Preview
FILED
8/17/20213:12 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Darling Tellez DEPUTY
CAUSE NO. DC-21-07509
VICKIE COOK, Individually, and as IN THE DISTRICT COURT OF
§§§§§§§§§§§§§§§
Representative of the Estate of DOLLIE
WAFFER, Deceased,
Plaintiffs,
v. DALLAS COUNTY, TEXAS
PM MANAGEMENT — GARLAND NC,
LLC; CTLTC REAL ESTATE, LLC;
GRANITE INVESTMENT GROUP;
SILVER STAR INVESTMENTS, LLC;
HARDEN HUD HOLDCO, LLC,
Defendants. 134TH DISTRICT COURT
DEFENDANT PM MANAGEMENT — GARLAND NC, LLC’S SPECIAL EXCEPTIONS,
AND, SUBJECT TO DEFENDANT’S MOTION TO DISMISS, ABATE OR STAY
LITIGATION AND COMPEL ARBITRATION, ORIGINAL ANSWER TO
PLAINTIFF’S ORIGINAL PETITION
Come now PM Management — Garland NC, LLC, Defendant in the above entitled and
numbered cause, and make and file this, their Special Exceptions, and Original Answer to
Plaintiff’s Original Petition, subject to Defendants’ Motion to Dismiss, Abate, or Stay Litigation
and Compel Arbitration, and would respectfully show unto this honorable Court as follows:
I.
MOTION FOR LEVEL 3 DISCOVERY CONTROL PLAN
Plaintiff states that she intends discovery be conducted under Level 3 of the Texas Rules
of Civil Procedure. Defendant agrees with the Plaintiff’s designation and requests the Court enter
a Level 3 Scheduling Order accordingly. To that end, Defendant’s counsel will draft a proposed
Scheduling Order and will circulate among all counsel and will then submit same to the Court as
an Agreed Scheduling Order or will request Court intervention on matters that cannot be agreed
upon.
DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL
ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page l
II.
SPECML EXCEPTIONS
1. Defendant objects and specially excepts to Plaintiff’s Original Petition, in its
entirety, for the reason that said Petition fails to set forth the maximum amount in controversy
sought herein. Pursuant to section 74.053 of the Texas Civil Practice & Remedies Code, Defendant
requests the Court enter an order requiring Plaintiff to notify Defendant, by correspondence not to
be filed with the Court, of the maximum amount in controversy herein.
2. Defendant objects and specially excepts to Plaintiff’s Original Petition, Section G,
and any other reference in Plaintiff‘s Petition regarding gross negligence, exemplary damages,
and/or punitive damages, for the reason that there are inadequate factual pleadings to state a gross
negligence claim against this Defendant. Specifically, there are not adequate factual pleadings of
any act or omission to indicate the Defendant had any actual, subjective awareness of any risk to
Dollie Waffer, but nevertheless proceeded with conscious indifference to her rights, safety, or
welfare, nor is there any act or omission which, when viewed objectively from the standpoint of
this Defendant at the time of their care and/or treatment of Dollie Waffer, involved an extreme
degree of risk, considering the probability and magnitude of the potential harm to Dollie Waffer.
As such, Defendant prays that said allegations be stricken from Plaintiff‘s pleadings and that
Plaintiff be limited to proceeding with allegations of general negligence only, as opposed to gross
negligence and general negligence. Furthermore, in the event that the Court allows Plaintiff to
continue with the allegations of gross negligence, Defendant further objects for the reason that the
claim of exemplary/punitive damages is not specific in amount and fails to apprise the Defendant
of the matters being asserted against them such that they cannot properly prepare their defense.
Therefore, Defendant prays that Plaintiff be ordered to replead so as to specify the amount of
DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL
ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 2
exemplary and/or punitive damages sought against the Defendant, both individually and as a
whole.
3. Defendant objects and specially excepts to Plaintiff s Original Petition, specifically
Section E, part 35, for the reason that the statutes referenced in Plaintiff s Original Petition do not
apply to Defendant. Texas Admin. Code §92.4l is applicable to assisted living facilities and
Defendant operates a nursing facility and, therefore, the statute does not apply.
III.
GENERAL DENIAL
4. Defendant denies each and every, all and singular, allegations contained within
Plaintiff’s Original Petition and demand strict proof thereof by a preponderance of the credible
evidence before the Court and a jury.
IV.
DOCUMENTS TO BE USED
5. In accordance with Rule 193.7 of the Texas Rules of Civil Procedure, Defendant
hereby files their notice of intention to use production of documents at trial. Defendant hereby
gives Plaintiff notice of their intent to use at trial, deposition, or any pretrial hearing or proceeding,
any and all documents produced by Plaintiff in response to discovery in this case.
V.
AF FIRMATIVE DEFENSES
6. Pursuant to Chapter 74 of the Texas Civil Practice & Remedies Code, including,
but not limited to §74.301(b), Texas Civil Practices & Remedies Code, Defendant affirmatively
asserts that the limit of civil liability for non-economic damages as to this Defendant shall be
limited to an amount not to exceed $250,000 for each claimant.
DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL
ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 3
7. Additionally, pursuant to Texas Civil Practice & Remedies Code, §74.303,
Defendant affirmatively asserts the limit of civil liability for all damages, including exemplary
damages, shall be limited to an amount not to exceed $500,000 for each claimant, regardless of
the number of Defendant physicians or health care providers against whom the claim is asserted
or the number of separate causes of action on which the claim is based. Defendant plead that in
the unlikely event that damages are awarded to the Plaintiff that they be subject to the limitations
set forth in both Tex. Civ. Prac. & Rem. Code, §74.301.
8. Pursuant to Chapter 304 of the Texas Civil Practice & Remedies Code, Defendant
affirmatively asserts that the post-judgment interest rate is the prime rate as published by the
Federal Reserve Bank of New York on the date of computation; or five percent a year if the prime
rate as published by the Federal Reserve Bank of New York is less than five percent; or fifteen
percent a year if the prime rate as published by the Federal Reserve Bank of New York is more
than fifteen percent. Furthermore, post-judgment interest is compounded annually. Defendant
further asserts that the pre-judgment interest rate is equal to the post-judgment interest rate
applicable at the time of judgment, and that pre-judgment interest accrues on the amount of a
judgment during the period beginning on the earlier of the 180th day after the date Defendant
receives written notice of a claim or the date the suit is filed and ending on the date preceding the
date judgment is rendered. Pre-judgment interest is computed as simple interest and does not
compound. Furthermore, Defendant affirmatively asserts that pre-judgment interest may not be
assessed or recovered on an award of future damages. Lastly, if judgment for Plaintiff is equal to
or less than the amount of a settlement offer of this Defendant, pre-judgment interest does not
accrue on the amount of the judgment during the period that the offer may be accepted. Defendant
DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL
ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 4
incorporates herein by reference as if fully set forth herein §304.003(a) and (c), §§304.005,
304.006, 304.103, 304.104, 304.1045, and 304.105.
9. Defendant affirmatively asserts §74.303(e)(2) of the Texas Civil Practice &
Remedies Code and request that when the jury is charged after hearing the evidence in this case,
the jury shall be instructed as follows:
A finding of negligence may not be based solely on evidence of a bad result to the
claimant in question, but a bad result may be considered by you, along with other
evidence, in determining the issue of negligence. You are the sole judges of the
weight, if any, to be given to this kind of evidence.
10. Pleading further, should same be necessary, Defendant affirmatively asserts any
and all procedural substantive rights and provisions afforded in Chapter 74 of the Civil Practice &
Remedies Code.
11. Defendant affirmatively asserts the protections and requirements of Chapter 41 of
the Civil Practice & Remedies Code as a defense to Plaintiff s allegations of entitlement to
exemplary damages. Defendant requests that the limitation of damages provision, the bifurcated
trial provisions, the definitions and applicability provisions, the burden of proof, and all other
provisions of Chapter 41 be invoked in this matter so as to govern the prosecution of a case for
gross negligence and for the alleged recovery of exemplary damages.
12. Additionally, Defendant specifically denies that any act or omission on their part
would justify any claim for exemplary damages against Defendant. Any such claims against the
Defendant would violate the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and Article 1, §3, §l3, and §19 of the Texas Constitution. Such claims
are arbitrary, unreasonable, and violate Defendant’s right to due process and right to equal
protection under the law, as guaranteed by the United States and Texas Constitutions.
DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL
ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 5
13. Additionally, Defendant states that the imposition of punitive damages against
them would be fundamentally unfair and would Violate the United States Constitution and the
Texas Constitution in the following respects:
a. Due process requires proof of gross negligence, malice, and punitive
damages by a standard greater than a preponderance of the evidence. Due
process requires proof of such claims by at least clear and convincing
evidence, if not by proof beyond a reasonable doubt;
b. Assessment of punitive damages is a remedy that is essentially criminal in
nature, without safeguards greater than those afforded by the Texas Rules
of Civil Procedure and constitutes the infliction of a criminal penalty
without the safeguards guaranteed by the Fifth, Sixth, Eighth, and
Fourteenth Amendments.
c. Punitive damages assessed in a civil matter constitute an excessive f1ne
and, therefore, violate the Eighth Amendment to the United States
Constitution.
l4. Answering further, Defendant asserts the Resident and Facility Arbitration
Agreement signed on behalf of Dollie Waffer in this case should be enforced, that this Court lacks
jurisdiction over Plaintiff’s claims against Defendant, and that the matter should proceed to
arbitration. Defendant files this Answer subject to Defendants’ Motion to Dismiss, Abate, or Stay
Litigation and Compel Arbitration.
15. Answering further, should same be necessary, in the unlikely event that the Court
or jury should find that the alleged negligence of this Defendant proximately caused injury as
alleged by Plaintiff, which is herein expressly denied, Defendant hereby gives notice that it may
request that the Court order payment of future damages, if any, to be paid in periodic payments
rather than a lump sum payment as provided for by Texas Civil Practice & Remedies Code
§§74.501 — 74.507.
DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL
ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 6
16. Pursuant to Civil Practice & Remedies Code §74.303(e)(1), and (2), Defendant
affirmatively asserts that when a jury is charged after hearing the evidence in this cause, the jury
shall be instructed as follows:
Do not consider, discuss, nor speculate whether or not liability, if any, on the part
of any party is or is not subject to any limit under applicable law.
l7. Pursuant to Civil Practices & Remedies Code §18.09l, Defendant affirmatively
asserts evidence to prove the loss of earnings, loss of earning capacity, loss of contributions of a
pecuniary value, or loss of inheritance be presented in the form of a net loss after reduction for
income tax payments or unpaid tax liability.
18. Pursuant to Civil Practices & Remedies Code §33.012(c), Defendant affirmatively
asserts if Claimant has settled with one or more persons, the court shall reduce the amount of
damages to be recovered by the Claimant with respect to a cause of action by an amount equal to
either the sum of the dollar amount of all settlements or a percentage equal to each settling person’s
percentage of responsibility as found by the trier of fact.
VI.
JURV DEMAND
Defendant hereby demands a trial by jury and the appropriate jury fee has been paid.
WHEREFORE, PREMISES CONSIDERED, Defendant PM Management — Garland NC,
LLC prays that its Special Exceptions be sustained and granted, that Plaintiff receives nothing by
reason of this lawsuit, and that Defendant be dismissed from this case and receive any and other
relief, both at law and in equity, to which they may be entitled.
DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL
ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 7
Respectfully submitted,
QUINTAIROS PRIETO WOOD & BOYER, P.A.
By: /s/ Frank Alvarez
FRANK ALVAREZ
State Bar No. 00796122
frank.a1varez@qpwblaw.com
MEGAN P. PHARIS
State Bar No. 241 17991
megan.pharis@qpwblaw.com
1700 Pacific Ave, Suite 4545
Dallas, Texas 75201
Telephone: (214) 754-8755
ATTORNEYS FOR DEFENDANT
PM MANAGEMENT — GARLAND NC, LLC
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing has been forwarded to all
counsel of record on August 17, 2021, Via the electronic service manager, as follows:
Curtis Clinesmith curtis@clinesmithfirm.com
Paul Downey paul@clinesmithfirm.com
Jacob Runyon jacob@clinesmithfirm.com
The Clinesmith Firm
325 N. St. Paul, 29th Floor
Dallas, Texas 75201
Telephone: (972) 677-7764
Facsimile: (972) 390-0031
/s/ Megan P. Pharis
Megan P. Pharis
DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL
ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 8
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.
Frank Alvarez on behalf of Frank Alvarez
Bar No. 00796122
frank.alvarez@qpwblaw.com
Envelope ID: 56390580
Status as of 8/18/2021 10:41 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
The Clinesmith Firm Service clinesmith@clinesmithfirm.com 8/17/2021 3:12:22 PM SENT
Alexis Ondris Alexis@clinesmithfirm.com 8/17/2021 3:12:22 PM SENT
Francine Ly fly@dallascourts.org 8/17/2021 3:12:22 PM SENT
Hannah Norris hannah@clinesmithfirm.com 8/17/2021 3:12:22 PM SENT
Michael Johnson michael@clinesmithfirm.com 8/17/2021 3:12:22 PM SENT
Preview
FILED 8/17/20213:12 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Darling Tellez DEPUTY CAUSE NO. DC-21-07509 VICKIE COOK, Individually, and as IN THE DISTRICT COURT OF §§§§§§§§§§§§§§§ Representative of the Estate of DOLLIE WAFFER, Deceased, Plaintiffs, v. DALLAS COUNTY, TEXAS PM MANAGEMENT — GARLAND NC, LLC; CTLTC REAL ESTATE, LLC; GRANITE INVESTMENT GROUP; SILVER STAR INVESTMENTS, LLC; HARDEN HUD HOLDCO, LLC, Defendants. 134TH DISTRICT COURT DEFENDANT PM MANAGEMENT — GARLAND NC, LLC’S SPECIAL EXCEPTIONS, AND, SUBJECT TO DEFENDANT’S MOTION TO DISMISS, ABATE OR STAY LITIGATION AND COMPEL ARBITRATION, ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION Come now PM Management — Garland NC, LLC, Defendant in the above entitled and numbered cause, and make and file this, their Special Exceptions, and Original Answer to Plaintiff’s Original Petition, subject to Defendants’ Motion to Dismiss, Abate, or Stay Litigation and Compel Arbitration, and would respectfully show unto this honorable Court as follows: I. MOTION FOR LEVEL 3 DISCOVERY CONTROL PLAN Plaintiff states that she intends discovery be conducted under Level 3 of the Texas Rules of Civil Procedure. Defendant agrees with the Plaintiff’s designation and requests the Court enter a Level 3 Scheduling Order accordingly. To that end, Defendant’s counsel will draft a proposed Scheduling Order and will circulate among all counsel and will then submit same to the Court as an Agreed Scheduling Order or will request Court intervention on matters that cannot be agreed upon. DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page l II. SPECML EXCEPTIONS 1. Defendant objects and specially excepts to Plaintiff’s Original Petition, in its entirety, for the reason that said Petition fails to set forth the maximum amount in controversy sought herein. Pursuant to section 74.053 of the Texas Civil Practice & Remedies Code, Defendant requests the Court enter an order requiring Plaintiff to notify Defendant, by correspondence not to be filed with the Court, of the maximum amount in controversy herein. 2. Defendant objects and specially excepts to Plaintiff’s Original Petition, Section G, and any other reference in Plaintiff‘s Petition regarding gross negligence, exemplary damages, and/or punitive damages, for the reason that there are inadequate factual pleadings to state a gross negligence claim against this Defendant. Specifically, there are not adequate factual pleadings of any act or omission to indicate the Defendant had any actual, subjective awareness of any risk to Dollie Waffer, but nevertheless proceeded with conscious indifference to her rights, safety, or welfare, nor is there any act or omission which, when viewed objectively from the standpoint of this Defendant at the time of their care and/or treatment of Dollie Waffer, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to Dollie Waffer. As such, Defendant prays that said allegations be stricken from Plaintiff‘s pleadings and that Plaintiff be limited to proceeding with allegations of general negligence only, as opposed to gross negligence and general negligence. Furthermore, in the event that the Court allows Plaintiff to continue with the allegations of gross negligence, Defendant further objects for the reason that the claim of exemplary/punitive damages is not specific in amount and fails to apprise the Defendant of the matters being asserted against them such that they cannot properly prepare their defense. Therefore, Defendant prays that Plaintiff be ordered to replead so as to specify the amount of DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 2 exemplary and/or punitive damages sought against the Defendant, both individually and as a whole. 3. Defendant objects and specially excepts to Plaintiff s Original Petition, specifically Section E, part 35, for the reason that the statutes referenced in Plaintiff s Original Petition do not apply to Defendant. Texas Admin. Code §92.4l is applicable to assisted living facilities and Defendant operates a nursing facility and, therefore, the statute does not apply. III. GENERAL DENIAL 4. Defendant denies each and every, all and singular, allegations contained within Plaintiff’s Original Petition and demand strict proof thereof by a preponderance of the credible evidence before the Court and a jury. IV. DOCUMENTS TO BE USED 5. In accordance with Rule 193.7 of the Texas Rules of Civil Procedure, Defendant hereby files their notice of intention to use production of documents at trial. Defendant hereby gives Plaintiff notice of their intent to use at trial, deposition, or any pretrial hearing or proceeding, any and all documents produced by Plaintiff in response to discovery in this case. V. AF FIRMATIVE DEFENSES 6. Pursuant to Chapter 74 of the Texas Civil Practice & Remedies Code, including, but not limited to §74.301(b), Texas Civil Practices & Remedies Code, Defendant affirmatively asserts that the limit of civil liability for non-economic damages as to this Defendant shall be limited to an amount not to exceed $250,000 for each claimant. DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 3 7. Additionally, pursuant to Texas Civil Practice & Remedies Code, §74.303, Defendant affirmatively asserts the limit of civil liability for all damages, including exemplary damages, shall be limited to an amount not to exceed $500,000 for each claimant, regardless of the number of Defendant physicians or health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based. Defendant plead that in the unlikely event that damages are awarded to the Plaintiff that they be subject to the limitations set forth in both Tex. Civ. Prac. & Rem. Code, §74.301. 8. Pursuant to Chapter 304 of the Texas Civil Practice & Remedies Code, Defendant affirmatively asserts that the post-judgment interest rate is the prime rate as published by the Federal Reserve Bank of New York on the date of computation; or five percent a year if the prime rate as published by the Federal Reserve Bank of New York is less than five percent; or fifteen percent a year if the prime rate as published by the Federal Reserve Bank of New York is more than fifteen percent. Furthermore, post-judgment interest is compounded annually. Defendant further asserts that the pre-judgment interest rate is equal to the post-judgment interest rate applicable at the time of judgment, and that pre-judgment interest accrues on the amount of a judgment during the period beginning on the earlier of the 180th day after the date Defendant receives written notice of a claim or the date the suit is filed and ending on the date preceding the date judgment is rendered. Pre-judgment interest is computed as simple interest and does not compound. Furthermore, Defendant affirmatively asserts that pre-judgment interest may not be assessed or recovered on an award of future damages. Lastly, if judgment for Plaintiff is equal to or less than the amount of a settlement offer of this Defendant, pre-judgment interest does not accrue on the amount of the judgment during the period that the offer may be accepted. Defendant DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 4 incorporates herein by reference as if fully set forth herein §304.003(a) and (c), §§304.005, 304.006, 304.103, 304.104, 304.1045, and 304.105. 9. Defendant affirmatively asserts §74.303(e)(2) of the Texas Civil Practice & Remedies Code and request that when the jury is charged after hearing the evidence in this case, the jury shall be instructed as follows: A finding of negligence may not be based solely on evidence of a bad result to the claimant in question, but a bad result may be considered by you, along with other evidence, in determining the issue of negligence. You are the sole judges of the weight, if any, to be given to this kind of evidence. 10. Pleading further, should same be necessary, Defendant affirmatively asserts any and all procedural substantive rights and provisions afforded in Chapter 74 of the Civil Practice & Remedies Code. 11. Defendant affirmatively asserts the protections and requirements of Chapter 41 of the Civil Practice & Remedies Code as a defense to Plaintiff s allegations of entitlement to exemplary damages. Defendant requests that the limitation of damages provision, the bifurcated trial provisions, the definitions and applicability provisions, the burden of proof, and all other provisions of Chapter 41 be invoked in this matter so as to govern the prosecution of a case for gross negligence and for the alleged recovery of exemplary damages. 12. Additionally, Defendant specifically denies that any act or omission on their part would justify any claim for exemplary damages against Defendant. Any such claims against the Defendant would violate the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article 1, §3, §l3, and §19 of the Texas Constitution. Such claims are arbitrary, unreasonable, and violate Defendant’s right to due process and right to equal protection under the law, as guaranteed by the United States and Texas Constitutions. DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 5 13. Additionally, Defendant states that the imposition of punitive damages against them would be fundamentally unfair and would Violate the United States Constitution and the Texas Constitution in the following respects: a. Due process requires proof of gross negligence, malice, and punitive damages by a standard greater than a preponderance of the evidence. Due process requires proof of such claims by at least clear and convincing evidence, if not by proof beyond a reasonable doubt; b. Assessment of punitive damages is a remedy that is essentially criminal in nature, without safeguards greater than those afforded by the Texas Rules of Civil Procedure and constitutes the infliction of a criminal penalty without the safeguards guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments. c. Punitive damages assessed in a civil matter constitute an excessive f1ne and, therefore, violate the Eighth Amendment to the United States Constitution. l4. Answering further, Defendant asserts the Resident and Facility Arbitration Agreement signed on behalf of Dollie Waffer in this case should be enforced, that this Court lacks jurisdiction over Plaintiff’s claims against Defendant, and that the matter should proceed to arbitration. Defendant files this Answer subject to Defendants’ Motion to Dismiss, Abate, or Stay Litigation and Compel Arbitration. 15. Answering further, should same be necessary, in the unlikely event that the Court or jury should find that the alleged negligence of this Defendant proximately caused injury as alleged by Plaintiff, which is herein expressly denied, Defendant hereby gives notice that it may request that the Court order payment of future damages, if any, to be paid in periodic payments rather than a lump sum payment as provided for by Texas Civil Practice & Remedies Code §§74.501 — 74.507. DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 6 16. Pursuant to Civil Practice & Remedies Code §74.303(e)(1), and (2), Defendant affirmatively asserts that when a jury is charged after hearing the evidence in this cause, the jury shall be instructed as follows: Do not consider, discuss, nor speculate whether or not liability, if any, on the part of any party is or is not subject to any limit under applicable law. l7. Pursuant to Civil Practices & Remedies Code §18.09l, Defendant affirmatively asserts evidence to prove the loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or loss of inheritance be presented in the form of a net loss after reduction for income tax payments or unpaid tax liability. 18. Pursuant to Civil Practices & Remedies Code §33.012(c), Defendant affirmatively asserts if Claimant has settled with one or more persons, the court shall reduce the amount of damages to be recovered by the Claimant with respect to a cause of action by an amount equal to either the sum of the dollar amount of all settlements or a percentage equal to each settling person’s percentage of responsibility as found by the trier of fact. VI. JURV DEMAND Defendant hereby demands a trial by jury and the appropriate jury fee has been paid. WHEREFORE, PREMISES CONSIDERED, Defendant PM Management — Garland NC, LLC prays that its Special Exceptions be sustained and granted, that Plaintiff receives nothing by reason of this lawsuit, and that Defendant be dismissed from this case and receive any and other relief, both at law and in equity, to which they may be entitled. DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 7 Respectfully submitted, QUINTAIROS PRIETO WOOD & BOYER, P.A. By: /s/ Frank Alvarez FRANK ALVAREZ State Bar No. 00796122 frank.a1varez@qpwblaw.com MEGAN P. PHARIS State Bar No. 241 17991 megan.pharis@qpwblaw.com 1700 Pacific Ave, Suite 4545 Dallas, Texas 75201 Telephone: (214) 754-8755 ATTORNEYS FOR DEFENDANT PM MANAGEMENT — GARLAND NC, LLC CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing has been forwarded to all counsel of record on August 17, 2021, Via the electronic service manager, as follows: Curtis Clinesmith curtis@clinesmithfirm.com Paul Downey paul@clinesmithfirm.com Jacob Runyon jacob@clinesmithfirm.com The Clinesmith Firm 325 N. St. Paul, 29th Floor Dallas, Texas 75201 Telephone: (972) 677-7764 Facsimile: (972) 390-0031 /s/ Megan P. Pharis Megan P. Pharis DEFENDANT PM MANAGEMENT GARLAND NC, LLC’S SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION — Page 8 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. Frank Alvarez on behalf of Frank Alvarez Bar No. 00796122 frank.alvarez@qpwblaw.com Envelope ID: 56390580 Status as of 8/18/2021 10:41 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status The Clinesmith Firm Service clinesmith@clinesmithfirm.com 8/17/2021 3:12:22 PM SENT Alexis Ondris Alexis@clinesmithfirm.com 8/17/2021 3:12:22 PM SENT Francine Ly fly@dallascourts.org 8/17/2021 3:12:22 PM SENT Hannah Norris hannah@clinesmithfirm.com 8/17/2021 3:12:22 PM SENT Michael Johnson michael@clinesmithfirm.com 8/17/2021 3:12:22 PM SENT