apply the brakes to avoid the
collision;
Plaintiff/ unter Defendant failed to y d the right of way to oncoming
traffic
laintiff/Counter endant Cook failed to stop at a red ligh
Plaintiff/Counter nt Cook was driving while distracted with h
Plaintiff/ unter Defendant failed to understand the local driving nature of
the are he operated the vehicle; and
Other negligent acts.
Each of these acts and omissions, singularly or in combination hers,
constitute negligence and prox ely caused the occurrence that made the basis of this action,
including the injuries and damages Defendant/Counter laimant sustained
GROSS NEGLIGENCE
Defendant/ nte aimant incorporate by reference all other paragraphs o
his Petition as if fully set forth herei
oss negligence” according to Texas Civil Practice and Remedies Code §
01(11)(A) (B) means an act or omission:
hich when viewed objectively from the standpoint of the actor at the time of its
occurrence involves an extreme degree of risk, considering the probability and
magnitude of the potential harm to others; and
of which the actor has actual, subjective awareness of the risk involved, but
nevertheless proceeds with conscious indifference to the rights, safety, or welfare
hers.
Defendant Counter would show the Court and the Jury that the conduct
Plaintiff/ unter Defendant described herein constitutes gross negligence as defined by
Texas Civil Practice & Remedies Code § 41.001( (A) Plaintiff/ unter Defendant
liable to Defendant/Counter Claimant r gross negligence to wit:
Plaintiff/Counter Defendant consciously and/or deliberately engaged in
recklessness, willfulness, wantonness and/ or malice through ntiff/Counter
Defendant actions, and/ or inactions he made when he recklessly hit
Defendant/Counter Claima , and Plaintiff/Counter Defendant should be
held liable in punitive and exemplary damages to Defendant/ nter Claima
Plaintiff Counter Defendant ’s actions or inactions directly and proximately
caused the injuries sustained by Defendant/ Claimant which resulted in
the damages detailed below.
s a result of such gross negligence of Plaintiff/ unter Defendant
endant/Counte Claimant entitled to exemplary damages.
NEGLIGENCE PER SE
Defendant/ nte aimant incorpor by reference all o r paragraphs of
this petition as if fully set forth herein
Defendant/ nte aimant would show th Plaintiff/Counter Defendant
negligent per se for violati Transportation Traffic Signs, Signals,
and Markings n operator of a vehicle facing only a steady red signal shall stop at a clearly
marked stop line. In the absence of a stop line, the operator shall stop before entering the
crosswalk on the near side of the intersection. A vehicle that is not turning shall remain standing
until an indication to proceed is shown
Plaintiff/Counter Defendants conduct proximate y cause Defendant/Counter
Claimant serious personal i ries.
Such gligent per oximate cause of Defendant/Counter Claimant
injuries and d ages described herein.
DAMAGES
endant/Counter Claimant unliquidated damages in an am unt that i
within the jurisdictional limits of the Court.
As a proximate result of the conduct of Plaintiff/ Defendant
endant/Counter Claimant sustained severe injuries and damages
endant/ Claimant monetary damages from laintiff/ unter
Defendant to compensate for the following elements of damages, including but not
d to:
All other damages owed under Texas law.
EXEMPLARY DA GES
e conduct of Plaintiff/Counter Defendant e than momentary
thoug tlessness, inad ertenc , o err r o nt, and was f such a character as to mak
laintiff/Counter Defendant gross egligence. Plaintiff/Counter Defendant acts or
omissions involve an extreme degree of risk, idering the probability and mag f the
tial harm t others of whic Plaintiff/Counter Defendant ad reness, but
vertheless proceeded with con cious indiff e to the r s, safet , or fare of others, and
Defendant/Count Claimant, therefore, sue r exemplary ages, pursu nt to Texas Civil
& Remed Code § 4 03, in the amou t d the of fact
Plaintiff/Counter Defendant knowingly failed to yield the right of way while
distracted GPS a caused this collision. was foreseeable that someone ould harmed by
s serious g oss negli nce. Plaintiff/Count Defendant tentional conduct
allow Defendant/Counter Claimant to recover exemplary damages om Plaintiff/Counter
Defendant
PRESERVATION OF EVIDENCE/SPOLIATION NOTICE
endant/Counter Claimant hereby request and demand that Plaintiff/Counter
endant preserve and maintain all evidence pertaining to any claim or defense related to
the in ent made the basis of this lawsuit, or the damages resulting therefrom, ncluding emails,
memoranda, correspondence, financial records, diagrams, maps, photographs, videotapes,
audiotapes, black data, monitoring, recordings, invoices, checks, files, facsimiles,
icemails, text messages, calendar entries, or informatio related to the reference claim. Failure
to maintain such items shall constitute a “spoliation” of the evidence
CONDITI NS PRECEDE
All conditions precedent to Defendant/ unter aimant right to recover the
relief sought herein occurred or have b en performed.
NOTICE OF SELF AUTHENTICATION
Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, aintiff/Counter
fendant hereby notified that the production by aintiff/Counter fendant
any document in response to writt n discovery authenticates the document for use against
Plaintiff/Counte Defendant in any pre trial preceding or at tria
JUDGMENT AND POST JUDGMENT INTEREST
endant/Counter Claimant and post judgment interest as allowed by
JURY DEMAND
Defendant Counter Claimant request a jury trial on this matter A jury fee will be
paid.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendan ounter Claimant
respectfully pray Plaintiff/ Defendant e cited to appear an required to answer
herein accordingly to law; that this cause be set for trial by jury; that Defendant/Counter
Claimant recover judgment and from said Plaintiff/Counter Defendant actual
damages in this cause in such amounts as the evidence ma show and the Jury may determine to
proper, together with costs of suit, pre and post judgment interest; and for all such other and
rther relief, both in equity and law, to which Defendant/Counter Claimant may show that
justly entitled.
tfully Submitted,
HILLIARD LAW
By: Alexander Hilliard
Robert C. Hilliard
State Bar No. 0
bobh@hilliard law.com
Rudy Gonzales, Jr.
State Bar No. 08121700
rudyg@hilliard law.com
Catherine T. Hi iard
State Bar No. 24013642
catherine illiard aw.com
ichael Ric ardson
te Bar No.
mrichardson@hilliard law.com
lexander Hilliard
State Bar No.
alex@hilliard law.com
John Duff
State Bar No.
jduff@hilliard w.com
J. Pritchett
State Bar No.
jpritchett@hilliard law.com
sa L. Barrera
State Bar No. 24117454
aissa@hmglawfirm.com
719 S. Shoreline Boulevard
Corpus Christi, Texas 78401
Telephone No.: 361.882
Facsimile No.: 361
Service@hilliard law.com
*service by e mail to this address o
ATTORNEYS FOR OUNTERCLAIM
ERT ATE F SERVICE
ereby certify that a true and correct copy of the above and foregoing document wa
served upon e parties lis below by facsimile, messenger, regular U.S. mail, return receipt
requested, commercial delivery, email, and/or tro c serv pursuan the Texas Rules of
Civil Procedure 21(a) on the 7th day of
SERV
Benjamin Ogara
service@daspitlaw.com
bogara@daspitlaw.com
DASPIT LAW FIRM
600 North Pearl Street, Suite
Dallas, Texas 75201
ATTORNEY PLAINTIFF/COUNTER DEFENDA MARCELL COOK
Joshua R. Avelar
Javelar3@progressive.com
HoustonHC@progressive.com
MEYNIER, LIBER, MATTE, HOFLAND & DEL VALLE
2707 North Loop West, Suite 100
Houston, Texas 77008
ATTORNE DEFEN BARBARA MUGGLEY
ander Hilliard
Alexander Hilliard
Preview
COMES NOW, Barbara Muggley in the above styled and numbered cause of action and files Barbara Muggley) asserts the following claims Pursuant to the provisions of the Texas Rule of Civil Procedure 190 to conduct discovery according to Discovery Control Plan Barbara Muggley hereinafter referred to as is an Marcell Cook (hereinafter referred to as Plaintiff/ ounter efendant ) is an individua residing in Montgomery County, Texas Marcell Cook initiated this lawsuit and can be ved 24011 Richards Rd. Apt. 807, Spring, Texas 77386 Service will be process server. Service is hereby requested. JURISDICTION AND VENUE This Court has jurisdiction, and venue is proper in Montgomery County, Texas pursuant to Texas Civil Practice & medies Code section 15.002(a)( ) because Montgomery County, Texas s the county in which Counter Claimant (Defendan resides The causes of action herein arose from and relate to the motor vehicle accident that formed the basis of this lawsuit Venue is per because Marcell Cook has appeared before this Court Defendant/ ounter Claimant has filed h Counterclaim and the Defendant/Counter Claimant resides in Montgomery County, Texas. FACTS On anuary 12, 2023 Defendant/Counter Claimant was driving a Hyundai Sonata bearing VIN No. KM8SN4HF2EU079094 and License Plate No. FGG7880 traveling southbound on Six Pines Drive approaching Woodlands Parkway. Plaintiff/Counter Defendant was driving a 2021 Nissan Altima earing VIN o. 1N4BL4DV1MN354198 and License Plate No. NVT776 veling eastbound on Woodlands Park y approaching Six Pines Dr. While distracted by the GPS, Plaintiff/Counter Defendant disregarded the red light at the intersection Plaintiff/Counter Defendant failed to pay proper attention to the traffic signal and failed to yield the right tiff/Counter Defendant s failure to yield the ri caused the collision that made the basis of this lawsuit. As a result of the violent crash Plaintiff/Counter Defendant s negligence, Defendant/Counter nt suffered se ere injuries and r lting damages. CAUSES OF ACTION AGAINST AINTIFF COUNTER DEFENDANT MARCELL NEGLIGE Defendant/ nter Claimant incorporate reference all other paragraphs of this Petition as if fully set forth herei Plaintiff/ unter Defendant was negligent. Plaintiff/ Defendant wed a duty to fendant nter Claimant to use reasonable care while operating a hicle u Plaintiff/ unter Defendant ’s direct control. Plaintiff/ unter Defendant had a duty to exercise the degree of care that a reasonably prudent person would use to avoid harm to others in circumstances similar to those described herein. fendant/Counter Claiman damages were proximately caused by Plaintiff/ unter endant s negligence, carelessness, and reckless disregard of h said duty. intiff/ unter Defendant ’s negligence, carelessness, and reckless disregard of h duty consisted of the following acts and omissions, based on the information currently available to the endant nte Claimant Plaintiff/ unter Defendant failed to maintain a proper lookout; Plaintiff/ unter Defendan failed to con the speed of h vehicle; Plaintiff/ unter Defendant failed to properly exercise control of h vehicle; Plaintiff/ unter Defendant failed to timely apply the brakes to avoid the collision; Plaintiff/ unter Defendant failed to y d the right of way to oncoming traffic laintiff/Counter endant Cook failed to stop at a red ligh Plaintiff/Counter nt Cook was driving while distracted with h Plaintiff/ unter Defendant failed to understand the local driving nature of the are he operated the vehicle; and Other negligent acts. Each of these acts and omissions, singularly or in combination hers, constitute negligence and prox ely caused the occurrence that made the basis of this action, including the injuries and damages Defendant/Counter laimant sustained GROSS NEGLIGENCE Defendant/ nte aimant incorporate by reference all other paragraphs o his Petition as if fully set forth herei oss negligence” according to Texas Civil Practice and Remedies Code § 01(11)(A) (B) means an act or omission: hich when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare hers. Defendant Counter would show the Court and the Jury that the conduct Plaintiff/ unter Defendant described herein constitutes gross negligence as defined by Texas Civil Practice & Remedies Code § 41.001( (A) Plaintiff/ unter Defendant liable to Defendant/Counter Claimant r gross negligence to wit: Plaintiff/Counter Defendant consciously and/or deliberately engaged in recklessness, willfulness, wantonness and/ or malice through ntiff/Counter Defendant actions, and/ or inactions he made when he recklessly hit Defendant/Counter Claima , and Plaintiff/Counter Defendant should be held liable in punitive and exemplary damages to Defendant/ nter Claima Plaintiff Counter Defendant ’s actions or inactions directly and proximately caused the injuries sustained by Defendant/ Claimant which resulted in the damages detailed below. s a result of such gross negligence of Plaintiff/ unter Defendant endant/Counte Claimant entitled to exemplary damages. NEGLIGENCE PER SE Defendant/ nte aimant incorpor by reference all o r paragraphs of this petition as if fully set forth herein Defendant/ nte aimant would show th Plaintiff/Counter Defendant negligent per se for violati Transportation Traffic Signs, Signals, and Markings n operator of a vehicle facing only a steady red signal shall stop at a clearly marked stop line. In the absence of a stop line, the operator shall stop before entering the crosswalk on the near side of the intersection. A vehicle that is not turning shall remain standing until an indication to proceed is shown Plaintiff/Counter Defendants conduct proximate y cause Defendant/Counter Claimant serious personal i ries. Such gligent per oximate cause of Defendant/Counter Claimant injuries and d ages described herein. DAMAGES endant/Counter Claimant unliquidated damages in an am unt that i within the jurisdictional limits of the Court. As a proximate result of the conduct of Plaintiff/ Defendant endant/Counter Claimant sustained severe injuries and damages endant/ Claimant monetary damages from laintiff/ unter Defendant to compensate for the following elements of damages, including but not d to: All other damages owed under Texas law. EXEMPLARY DA GES e conduct of Plaintiff/Counter Defendant e than momentary thoug tlessness, inad ertenc , o err r o nt, and was f such a character as to mak laintiff/Counter Defendant gross egligence. Plaintiff/Counter Defendant acts or omissions involve an extreme degree of risk, idering the probability and mag f the tial harm t others of whic Plaintiff/Counter Defendant ad reness, but vertheless proceeded with con cious indiff e to the r s, safet , or fare of others, and Defendant/Count Claimant, therefore, sue r exemplary ages, pursu nt to Texas Civil & Remed Code § 4 03, in the amou t d the of fact Plaintiff/Counter Defendant knowingly failed to yield the right of way while distracted GPS a caused this collision. was foreseeable that someone ould harmed by s serious g oss negli nce. Plaintiff/Count Defendant tentional conduct allow Defendant/Counter Claimant to recover exemplary damages om Plaintiff/Counter Defendant PRESERVATION OF EVIDENCE/SPOLIATION NOTICE endant/Counter Claimant hereby request and demand that Plaintiff/Counter endant preserve and maintain all evidence pertaining to any claim or defense related to the in ent made the basis of this lawsuit, or the damages resulting therefrom, ncluding emails, memoranda, correspondence, financial records, diagrams, maps, photographs, videotapes, audiotapes, black data, monitoring, recordings, invoices, checks, files, facsimiles, icemails, text messages, calendar entries, or informatio related to the reference claim. Failure to maintain such items shall constitute a “spoliation” of the evidence CONDITI NS PRECEDE All conditions precedent to Defendant/ unter aimant right to recover the relief sought herein occurred or have b en performed. NOTICE OF SELF AUTHENTICATION Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, aintiff/Counter fendant hereby notified that the production by aintiff/Counter fendant any document in response to writt n discovery authenticates the document for use against Plaintiff/Counte Defendant in any pre trial preceding or at tria JUDGMENT AND POST JUDGMENT INTEREST endant/Counter Claimant and post judgment interest as allowed by JURY DEMAND Defendant Counter Claimant request a jury trial on this matter A jury fee will be paid. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendan ounter Claimant respectfully pray Plaintiff/ Defendant e cited to appear an required to answer herein accordingly to law; that this cause be set for trial by jury; that Defendant/Counter Claimant recover judgment and from said Plaintiff/Counter Defendant actual damages in this cause in such amounts as the evidence ma show and the Jury may determine to proper, together with costs of suit, pre and post judgment interest; and for all such other and rther relief, both in equity and law, to which Defendant/Counter Claimant may show that justly entitled. tfully Submitted, HILLIARD LAW By: Alexander Hilliard Robert C. Hilliard State Bar No. 0 bobh@hilliard law.com Rudy Gonzales, Jr. State Bar No. 08121700 rudyg@hilliard law.com Catherine T. Hi iard State Bar No. 24013642 catherine illiard aw.com ichael Ric ardson te Bar No. mrichardson@hilliard law.com lexander Hilliard State Bar No. alex@hilliard law.com John Duff State Bar No. jduff@hilliard w.com J. Pritchett State Bar No. jpritchett@hilliard law.com sa L. Barrera State Bar No. 24117454 aissa@hmglawfirm.com 719 S. Shoreline Boulevard Corpus Christi, Texas 78401 Telephone No.: 361.882 Facsimile No.: 361 Service@hilliard law.com *service by e mail to this address o ATTORNEYS FOR OUNTERCLAIM ERT ATE F SERVICE ereby certify that a true and correct copy of the above and foregoing document wa served upon e parties lis below by facsimile, messenger, regular U.S. mail, return receipt requested, commercial delivery, email, and/or tro c serv pursuan the Texas Rules of Civil Procedure 21(a) on the 7th day of SERV Benjamin Ogara service@daspitlaw.com bogara@daspitlaw.com DASPIT LAW FIRM 600 North Pearl Street, Suite Dallas, Texas 75201 ATTORNEY PLAINTIFF/COUNTER DEFENDA MARCELL COOK Joshua R. Avelar Javelar3@progressive.com HoustonHC@progressive.com MEYNIER, LIBER, MATTE, HOFLAND & DEL VALLE 2707 North Loop West, Suite 100 Houston, Texas 77008 ATTORNE DEFEN BARBARA MUGGLEY ander Hilliard Alexander Hilliard