Preview
Filed: 6/24/2019 4:29 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 34607673
By: Shailja Dixit
NO. 17-CV-1506 6/24/2019 4:32 PM
ALLEN and JOY SOAPE § IN THE DISTRICT COURT OF
§
v. § GALVESTON COUNTY, TEXAS
§
DSW HOMES, LLC; AAK ELECTRIC, §
LLC; and DALE’S WATER WELLS, LLC § 405th JUDICIAL DISTRICT
DEFENDANT DSW HOMES, LLC’S FIRST AMENDED ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, DSW HOMES, LLC, a Defendant in the above entitled and numbered
cause, and files their First Amended Answer to Plaintiffs’ First Amended Original Petition on
file herein and would show as follows:
I.
As authorized by Rule 92 of the Texas Rules of Civil Procedure, Defendant enters a
general denial of matters pled by the Plaintiffs and request that the Court require the Plaintiffs to
prove their charges and allegations by a preponderance of the evidence as required by the
Constitution and laws of the State of Texas.
II.
Defendant further alleges that at the times and places and on the occasions in question,
Plaintiffs failed to exercise that degree of care which an ordinarily prudent person in the exercise
of ordinary care would have exercised under the same or similar circumstances, and such failure
proximately caused or contributed to cause the occurrence made the basis of this suit.
III.
Defendant further alleges that the occurrence made the basis of this suit was caused in
whole or in part by third persons, including, but not limited to the other parties and responsible
third party defendants over whom this Defendant had no control and for whose acts and/or
omissions it was not in fact nor in law responsible.
IV.
Defendant would show that the negligent acts and/or omissions of Plaintiffs caused the
damages complained of in this lawsuit. Defendant pleads the doctrine of contributory and
comparative negligence.
V.
Defendant would show that the incident made the basis of this suit and/or Plaintiff’s
alleged injuries were proximately caused by the sole negligence or contributory negligence and
other conduct on the part of Defendants, DALES WATER WELLS, LLC AND/OR AAK
ELECTRIC, LLC, and Responsible Third Party (including but not limited to Barfield Homes
Inspections) including failure to use ordinary care.
VI.
Further answering herein, and in the alternative, Defendant states that the injuries and/or
illnesses and damages of the Plaintiffs, if any, were brought about as a result of an unavoidable
accident.
VII.
Defendant would show that Plaintiff’s damages, if any, were proximately caused, in
whole or in part, by Plaintiff’s failure to mitigate his damages.
VIII.
Further answering herein, and in the alternative, this Defendant denies that any condition
from which the Plaintiff is suffering, if any, is the result directly or indirectly of the occurrence
alleged in Plaintiff’s Petition, but this Defendant says that if the Plaintiff is suffering from any
illness, disease, or condition claimed by Plaintiff, the same in whole or in part was and is the
result of some prior or subsequent accident, injury, disease, physical defect, or bodily condition,
for which this Defendant is not responsible and which did not proximately result from the
DEFENDANT’S FIRST AMENDED ORIGINAL ANSWER PAGE 2
occurrence made the basis of this suit.
IX.
If Defendant is found liable for exemplary damages, those damages must be capped
under the Texas Damages Act, §§41.005, 41.007, 41.008, 41.010 and 41.012 of the Texas Civil
Practice and Remedies Code and the Due Process Clauses of the United States and Texas
Constitutions.
X.
Defendant pleads Chapter 33 of the Texas Civil Practice and Remedies Code, and asks
the Court and Jury to consider the relative damages and conduct of the parties and all tortfeasors,
and accord this Defendant full benefit of said law. This Defendant is entitled to an offset, credit
or percentage reduction based upon a determination of the relative fault of all persons and
tortfeasors or upon the amount of money paid by all other Defendants, persons, and/or tortfeasors
to Plaintiffs.
XI.
To the extent that medical expenses and/or health care expenses exceed the amount
actually paid on behalf of Plaintiffs, Defendant asserts the statutory defense set forth in §41.0105
of the Texas Civil Practice and Remedies Code. Recovery of medical and/or health care
expenses is limited to the amount actually paid and/or incurred on behalf of Plaintiff.
XII.
Pursuant to Rule 193.7, Texas Rules of Civil Procedure, Defendant gives notice of their
intent to use documents produced by any party in response to all discovery propounded
throughout the course of this litigation, including any pretrial proceedings and at the time of trial.
DEFENDANT’S FIRST AMENDED ORIGINAL ANSWER PAGE 3
XIII.
JURY DEMAND
Defendant demands a trial by jury. The jury fee has previously been paid.
WHEREFORE, PREMISES CONSIDERED, having fully answered, Defendant, DSW
HOMES, LLC prays judgment of the Court and for such other and further relief, both general
and special, at law and in equity, to which it may be justly entitled.
Respectfully submitted,
SHEEHY, WARE & PAPPAS, P.C.
By:
GEORGE P. PAPPAS
SBN 15454800
gpappas@sheehyware.com
JENNIFER D. CULLY
SBN 24030026
jcully@sheehyware.com
2500 Two Houston Center
909 Fannin Street
Houston, Texas 77010-1003
Phone (713) 951-1000
Fax (713) 951-1199
ATTORNEYS FOR DEFENDANT,
DSW HOMES, LLC
DEFENDANT’S FIRST AMENDED ORIGINAL ANSWER PAGE 4
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above and foregoing document was
served electronically on June 24, 2019 as follows:
Counsel for Plaintiffs: Counsel for Defendant, AAK Electric, LLC:
Clifford Walston Linda Johnson White
Joshua N. Bowlin ALLEN, KILLGORE & WHITE, P.C.
Nathaniel J. Alford, III 2323 South Voss Road, Suite 230
WALSTON BOWLIN, LLP Houston, Texas 77057
4299 San Felipe Street, Suite 300 lwhite@allenkillgore.com
Houston, TX 77027 -AND-
cliff@walstonbowlin.com Robbie A. Moehlmann
josh@walstonbowlin.com Mike Prather
nate@walstonbowlin.com Natasha Bahri
Monica@WalstonBowlin.com WALKER WILCOX MATOUSEK LLP
-AND- 1001 McKinney Street, Suite 2000
Kurt Arnold Houston, Texas 77002
J. Kyle Findley rmoehlmann@wwmlawyers.com
ARNOLD & ITKIN, LLP mprather@wwmlawyers.com
6009 Memorial Drive nbahri@wwmlawyers.com
Houston, TX 77007 solguin@wwmlawyers.com
karnold@arnolditkin.com
kfindley@arnolditkin.com Counsel for Defendant, Dale’s Water Wells, LLC:
kbateam@arnolditkin.com Marshall G. Rosenberg
e-service@arnolditkin.com Kevin B. Tompkins
Hartline Barger LLP
1980 Post Oak Blvd, Suite 1800
Houston, Texas 77056
mrosenberg@hdbdlaw.com
ktompkins@hdbdlaw.com
jfann@hdbdlaw.com
lkesler@hdbdlaw.com
GEORGE P. PAPPAS
3496290_1
DEFENDANT’S FIRST AMENDED ORIGINAL ANSWER PAGE 5
Preview
Filed: 6/24/2019 4:29 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 34607673 By: Shailja Dixit NO. 17-CV-1506 6/24/2019 4:32 PM ALLEN and JOY SOAPE § IN THE DISTRICT COURT OF § v. § GALVESTON COUNTY, TEXAS § DSW HOMES, LLC; AAK ELECTRIC, § LLC; and DALE’S WATER WELLS, LLC § 405th JUDICIAL DISTRICT DEFENDANT DSW HOMES, LLC’S FIRST AMENDED ANSWER TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, DSW HOMES, LLC, a Defendant in the above entitled and numbered cause, and files their First Amended Answer to Plaintiffs’ First Amended Original Petition on file herein and would show as follows: I. As authorized by Rule 92 of the Texas Rules of Civil Procedure, Defendant enters a general denial of matters pled by the Plaintiffs and request that the Court require the Plaintiffs to prove their charges and allegations by a preponderance of the evidence as required by the Constitution and laws of the State of Texas. II. Defendant further alleges that at the times and places and on the occasions in question, Plaintiffs failed to exercise that degree of care which an ordinarily prudent person in the exercise of ordinary care would have exercised under the same or similar circumstances, and such failure proximately caused or contributed to cause the occurrence made the basis of this suit. III. Defendant further alleges that the occurrence made the basis of this suit was caused in whole or in part by third persons, including, but not limited to the other parties and responsible third party defendants over whom this Defendant had no control and for whose acts and/or omissions it was not in fact nor in law responsible. IV. Defendant would show that the negligent acts and/or omissions of Plaintiffs caused the damages complained of in this lawsuit. Defendant pleads the doctrine of contributory and comparative negligence. V. Defendant would show that the incident made the basis of this suit and/or Plaintiff’s alleged injuries were proximately caused by the sole negligence or contributory negligence and other conduct on the part of Defendants, DALES WATER WELLS, LLC AND/OR AAK ELECTRIC, LLC, and Responsible Third Party (including but not limited to Barfield Homes Inspections) including failure to use ordinary care. VI. Further answering herein, and in the alternative, Defendant states that the injuries and/or illnesses and damages of the Plaintiffs, if any, were brought about as a result of an unavoidable accident. VII. Defendant would show that Plaintiff’s damages, if any, were proximately caused, in whole or in part, by Plaintiff’s failure to mitigate his damages. VIII. Further answering herein, and in the alternative, this Defendant denies that any condition from which the Plaintiff is suffering, if any, is the result directly or indirectly of the occurrence alleged in Plaintiff’s Petition, but this Defendant says that if the Plaintiff is suffering from any illness, disease, or condition claimed by Plaintiff, the same in whole or in part was and is the result of some prior or subsequent accident, injury, disease, physical defect, or bodily condition, for which this Defendant is not responsible and which did not proximately result from the DEFENDANT’S FIRST AMENDED ORIGINAL ANSWER PAGE 2 occurrence made the basis of this suit. IX. If Defendant is found liable for exemplary damages, those damages must be capped under the Texas Damages Act, §§41.005, 41.007, 41.008, 41.010 and 41.012 of the Texas Civil Practice and Remedies Code and the Due Process Clauses of the United States and Texas Constitutions. X. Defendant pleads Chapter 33 of the Texas Civil Practice and Remedies Code, and asks the Court and Jury to consider the relative damages and conduct of the parties and all tortfeasors, and accord this Defendant full benefit of said law. This Defendant is entitled to an offset, credit or percentage reduction based upon a determination of the relative fault of all persons and tortfeasors or upon the amount of money paid by all other Defendants, persons, and/or tortfeasors to Plaintiffs. XI. To the extent that medical expenses and/or health care expenses exceed the amount actually paid on behalf of Plaintiffs, Defendant asserts the statutory defense set forth in §41.0105 of the Texas Civil Practice and Remedies Code. Recovery of medical and/or health care expenses is limited to the amount actually paid and/or incurred on behalf of Plaintiff. XII. Pursuant to Rule 193.7, Texas Rules of Civil Procedure, Defendant gives notice of their intent to use documents produced by any party in response to all discovery propounded throughout the course of this litigation, including any pretrial proceedings and at the time of trial. DEFENDANT’S FIRST AMENDED ORIGINAL ANSWER PAGE 3 XIII. JURY DEMAND Defendant demands a trial by jury. The jury fee has previously been paid. WHEREFORE, PREMISES CONSIDERED, having fully answered, Defendant, DSW HOMES, LLC prays judgment of the Court and for such other and further relief, both general and special, at law and in equity, to which it may be justly entitled. Respectfully submitted, SHEEHY, WARE & PAPPAS, P.C. By: GEORGE P. PAPPAS SBN 15454800 gpappas@sheehyware.com JENNIFER D. CULLY SBN 24030026 jcully@sheehyware.com 2500 Two Houston Center 909 Fannin Street Houston, Texas 77010-1003 Phone (713) 951-1000 Fax (713) 951-1199 ATTORNEYS FOR DEFENDANT, DSW HOMES, LLC DEFENDANT’S FIRST AMENDED ORIGINAL ANSWER PAGE 4 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing document was served electronically on June 24, 2019 as follows: Counsel for Plaintiffs: Counsel for Defendant, AAK Electric, LLC: Clifford Walston Linda Johnson White Joshua N. Bowlin ALLEN, KILLGORE & WHITE, P.C. Nathaniel J. Alford, III 2323 South Voss Road, Suite 230 WALSTON BOWLIN, LLP Houston, Texas 77057 4299 San Felipe Street, Suite 300 lwhite@allenkillgore.com Houston, TX 77027 -AND- cliff@walstonbowlin.com Robbie A. Moehlmann josh@walstonbowlin.com Mike Prather nate@walstonbowlin.com Natasha Bahri Monica@WalstonBowlin.com WALKER WILCOX MATOUSEK LLP -AND- 1001 McKinney Street, Suite 2000 Kurt Arnold Houston, Texas 77002 J. Kyle Findley rmoehlmann@wwmlawyers.com ARNOLD & ITKIN, LLP mprather@wwmlawyers.com 6009 Memorial Drive nbahri@wwmlawyers.com Houston, TX 77007 solguin@wwmlawyers.com karnold@arnolditkin.com kfindley@arnolditkin.com Counsel for Defendant, Dale’s Water Wells, LLC: kbateam@arnolditkin.com Marshall G. Rosenberg e-service@arnolditkin.com Kevin B. Tompkins Hartline Barger LLP 1980 Post Oak Blvd, Suite 1800 Houston, Texas 77056 mrosenberg@hdbdlaw.com ktompkins@hdbdlaw.com jfann@hdbdlaw.com lkesler@hdbdlaw.com GEORGE P. PAPPAS 3496290_1 DEFENDANT’S FIRST AMENDED ORIGINAL ANSWER PAGE 5