Preview
FILED
9/18/2020 10:09 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Lafonda Sims DEPUTY
CAUSE NO. DC-19-10926
VASHONE RHODES § IN THE DISTRICT COURT
§
V. § 160TH JUDICIAL DISTRICT
§
JAMES GOMEZ AND EXCLUSIVE §
NATIONWIDE DELIVERY, INC. § DALLAS COUNTY, TEXAS
DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, James Gomez, and file this Defendant’s First Amended Original Answer
to Plaintiff s Original Petition and would respectfully show the Court as follows:
RULE 193.7
I.
Pursuant t0 Rule 193.7 0f the TEXAS RULES OF CIVIL PROCEDURE, Defendant hereby gives
notice to the Plaintiff that Defendant intends to use all documents exchanged and produced
between the parties (including, but not limited to, correspondence, pleadings, records and
discovery responses) during the trial 0f this matter as authenticated.
SPECIAL EXCEPTIONS
II.
Defendant specially objects and excepts to Paragraph VII. of Plaintiff’s Original Petition
wherein Plaintiff alleges:
“Medical expenses in the past and future”
Rule 56 of the TEXAS RULES OF CIVIL PROCEDURE requires that When an item of special
damages is claimed, it shall be specifically stated. Therefore, Plaintiff should be required to state
the name 0f each health care provider and/or physician Who treated her for injuries allegedly
suffered as a result of the incident made the basis 0f this suit, and the amount paid to or owed t0
DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 1
10001 14942/mhughley
.
such health care providers and/or physicians. Further, Plaintiff should be required t0 state the
amount of medical expenses she anticipates incurring in the filture. Should Plaintiff fail and/or
refuse t0 so amend her petition, the above-referenced allegations should be automatically stricken
in their entirety and all relief supported by the same automatically denied.
III.
Defendant specially objects and excepts t0 Paragraph VII. of Plaintiff’s Original Petition
wherein Plaintiff alleges:
“Physical impairment in the past and future”
Rule 56 of the TEXAS RULES OF CIVIL PROCEDURE requires that when an item of special
damages is Claimed, it shall be specifically stated. Therefore, Plaintiff should be required t0 plead
facts sufficient t0 put Defendant 0n notice 0f What physical impairment Plaintiff is claiming,
including the kind, character, nature and extent 0f such claims. Further, Plaintiff should be required
t0 state What physical impairment the Plaintiff anticipates suffering in the future. Should Plaintiff
fail and/or refuse t0 so amend her petition, the above-referenced allegations should be
automatically stricken in their entirety and all relief supported by the same automatically denied.
IV.
Defendant specially objects and excepts to Paragraph VII. of Plaintiff’s Original Petition
wherein Plaintiff alleges:
“Physical pain and suffering in the past and future”
Rule 56 of the TEXAS RULES OF CIVIL PROCEDURE requires that When an item 0f special
damages is claimed, it shall be specifically stated. Therefore, Plaintiff should be required t0 plead
facts sufficient t0 put Defendant 0n notice 0f What physical pain and suffering Plaintiff is claiming,
including the kind, character, nature and extent of such claims. Further, Plaintiff should be required
to state What physical pain and suffering the Plaintiff anticipates suffering in the future. Should
DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 2
10001 14942/mhughley
.
Plaintiff fail and/or refuse t0 so amend her petition, the above—referenced allegations should be
automatically stricken in their entirety and all relief supported by the same automatically denied.
V.
Defendant specially objects and excepts t0 Paragraph VII. of Plaintiff’s Original Petition
wherein Plaintiff alleges:
“Mental anguish in the past and future”
Rule 56 of the TEXAS RULES OF CIVIL PROCEDURE requires that when an item of special
damages is claimed, it shall be specifically stated. Therefore, Plaintiff should be required t0 plead
facts sufficient t0 put Defendant 0n notice 0f what mental anguish Plaintiff is claiming, including
the kind, character, nature and extent of such claims. Further, Plaintiff should be required t0 state
What mental anguish the Plaintiff anticipates suffering in the future. Should Plaintiff fail and/or
refuse to so amend her petition, the above-referenced allegations should be automatically stricken
in their entirety and all relief supported by the same automatically denied.
AFFIRMATIVE DEFENSES
VI.
Defendant further specifically invokes § 41.0105 TEX. CIV. PRAC. & REM. CODE, Which
provides that recovery of medical or health care expenses incurred are limited to the amount
actually paid or incurred by or on behalf of Plaintiff.
VII.
Defendant further alleges that Plaintiff’s claims for pre-judgment and post-judgment
interest are limited by the dates and amounts set forth in TEX. FIN. CODE ANN. § 304 (2015).
VII.
Defendant specifically denies that he has committed any act 0r omission which would
justify Plaintiffs claims for gross negligence 0r exemplary or punitive damages. Defendant alleges
DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 3
10001 14942/mhughley
.
that Plaintiffs claims for exemplary 0r punitive damages are in Violation of Defendant's rights
under the 5th, 8th and 14th Amendments to the United States Constitution, and Article I, Section
3 and 19 0f the Texas Constitution, in that such claims as made are arbitrary, unreasonable,
excessive, and in Violation of this Defendant's right t0 due process 0f law and equal protection of
the law. Further, Plaintiffs claims for exemplary or punitive damages should be proved beyond a
reasonable doubt under the 6th Amendment of the United States Constitution, or in the alternative,
should be proved by clear and convincing evidence, as opposed to a mere preponderance of the
evidence.
IX.
In the unlikely event that Defendant is found liable for exemplary damages, Defendant
affirmatively alleges that any such liability he may have is limited as set forth in Section 41.007,
Texas Civil Practice and Remedies Code.
X.
Defendant would further show that any injuries, damages or liabilities complained of by
the Plaintiff herein are the result in whole or in part 0f a pre-existing condition and disability and
are not the result of any act or omission on the part of Defendant.
XI.
Answering further, and in the alternative, Defendant would show that Plaintiff’s alleged
injuries, if any, are the result 0f the acts 0r omissions 0f persons not under Defendant’s control,
which acts or omissions were the sole proximate cause 0f the occurrence made the basis of
Plaintiff’s claims.
XII.
Answering further, if same be necessary, this Defendant would show that the matters
complained 0f by the Plaintiff herein were as t0 this Defendant Wholly and completely
DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 4
10001 14942/mhughley
.
unavoidable, and without any negligence 0n the part 0f this Defendant. In this connection,
Defendant would show that the occurrence in question was the result 0f events and/or conditions
Wholly beyond the scope and control of this Defendant, and for Which he is not responsible.
XIII.
In the event that any settlement is 0r has been made by any alleged joint tort-feasor, then
this Defendant is entitled to a full credit, offset, pro rata reduction or percentage reduction, based
on the percentage of the fault or causation attributable t0 the settling Defendants herein, and this
Defendant makes known t0 the other parties and to the Court that he will avail himself 0f his rights
under §33.012, §33.013 and §33.015 of the TEX. CIV. PRAC. & REM. CODE ANN. as t0 any
settlements that may be reached.
XIV.
This Defendant has denied any and all liability 0n his part t0 the Plaintiffs; however, in the
unlikely event that the Court orjury should find that this Defendant, along With any other defendant
in the case, was negligent or otherwise jointly and severally liable to the Plaintiffs, then this
Defendant would ask the Court to enter judgment for the contribution among the Defendants
pursuant to §33.001 et.seq. of the TEXAS CIVIL PMCTICE AND REMEDIES CODE, or any other
applicable statute 0r common law rule.
GENERAL DENIAL
XV.
Defendant James Gomez denies all and singular the material allegations 0f fact contained
in Plaintiff’s Original Petition and demands strict proof thereof by a preponderance 0f the
evidence, pursuant to Rule 92 of the TEXAS RULES 0F CIVIL PROCEDURE.
DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 5
10001 14942/mhughley
.
JURY DEMAND
XVI.
Defendant respectfully demands a trial by jury With respect to any and all issues of fact.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that, upon trial hereof, Plaintiff
takes nothing, Defendant go hence without delay and recover his costs, and for such other and
further relief, at law 0r in equity, to which Defendant may be justly entitled.
Respectfully submitted,
THE LECRONE LAW FIRM, PC
Wall Street Plaza
123 North Crockett Street, Suite 200
Sherman, TX 75090
TEL: 903.813.1900
FAX: 903.813.1944
By: /s/]ofin ’W. $reeze
ADAM B. LECRONE
State Bar N0. 00786447
JOHN W. BREEZE
State Bar N0. 00796248
MARK A. TEAGUE
State Bar N0. 24003039
HILLARY LUCKETT CLARK
State Bar N0. 240777 14
DAVID M. KENNEDY
State Bar N0. 1 1284400
ALEXANDRIA K. CARPENTER
State Bar N0. 24101596
RHONDA D. HOLCOMB
State Bar N0. 24099024
BLAISE S. WILCOTT
State Bar No. 24086481
ESERVICEGDLECRONELAWCOM
ATTORNEYS FOR DEFENDANT
DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 6
1000 1 . 1 4942/mhughley
CERTIFICATE OF SERVICE
This is t0 certify that on the 18th day of September, 2020, the foregoing instrument was
forwarded t0 the following counsel of record:
Ms. Paige Eldridge
WITHERITE LAW GROUP, PLLC
10440 N. Central Expressway, Suite 400
Dallas, Texas 75231
Mr. Randall G. Walters
Ms. Nadine K. Weatherall
WALTERS, BALIDO & CRAIN L.L.P
Meadowpark Tower, Suite 1500
10440 North Central Expressway
Dallas, TX 75231
/s/]o/in ’W. @reeze
JOHN W. BREEZE
DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 7
10001 14942/mhughley
.
Automated
Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Monica Hughley on behalf of John Breeze
Bar No. 00796248
monica@lecr0nelaw.com
Envelope ID: 46391252
Status as of 9/21/2020 11:05 AM CST
Associated Case Party: VASHONE RHODES
Name BarNumber Email TimestampSubmitted Status
Amy Witherite 788698 amy.witherite@witheritelaw.com 9/18/2020 10:09:53 PM SENT
Paige Eldridge paige.eldridge@ewlawyers.com 9/18/2020 10:09:53 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
PAIGE VELDRIDGE paiqe.eldridqe@ewlawyers.com 9/18/2020 10:09:53 PM SENT
Craig Laird PCL@LAIRD.LAWYER 9/18/2020 10:09:53 PM SENT
Associated Case Party: JAMES GOMEZ
Name BarNumber Email TimestampSubmitted Status
Adam LeCrone eservice@lecronelaw.com 9/1 8/2020 10:09:53 PM SENT
Associated Case Party: EXCLUSIVE NATIONWIDE DELIVERY, INC
Name BarNumber Email TimestampSubmitted Status
Randall GWaIters waItersedocsnotifications@wbclawfirm.com 9/18/2020 10:09:53 PM SENT
Nadine K Weatherall nadine.weatherall@wbclawfirm.com 9/18/2020 10:09:53 PM SENT
Preview
FILED 9/18/2020 10:09 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Lafonda Sims DEPUTY CAUSE NO. DC-19-10926 VASHONE RHODES § IN THE DISTRICT COURT § V. § 160TH JUDICIAL DISTRICT § JAMES GOMEZ AND EXCLUSIVE § NATIONWIDE DELIVERY, INC. § DALLAS COUNTY, TEXAS DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, James Gomez, and file this Defendant’s First Amended Original Answer to Plaintiff s Original Petition and would respectfully show the Court as follows: RULE 193.7 I. Pursuant t0 Rule 193.7 0f the TEXAS RULES OF CIVIL PROCEDURE, Defendant hereby gives notice to the Plaintiff that Defendant intends to use all documents exchanged and produced between the parties (including, but not limited to, correspondence, pleadings, records and discovery responses) during the trial 0f this matter as authenticated. SPECIAL EXCEPTIONS II. Defendant specially objects and excepts to Paragraph VII. of Plaintiff’s Original Petition wherein Plaintiff alleges: “Medical expenses in the past and future” Rule 56 of the TEXAS RULES OF CIVIL PROCEDURE requires that When an item of special damages is claimed, it shall be specifically stated. Therefore, Plaintiff should be required to state the name 0f each health care provider and/or physician Who treated her for injuries allegedly suffered as a result of the incident made the basis 0f this suit, and the amount paid to or owed t0 DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 1 10001 14942/mhughley . such health care providers and/or physicians. Further, Plaintiff should be required t0 state the amount of medical expenses she anticipates incurring in the filture. Should Plaintiff fail and/or refuse t0 so amend her petition, the above-referenced allegations should be automatically stricken in their entirety and all relief supported by the same automatically denied. III. Defendant specially objects and excepts t0 Paragraph VII. of Plaintiff’s Original Petition wherein Plaintiff alleges: “Physical impairment in the past and future” Rule 56 of the TEXAS RULES OF CIVIL PROCEDURE requires that when an item of special damages is Claimed, it shall be specifically stated. Therefore, Plaintiff should be required t0 plead facts sufficient t0 put Defendant 0n notice 0f What physical impairment Plaintiff is claiming, including the kind, character, nature and extent 0f such claims. Further, Plaintiff should be required t0 state What physical impairment the Plaintiff anticipates suffering in the future. Should Plaintiff fail and/or refuse t0 so amend her petition, the above-referenced allegations should be automatically stricken in their entirety and all relief supported by the same automatically denied. IV. Defendant specially objects and excepts to Paragraph VII. of Plaintiff’s Original Petition wherein Plaintiff alleges: “Physical pain and suffering in the past and future” Rule 56 of the TEXAS RULES OF CIVIL PROCEDURE requires that When an item 0f special damages is claimed, it shall be specifically stated. Therefore, Plaintiff should be required t0 plead facts sufficient t0 put Defendant 0n notice 0f What physical pain and suffering Plaintiff is claiming, including the kind, character, nature and extent of such claims. Further, Plaintiff should be required to state What physical pain and suffering the Plaintiff anticipates suffering in the future. Should DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 2 10001 14942/mhughley . Plaintiff fail and/or refuse t0 so amend her petition, the above—referenced allegations should be automatically stricken in their entirety and all relief supported by the same automatically denied. V. Defendant specially objects and excepts t0 Paragraph VII. of Plaintiff’s Original Petition wherein Plaintiff alleges: “Mental anguish in the past and future” Rule 56 of the TEXAS RULES OF CIVIL PROCEDURE requires that when an item of special damages is claimed, it shall be specifically stated. Therefore, Plaintiff should be required t0 plead facts sufficient t0 put Defendant 0n notice 0f what mental anguish Plaintiff is claiming, including the kind, character, nature and extent of such claims. Further, Plaintiff should be required t0 state What mental anguish the Plaintiff anticipates suffering in the future. Should Plaintiff fail and/or refuse to so amend her petition, the above-referenced allegations should be automatically stricken in their entirety and all relief supported by the same automatically denied. AFFIRMATIVE DEFENSES VI. Defendant further specifically invokes § 41.0105 TEX. CIV. PRAC. & REM. CODE, Which provides that recovery of medical or health care expenses incurred are limited to the amount actually paid or incurred by or on behalf of Plaintiff. VII. Defendant further alleges that Plaintiff’s claims for pre-judgment and post-judgment interest are limited by the dates and amounts set forth in TEX. FIN. CODE ANN. § 304 (2015). VII. Defendant specifically denies that he has committed any act 0r omission which would justify Plaintiffs claims for gross negligence 0r exemplary or punitive damages. Defendant alleges DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 3 10001 14942/mhughley . that Plaintiffs claims for exemplary 0r punitive damages are in Violation of Defendant's rights under the 5th, 8th and 14th Amendments to the United States Constitution, and Article I, Section 3 and 19 0f the Texas Constitution, in that such claims as made are arbitrary, unreasonable, excessive, and in Violation of this Defendant's right t0 due process 0f law and equal protection of the law. Further, Plaintiffs claims for exemplary or punitive damages should be proved beyond a reasonable doubt under the 6th Amendment of the United States Constitution, or in the alternative, should be proved by clear and convincing evidence, as opposed to a mere preponderance of the evidence. IX. In the unlikely event that Defendant is found liable for exemplary damages, Defendant affirmatively alleges that any such liability he may have is limited as set forth in Section 41.007, Texas Civil Practice and Remedies Code. X. Defendant would further show that any injuries, damages or liabilities complained of by the Plaintiff herein are the result in whole or in part 0f a pre-existing condition and disability and are not the result of any act or omission on the part of Defendant. XI. Answering further, and in the alternative, Defendant would show that Plaintiff’s alleged injuries, if any, are the result 0f the acts 0r omissions 0f persons not under Defendant’s control, which acts or omissions were the sole proximate cause 0f the occurrence made the basis of Plaintiff’s claims. XII. Answering further, if same be necessary, this Defendant would show that the matters complained 0f by the Plaintiff herein were as t0 this Defendant Wholly and completely DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 4 10001 14942/mhughley . unavoidable, and without any negligence 0n the part 0f this Defendant. In this connection, Defendant would show that the occurrence in question was the result 0f events and/or conditions Wholly beyond the scope and control of this Defendant, and for Which he is not responsible. XIII. In the event that any settlement is 0r has been made by any alleged joint tort-feasor, then this Defendant is entitled to a full credit, offset, pro rata reduction or percentage reduction, based on the percentage of the fault or causation attributable t0 the settling Defendants herein, and this Defendant makes known t0 the other parties and to the Court that he will avail himself 0f his rights under §33.012, §33.013 and §33.015 of the TEX. CIV. PRAC. & REM. CODE ANN. as t0 any settlements that may be reached. XIV. This Defendant has denied any and all liability 0n his part t0 the Plaintiffs; however, in the unlikely event that the Court orjury should find that this Defendant, along With any other defendant in the case, was negligent or otherwise jointly and severally liable to the Plaintiffs, then this Defendant would ask the Court to enter judgment for the contribution among the Defendants pursuant to §33.001 et.seq. of the TEXAS CIVIL PMCTICE AND REMEDIES CODE, or any other applicable statute 0r common law rule. GENERAL DENIAL XV. Defendant James Gomez denies all and singular the material allegations 0f fact contained in Plaintiff’s Original Petition and demands strict proof thereof by a preponderance 0f the evidence, pursuant to Rule 92 of the TEXAS RULES 0F CIVIL PROCEDURE. DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 5 10001 14942/mhughley . JURY DEMAND XVI. Defendant respectfully demands a trial by jury With respect to any and all issues of fact. WHEREFORE, PREMISES CONSIDERED, Defendant prays that, upon trial hereof, Plaintiff takes nothing, Defendant go hence without delay and recover his costs, and for such other and further relief, at law 0r in equity, to which Defendant may be justly entitled. Respectfully submitted, THE LECRONE LAW FIRM, PC Wall Street Plaza 123 North Crockett Street, Suite 200 Sherman, TX 75090 TEL: 903.813.1900 FAX: 903.813.1944 By: /s/]ofin ’W. $reeze ADAM B. LECRONE State Bar N0. 00786447 JOHN W. BREEZE State Bar N0. 00796248 MARK A. TEAGUE State Bar N0. 24003039 HILLARY LUCKETT CLARK State Bar N0. 240777 14 DAVID M. KENNEDY State Bar N0. 1 1284400 ALEXANDRIA K. CARPENTER State Bar N0. 24101596 RHONDA D. HOLCOMB State Bar N0. 24099024 BLAISE S. WILCOTT State Bar No. 24086481 ESERVICEGDLECRONELAWCOM ATTORNEYS FOR DEFENDANT DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 6 1000 1 . 1 4942/mhughley CERTIFICATE OF SERVICE This is t0 certify that on the 18th day of September, 2020, the foregoing instrument was forwarded t0 the following counsel of record: Ms. Paige Eldridge WITHERITE LAW GROUP, PLLC 10440 N. Central Expressway, Suite 400 Dallas, Texas 75231 Mr. Randall G. Walters Ms. Nadine K. Weatherall WALTERS, BALIDO & CRAIN L.L.P Meadowpark Tower, Suite 1500 10440 North Central Expressway Dallas, TX 75231 /s/]o/in ’W. @reeze JOHN W. BREEZE DEFENDANT JAMES GOMEZ’S FIRST AMENDED ORIGINAL ANSWER PAGE 7 10001 14942/mhughley . Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Monica Hughley on behalf of John Breeze Bar No. 00796248 monica@lecr0nelaw.com Envelope ID: 46391252 Status as of 9/21/2020 11:05 AM CST Associated Case Party: VASHONE RHODES Name BarNumber Email TimestampSubmitted Status Amy Witherite 788698 amy.witherite@witheritelaw.com 9/18/2020 10:09:53 PM SENT Paige Eldridge paige.eldridge@ewlawyers.com 9/18/2020 10:09:53 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status PAIGE VELDRIDGE paiqe.eldridqe@ewlawyers.com 9/18/2020 10:09:53 PM SENT Craig Laird PCL@LAIRD.LAWYER 9/18/2020 10:09:53 PM SENT Associated Case Party: JAMES GOMEZ Name BarNumber Email TimestampSubmitted Status Adam LeCrone eservice@lecronelaw.com 9/1 8/2020 10:09:53 PM SENT Associated Case Party: EXCLUSIVE NATIONWIDE DELIVERY, INC Name BarNumber Email TimestampSubmitted Status Randall GWaIters waItersedocsnotifications@wbclawfirm.com 9/18/2020 10:09:53 PM SENT Nadine K Weatherall nadine.weatherall@wbclawfirm.com 9/18/2020 10:09:53 PM SENT