Motion to Transfer in TAMARA SUZANNE VARDY, et al vs. NEW PRIME, INC, et al| Trellis.Law

On July 28, 2021 a Answer was filed involving a dispute between Vardy, Brendan Earl, Vardy, Christopher Neff, Vardy, James Robert, Vardy, Mary Lou, Vardy, Tamara Suzanne, and Bowman, Charles Grant, Cintra Holding Us Corp, Cintra Us Services Llc, Coca-Cola Southwest Beverages Llc, Duran, Jose Brent, Ernst, Val, Ferrovial Agroman Us Corp, Garcia Rodriguez, Hector Fernando, Gg'S Produce Transport Llc, Go To Logistics Inc, I Garza Llc, J.B. Hunt Transport Inc, Mcenley, Jalen, Montes, Arturo, New Prime, Inc, New Prime, Inc. D B A New Prime, Inc., North Tarrant Infrastructure Llc, Nte Mobility Partners Llc, Nte Mobility Partners Segments 3 Llc, Rich Transport Llc, Ridder, Steven Anthony, Sierra Mountain Express, Sonic Logistics Llc, Sukhwinder, Singh, Sun Valley Inc, Webber Llc, Williams, Cody Sloan, for MOTOR VEHICLE ACCIDENT in the District Court of Dallas County.

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FILED
9/17/2021 3:48 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Scott Anders DEPUTY

CAUSE NO.: DC-21-09849

TAMARA SUZANNE VARDY, § IN THE DISTRICT COURT
Individually and as Representative of the Estate §
Of CHRISTOPHER RAY VARDY, Deceased, §
BRENDAN EARL VARDY,

§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§
CHRISTOPHER NEFF VARDY,
JAMES ROBERT VARDY, and
MARY LOU VARDY
Plaintiffs,

V. 44th JUDICIAL DISTRICT

NEW PRIME, INC, D/B/A PRIME, INC,
STEVEN ANTHONY RIDDER,
SONIC LOGISTICS, LLC,
SINGH SUKHWINDER,
SIERRA MOUNTAIN EXPRESS,
ARTURO MONTES,
COCA—COLA SOUTHWEST
BEVERAGES, LLC,
JALEN MCENLEY,
A/K/A JAILEN MCKNEELY,
IB. HUNT TRANSPORT, INC.,
VAL ERNST A/K/A ERNST VAL,
GG’S PRODUCE TRANSPORT, LLC,
I. GARZA, LLC,
JOSE BRENT DURAN,
RICH TMNSPORT, LLC,
HECTOR FERNANDO GARCIA
RODRIGUEZ,
SUN VALLEY, INC,
CHARLES GRANT BOWMAN,
GO TO LOGISTICS, INC.,
CODY SLOAN WILLIAMS,
NTE MOBILITY PARTNERS
SEGMENTS 3, LLC,
NTE MOBILITY PARTNERS, LLC,
NORTH TARRANT INFRASTRUCTURE,
LLC,
CINTRA HOLDING US CORP.
D/B/A CINTRA US CORP,
CINTRA US SERVICES, LLC,
FERROVIAL AGROMAN US CORP
A/K/A FERROVIAL CONSTRUCTION US
CORP., and WEBER , LLC.
Defendants. DALLAS COUNTY, TEXAS

DEFENDANT NEW PRIME, INC., D/B/A PRIME, INC. AND STEVEN ANTHONY RIDDER’S
MOTION TO TRANSFER VENUE AND ORIGINAL ANSWER SUBJECT THERETO - Page 1
DEFENDANT. NEW PRIME. INC.. D/B/A PRIME. INC.
AND STEVEN ANTHONY RIDDER’S MOTION TO TRANSFER VENUE
AND ORIGINAL ANSWER SUBJECT THERETO

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, New Prime, Inc., D/B/A Prime, Inc. and Steven Anthony Ridder

(“Prime”), Defendants in the above-styled and numbered cause of action, and ﬁles this Motion to

Transfer Venue and Original Answer Subject Thereto. In support thereof, Defendants would

respectfully show this Court the following:

I.
MOTION TO TRANSFER VENUE: ARGUMENT & AUTHORITIES

l. By way of background, Plaintiffs’ lawsuit arises from a motor vehicle accident that

occurred in Fort Worth, Tarrant County, Texas on February 11, 2021. As alleged in Plaintiffs’

Original Petition, this incident occurred during the Winter Storm of 2021 while Plaintiffs’ decedent

was driving in the Southbound TEXPress Lanes of 1-35 in Tarrant County, Texas.

2. In its lawsuit, Plaintiffs pleaded that, “Venue is proper in Dallas County, Texas pursuant

to Sections 15.002(a)(2)-(3) and 15.005 of the Texas Civil Practice and Remedies Code, because

(l) Defendant McKneely/McEnley resided in Dallas County when this cause of action accrued and
(2) Defendant Coca-Cola Southwest Beverages, LLC had its principal office and principal place

of business in Dallas County when this cause of action accrued.”

3. Pursuant to Texas Rules of Civil Procedure 86 and 87, Prime objects to venue in Dallas

County, Texas, the county in which Plaintiffs have instituted this lawsuit, on the grounds that,

pursuant to the Texas Civil Practice and Remedies Code §15.002(a) and (b), Dallas County is not

a county of proper venue and no valid basis exists for mandating venue in Dallas County. Dallas

County is not a county of proper venue because the alleged cause of action did not accrue in Dallas

County and none of the events or omissions giving rise to the claim occurred in Dallas County.

DEFENDANT NEW PRIME, INC., D/B/A PRIME, INC. AND STEVEN ANTHONY RIDDER’S
MOTION TO TRANSFER VENUE AND ORIGINAL ANSWER SUBJECT THERETO - Page 2
4. Texas Civil Practice and Remedies Code Section 15 .002(a) provides, in relevant part, when

there is no mandatory or permissive venue rules that apply, all lawsuits shall be brought:

(1) In the county in which all or a substantial part of the events or omissions giving
rise to the claim occurred;

(2) In the county of Defendant’s residence at the time the cause of action accrued
if Defendant is a natural person;

(3) In the county of the Defendant’s principal ofﬁce in this state, if the Defendant
is not a natural person.

All or a Substantjal Part of t_he Events Giving Rise to Plaintiffs’ Clgims Occurred in
Tarrant County.
5. None of the events or omissions giving rise to Plaintiffs’ claims required under Texas Civil

Practice and Remedies Code § 15.002(a)(l) occurred in Dallas County, Texas, but rather, Tarrant

County, Texas. “Substantially” is intended to preserve the element of fairness so that a defendant

is not haled into a remote district having no real relationship to the dispute. See Chiriboga v. State

Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 681 (Tex. App—Austin 2003, no pet.) (no longer is

any fact connected to a lawsuit sufﬁcient to establish venue, as it was under the old scheme).

6. The crash occurred in Tarrant County, Texas.

7. The Road Maintenance Defendants acts and omissions that caused the dangerous condition

that caused the accident occurred in Tarrant County, Texas.

For the Convenience of the Parties and Witnesses, Maintenance of this Action Should be
in Collin County

8. Texas Civil Practice and Remedies Code Section 15.002(b) further provides, in relevant

part:

For the convenience of the parties and witnesses and in the interest of justice, a
court may transfer an action from a county of proper venue under this subchapter
or Subchapter C to any other county of proper venue on motion of a defendant ﬁled
and served concurrently with or before the ﬁling of the answer, where the court
finds:

(l) maintenance of the action in the county of suit would work an injustice to the
movant considering the movant‘s economic and personal hardship;

DEFENDANT NEW PRIME, INC., D/B/A PRIME, INC. AND STEVEN ANTHONY RIDDER’S
MOTION TO TRANSFER VENUE AND ORIGINAL ANSWER SUBJECT THERETO - Page 3
(2) the balance of interests of all the parties predominates in favor of the action being
brought in the other county; and

(3) the transfer of the action would not work an injustice to any other party.

9. Further, this incident was responded to and investigated by representatives of the Fort

Worth Fire Department, Fort Worth Police Department, and emergency medical services in Fort

Worth.

10. All of the events giving rise to Plaintiffs’ cause of action occurred in Tarrant County. None

of the events giving rise to Plaintiffs’ causes of action occurred in Dallas County. The majority,

if not all, of the fact witnesses and documentation for this lawsuit are in Tarrant County.
DEFENDANTS’ ANSWER SUBJECT TO AND WITHOUT WAIVER OF
DEFENDANTS’ MOTION TO TRANSFER VENUE

II.
GENERAL DENIAL
ll. Pursuant to Rule 92 of the TEXAS RULES OF CIVIL PROCEDURE, Defendants generally

deny each and every allegation contained in Plaintiffs’ Original Petition and any amendments

thereto and demands strict proof of the same by a preponderance of the credible evidence.

III.
AFFIRMATIVE DEFENSES
l2. Defendants assert and raise the following defenses, some of which may be

affirmative defenses on which Defendants will have the burden of proof, and others of which relate

to elements of Plaintiffs’ causes of action. By pleading these defenses, Defendants do not assume

the burden of proof on any defense for which Defendants would not have the burden of proof under

Texas law.

DEFENDANT NEW PRIME, INC., D/B/A PRIME, INC. AND STEVEN ANTHONY RIDDER’S
MOTION TO TRANSFER VENUE AND ORIGINAL ANSWER SUBJECT THERETO - Page 4
13. In the event any settlement has been or will be made with Plaintiffs, Defendants are entitled

to a credit per the guidelines of Chapter 33 of the TEX. CIV. PRAC. & REM. CODE and asserts it right

to a statutory credit per Chapter 33.012 of TEX. CIV. PRAC. & REM. CODE.

l4. Defendants plead and invoke all protections to which they are entitled under Chapter

32 et seq. of the TEX. CIV. PRAC. & REM. CODE to provide right of action to recover payment from

other co-defendants deemed liable via contribution and/or indemnity. With respect to any claim

for contribution filed by any other party, Defendants assert that such contribution claims are barred

as Defendants have no liability to decedent Christopher Vardy (“Vardy”) and therefore no liability

to Plaintiffs.

15. Prime pleads that it is entitled to submission and consideration of Plaintiffs’ recovery of

medical or health expenses incurred by Plaintiffs (if applicable), and that said damages awarded

by the jury should be limited to the amount actually paid or incurred by or on behalf of Plaintiffs

in accordance with TEX. CIV. PRAC. & REM. CODE Section 41.0105 [Evidence Relating to Amount

of Economic Damages].

l6. Defendants further asserts application of TEX. CIV. PRAC. & REM. CODE Section 18.091,

requiring evidence related to loss of earnings, loss of earning capacity, and loss contribution of a

pecuniary value, or loss of inheritance, to be presented in the form of a net loss after reduction for

income tax payments or unpaid tax liability pursuant to any federal income tax law. Defendants

further request that the Court instruct the jury as to Whether any recovery for compensatory

damages sought by the Plaintiffs are subject to federal or state income taxes.

l7. Some or all of the fault for Plaintiffs’ injuries or damages, if any, were solely or

proximately caused by the fault of Vardy, other parties, defendants and/or responsible third parties,

DEFENDANT NEW PRIME, INC., D/B/A PRIME, INC. AND STEVEN ANTHONY RIDDER’S
MOTION TO TRANSFER VENUE AND ORIGINAL ANSWER SUBJECT THERETO - Page 5
for whom Prime had no right of control, actual control, or legal responsibility. The trier of fact

must determine the relative responsibility of each claimant, defendant, settling person, and

responsible third party who may be joined or designated in this case. As such, Defendant asserts

its right to contribution and liability allocation to Vardy, other co-defendants, parties, Responsible

Third Parties, and/or settling parties pursuant to Chapters 32 and 33 et seq. of the TEX. CIV. PRAC.

& REM. CODE.

18. Defendants further affirmatively plead that Plaintiffs’ injuries and damages were caused

by the contributory negligence of decedent Vardy. Defendants therefore invoke the doctrine of

proportionate responsibility pursuant to Section 33.001 et seq. of the TEX. CIV. PRAC. & REM.

CODE.

l9. The amount of any pre-judgment and post-judgment interest awarded in this case against

Prime, if any, is limited and/or subject to the limitations set forth in common law, statute, state and

federal constitutions, the TEX. FIN. CODE, and/or TEX. CIV. PRAC. & REM. CODE.

20. Plaintiffs have claimed that Prime was “grossly negligent.” Prime asserts an award of

exemplary damages would be Wholly improper for the following reasons:

a. Compensatory, in whole or in part, and constitute a double recovery by
Plaintiffs for the same alleged damages;

b. Violation of the proscription against excessive ﬁnes in the Eighth
Amendment of the U.S. Constitution and Texas Constitution;

c. Exemplary damages be proved beyond a reasonable doubt, or in the
alternative, proved by clear and convincing evidence. This matter is to be
litigated under a “preponderance of the credible evidence” standard of
proof. See TEX. CIV. PRAC. & REM. CODE §4l.003; and

d. Quasi-criminal in nature with no procedural safeguards beyond those
offered by the Texas Rules of Civil Procedure and the TEX. CIV. PRAC. &
REM. CODE. Defendant should be entitled to all safeguards and protections
guaranteed by the 5th, 8th and 14th Amendments of the Constitution.

DEFENDANT NEW PRIME, INC., D/B/A PRIME, INC. AND STEVEN ANTHONY RIDDER’S
MOTION TO TRANSFER VENUE AND ORIGINAL ANSWER SUBJECT THERETO - Page 6
24. In the event exemplary damages are allowed, submitted to the jury and/or awarded,

exemplary or punitive damages are limited as follows:

a. Pursuant to §41.008(b) of the TEX. CIV. PRAC. & REM. CODE, Plaintiffs’
claim for punitive/exemplary damages is limited to: (l)(a) two times the
amount of economic damages, plus (b) an amount equal to any non-
economic damages, not to exceed $750,000; or (2) $200,000, whichever is
greater;

b. Pursuant to Article I, §§3, l3 & l9 of the Texas Constitution and the Fiﬁh,
Eighth and Fourteenth Amendments of the U.S. Constitution, any award
must be limited to a single-digit multiplier of actual or compensatory
damages; and

c. An award in excess of a fraction of Defendant’s net worth would be
improper because it would violate Defendant’s right of due process pursuant
to the Fourteenth Amendment of the U.S. Constitution and Texas
Constitution Article I, §l9, the Eighth Amendment of the U. S. Constitution,
and Chapter 41 of the TEX. CIV. PRAC. & REM. CODE.

25. Defendants afﬁrmatively plead unavoidable accident and/or Act of God.

IV.
INTENT T0 USE PLAINTIFFS’ DOCUMENTS

26. In accordance with TEX. R. CIV. PROC. 193.7, Prime hereby notiﬁes Plaintiffs that any and

all documents produced to Prime by Plaintiffs or any other parties (if applicable) in response to

written discovery requests may be used at any pretrial proceeding, as well as entered into evidence

at the ﬁnal trial of this cause, and are considered authenticated as to producing parties by the fact

of production itself.

VI.
PRAYER
Defendants New Prime, Inc., D/B/A Prime, Inc. and Steven Anthony Ridder respectfully

request that the Court (l) set this motion for hearing, (2) upon hearing and after due consideration
of the pleadings, evidence, applicable law, and argument of counsel, grant Defendants’ motion and

transfer this matter to Tarrant County, Texas, and (3) sign an order granting this motion and

DEFENDANT NEW PRIME, INC., D/B/A PRIME, INC. AND STEVEN ANTHONY RIDDER’S
MOTION TO TRANSFER VENUE AND ORIGINAL ANSWER SUBJECT THERETO - Page 7
transferring this matter to Tarrant County, Texas. Defendants further pray, subject to its Motion

to Transfer Venue, that Plaintiffs take nothing in this suit, that all claims Plaintiffs asserted or

could have asserted against Defendants in this action are denied with prejudice, and that

Defendants are awarded all further relief at law or in equity to which Defendant is justly entitled.

Respectfully submitted,

GAUNTT, KOEN, BINNEY & KIDD L.L.P.
/s/ Robert J. Collins
KARL W. KOEN
State Bar No.: 11652275
Karl.Koen@gkbkZaw. com

ROBERT J. COLLINS
State Bar No.2 24031970
Robert. Collins@gkbklaw. com

MARK D. SIEMER
State Bar No.: 24110361
Mark.Siemer@gkbklaw.com

14643 Dallas Parkway, Suite 500
Dallas, Texas 75254
(972) 630-4620
(972) 630-4669 — Fax

ATTORNEYS FOR DEF ENDANTS
NEW PRIME, INC., D/B/A PRIME,
INC. AND STEVEN ANTHONY RIDDER

DEFENDANT NEW PRIME, INC., D/B/A PRIME, INC. AND STEVEN ANTHONY RIDDER’S
MOTION TO TRANSFER VENUE AND ORIGINAL ANSWER SUBJECT THERETO - Page 8
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was forwarded to

the following counsel of record pursuant to the Texas Rules of Civil Procedure, as indicated below,

on this the 17th day of September, 2021.

Via ProDoc Filing
Mr. Frank L. Branson
Mr. Tim D. Newsom
The Law Ofﬁces of Frank L. Branson
Highland Park Place
4514 Cole Avenue, 18th Floor
Dallas, Texas 75205
/s/ Robert J. Collins
ROBERT J. COLLINS

DEFENDANT NEW PRIME, INC., D/B/A PRIME, INC. AND STEVEN ANTHONY RIDDER’S
MOTION TO TRANSFER VENUE AND ORIGINAL ANSWER SUBJECT THERETO - Page 9
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.

Melissa Shaffer on behalf of Robert Collins
Bar No. 24031970
Melissa.shaffer@gkbwklaw.com
Envelope ID: 57372275
Status as of 9/21/2021 9:15 AM CST
Associated Case Party: TAMARASUZANNEVARDY

Name BarNumber Email Timestam pSubmitted Status
Tim Newsom efiletn@ﬂ branson.com 9/17/2021 3:48:50 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Betsy Yocum byocum@belaw.com 9/17/2021 3:48:50 PM SENT
Carter LFerguson cferguson@belaw.com 9/17/2021 3:48:50 PM SENT
Henri Dussault hdussault@belaw.com 9/17/2021 3:48:50 PM SENT
Susan Royall sroyall@belaw.com 9/17/2021 3:48:50 PM SENT
TIMOTHY DREWNEWSOM tnewsom@flbranson.com 9/17/2021 3:48:50 PM SENT

Associated Case Party: New Prime, Inc. D/B/A/ New Prime, Inc.

Name BarNumber Email TimestampSubmitted Status
Robert Collins Robert.Co||ins@gkbklaw.com 9/17/2021 3:48:50 PM SENT
Karl Koen karl.koen@gkbklaw.com 9/17/2021 3:48:50 PM SENT
Karen Morris Karen.Morris@gkbklaw.com 9/17/2021 3:48:50 PM SENT
Mark DavidSiemer mark.siemer@gkbklaw.com 9/17/2021 3:48:50 PM SENT

Case Info

Judge

FRAZIER, VERETTA Track Judge’s New Case

Case No.

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Document Filed Date

September 17, 2021

Case Filing Date

July 28, 2021

County

Parties

BOWMAN, CHARLES GRANT Defendant
CINTRA HOLDING US CORP Defendant
CINTRA US SERVICES LLC Defendant
COCA-COLA SOUTHWEST BEVERAGES LLC Defendant
COX, CLINTON V., IV Attorney for the Defendant
CRAMER, KEITH C Attorney for the Defendant
DORSETT JR, C ROBERT Attorney for the Defendant
DURAN, JOSE BRENT Defendant
ERNST, VAL Defendant
ESTES, DAVID H Attorney for the Defendant
FARRAR, ZAC Attorney for the Defendant
FERROVIAL AGROMAN US CORP Defendant
GARCIA RODRIGUEZ, HECTOR FERNANDO Defendant
GG'S PRODUCE TRANSPORT LLC Defendant
GO TO LOGISTICS INC Defendant
HICKS-TAYLOR, JANA Attorney for the Defendant
I GARZA LLC Defendant
J.B. HUNT TRANSPORT INC Defendant
KOEN, KARL WAYNE Attorney for the Defendant
MCENLEY, JALEN Defendant
MCGEE, ROBERT L, Jr Attorney for the Defendant
MCGEE, ROBERT L, Jr. Attorney for the Defendant
MONTES, ARTURO Defendant
NEW PRIME, INC Defendant
New Prime, Inc. D/B/A/ New Prime, Inc. Defendant
NEWSOM, TIMOTHY DREW Attorney for the Plaintiff
NORTH TARRANT INFRASTRUCTURE LLC Defendant
NTE MOBILITY PARTNERS LLC Defendant
NTE MOBILITY PARTNERS SEGMENTS 3 LLC Defendant
RICH TRANSPORT LLC Defendant
RIDDER, STEVEN ANTHONY Defendant
SCHMELLA, STEWART K Attorney for the Defendant
SIERRA MOUNTAIN EXPRESS Defendant
SONIC LOGISTICS LLC Defendant
SUKHWINDER, SINGH Defendant
SUN VALLEY INC Defendant
VARDY, BRENDAN EARL Plaintiff
VARDY, CHRISTOPHER NEFF Plaintiff
VARDY, JAMES ROBERT Plaintiff
VARDY, MARY LOU Plaintiff
VARDY, TAMARA SUZANNE Plaintiff
WEBBER LLC Defendant
WILLIAMS, CODY SLOAN Defendant
WRIGHT, MICHAEL CALVIN Attorney for the Defendant
Faisal Alam Attorneys for Defendants
Michael Bassett Attorney
Frank Branson Attorneys for Plaintiffs
Robert Collins Attorney
Mark Siemer Attorney
David Drez Attorneys for Defendants
Christopher Norcross Attorney
Sona Garcia Attorney
William Jenkins Attorneys for Defendants
Marilyn Brown Attorneys for Defendants
Graciela Garcia Attorneys for Defendants
John Landreth Attorneys for Defendants
Amanda Saputo Attorneys for Defendants

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Answer: TAMARA SUZANNE VARDY, et al vs. NEW PRIME, INC, et al

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