Motion for Plea in Abatement in RODNEY MORRIS vs. RODNEY MCLEOD| Trellis.Law

On November 21, 2014 a Motion-Secondary was filed involving a dispute between Morris, Rodney, and Mcleod, Rodney, for MOTOR VEHICLE ACCIDENT in the District Court of Dallas County.

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FILED
DALLAS COUNTY
4/15/2015 6:11:07 PM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO.: DC-14-13897

RODNEY MORRIS, IN THE DISTRICT COURT
Plaintiff

V. 162'"' JUDICIAL DISTRICT

RODNEY MCLEOD,
Defendant DALLAS COUNTY, TEXAS

PLAINTIFF'S RESPONSE TO PLEA IN ABATEMENT AND COUNTER-MOTION TO
COMPEL DISCOVERY AND MOTION FOR SANCTIONS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW RODNEY MORRIS ("Plaintiff') and files this, his Response to

Plaintiffs Plea in Abatement (the "Plea in Abatement") and his Counter-Motion to Compel

Discovery and Motion for Sanctions. In support of the foregoing, Plaintiff would respectfully

show as follows:

Summary of the Response

The case at bar is a simple one. Plaintiff, Rodney Morris, was sitting stationary, in his

correct lane of travel, waiting for a red light to turn green. The Defendant struck Mr. Morris'

vehicle from the rear injuring him. What differentiates this case from the run-of-the-mill car

accident case is the fact that Defendant was arrested for his third DUI as a result of him

repeatedly driving drunk. Defendant has been indicted and will now stand trial for his crimes.

Defendant now seeks to take advantage of his bad acts and use the Fifth Amendment privilege

against self-incrimination as a complete bar to Plaintiffs recovery.
Mr. McLeod is not the first defendant to try to skirt civil responsibility while being

criminally prosecuted. The case law in Texas is clear and it is well-established that "[t]he

pendency of a criminal investigation, indictment, or other proceeding does not affect a

contemporaneous civil proceeding based on the same facts or parties." Gebhardt v. Gallardo,

891 S.W.2d 327, 330 (Tex. App.—San Antonio 1995, no writ) (citing McInnis, v. State, 618

S.W.2d 389, 393 (Tex. App.—Beaumont 1981, writ refd n.r.e.)). As the San Antonio Court of

Appeals noted "[b]lanket assertions of the privilege are not permitted. The abatement of the

negligence claim while the grand jury investigates potential criminal charges is akin to a blanket

assertion of the Fifth Amendment privilege." Gebhardt v. Gallardo, 891 S.W.2d 327, 330 (Tex.

App.—San Antonio 1995, no writ) (citing United States v. White, 589 F.2d 1283, 1286-87 (5th

Cir. 1979); Meyer v. Tunks, 360 S.W.2d 518, 523 (Tex. 1962)). Virtually every court that has

granted the relief requested by Defendant has been successfully mandamused.

I.
Arguments and Authorities in Response to Plea in Abatement

A plea in abatement is a dilatory plea used to allege facts arising outside the petition that

prevent the action from proceeding. Generally, any matter of fact regardless of whether it arises

outside the face of the petition, which challenges neither the venue of the action, nor the

jurisdiction of the court, but which presents a reason why the pending suit should be suspended

or dismissed, may form the basis of a plea in abatement. Austin Neighborhoods Coun. v. Bd. of

Adjust., 644 S.W.2d 560, 565 n.17 (Tex. App.--Austin 1982, writ refd n.r.e.).

A defendant may not rely on the sworn plea as evidence at the hearing. Unless the

defendant produces evidence in support of the plea and proves the relevant facts by a

preponderance of the evidence, the court may not sustain the plea. See Flowers v. Steelcraft, 406

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S.W.2d 199, 199 (Tex. 1966); Atkinson v. Reid, 625 S.W.2d 64, 67 (Tex. App.--San Antonio

1981, no writ).

In addition, the matters raised by Defendant require verification under Rule 93. The

matters raised by Defendant. Because defendant failed to verify its plea, it is procedurally

defective and should be denied as a matter of course.

Addressing the substance of defendant's argument, it is well settled that lalt]hough a

trial court is given wide latitude in managing discovery and its docket, the latitude is not

unbounded." In re Edge Capital Group, Inc., 161 S.W.3d 764, 770 (Tex. App.—Beaumont

2005, no pet.) (citing In re Van Waters & Rogers, Inc., 62 S.W.3d 197, 200 (Tex.2001).

"Generally, a party resisting discovery must produce some support for a protective order

request." Id. (citing In re Alford Chevrolet–Geo, 997 S.W.2d 173, 181 (Tex.1999)). "We have

repeatedly held that a trial court abuses its discretion when it arbitrarily abates a civil case for an

indefinite period of time. In re Gore, 251 S.W.3d 696, 699 (Tex. App.—San Antonio 2007, no

pet.) (citing In re Sims, 88 S.W.3d 297, 306 (Tex. App.-San Antonio 2002, orig. proceeding);

Gebhardt v. Gallardo, 891 S.W.2d 327, 330-32 (Tex. App.-San Antonio 1995, orig.

proceeding); In re Messervey Trust, No. 04-00-00700–CV, 2001 WL 55642, at *4 (Tex. App.-

San Antonio, Jan.24, 2001, orig. proceeding)). The Court further held:

The parties in the civil case are entitled to full discovery within a
reasonable time, to develop their claims and defenses, and to have
the case tried. See Colonial Pipeline, 968 S.W.2d at 941-42
(holding that order abating discovery from all but small group of
plaintiffs until that group's claims were resolved unreasonably
interfered with defendants' ability to prepare a defense and was
abuse of discretion); In re R.R., 26 S.W.3d 569, 574 (Tex. App.-
Dallas 2000, orig. proceeding) (holding blanket order staying
discovery on main issue because of related criminal proceeding
was abuse of discretion because it vitiated defendant's ability to
prepare defense in civil case); Trapnell v. Hunter, 785 S.W.2d 426,
429 (Tex. App.-Corpus Christi 1990, orig. proceeding) (holding

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that refusal to proceed to trial by arbitrarily abating case violates
article I section 13 of the Texas Constitution). "The pendency of a
criminal investigation, indictment, or other proceeding does not
affect a contemporaneous civil proceeding based on the same facts
or parties" and does not justify abating or staying all discovery in
the civil case until resolution of the criminal matter. Gebhardt, 891
S.W.2d at 330; see Underwood v. Bridewell, 931 S.W.2d 645,
647-48 (Tex. App.-Waco 1996, orig. proceeding) (abuse of
discretion to abate civil forfeiture action until criminal prosecution
completed); McInnis v. State, 618 S.W.2d 389, 392-93 (Tex. Civ.
App.-Beaumont 1981, writ refd n.r.e.) (upholding trial court's
refusal to continue civil disbarment case until final disposition of
related criminal case), cert. denied, 456 U.S. 976, 102 S.Ct. 2242,
72 L.Ed.2d 851 (1982); Messervey, 2001 WL 55642 at *4 (abuse
of discretion to completely abate civil case for six months solely
because related criminal case is pending).

In re Gore, 251 S.W.3d 696, 699 (Tex. App.—San Antonio 2007, no pet.)

Further, in a disbarment proceeding involving co-pending civil and criminal cases, the

Beaumont Court of Appeals noted that "[w]e find no constitutional or statutory provisions

granting this appellant the right to choose the case, either criminal or civil, which he desires to

first proceed to trial. This disbarment proceeding is a separate and distinct matter and completely

independent of any other proceedings which were pending." McInnis v. State, 618 S.W.2d 389,

393 (Tex. Civ. App.—Beaumont 1981, writ refused n.r.e.) (citing In the Matter of Bates, 555

S.W.2d 420, 478 (Tex.1977)). The San Antonio Court of Appeals has further extended this

authority to general civil matters. See Gebhardt v. Gallardo, 891 S.W.2d 327, 331 (Tex. App.—

San Antonio 1995, no writ).

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Directly addressing the Fifth Amendment as it relates to a deposition subpoena, in

Meyer v. Tunks, the trial court allowed a deposition to proceed and the defendant, indicted for the

same conduct, petitioned the Texas Supreme Court for mandamus to stay his deposition.

Supreme Court refused, holding as follow:

In Landy v. United States (1960), 283 F.2d 303, the judgment of
the trial court requiring Landy to respond to the administrative
subpoena of the Internal Revenue Service was affirmed. We quote
the holding in that case which we think is quite material to the
situation we have before us:

We hold that the trial correctly decided that it could not quash the
subpoena on the general allegation that it was intended for
purposes other than those for which it purported to issue and that it
might result in questions which the subpoenaed witness could
constitutionally refuse to answer. The privilege of the Fifth
Amendment must be exercised in connection with precise
questions and not as a general excuse for refusing to appear in
response to subpoena. Rogers v. United States, 340 U.S. 367, 71
S.Ct. 438, 95 L.Ed. 344.'

Meyer v. Tunks, 360 S.W.2d 518, 523 (Tex. 1962).

Two years ago, the Houston Court of Appeals addressed a nearly identical issue as it

relates to requests for admission in a drunk driving case. The plaintiff served request for

admissions upon the defendant who objected on that grounds and denied all of them. When the

court granted plaintiff's motion to compel, the defendant petitioned for writ of mandate. The

Court denied the requested relief and described the procedural process for addressing Fifth

Amendment concerns, as follows:

Moreover, in a civil suit, a witness's decision to invoke the
privilege is not absolute. In re Speer, 965 S.W.2d 41, 45
(Tex.App.-Fort Worth 1998, orig. proceeding). A trial court is
entitled to determine whether the assertion of the privilege appears
to be based upon the good faith of the witness and is justifiable
under all of the circumstances. Ex Parte Butler, 522 S.W.2d 196,
198 (Tex.1975); In re R.R., 26 S.W.3d 569, 574 (Tex. App.-Dallas
2000, orig. proceeding): Speer, 965 S.W.2d at 45. Before

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compelling answers to discovery in a civil case over an assertion of
the Fifth Amendment privilege, the court must be "perfectly clear,
from a careful consideration of all the circumstances in the case,
that the witness is mistaken, and that the answer(s) cannot possibly
have such tendency to incriminate." Butler, 522 S.W.2d at 198.
Upon a party's assertion of the Fifth Amendment privilege to a
discovery request in a civil suit, the trial court reviews the
discovery request, applies the law of privilege, discovery, and
protection to the request, and determines how best to protect the
privilege, the right to proceed with the case, and the right to defend
the suit. Speer, 965 S.W.2d at 45-46; see In re R.R., 26 S.W.3d at
574. "It is the trial court's duty to consider the witness's evidence
and argument on each individual question and determine whether
the privilege against self-incrimination is meritorious." Lowe, 151
S.W.3d at 745 (quoting Speer, 965 S.W.2d at 46).

In re Ferguson, 445 S.W.3d 270, 275 (Tex. App.—Houston [1st Dist.] 2013, mandamus

dismissed).

The law is perfectly clear that the co-pendency of a criminal matter does not justify

abatement of a civil matter. Plaintiff is entitled to full and fair discovery, subject to reasonable

protections for Defendant's protections against self-incrimination under the Fifth Amendment.

This can be accomplished through several means, all of which are short of full abatement. By

way of example, the court can offer some protection through a protective order. From a review

of the case law, it appears that the preferred method of addressing the assertion of the Fifth

Amendment privilege in a civil action is by way of deemed finding of adverse inference. This is

perfectly constitutional, and the United States Supreme Court has held that "the Fifth

Amendment does not forbid adverse inferences against parties to civil actions when they refuse

to testify in response to probative evidence offered against them. Baxter v. Palinigiano, 425 U.S.

308, 318, 96 S. Ct. 1551, 1558,47 L. Ed. 2d 810 (1976).

The rule regarding adverse inference has been adopted by numerous Texas appellate

courts. See In re Edge Capital Group, Inc.. 161 S.W.3d 764, 767 (Tex. App.—Beaumont 2005,

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no pet.); Texas Capital Secs., Inc. v. Sandefer. 58 S.W.3d 760, 779 (Tex. App.-Houston [1st

Dist.] 2001, pet. denied); Gebhardt v. Gallardo, 891 S.W.2d 327, 331 (Tex. App.—San Antonio

1995, no writ)see Tex. R. Evid. 513(c). The United States Supreme Court further held that:

It is important to note here that the position adopted by the Court
of Appeals is rooted in the Fifth Amendment and the policies
which it serves. It has little to do with a fair trial and derogates
rather than improves the chances for accurate decisions. Thus,
aside from the privilege against compelled self-incrimination, the
Court has consistently recognized that in proper circumstances
silence in the face of accusation is a relevant fact not barred from
evidence by the Due Process Clause.

Baxter v. Palmigiano, 425 U.S. 308, 319, 96 S. Ct. 1551, 1558, 47 L. Ed. 2d 810 (1976). There

is simply no basis in law or fact for abating this matter. As result, Defendant's Plea in

Abatement should be denied.

Counter Motion to Compel

Texas supports full and open discovery. Tilton v. Moye, 869 S.W.2d 955, 956 (Tex.1994).

The purpose of discovery is to seek the truth so that disputes may be decided by what the facts

reveal and not by what facts are concealed. Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984)

overruled in part on other grounds by Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992); see

also West v. Solito, 563 S.W.2d 240, 243 (Tex.1978) (stating that discovery's aim is to administer

justice by allowing parties to obtain full knowledge of issues and facts prior to trial). Flores v.

Flores, 116 S.W.3d 870, 876 (Tex. App.—Corpus Christi 2003, no pet.). Indeed, the court

abuses its discretion if it denies discovery that goes to the heart of the parties' claims. Ford

Motor Co. v. Castillo, 279 S.W.3d 656, 664 (Tex. 2009): In re Willacy Cnty. Appraisal Dist., No.

13-13-00550-CV, 2013 WL 5942707 (Tex. App.--Corpus Christi 2013,orig. proceeding [mand.

denied]); Walker v. Packer 827, S.W.3d 833 at 43 (Tex. 1992). Further, Rule 193.2(e) provides

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that "[a]n objection that is not made within the time required, or that is obscured by numerous

unfounded objections, is waived."

Plaintiff served an omnibus set of discovery requests with his Original Petition. A true

and correct copy of such requests are attached hereto as Exhibit A. Defendant responded to

Plaintiffs Interrogatories, Requests for Production, and Requests for Admission with a host of

unfounded boilerplate objections and an assertion of Fifth Amendment privilege with respect to

every single request. A true and correct copy of Defendant's responses to Plaintiff's

Interrogatories are attached hereto as Exhibit B. A true and correct copy of Defendant's

responses to Plaintiff's Requests for Production are attached hereto as Exhibit C. A true and

correct copy of Defendant's responses to Plaintiff's Requests for Admission are attached hereto

as Exhibit D.

The Houston Court of Appeals enumerated the test for a proper Fifth Amendment

analysis of discovery requests. In In re Ferguson, 445 S.W.3d 270,275 (Tex. App.—Houston

[1st Dist.] 2013, mandamus dismissed), the Court stated as follows:

Upon a party's assertion of the Fifth Amendment privilege to a
discovery request in a civil suit, the trial court reviews the
discovery request, applies the law of privilege, discovery, and
protection to the point request, and determines how best to protect
the privilege, the right to proceed with the case, and the right to
defend the suit. Speer, 965 S.W.2d at 45-46; see In re R.R., 26
S.W.3d at 574. "It is the trial court's duty to consider the witness's
evidence and argument on each individual question and determine
whether the privilege against self-incrimination is meritorious."
Lowe, 151 S.W.3d at 745 (quoting Speer, 965 S.W.2d at 46).

Had Defendant made a good faith effort to limit assertions of privilege to only those matters that

i mplicated the Fifth Amendment, the list of objections would have been much shorter.

Unfortunately, Defendant is forcing the Court to analyze every single objection.

8
With respect to Defendant's interrogatory responses, Defendant asserted unfounded

boilerplate objections to each Interrogatory. The vast majority of interrogatories were basic ones

asking about defensive contentions and basic facts relating to the incident at issue. There is no

good faith basis for objection or Fifth Amendment privilege assertion relative to the vast

majority of the requests.

Defendant similarly responded respect to Plaintiffs Request for Production. Again,

unfounded Fifth Amendment privilege assertions are asserted with respect to all of the requests,

save and except for documents seeking net worth information. Plaintiff has pleaded a claim for

exemplary damages and is entitled to such information. To highlight the absurdity of the

boilerplate objections, the first request asks for all communications between the parties. It was

met with the following boilerplate objection that was commonly used in a cut-and-paste effort:

1. Produce all Communications between You and Plaintiff

RESPONSE: Objection. Such request is overly broad, unduly burdensome, vague and
ambiguous and Defendant would further object pursuant to Loftin v. Martin, 776 8.W,2d 145
(Tex. 1989). Defendant would further object in that such information and/or documents are not
relevant nor reasonably calculated to lead to the discovery of admissible evidence, Defendant
would further object in that, on the advice of counsel, Defendant asserts his right against solf-
incrimination as afforded by the 5* Amendment to the United States Constitution and pursuant
to Article I, Set:dun 10 of the Texas Constitution.

Certainly, the communications between the parties invoke no Fifth Amendment issue, nor do

they warrant any of the other objections made. By way of further example, the second request

simply asks for photograph slides videotapes depicting the collision. It was met with the same

objection. Further highlighting the absurdity. Request 6 asks for statements by the Plaintiff.

How that rises to implicate the Fifth Amendment is beyond the reasoning of the undersigned.

Finally, relative to Defendant's responses to Plaintiffs request for admissions, rule

198.2(c) provides that "[i]f a response is not timely served, the request is considered admitted

9
without the necessity of a court order." Rule 215.1(c) provides that "an evasive or incomplete

answer is to be treated as a failure to answer." Requests for Admission 6-18 were met with the

the following objection:

RESPONSE: Defendant would object in thut on the advice of counsel s Defendant asserts his
right against self-incrimination as afforded by tItc 5 11 Amendment to the United States
Constitution and pursuant to Article 1, Section 10 of the Texas Constitution.

Because this response is a non-answer Plaintiff respectfully requests the court deem requests 6

through 18 as being admitted.

Faced with the Fifth Amendment challenge, the Court in Gebhardt v. Gallardo reasoned

that the proper means of addressing same as an adverse inference, as follows:

One is left, at this early stage in the proceedings, to assume that if
the defendant exercises his right to silence under the Fifth
Amendment, the plaintiff may, as a trial strategy, request an
instruction on res ipsa loquitur on the negligence theory. Be that as
it may, the United States Supreme Court distinguishes between a
criminal and a civil case as to whether an inference of guilt may be
drawn from a defendant's silence. It is clearly constitutional error
under the Fifth Amendment to instruct a jury in a criminal case that
it may draw an inference of guilt from a defendant's failure to
testify about facts relevant to his case. Griffin v. California, 380
U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, 110 (1965).
However, "the Fifth Amendment does not forbid adverse
inferences against parties to civil actions when they refuse to
testify in response to probative evidence offered against them."
Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47
L.Ed.2d 810, 821 (1976). The Amendment "does not preclude the
inference where the privilege is claimed by a party to a civil
cause." 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961)
(emphasis in original). The Baxter opinion lists a long line of cases
which recognize "that in proper circumstances silence in the face
of accusation is a relevant fact not barred from evidence by the
Due Process Clause." Baxter, 425 U.S. at 319, 96 S.Ct. at 1558, 47
L.Ed.2d at 822.

10
Gebhardt v. Gallardo, 891 S.W.2d 327, 331 (Tex. App.—San Antonio 1995, no writ). Plaintiff

now moves this Court for an adverse inference with respect to each and every matter for which

the Defendant has asserted a Fifth Amendment privilege.

Counter Motion to Compel

Tex. R. Civ. P. 215.2(b) provides for sanctions after notice and a hearing when a party,

among other things, fails to comply with proper discovery requests. In this regard, Plaintiff

seeks its reasonable costs, including attorneys' fees, caused by the failure of Defendant to answer

and respond to discovery in the amount of $2,500.00 which includes correspondence to opposing

counsel, legal research, drafting this motion and the order granting same, as well as attending and

arguing same at the hearing of this motion.

Rule 13 authorizes the trial court to impose rule 215(2)(b) sanctions against an attorney, a

represented party, or both, who filed a pleading that is both: (1) groundless and brought in bad

faith; or (2) groundless and brought to harass. The purpose of Rule 13 is to check abuses in the

pleading process. Monroe v. Grider, 884 S.W.2d 811, 816 (Tex.App.–Dallas 1994, writ denied).

In light of the relevant case law, the Plea in Abatement rises to the level of Rule 13 sanctions.

What makes Rule 13 sanctions particularly appropriate is the lack of a good faith effort to

engage in the meet and confer process. Counsel for Defendant simply called and asked for a

"certificate of conference," in typical Dallas practice, wholly unprepared to discuss the merits of

the relief Defendant purported to seek and his legal entitlement to it. The undersigned, who had

not had a chance to research the Fifth Amendment issue at that time, asked for some authority

would justify full abatement. Counsel for Defendant provided none, as counsel had not yet done

the research either. The undersigned indicated that, off-the-cuff, the undersigned believed the

full abatement was not an appropriate remedy and not one available to Defendant. The

11
undersigned encouraged defense counsel to conduct the research, and indicated that if abatement

truly was not appropriate, Plaintiff would be seeking sanctions if a motion or plea was filed. The

undersigned indicated further that, if the law dictated a lesser scope of protection, he would be

willing to engage in discussions regarding a reasonable protective order. No such effort was

made and the plea was filed notwithstanding ample case law to the contrary.

Further, during the alleged meet and confer call the undersigned asked defense counsel

about the pending discovery issues and was told that there be no compliance with discovery until

the abatement she was determined. Further efforts to meet and confer, at that point, seemed

unlikely to achieve any measurable result.

WHEREFORE, PREMISES CONSIDERED, PLAINTIFF RODNEY MORRIS,

respectfully requests that the Court: (i) deny the Plea in Abatement, (ii) grant Plaintiff's motions,

herein, (iii) order Defendant to fully answer Plaintiffs discovery requests without objection, and

failing to do so, find an adverse inference as to each matter inquired about therein and order the

plaintiff offer no witnesses or evidence with respect thereto at trial, (iv) award attorneys fees in

the amount of $2500 payable within three business days, and (v) grant Plaintiff such other relief

for which the Court finds Plaintiff to be entitled, whether at law or in equity.

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Respectfully submitted,

HOLMGREN, JOHNSON: 1VHTCHELL
MADDEN, LLP

/s/ Dennis M. Holmgren
DENNIS M. HOLMGREN
State Bar No. 24036799
dmh@hjmmlegal.com

Montfort Place
13800 Montfort Drive, Suite 160
Dallas, Texas 75240
Voice: 972-484-7780
Fax: 972-484-7743
ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF CONFERENCE

Counsel for movant and counsel for respondent have personally conducted a conference
at which there was a substantive discussion of every item presented to the Court in this motion
and despite best efforts the counsel have not been able to resolve those matters presented.

/s/ Dennis M. Holmgren
Dennis M. Holmgren

CERTIFICATE OF SERVICE

I hereby certify that on April 15, 2015, I served a true and correct copy of the foregoing
in accordance with Texas Rule of Civil Procedure 21a upon opposing counsel of record.

/s/ Dennis M. Holmgren
Dennis M. Holmgren

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Exhibit A
FILED
1 CIT SHF#5 DALLAS COUNTY
11/21/2014 3:58:26 PM
GARY FITZSIMMONS
DISTRICT CLERK

Lantz Sandra
DC-14-13897
CAUSE NO.:

RODNEY MORRIS, IN THE DISTRICT COURT
Plaintiff

V. JUDICIAL DISTRICT

RODNEY MCLEOD,
Defendant DALLAS COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION AND INITIAL DISCOVERY REQUESTS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW RODNEY MORRIS ("Plaintiff') and files this Original Petition

complaining of RODNEY MCLEOD ("Defendant). In support of the foregoing, Plaintiff would

respectfully show as follows:

DISCOVERY LEVEL

1. Plaintiff intends to conduct discovery under Level 3 of Rule 190.4 of the Texas

Rules of Civil Procedure.

PARTIES

2. Plaintiff RODNEY MORRIS ("Morris" or "Plaintiff') is a natural person residing

in Fort Worth, Tarrant County, Texas. The last three (3) digits of his social security number are

270 and the last three (3) digits of his drivers' license are 087.

3. Defendant RODNEY MCLEOD ("McLeod" or "Defendant") is a natural person

residing in Dallas, Dallas County, Texas at 3831 Turtle Creek Boulevard, #7C, Dallas, Texas

78219. Defendant can be served with process at his residence or wherever else he may be found.

ORIGINAL PETITION AND DISCOVERY REQUESTS
JURISDICTION; VENUE; RULE 47 STATEMENT

4. Jurisdiction and venue are proper in this District Court of Dallas County, Texas

because Defendant is a resident of Dallas County, Texas. The Plaintiff is seeking damages that

are within the minimum jurisdictional limits of this Court.

5. In accordance with Tex. R. Civ. P. 47(c), Plaintiff states that Plaintiff seeks

monetary relief over $1,000,000, inclusive of exemplary damages. The amount of monetary

relief actually awarded, however, will ultimately be determined by the jury. Plaintiff also seeks

exemplary damages, pre-judgment and post-judgment interest at the highest legal rate, costs,

attorneys" fees, and such further and additional relief to which he may show himself to be justly

entitled.

IV.
CONDITIONS PRECEDENT

6. Pursuant to Tex. R. Civ. P. 54, Plaintiff pleads that all conditions precedent have

been performed or have occurred.

V.
FACTS

7. Plaintiff Rodney Morris is an exemplary, conditioned athlete. Since July of 2007,

he was employed as National Trainer for Les Mills International, a coveted and highly-sought

after positon in the fitness industry. He also served as the marketing director for Fitness

Marketing Systems, LLC ("Fitmarc"), the Les Mills exclusive licensee for the region which

includes Texas. As part of his marketing and training jobs. Plaintiff would travel around the

country to conduct various classes and seminars. In addition to his marketing job. Plaintiff was

also retained by several fitness clubs to teach a variety of classes. Furthermore, in 2013.

Plaintiff was chosen by Reebok to receive a sponsorship.

ORIGINAL PETITION AND DISCOVERY REQUESTS 2
8. At thirty five (35) years of age, Plaintiff had his whole career ahead of him—until

May 1, 2014. On that fateful day, while waiting at red light, Defendant, driving his shiny black,

top of the line Lexus sedan, carelessly, grossly negligently, and maliciously rear ended Mr.

Morris' then-stopped vehicle. This accident resulted in the total loss of Plaintiff's vehicle and

significant and debilitating back and neck pain.

9. The collision occurred at the 900 block of Watson Road in Arlington, Texas on

May 1, 2014 at approximately 7:15 p.m. Plaintiff (Unit 2) and the car in front of him (Unit 3)

were stopped in the middle lane (lane 2) waiting for the red light to turn green. Defendant (Unit

1) struck Plaintiff in the rear, pushing him into the car in front of him (Unit 3), resulting in the

total loss of Plaintiff's vehicle and causing Plaintiff injury. A true and correct copy of the

Accent Report from the Arlington Police Department is attached hereto as Exhibit A.

10. At the time Mr. McLeod rear ended Mr. Morris, he was highly intoxicated. He

was so drunk, in fact, that he managed to rear end, at high speed, a row of cars waiting for a red

light to turn green. After the accident, the Arlington Police promptly took Defendant to Medical

Center of Arlington for a blood draw and then to jail. This is not Mr. McLeod's first brush with

the law. He has two (2) prior DWI convictions and has been charged by the Tarrant District

Attorney with felony DWI for the collision giving rise to this suit.

11. Prior the collision, Mr. Morris was booked to present at the NOLA 2014

Convention sponsored by Reebok in New Orleans June 20th and 21st. The event was the largest

of its kind ever to be held in the United States. Because of his injuries, he was not able to train

for this event and was forced to cancel his appearance. Additionally, as a direct and proximate

cause of the injuries sustained in the collision, Plaintiff has been unable to regain his level of

physical ability prior to being rear ended by the Defendant. When Mr. Morris attempts to exert

ORIGINAL PETITION AND DISCOVERY REQUESTS 3
himself to the levels required for normal and routine training, he incurs significant pain and

triggers muscle spasms. As a result of the collision, Plaintiff has been forced to discontinue his

work as a National Trainer with Les Mills and resigned from the position after the collision. He

has further lost his Reebok sponsorship and teaching assignments. Due to his injuries and his

new-found lack of visibility in the fitness industry, Plaintiff was forced to change jobs.

12. As a direct and proximate result of the collision, which was caused by the gross

negligence of Defendant, Plaintiff Rodney Morris has suffered injuries and damages. Plaintiff

continues to suffer injuries and damages as the direct and proximate cause of this incident.

V.
CAUSES OF ACTION

13. Plaintiff pleads all matters herein in the alternative.

Count 1:
Negligence

14. Plaintiff re-alleges and incorporates the facts and allegations set forth above as if

they were fully set forth at length herein.

15. At the time that Defendant Rodney McLeod caused the collision at issue, he was

operating his vehicle in a negligent and grossly negligent fashion. Specifically, Defendant had a

duty to exercise ordinary care and operate his vehicle reasonably and prudently. By way of non-

limiting example, Defendant breached that duty in one or more of the following respects:

i. Defendant was operating a motor vehicle while under the adulterating

influence of alcohol and/or drugs;

Defendant failed to keep such proper lookout and attention to the roadway

as a person or ordinary prudence would have kept under the same or

similar circumstances;

ORIGINAL PETITION AND DISCOVERY REQUESTS 4
Defendant failed to control his speed;

iv. Defendant failed to keep an assured safe distance from Plaintiffs vehicle;

v. Defendant failed to timely apply the brakes of his vehicle in order to avoid

the collision in question;

vi. Defendant failed to turn his vehicle in an effort to avoid the collision; and

Defendant failed to control his vehicle.

16. As a direct and proximate cause of the acts and omissions of Defendant, Plaintiff

has suffered and continues to suffer injuries and damages.

Count 2:
Exemplary Damages

17. Plaintiff re-alleges and incorporates the facts and allegations set forth above as if

they were fully set forth at length herein.

18. Defendant Rodney McLeod's conduct in driving a vehicle while under the

adulterating influence of alcohol and/or drugs our, all the whil

Case Info

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BROWN, PHYLLIS LISTER Track Judge’s New Case

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Document Filed Date

April 15, 2015

Case Filing Date

November 21, 2014

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Motion-Secondary: RODNEY MORRIS vs. RODNEY MCLEOD

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