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FILED
DALLAS COUNTY
5/20/201 9 12:00 AM
FELICIA PITRE
DISTRICT CLERK
Shirley Montgomery
CAUSE NO. DC-18-00546
KHALED YOUSEF, § IN THE DISTRICT COURT
Plaintiflf §
§
V. §
§
AIR CONDITIONING CONTROL § DALLAS COUNTY, TX
SERVICE COMPANY AND EYM §
DINER, L.P. d/b/a DENNY’S §
Defendants, § 14TH JUDICIAL DISTRICT
DEFENDANTS’ REPLY TO PLAINTIFF’S SUR—REPLY TO
JOINT MOTION FOR NEW TRIAL
COMES NOW, DEFENDANTS EYM DINER’S L.P. D/B/A DENNY’S AND AIR
CONDITION CONTROL SERVICE COMPANY, and files this, their Joint Reply t0 the
Plaintiffs Sur-Reply to Defendants’ Joint Motion for New Trial and would show the Honorable
Court the following:
I.
THE PLAINTIFF’S RELIANCE ON THE AUTHORITIES CITED AND THE
EFFORT TO MISPLACE THE BURDEN ON THE COURT IS WRONG
In his Sur-Reply t0 the Defendants’ Joint Motion for New Trial, the Plaintiff makes the
following statements:
“In their Reply Defendants continue to erroneously argue that the Court is
required to sua sponte include Air Conditioning Control Service Company in
the charge under question 2 independent of their failure t0 object.”
T0 be clear, the defendants’ position is that, if anyone, the plaintiff had the ultimate
burden t0 set forth in the jury charge the elements 0f his cause 0f action. The case at bar is
brought by the Plaintiff; the Plaintiff has the burden of proof in the case, and Section 33.003 0f
the Texas Civil Practice and Remedies Code makes it a requirement When there are multiple
defendants the Court shall include the heretofore referenced jury question asking the Jury
determine the proportionate amount 0f responsibility attributable t0 each defendant.
Interestingly, the cited code does not assign the duty t0 add the Charge to any party. The
Section is restated here for convenience:
§ 33.003. Determination of Percentage 0f Responsibility
(a) The trier offact, as t0 each cause 0f action asserted, shall determine the
percentage 0f responsibility (emphasis added), stated in Whole numbers, for the
following persons With respect t0 each person's causing or contributing t0 cause in any
way the harm for which recovery 0f damages is sought, whether by negligent act or
omission, by any defective or unreasonably dangerous product, by other conduct or
activity that violates an applicable legal standard, 0r by any combination 0f these:
(1) each claimant;
(2) each defendant;
(3) each settling person; and
(4) each responsible third party who has been designated under Section 33.004.
TEX CIV PRAC & REM § 33.003
Failure to include such a question results in the inability t0 assess the comparative
responsibility.
As a result:
1. We do not know Whether 0r not the plaintiff may recover against the Defendant EYM
Diner’s, L.P. DBA Denny’s because the amount 0f responsibility has not been
determined;
2. The Jury was not allowed t0 complete its decision making at t0 What amount of blame
resides with the parties. If allowed t0 complete it’s task, the jury would have
answered with certainty leaving n0 doubt as to it’s position on the credibility of the
witnesses, etc.
3. We cannot know, for example, Whether the jury would have assigned over 50% 0f the
fault for the damages;
4. The determination of the percentage 0f fault by the jury against the non-subscribing
employer would not have, in the absence 0f a finding of sole proximate case, allowed
the employer to escape 100% 0f the damages, but it would have completed the
process entertained by the inclusion 0f the question mandated by Section 33.003.
II.
PLAINTIFF’S RELIANCE ON 0STERBURG
In his sur-reply t0 the Joint Motion for New Trial, the plaintiff essentially argues that the
defendants are not entitled to a new trial for the following reasons:
Citing the Supreme Court case of Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000), the
plaintiff states that if there is a discrepancy between the applicable law and jury charge, the jury
charge controls When n0 obj ection has been made. While the Defendants d0 not challenge this
statement by the supreme court, they d0 contend that the principle is misapplied by the Plaintiff.
The plaintiff” s inclusion 0f this case as authority is in error due t0 the fact that the
Osterberg case, supra, refers to the effort by the appellant t0 complain 0f an insufficiency of
evidence in the underlying trial. Rather than use the jury charge for reference, the appellant
attempted t0 set forth the correct law upon Which t0 base its allegation 0f insufficient evidence.
However, the court disagreed and stated that it could not.
In the case at bar, the plaintiff agreed without obj ection t0 allow submission 0f its case to
the jury Without the inclusion 0f a required question Which would allow the jury t0 determine
the proportionate responsibility between all parties t0 the case Which, again is required by
Section 33.003 of the Texas Civil Practice and Remedies Code. T0 nowfind in thejudgment
that the court has made a determination that nojoint and several liability would attach is not
supported and is contrary t0 the dictate 0fSecti0n 33.003.
Defendantsfurtherpoint out and object that the Judgment in this case was signed
without an oral hearing 0r a submission and without an opportuniljyfor the defendants t0
offer their response.
III.
THE PLAINTIFF’S RELIANCE ON MARIBEL WOODARD V MCDONALD’S
CORPORATION AND HK MANAGEMENT, INC IS ERRONEOUS
The Plaintiff also asserts the case 0f Maribel Woodard v. McDonalds’ Corporation and
HK Management, Inc. 2018 WL 1161564, *1+, TeX.App.-Hous. (1 Dist), as authority in the
position that the defendants have not preserved error in the case at bar.
In the Woodard case, the Plaintiff Woodard, failed to include the co-defendant
McDonald’s Corporation is the Jury charge. Only the co—defendant was named in the Jury
Charge. “(I)n her brief, Woodard intimates that the trial court was required t0 sua sponte include
McDonalds‘ Corporation in the charge independent of her objections. For support, Woodard
relies 0n rules 277 and 278 0f the Texas Rules 0f Civil Procedure and section 33.003 of the
Texas Civil Practice and Remedies Code. See Tex. R. CiV. P. 277, 278; Tex. CiV. Prac. & Rem.
Code Ann. § 33.003 (West 2015). See Woodard v. McDonalds' Corp, N0. 01-17-00204-CV,
2018 WL 1161564, at *1 (TeX. App. Mar. 6, 2018), review denied (July 27, 2018)
However, the case rej ected that allegation stating that the burden was that of the Plaintiff.
The use 0f Section 33.003 did not apply Since, in the Jury Charge, there was only one defendant!
In our case, there are two defendants present in the Jury Charge, the duty t0 present the correct
theory was that of the Plaintiff and the theory included the required submission 0f the question to
the jury referenced by Section 33.003 TCPRC.
WHEREFORE, PREMISES CONSIDERED, DEFENDANTS respectfillly request that
the Court grant it’s motion for new trial, and for any and other such relief to which they show
themselves justly entitled.
Respectfully submitted,
THOMAS M. FOUNTAIN & ASSOCIATES, P. C.
as M Fountain TBN‘073'10050
/
7 Grogans Park Drive, Suite 9
The Woodlands, TX 77380
281-296-6500
281-296-6544 (fax)
tfountain(a)HoustonTrialLaw.com
Attorney for EYM Diner, L.P. d/b/a Denny’s
/s/ William G. Shaw, Jr.
William G. Shaw, Jr.
Texas SBN 18157100
Law Office 0f William G. Shaw, Jr.
1 1 17 Grassmere
Richardson, Texas 75080
(214) 695-2074
wshaw@iplawtexas.com
ATTORNEYS FOR DEFENDANTAir Conditioning
Control Services Company
CERTIFICATE OF SERVICE
This is t0 certify that the foregoing document has been forwarded t0 all known counsel of
record, pursuant t0 the Texas Rules of Civil Procedure Via electronic docket 0n this the 19th day
0f May, 2019.
mas M. Fountain
am;
/s/ William G. Shaw, Jr.
William G. Shaw Jr.
Mohamad Said
MODJARRAD I ABUSAAD I SAID
LAW FIRM
212 W. Spring Valley Rd.
Richardson, Texas 75080
(972) 789-1664
Preview
FILED DALLAS COUNTY 5/20/201 9 12:00 AM FELICIA PITRE DISTRICT CLERK Shirley Montgomery CAUSE NO. DC-18-00546 KHALED YOUSEF, § IN THE DISTRICT COURT Plaintiflf § § V. § § AIR CONDITIONING CONTROL § DALLAS COUNTY, TX SERVICE COMPANY AND EYM § DINER, L.P. d/b/a DENNY’S § Defendants, § 14TH JUDICIAL DISTRICT DEFENDANTS’ REPLY TO PLAINTIFF’S SUR—REPLY TO JOINT MOTION FOR NEW TRIAL COMES NOW, DEFENDANTS EYM DINER’S L.P. D/B/A DENNY’S AND AIR CONDITION CONTROL SERVICE COMPANY, and files this, their Joint Reply t0 the Plaintiffs Sur-Reply to Defendants’ Joint Motion for New Trial and would show the Honorable Court the following: I. THE PLAINTIFF’S RELIANCE ON THE AUTHORITIES CITED AND THE EFFORT TO MISPLACE THE BURDEN ON THE COURT IS WRONG In his Sur-Reply t0 the Defendants’ Joint Motion for New Trial, the Plaintiff makes the following statements: “In their Reply Defendants continue to erroneously argue that the Court is required to sua sponte include Air Conditioning Control Service Company in the charge under question 2 independent of their failure t0 object.” T0 be clear, the defendants’ position is that, if anyone, the plaintiff had the ultimate burden t0 set forth in the jury charge the elements 0f his cause 0f action. The case at bar is brought by the Plaintiff; the Plaintiff has the burden of proof in the case, and Section 33.003 0f the Texas Civil Practice and Remedies Code makes it a requirement When there are multiple defendants the Court shall include the heretofore referenced jury question asking the Jury determine the proportionate amount 0f responsibility attributable t0 each defendant. Interestingly, the cited code does not assign the duty t0 add the Charge to any party. The Section is restated here for convenience: § 33.003. Determination of Percentage 0f Responsibility (a) The trier offact, as t0 each cause 0f action asserted, shall determine the percentage 0f responsibility (emphasis added), stated in Whole numbers, for the following persons With respect t0 each person's causing or contributing t0 cause in any way the harm for which recovery 0f damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, 0r by any combination 0f these: (1) each claimant; (2) each defendant; (3) each settling person; and (4) each responsible third party who has been designated under Section 33.004. TEX CIV PRAC & REM § 33.003 Failure to include such a question results in the inability t0 assess the comparative responsibility. As a result: 1. We do not know Whether 0r not the plaintiff may recover against the Defendant EYM Diner’s, L.P. DBA Denny’s because the amount 0f responsibility has not been determined; 2. The Jury was not allowed t0 complete its decision making at t0 What amount of blame resides with the parties. If allowed t0 complete it’s task, the jury would have answered with certainty leaving n0 doubt as to it’s position on the credibility of the witnesses, etc. 3. We cannot know, for example, Whether the jury would have assigned over 50% 0f the fault for the damages; 4. The determination of the percentage 0f fault by the jury against the non-subscribing employer would not have, in the absence 0f a finding of sole proximate case, allowed the employer to escape 100% 0f the damages, but it would have completed the process entertained by the inclusion 0f the question mandated by Section 33.003. II. PLAINTIFF’S RELIANCE ON 0STERBURG In his sur-reply t0 the Joint Motion for New Trial, the plaintiff essentially argues that the defendants are not entitled to a new trial for the following reasons: Citing the Supreme Court case of Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000), the plaintiff states that if there is a discrepancy between the applicable law and jury charge, the jury charge controls When n0 obj ection has been made. While the Defendants d0 not challenge this statement by the supreme court, they d0 contend that the principle is misapplied by the Plaintiff. The plaintiff” s inclusion 0f this case as authority is in error due t0 the fact that the Osterberg case, supra, refers to the effort by the appellant t0 complain 0f an insufficiency of evidence in the underlying trial. Rather than use the jury charge for reference, the appellant attempted t0 set forth the correct law upon Which t0 base its allegation 0f insufficient evidence. However, the court disagreed and stated that it could not. In the case at bar, the plaintiff agreed without obj ection t0 allow submission 0f its case to the jury Without the inclusion 0f a required question Which would allow the jury t0 determine the proportionate responsibility between all parties t0 the case Which, again is required by Section 33.003 of the Texas Civil Practice and Remedies Code. T0 nowfind in thejudgment that the court has made a determination that nojoint and several liability would attach is not supported and is contrary t0 the dictate 0fSecti0n 33.003. Defendantsfurtherpoint out and object that the Judgment in this case was signed without an oral hearing 0r a submission and without an opportuniljyfor the defendants t0 offer their response. III. THE PLAINTIFF’S RELIANCE ON MARIBEL WOODARD V MCDONALD’S CORPORATION AND HK MANAGEMENT, INC IS ERRONEOUS The Plaintiff also asserts the case 0f Maribel Woodard v. McDonalds’ Corporation and HK Management, Inc. 2018 WL 1161564, *1+, TeX.App.-Hous. (1 Dist), as authority in the position that the defendants have not preserved error in the case at bar. In the Woodard case, the Plaintiff Woodard, failed to include the co-defendant McDonald’s Corporation is the Jury charge. Only the co—defendant was named in the Jury Charge. “(I)n her brief, Woodard intimates that the trial court was required t0 sua sponte include McDonalds‘ Corporation in the charge independent of her objections. For support, Woodard relies 0n rules 277 and 278 0f the Texas Rules 0f Civil Procedure and section 33.003 of the Texas Civil Practice and Remedies Code. See Tex. R. CiV. P. 277, 278; Tex. CiV. Prac. & Rem. Code Ann. § 33.003 (West 2015). See Woodard v. McDonalds' Corp, N0. 01-17-00204-CV, 2018 WL 1161564, at *1 (TeX. App. Mar. 6, 2018), review denied (July 27, 2018) However, the case rej ected that allegation stating that the burden was that of the Plaintiff. The use 0f Section 33.003 did not apply Since, in the Jury Charge, there was only one defendant! In our case, there are two defendants present in the Jury Charge, the duty t0 present the correct theory was that of the Plaintiff and the theory included the required submission 0f the question to the jury referenced by Section 33.003 TCPRC. WHEREFORE, PREMISES CONSIDERED, DEFENDANTS respectfillly request that the Court grant it’s motion for new trial, and for any and other such relief to which they show themselves justly entitled. Respectfully submitted, THOMAS M. FOUNTAIN & ASSOCIATES, P. C. as M Fountain TBN‘073'10050 / 7 Grogans Park Drive, Suite 9 The Woodlands, TX 77380 281-296-6500 281-296-6544 (fax) tfountain(a)HoustonTrialLaw.com Attorney for EYM Diner, L.P. d/b/a Denny’s /s/ William G. Shaw, Jr. William G. Shaw, Jr. Texas SBN 18157100 Law Office 0f William G. Shaw, Jr. 1 1 17 Grassmere Richardson, Texas 75080 (214) 695-2074 wshaw@iplawtexas.com ATTORNEYS FOR DEFENDANTAir Conditioning Control Services Company CERTIFICATE OF SERVICE This is t0 certify that the foregoing document has been forwarded t0 all known counsel of record, pursuant t0 the Texas Rules of Civil Procedure Via electronic docket 0n this the 19th day 0f May, 2019. mas M. Fountain am; /s/ William G. Shaw, Jr. William G. Shaw Jr. Mohamad Said MODJARRAD I ABUSAAD I SAID LAW FIRM 212 W. Spring Valley Rd. Richardson, Texas 75080 (972) 789-1664