Preview
Electronically Filed
10/25/2019 11:03 AM
Hidalgo County District Clerks
Reviewed By: Kim Hinojosa
CAUSE NO. C-4445-17-G
ALICIA PERALES § IN THE DISTRICT COURT
AS REPRESENTATIVE OF THE §
ESTATE OF MARIO A. PERALES, §
AND AS NEXT OF FRIEND OF §
S.M. PERALES AND
M. PERALES, JR., MINOR CHILDREN §
PlaintiffS §
§
v. § 370 JUDICIAL DISTRICT
DANIEL SIEGER, INDIVIDUALLY §
AND AS AN AGENT OF DEFENDANT §
PEOPLE READY, INC.,
TEXAS SAI, INC. AND TRUE BLUE §
ENTERPRISES, INC. AS AGENT FOR §
ITS SUBSIDIARIES AND AFFILIATES §
PEOPLE READY, INC. AND DBNK §
CONTRACTING LLC D/B/A BLUE §
TEAM RESTORATION, LLC §
Defendants § HIDALGO COUNTY, TEXAS
THIRD-PARTY DEFENDANT DUSTROL, INC.’S ORIGINAL ANSWER TO
DEFENDANT/CROSS-DEFENDANT/THIRD-PARTY PLAINTIFF TEXAS SAI, INC.’S
ORIGINAL THIRD-PARTY PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Third-Party Defendant Dustrol, Inc. (“Dustrol” or “Defendant”) and files
this, its Original Answer to Defendant/Cross-Defendant/Third-Party Plaintiff Texas SAI, Inc.’s
Original Third-Party Petition, and respectfully shows the Court as follows:
I
General Denial
el Pursuant to Texas Rule of Civil Procedure 92, Dustrol denies each and every, all and
singular, material allegation contained in Defendant/Cross-Defendant/Third-Party Plaintiff Texas
SAI, Inc.’s Original Third-Party Petition against it and demands strict proof thereof.
Electronically Filed
10/25/2019 11:03 AM
Hidalgo County District Clerks
Reviewed By: Kim Hinojosa
Il.
Affirmative Defenses
2.1 While continuing to deny the material allegations in Defendant/Cross-Defendant/Third-
Party Plaintiff Texas SAI, Inc.’s Original Third-Party Petition against it, Dustrol would show that
the alleged occurrences and/or alleged damages of Plaintiffs, if any, were caused solely, or
alternatively in part, by the negligent acts and/or omissions of persons, entities or instrumentalities
(collectively, “other parties”) over whom Dustrol had no control and/or for whom Dustrol had no
legal responsibility and any subsequently designated responsible third party or settling person.
Accordingly, Dustrol invokes Chapters 32 and 33 of the Texas Civil Practice and Remedies Code
in this respect and would show that, to the extent Plaintiffs sustained any damages, which is not
admitted but is denied, Dustrol is entitled to contribution and/or indemnity from such other parties,
or other responsible persons or entities who are not parties to this lawsuit, whose negligence was
a proximate cause of said damages, if any, and the submission of a question to the jury regarding
the responsibility of other parties.
2.2 Plaintiffs’ alleged damages, if any, and the alleged damages of any party to this lawsuit, if
any, were caused by intervening, superseding and/or new and independent causes over which
Dustrol had no control and for which Dustrol is not legally responsible.
2.3 Defendant specifically denies that it acted with gross negligence and/or malice and thereby
Defendant/Cross-Defendant/Third-Party Plaintiff Texas SAI, Inc., may not be awarded damages
unless it establishes by clear and convincing evidence that Defendant was grossly negligent and/or
acted with malice. TEX. CIV. PRAC. & REM. CODE §41.003. Additionally, in the unlikely event
the Court submits an exemplary damages issue as to Dustrol, Defendant requests that the jury be
instructed consistent with the provisions of Chapter 41 of the Texas Civil Practice and Remedies
Code. See TEX. Crv. PRAC. & REM. CODE §41.012.
Electronically Filed
10/25/2019 11:03 AM
Hidalgo County District Clerks
Reviewed By: Kim Hinojosa
24 Defendant would show that to the extent § 41.008 of the Texas Civil Practice
and Remedies
Code is read to authorize the imposition of punitive damages at a two-to-one ratio with economic
damages
plus an amount equal to non-economic
damages found by the jury up to $750,000
in all
cases, such statute allows for excessive and unreasonable amounts of punitive damages without
basis in the conduct or acts to be punished, and therefore violates the due process of law, due
course of law, and the equal protection of the laws and provisions of the Constitutions of the State
of Texas and the United States of America. Pleading further, Defendant would show that such
damages are inappropriate and are impermissible under Texas and United States law because:
1 Such an award would constitute a denial of due process and a denial of equal
protection of the law under the constitutions of the United States and of Texas.
Such an award would constitute a taking of property without due process of law
under the constitutions of the United States and of Texas.
Such an award would provide unjust enrichment by reason of the unconstitutional
taking of property without due process of law as provided by the constitutions of
the United States and of Texas.
Under Texas law, the measure for punitive damages is so vague and ambiguous
that: (1) both on its face
and in application
such measure, if any, denies Defendant
due process of law and equal protection of law as provided by the constitutions of
the United States and of Texas; (2) such measure, if any, prevents courts and juries
from consistently applying the law; and (3) such measure, if any, prevents adequate
and fairjudicial review of such awards.
An award of punitive damages would violate the excessive fines clause of the
Eighth Amendment to the United States Constitution.
25 Further, in the altemative and/or in addition to Dustrol’s affirmative defense pursuant to
the caps and limits described in Chapter41 of the Texas Civil Practice & Remedies, Dustrol would
show punitive damages, if any, must bear a reasonable relationship to actual damages.
2.6 Pleading further, and while continuing to deny liability, in the unlikely event
Defendant/Cross-Defendant/Third-
Party Plaintiff Texas SAI, Inc., recovers damages in this case,
Electronically Filed
10/25/2019 11:03 AM
Hidalgo County District Clerks
Reviewed By: Kim Hinojosa
Defendant/Cross-Defendant/Third-Party Plaintiff Texas SAI, Inc.’s recovery is limited, with
respect to pre-judgment and post-judgment interest, if any, by the provisions contained in Chapter
304 of the Texas Finance Code.
2.7 Defendant pleads section 97.002 of the Texas Civil Practice & Remedies Code in all
respects and would show that said statute provides a complete defense to Plaintiffs’ claims and
causes of action. Specifically, but not by way of limitation, Defendant was, at the time of the
subject accident, in compliance with contract documents that are or were material to the alleged
condition or defect that allegedly was the proximate cause of the accident. Accordingly, Plaintiffs
are barred from recovery.
2.8 Dustrol reserves the right to amend and/or supplement this answer as discovery proceeds
and as permitted by the Texas Rules of Civil Procedure.
Defendant demands a trial by jury.
WHEREFORE, PREMISES CONSIDERED, Defendant Dustrol respectfully requests that
Defendant/Cross-Defendant/Third-Party Plaintiff Texas SAI, Inc. take nothing by its claims
against it, that Defendant recover its costs expended herein, and that Defendant be granted such
other and further relief to which it may show itself justly entitled.
Respectfully submitted,
GERMER BEAMAN & BROWN PLLC
301 Congress Avenue, Suite 1700
Austin, Texas 78701
(512) 472-0288
(512) 472-9260 (Facsimile)
oe Gregg R. Brown
State Bar No. 03129010
Electronically Filed
10/25/2019 11:03 AM
Hidalgo County District Clerks
Reviewed By: Kim Hinojosa
gtb-svc@genmer-austin.com.
Maria Korzendorfer
State Bar No. 24102040
mkorzendorfer@germer-austin.com
ATTORNEYS FOR DEFENDANT
DUSTROL, INC.
Electronically Filed
10/25/2019 11:03 AM
Hidalgo County District Clerks
Reviewed By: Kim Hinojosa
CERTIFICATE OF SERVICE
I, the undersigned counsel, hereby certify that a true and correct copy of the foregoing was
forwarded, as indicated below, to all known counsel of record on the 25" day of October, 2019.
Ricardo Gonzalez
Oxford &Gonzalez
124 8. 12
Edinburg, TX 78540
Attorney for Plaintiff
Michael S. Beckelman
Michelle R. Scheiffele
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
909 Fannin Street, Suite 3300
Houston, TX 77010
Attorneys for People Ready, Inc.
Ana Lisa Figueroa
Law Office of Analisa Figueroa, PLLC
514 Paredes Avenue, Suite H
Brownsville, TX 78521
Attorney for Daniel Sieger, Individually
and as an Agent of Defendant People Ready, Inc.
Stephen A. Gibson
Law Office of Stephen A. Gibson
946 W. Nolana Loop, Suite D
Pharr, TX 78577
Attorney for Daniel Sieger, Individually
and as an Agent of Defendant People Ready, Inc.
Javier Gonzalez
Shauna Lozano
Royston, Rayzor, Vickery & Williams, LLP
55 Cove Circle
Brownsville, TX 78523
Attorneys for Defendant/Third Party Plaintiff Texas SAI, Inc.
Mike Mills
Susan Sullivan
Atlas, Hall & Rodriguez
818 Pecan Blvd.
McAllen, TX 78501
Attorney for DBNK Contracting LLC
d/b/a Blue Team Restoration, LLC
Electronically Filed
10/25/2019 11:03 AM
Hidalgo County District Clerks
Reviewed By: Kim Hinojosa
AAR
Gregg R. Brown
Preview
Electronically Filed 10/25/2019 11:03 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CAUSE NO. C-4445-17-G ALICIA PERALES § IN THE DISTRICT COURT AS REPRESENTATIVE OF THE § ESTATE OF MARIO A. PERALES, § AND AS NEXT OF FRIEND OF § S.M. PERALES AND M. PERALES, JR., MINOR CHILDREN § PlaintiffS § § v. § 370 JUDICIAL DISTRICT DANIEL SIEGER, INDIVIDUALLY § AND AS AN AGENT OF DEFENDANT § PEOPLE READY, INC., TEXAS SAI, INC. AND TRUE BLUE § ENTERPRISES, INC. AS AGENT FOR § ITS SUBSIDIARIES AND AFFILIATES § PEOPLE READY, INC. AND DBNK § CONTRACTING LLC D/B/A BLUE § TEAM RESTORATION, LLC § Defendants § HIDALGO COUNTY, TEXAS THIRD-PARTY DEFENDANT DUSTROL, INC.’S ORIGINAL ANSWER TO DEFENDANT/CROSS-DEFENDANT/THIRD-PARTY PLAINTIFF TEXAS SAI, INC.’S ORIGINAL THIRD-PARTY PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Third-Party Defendant Dustrol, Inc. (“Dustrol” or “Defendant”) and files this, its Original Answer to Defendant/Cross-Defendant/Third-Party Plaintiff Texas SAI, Inc.’s Original Third-Party Petition, and respectfully shows the Court as follows: I General Denial el Pursuant to Texas Rule of Civil Procedure 92, Dustrol denies each and every, all and singular, material allegation contained in Defendant/Cross-Defendant/Third-Party Plaintiff Texas SAI, Inc.’s Original Third-Party Petition against it and demands strict proof thereof. Electronically Filed 10/25/2019 11:03 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Il. Affirmative Defenses 2.1 While continuing to deny the material allegations in Defendant/Cross-Defendant/Third- Party Plaintiff Texas SAI, Inc.’s Original Third-Party Petition against it, Dustrol would show that the alleged occurrences and/or alleged damages of Plaintiffs, if any, were caused solely, or alternatively in part, by the negligent acts and/or omissions of persons, entities or instrumentalities (collectively, “other parties”) over whom Dustrol had no control and/or for whom Dustrol had no legal responsibility and any subsequently designated responsible third party or settling person. Accordingly, Dustrol invokes Chapters 32 and 33 of the Texas Civil Practice and Remedies Code in this respect and would show that, to the extent Plaintiffs sustained any damages, which is not admitted but is denied, Dustrol is entitled to contribution and/or indemnity from such other parties, or other responsible persons or entities who are not parties to this lawsuit, whose negligence was a proximate cause of said damages, if any, and the submission of a question to the jury regarding the responsibility of other parties. 2.2 Plaintiffs’ alleged damages, if any, and the alleged damages of any party to this lawsuit, if any, were caused by intervening, superseding and/or new and independent causes over which Dustrol had no control and for which Dustrol is not legally responsible. 2.3 Defendant specifically denies that it acted with gross negligence and/or malice and thereby Defendant/Cross-Defendant/Third-Party Plaintiff Texas SAI, Inc., may not be awarded damages unless it establishes by clear and convincing evidence that Defendant was grossly negligent and/or acted with malice. TEX. CIV. PRAC. & REM. CODE §41.003. Additionally, in the unlikely event the Court submits an exemplary damages issue as to Dustrol, Defendant requests that the jury be instructed consistent with the provisions of Chapter 41 of the Texas Civil Practice and Remedies Code. See TEX. Crv. PRAC. & REM. CODE §41.012. Electronically Filed 10/25/2019 11:03 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 24 Defendant would show that to the extent § 41.008 of the Texas Civil Practice and Remedies Code is read to authorize the imposition of punitive damages at a two-to-one ratio with economic damages plus an amount equal to non-economic damages found by the jury up to $750,000 in all cases, such statute allows for excessive and unreasonable amounts of punitive damages without basis in the conduct or acts to be punished, and therefore violates the due process of law, due course of law, and the equal protection of the laws and provisions of the Constitutions of the State of Texas and the United States of America. Pleading further, Defendant would show that such damages are inappropriate and are impermissible under Texas and United States law because: 1 Such an award would constitute a denial of due process and a denial of equal protection of the law under the constitutions of the United States and of Texas. Such an award would constitute a taking of property without due process of law under the constitutions of the United States and of Texas. Such an award would provide unjust enrichment by reason of the unconstitutional taking of property without due process of law as provided by the constitutions of the United States and of Texas. Under Texas law, the measure for punitive damages is so vague and ambiguous that: (1) both on its face and in application such measure, if any, denies Defendant due process of law and equal protection of law as provided by the constitutions of the United States and of Texas; (2) such measure, if any, prevents courts and juries from consistently applying the law; and (3) such measure, if any, prevents adequate and fairjudicial review of such awards. An award of punitive damages would violate the excessive fines clause of the Eighth Amendment to the United States Constitution. 25 Further, in the altemative and/or in addition to Dustrol’s affirmative defense pursuant to the caps and limits described in Chapter41 of the Texas Civil Practice & Remedies, Dustrol would show punitive damages, if any, must bear a reasonable relationship to actual damages. 2.6 Pleading further, and while continuing to deny liability, in the unlikely event Defendant/Cross-Defendant/Third- Party Plaintiff Texas SAI, Inc., recovers damages in this case, Electronically Filed 10/25/2019 11:03 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Defendant/Cross-Defendant/Third-Party Plaintiff Texas SAI, Inc.’s recovery is limited, with respect to pre-judgment and post-judgment interest, if any, by the provisions contained in Chapter 304 of the Texas Finance Code. 2.7 Defendant pleads section 97.002 of the Texas Civil Practice & Remedies Code in all respects and would show that said statute provides a complete defense to Plaintiffs’ claims and causes of action. Specifically, but not by way of limitation, Defendant was, at the time of the subject accident, in compliance with contract documents that are or were material to the alleged condition or defect that allegedly was the proximate cause of the accident. Accordingly, Plaintiffs are barred from recovery. 2.8 Dustrol reserves the right to amend and/or supplement this answer as discovery proceeds and as permitted by the Texas Rules of Civil Procedure. Defendant demands a trial by jury. WHEREFORE, PREMISES CONSIDERED, Defendant Dustrol respectfully requests that Defendant/Cross-Defendant/Third-Party Plaintiff Texas SAI, Inc. take nothing by its claims against it, that Defendant recover its costs expended herein, and that Defendant be granted such other and further relief to which it may show itself justly entitled. Respectfully submitted, GERMER BEAMAN & BROWN PLLC 301 Congress Avenue, Suite 1700 Austin, Texas 78701 (512) 472-0288 (512) 472-9260 (Facsimile) oe Gregg R. Brown State Bar No. 03129010 Electronically Filed 10/25/2019 11:03 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa gtb-svc@genmer-austin.com. Maria Korzendorfer State Bar No. 24102040 mkorzendorfer@germer-austin.com ATTORNEYS FOR DEFENDANT DUSTROL, INC. Electronically Filed 10/25/2019 11:03 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CERTIFICATE OF SERVICE I, the undersigned counsel, hereby certify that a true and correct copy of the foregoing was forwarded, as indicated below, to all known counsel of record on the 25" day of October, 2019. Ricardo Gonzalez Oxford &Gonzalez 124 8. 12 Edinburg, TX 78540 Attorney for Plaintiff Michael S. Beckelman Michelle R. Scheiffele Wilson, Elser, Moskowitz, Edelman & Dicker, LLP 909 Fannin Street, Suite 3300 Houston, TX 77010 Attorneys for People Ready, Inc. Ana Lisa Figueroa Law Office of Analisa Figueroa, PLLC 514 Paredes Avenue, Suite H Brownsville, TX 78521 Attorney for Daniel Sieger, Individually and as an Agent of Defendant People Ready, Inc. Stephen A. Gibson Law Office of Stephen A. Gibson 946 W. Nolana Loop, Suite D Pharr, TX 78577 Attorney for Daniel Sieger, Individually and as an Agent of Defendant People Ready, Inc. Javier Gonzalez Shauna Lozano Royston, Rayzor, Vickery & Williams, LLP 55 Cove Circle Brownsville, TX 78523 Attorneys for Defendant/Third Party Plaintiff Texas SAI, Inc. Mike Mills Susan Sullivan Atlas, Hall & Rodriguez 818 Pecan Blvd. McAllen, TX 78501 Attorney for DBNK Contracting LLC d/b/a Blue Team Restoration, LLC Electronically Filed 10/25/2019 11:03 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa AAR Gregg R. Brown