Preview
FILED
DALLAS COUNTY
1/28/2019 10:51AM
FELICIA PITRE
DISTRICT CLERK
CAROLYN SELLERS
CAUSE NO. DC-18-18232
CARLA WASHINGTON § IN THE DISTRICT COURT
Plaintiff §
§
VS. §
§
44TH JUDICIAL DISTRICT
PRIMROSE HOUSTON SOUTH HOUSING,§
L.P. D/B/A ROSEMONT AT ASH CREEK, §
AND OC RISK MANAGEMENT §
SERVICES LLC §
Defendants § DALLAS COUNTY, TEXAS
DEFENDANTS’ ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, DEFENDANTS, PRIMROSE HOUSTON SOUTH HOUSING, L.P.
incorrectly named as PRIMROSE HOUSTON SOUTH HOUSING, L.P. D/B/A ROSEMONT
AT ASH CREEK and OC RISK MANAGEMENT SERVICES LLC, (hereinafter referred to as
“Defendants) and files this their Original Answer in the above-entitled and numbered cause, and
would respectfully show the Court as follows:
I.
GENERAL DENIAL
Defendants deny each and every, all and singular, the material allegations contained in
Plaintiff’s Original Petition, and amendments thereto, and demands strict proof thereof in
accordance with the laws of the State of Texas.
Defendants reserve the right t0 plead further.
II.
AFFIRMATIVE DEFENSES
First Defense
Pleading further and in the alternative, if same be necessary, Defendants raise the
affirmative defense 0f proportionate responsibility pursuant t0 TeX. CiV. Prac. & Rem. Code
Answer - Washingtondocx
K:\1359.120\Pleadings\Defendants' Original - 1-
§33.001. Defendants allege Plaintiff’s own negligence is the cause 0f Plaintiff’s accident and
subsequent alleged injuries.
Second Defense
Defendants contend that the alleged accident made the basis 0f this lawsuit and the
alleged damages, if any, were caused by the negligence 0f persons or third-parties over Whom
Defendants had n0 control, and for Whom Defendants are not in law responsible. Such
negligence was the sole cause 0r, alternatively, a proximate cause 0f the alleged occurrence in
question and the alleged damages, if any.
Third Defense
Defendants plead further that any recovery 0f medical expenses or health care expenses
allegedly incurred by Plaintiff, are limited t0 the amount actually paid 0r incurred by 0r on behalf
0f Plaintiff, if any, pursuant t0 TEX. CIV. PRAC. & REM. CODE §41 .0105. Defendants respectfully
request this Honorable Court t0 compute Plaintiff’s award, if any, in accordance with the
language of Section 41.0105 0f the Texas Civil Practice and Remedies Code. Defendants also
request that Plaintiff prove (1) that reasonable and necessary medical or healthcare expenses do
exist, (2) what part 0f the medical or healthcare expenses have actually been paid 0r for which
Plaintiff remain liable, and (3) that the medical 0r healthcare expenses claimed resulted from
conduct of Defendants.
Fourth Defense
Pleading further, Defendants would show that Plaintiff is not entitled t0 an award of
exemplary damages under TEX. CIV. PRAC. & REM. CODE §41.005 and TEX. ALCO. BEV. CODE
§2.03.
Answer - Washingtondocx
K:\1359.120\Pleadings\Defendants' Original -2 -
Defendants would further show that Plaintiff is not entitled to an award of exemplary
damages, unless the Plaintiff proves by clear and convincing evidence that Defendants acted with
malice. TEX. CIV. PRAC. & REM. CODE §41.003(a).
Defendants would further show the Court that the exemplary damages awarded against
Defendants, if any, may not exceed the amount contained in and limited by Chapter 41 of the
Texas Civil Practice and Remedies Code, and Defendants respectfully request this honorable
Court to compute Plaintiff’s award, if any, in accordance with the language of Chapter 41 of the
Texas Civil Practice and Remedies Code. Specifically, pursuant to §41.008, Plaintiff is only
entitled to exemplary damages, if any, not to exceed an amount equal to two times the amount of
economic damages and an amount equal to any non-economic damages, not to exceed $750,000;
or $200,000. Defendants also request that the Plaintiff prove the necessary requirements to
establish a cause of action for exemplary damages as set forth in Chapter 41 of the Texas Civil
Practice and Remedies Code. Further, prejudgment interest may not be recovered on an award
of exemplary damages pursuant to §41.007 of the Texas Civil Practice and Remedies Code.
To the extent Plaintiff claims punitive damages against Defendants, an award of punitive
damages against it, without any cap or limit whatsoever placed upon the amount of punitive
damages which may be awarded, would violate its rights to due process as guaranteed by the
14th Amendment to the United States Constitution by Article I, Section 19 of the Texas
Constitution, as well as by the public policy and common law of this State.
Further, with respect to Plaintiff’s claim for punitive damages, any award of punitive
damages against Defendants, which may be based upon any conduct or products not specifically
alleged as the basis for Plaintiff’s claims in this action, would violate its due process rights as
guaranteed by the 14th Amendment to the United States Constitution by Article I, Section 19 of
the Texas Constitution, as well as by the public policy and common law of this State.
-3-
K:\1359.120\Pleadings\Defendants' Original Answer - Washington.docx
Defendants also invoke the defense of burden 0f proof, as set forth in Chapter 41 of the
Texas Civil Practice and Remedies Code. Defendants maintain that Plaintiff does not state a
Viable claim for the imposition of punitive damages.
III.
JURY DEMAND
Defendants further assert their right to a trialby jury, under Texas Constitution article 1,
section 15, and make this demand for a jury trial at least 30 days before the date this case is set
for trial, in accordance With Texas Rule 0f Civil Procedure 216.
Defendants tender the fee as required by the Texas Government Code section 51.604.
IV.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants pray that all relief requested by
Plaintiff be denied, that judgment be entered, that Plaintiff takes nothing against Defendants, and
that Defendants recover court costs, and such other and further relief, at law 0r in equity, to
Which they may be justly entitled.
Respectfully submitted,
ADKERSON, HAUDER & BEZNEY, PC
By: flfl/fizlé¢
Paul A. Bezney
State Bar No. 00787077
bezne ahblaw.net
Kelly Davis
State Bar N0. 24085268
kell ahblawnet
1700 Pacific Avenue, Suite 4450
Dallas, Texas 75201
Facsimile: 2 1 4/740-2501
ATTORNEYS FOR DEFENDANTS
Answer - Washingtondocx
K:\1359.120\Pleadings\Defendants’ Original -4 -
CERTIFICATE OF SERVICE
A true and correct copy 0f the foregoing instrument has been served upon all the parties,
pursuant t0 the Texas Rules of Civil Procedure 0n this the 28th day 0f January, 2019.
away?
Paul A. Bezney
Kelly Davis
Answer - Washingtondocx
K:\1359.120\Pleadings\Defendants' Original -5 -
Preview
FILED DALLAS COUNTY 1/28/2019 10:51AM FELICIA PITRE DISTRICT CLERK CAROLYN SELLERS CAUSE NO. DC-18-18232 CARLA WASHINGTON § IN THE DISTRICT COURT Plaintiff § § VS. § § 44TH JUDICIAL DISTRICT PRIMROSE HOUSTON SOUTH HOUSING,§ L.P. D/B/A ROSEMONT AT ASH CREEK, § AND OC RISK MANAGEMENT § SERVICES LLC § Defendants § DALLAS COUNTY, TEXAS DEFENDANTS’ ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, DEFENDANTS, PRIMROSE HOUSTON SOUTH HOUSING, L.P. incorrectly named as PRIMROSE HOUSTON SOUTH HOUSING, L.P. D/B/A ROSEMONT AT ASH CREEK and OC RISK MANAGEMENT SERVICES LLC, (hereinafter referred to as “Defendants) and files this their Original Answer in the above-entitled and numbered cause, and would respectfully show the Court as follows: I. GENERAL DENIAL Defendants deny each and every, all and singular, the material allegations contained in Plaintiff’s Original Petition, and amendments thereto, and demands strict proof thereof in accordance with the laws of the State of Texas. Defendants reserve the right t0 plead further. II. AFFIRMATIVE DEFENSES First Defense Pleading further and in the alternative, if same be necessary, Defendants raise the affirmative defense 0f proportionate responsibility pursuant t0 TeX. CiV. Prac. & Rem. Code Answer - Washingtondocx K:\1359.120\Pleadings\Defendants' Original - 1- §33.001. Defendants allege Plaintiff’s own negligence is the cause 0f Plaintiff’s accident and subsequent alleged injuries. Second Defense Defendants contend that the alleged accident made the basis 0f this lawsuit and the alleged damages, if any, were caused by the negligence 0f persons or third-parties over Whom Defendants had n0 control, and for Whom Defendants are not in law responsible. Such negligence was the sole cause 0r, alternatively, a proximate cause 0f the alleged occurrence in question and the alleged damages, if any. Third Defense Defendants plead further that any recovery 0f medical expenses or health care expenses allegedly incurred by Plaintiff, are limited t0 the amount actually paid 0r incurred by 0r on behalf 0f Plaintiff, if any, pursuant t0 TEX. CIV. PRAC. & REM. CODE §41 .0105. Defendants respectfully request this Honorable Court t0 compute Plaintiff’s award, if any, in accordance with the language of Section 41.0105 0f the Texas Civil Practice and Remedies Code. Defendants also request that Plaintiff prove (1) that reasonable and necessary medical or healthcare expenses do exist, (2) what part 0f the medical or healthcare expenses have actually been paid 0r for which Plaintiff remain liable, and (3) that the medical 0r healthcare expenses claimed resulted from conduct of Defendants. Fourth Defense Pleading further, Defendants would show that Plaintiff is not entitled t0 an award of exemplary damages under TEX. CIV. PRAC. & REM. CODE §41.005 and TEX. ALCO. BEV. CODE §2.03. Answer - Washingtondocx K:\1359.120\Pleadings\Defendants' Original -2 - Defendants would further show that Plaintiff is not entitled to an award of exemplary damages, unless the Plaintiff proves by clear and convincing evidence that Defendants acted with malice. TEX. CIV. PRAC. & REM. CODE §41.003(a). Defendants would further show the Court that the exemplary damages awarded against Defendants, if any, may not exceed the amount contained in and limited by Chapter 41 of the Texas Civil Practice and Remedies Code, and Defendants respectfully request this honorable Court to compute Plaintiff’s award, if any, in accordance with the language of Chapter 41 of the Texas Civil Practice and Remedies Code. Specifically, pursuant to §41.008, Plaintiff is only entitled to exemplary damages, if any, not to exceed an amount equal to two times the amount of economic damages and an amount equal to any non-economic damages, not to exceed $750,000; or $200,000. Defendants also request that the Plaintiff prove the necessary requirements to establish a cause of action for exemplary damages as set forth in Chapter 41 of the Texas Civil Practice and Remedies Code. Further, prejudgment interest may not be recovered on an award of exemplary damages pursuant to §41.007 of the Texas Civil Practice and Remedies Code. To the extent Plaintiff claims punitive damages against Defendants, an award of punitive damages against it, without any cap or limit whatsoever placed upon the amount of punitive damages which may be awarded, would violate its rights to due process as guaranteed by the 14th Amendment to the United States Constitution by Article I, Section 19 of the Texas Constitution, as well as by the public policy and common law of this State. Further, with respect to Plaintiff’s claim for punitive damages, any award of punitive damages against Defendants, which may be based upon any conduct or products not specifically alleged as the basis for Plaintiff’s claims in this action, would violate its due process rights as guaranteed by the 14th Amendment to the United States Constitution by Article I, Section 19 of the Texas Constitution, as well as by the public policy and common law of this State. -3- K:\1359.120\Pleadings\Defendants' Original Answer - Washington.docx Defendants also invoke the defense of burden 0f proof, as set forth in Chapter 41 of the Texas Civil Practice and Remedies Code. Defendants maintain that Plaintiff does not state a Viable claim for the imposition of punitive damages. III. JURY DEMAND Defendants further assert their right to a trialby jury, under Texas Constitution article 1, section 15, and make this demand for a jury trial at least 30 days before the date this case is set for trial, in accordance With Texas Rule 0f Civil Procedure 216. Defendants tender the fee as required by the Texas Government Code section 51.604. IV. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants pray that all relief requested by Plaintiff be denied, that judgment be entered, that Plaintiff takes nothing against Defendants, and that Defendants recover court costs, and such other and further relief, at law 0r in equity, to Which they may be justly entitled. Respectfully submitted, ADKERSON, HAUDER & BEZNEY, PC By: flfl/fizlé¢ Paul A. Bezney State Bar No. 00787077 bezne ahblaw.net Kelly Davis State Bar N0. 24085268 kell ahblawnet 1700 Pacific Avenue, Suite 4450 Dallas, Texas 75201 Facsimile: 2 1 4/740-2501 ATTORNEYS FOR DEFENDANTS Answer - Washingtondocx K:\1359.120\Pleadings\Defendants’ Original -4 - CERTIFICATE OF SERVICE A true and correct copy 0f the foregoing instrument has been served upon all the parties, pursuant t0 the Texas Rules of Civil Procedure 0n this the 28th day 0f January, 2019. away? Paul A. Bezney Kelly Davis Answer - Washingtondocx K:\1359.120\Pleadings\Defendants' Original -5 -