Preview
FILED
9/1/2020 1:31PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
DEPUTY
Terri Kilgore
CAUSE NO. DC-20-10107
JENNIFER MARTINEZ, § IN THE DISTRICT COURT
PLAINTIFF, §
§
§
1921‘“) JUDICIAL DISTRICT
v. §
§
OPPORTUN MUZERWA, §
DEFENDANT. § DALLAS COUNTY, TEXAS
DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE,
AND JURY DEMAND
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW OPPORTUN MUZERWA, Defendant in the above-referenced and
numbered cause, files this Defendant’s Original Answer, Request for Disclosure, and Jury
Demand, and would respectfully show the Court as follows:
GENERAL DENIAL
1. Defendant generally denies each and every, all and singular, the allegations in Plaintiff’ s
most recent Petition, and demands strict proof thereof in accordance With TEX. R. CIV. P. 92.
Defendant demands Plaintiff be required t0 prove by a preponderance 0f the evidence all charges
and allegations made against Defendant, and d0 so before a jury as is required by the laws and
the Constitution of the State of Texas.
AFFIRMATIVE DEFENSES
2. For further answer, Defendant affinnatively asserts and pleads the defense 0f
contributory negligence/comparative responsibility and would show Plaintiff failed t0 use that
degree 0f care and caution which would have been used by persons of ordinary prudence under
the same or similar circumstances. Each failure by Plaintiff was negligence and was a proximate
cause, 0r even the sole proximate cause, 0f the occurrence in question and Plaintiff’s alleged
DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE AND JURY DEMAND Page 1
injuries and damages, if any. Defendant therefore invokes the doctrine of proportionate
responsibility pursuant to Chapter 33 of the Texas Civil Practice and Remedies Code.
3. By way of further defense, in the alternative and/or to the extent necessary, Defendant is
entitled to a reduction of any dollar verdict that may be rendered in this cause by credit for
payments made to Plaintiff or other persons or entities or by percentage reductions to which
Defendant would be entitled as a result of jury findings against Plaintiff or parties other than
Defendant. In this regard, Defendant reserves the right to submit issues against parties and non-
parties, including but not limited to Plaintiff, who may be present in this case or absent from the
case at the time the matter is passed to the jury for fact determinations.
4. By way of further defense, in the alternative and/or to the extent necessary, Defendant is
entitled to a credit or offset for any monies Plaintiff has received, or may receive, by way of any
settlement, agreement, from a claim to an insurance company, or other type agreement arising
from Plaintiff’s claims, whether for property damages or bodily injury.
5. By way of further defense, in the alternative and/or when necessary, to the extent Plaintiff
may have sustained any damage, loss or injury in connection with the acts or omissions alleged,
any claims for medical or health care expenses incurred are limited to the amount actually paid
or incurred by or on behalf of Plaintiff, pursuant to Texas Civil Practice and Remedies Code §
41.0105. Hagood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011).
6. By way of further defense, in the alternative and/or when necessary, to the extent Plaintiff
is seeking recovery for loss of earnings, lost wages, loss of earning capacity and/or loss of
contributions of pecuniary value, evidence of such alleged loss must be presented by Plaintiff in
the form of a net loss after reduction for income tax payments or unpaid tax liability as to any
federal income tax law pursuant to Civil Practice and Remedies Code § 18.091.
________________________________________________________________________________________________________
DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE AND JURY DEMAND Page 2
7. Defendant further states Defendant is not liable for Plaintiff’s injures 0r losses resulting
from any condition not caused by the occurrence made the basis 0f this lawsuit.
8. By way 0f further defense, in the alternative and/or When necessary, to the extent Plaintiff
is seeking recovery for medical expenses, Defendant is not liable for any such costs for services
Which are not reasonable at the time and place the service was provided, and/or not necessary for
treatment 0f the injuries as alleged.
9. Defendant further states Defendant is not liable for Plaintiff’s injures 0r losses t0 the
extent Plaintiff did not mitigate damages.
INFERENTIAL-REBUTTAL DEFENSES
10. When this case is submitted t0 the jury, Defendant requests the Court submit as
instructions the following inferential-rebuttal defenses raised by the evidence:
a. the incident in question was the result of Defendant, Opportun Muzerwa’s
response t0 a sudden emergency;
b. the incident in question was an unavoidable accident.
JURY DEMAND
11. Pursuant to TEX. R. CIV. P. 216, Defendant demands a trial by jury and tenders the
appropriate fee.
TEX. R. CIV. P. 193.7 NOTICE
12. Pursuant to TEX. R. CIV. P. 193.7, this paragraph serves as notice that documents
produced in response t0 written discovery requests served by this Defendant Will be used against
the producing party in any pretrial proceeding and/or trial.
DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE AND JURY DEMAND Page 3
REQUEST FOR DISCLOSURE
13. Pursuant to TEX. R. CIV. P. 194 and TEX R. CIV. P. 190.2 (b)(6), Defendant requests
Plaintiff disclose within thirty (3 0) days of the service 0f this request, the information or material
described in Rule 194.2(a) — (1).
PRAYER
14. WHEREFORE, PREMISES CONSIDERED, Defendant prays that, upon final
hearing, the Court enter a judgment in accordance with the law, the pleadings, and the evidence;
Plaintiff take nothing by this suit; Defendant be fully and finally dismissed With prejudice;
Defendant recovers costs; and for such other and further relief, both general and special, at law
and in equity, to Which Defendant may be justly entitled.
Respectfully submitted,
CHAVEZ LEGAL GROUP
/s/ Ann S. Austin
ANN S. AUSTIN
State Bar No. 01434150
11900 N. 26th s., Ste. 200
Edinburg, TX 78539
(972) 419-3800 Telephone
(972) 239—5046 Facsimile
austin@chavezlegalgroup.com
ATTORNEY FOR DEFENDANT
OPPORTUN MUZERWA
CERTIFICATE 0F SERVICE
I hereby certify that, on this the 1“ day of September, 2020, a true and correct copy of the
foregoing instrument was served upon all parties below by electronic service pursuant t0 Rules
21 and 21a of the Texas Rules of Civil Procedure, and the electronic transmission was reported
as complete. My email address is austin@chavezlegalgroup.c0m
DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE AND JURY DEMAND Page 4
VIA ESERVICE: ESERVICE@BENABBOTT.COM
David Maldonado
Ben Abbott & Associates, PLLC
1934 Pendleton Drive
Garland, TX 75041
/s/ Ann S. Austin
ANN S. AUSTIN
DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE AND JURY DEMAND Page 5
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.
Ann Austin on behalf of Ann Austin
Bar No. 1434150
austin@chavezlegalgr0up.com
Envelope ID: 45877517
Status as of 9/2/2020 10:33 AM CST
Associated Case Party: JENNIFER MARTINEZ
Name BarNumber Email TimestampSubmitted Status
DAVID MALDONADO eService@benabbott.com 9/1/20201:31:44 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Ann Austin austin@chavezlegalgroup.com 9/1/2020 1:31:44 PM SENT
Preview
FILED 9/1/2020 1:31PM FELICIA PITRE DISTRICT CLERK DALLAS CO.,TEXAS DEPUTY Terri Kilgore CAUSE NO. DC-20-10107 JENNIFER MARTINEZ, § IN THE DISTRICT COURT PLAINTIFF, § § § 1921‘“) JUDICIAL DISTRICT v. § § OPPORTUN MUZERWA, § DEFENDANT. § DALLAS COUNTY, TEXAS DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE, AND JURY DEMAND TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW OPPORTUN MUZERWA, Defendant in the above-referenced and numbered cause, files this Defendant’s Original Answer, Request for Disclosure, and Jury Demand, and would respectfully show the Court as follows: GENERAL DENIAL 1. Defendant generally denies each and every, all and singular, the allegations in Plaintiff’ s most recent Petition, and demands strict proof thereof in accordance With TEX. R. CIV. P. 92. Defendant demands Plaintiff be required t0 prove by a preponderance 0f the evidence all charges and allegations made against Defendant, and d0 so before a jury as is required by the laws and the Constitution of the State of Texas. AFFIRMATIVE DEFENSES 2. For further answer, Defendant affinnatively asserts and pleads the defense 0f contributory negligence/comparative responsibility and would show Plaintiff failed t0 use that degree 0f care and caution which would have been used by persons of ordinary prudence under the same or similar circumstances. Each failure by Plaintiff was negligence and was a proximate cause, 0r even the sole proximate cause, 0f the occurrence in question and Plaintiff’s alleged DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE AND JURY DEMAND Page 1 injuries and damages, if any. Defendant therefore invokes the doctrine of proportionate responsibility pursuant to Chapter 33 of the Texas Civil Practice and Remedies Code. 3. By way of further defense, in the alternative and/or to the extent necessary, Defendant is entitled to a reduction of any dollar verdict that may be rendered in this cause by credit for payments made to Plaintiff or other persons or entities or by percentage reductions to which Defendant would be entitled as a result of jury findings against Plaintiff or parties other than Defendant. In this regard, Defendant reserves the right to submit issues against parties and non- parties, including but not limited to Plaintiff, who may be present in this case or absent from the case at the time the matter is passed to the jury for fact determinations. 4. By way of further defense, in the alternative and/or to the extent necessary, Defendant is entitled to a credit or offset for any monies Plaintiff has received, or may receive, by way of any settlement, agreement, from a claim to an insurance company, or other type agreement arising from Plaintiff’s claims, whether for property damages or bodily injury. 5. By way of further defense, in the alternative and/or when necessary, to the extent Plaintiff may have sustained any damage, loss or injury in connection with the acts or omissions alleged, any claims for medical or health care expenses incurred are limited to the amount actually paid or incurred by or on behalf of Plaintiff, pursuant to Texas Civil Practice and Remedies Code § 41.0105. Hagood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011). 6. By way of further defense, in the alternative and/or when necessary, to the extent Plaintiff is seeking recovery for loss of earnings, lost wages, loss of earning capacity and/or loss of contributions of pecuniary value, evidence of such alleged loss must be presented by Plaintiff in the form of a net loss after reduction for income tax payments or unpaid tax liability as to any federal income tax law pursuant to Civil Practice and Remedies Code § 18.091. ________________________________________________________________________________________________________ DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE AND JURY DEMAND Page 2 7. Defendant further states Defendant is not liable for Plaintiff’s injures 0r losses resulting from any condition not caused by the occurrence made the basis 0f this lawsuit. 8. By way 0f further defense, in the alternative and/or When necessary, to the extent Plaintiff is seeking recovery for medical expenses, Defendant is not liable for any such costs for services Which are not reasonable at the time and place the service was provided, and/or not necessary for treatment 0f the injuries as alleged. 9. Defendant further states Defendant is not liable for Plaintiff’s injures 0r losses t0 the extent Plaintiff did not mitigate damages. INFERENTIAL-REBUTTAL DEFENSES 10. When this case is submitted t0 the jury, Defendant requests the Court submit as instructions the following inferential-rebuttal defenses raised by the evidence: a. the incident in question was the result of Defendant, Opportun Muzerwa’s response t0 a sudden emergency; b. the incident in question was an unavoidable accident. JURY DEMAND 11. Pursuant to TEX. R. CIV. P. 216, Defendant demands a trial by jury and tenders the appropriate fee. TEX. R. CIV. P. 193.7 NOTICE 12. Pursuant to TEX. R. CIV. P. 193.7, this paragraph serves as notice that documents produced in response t0 written discovery requests served by this Defendant Will be used against the producing party in any pretrial proceeding and/or trial. DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE AND JURY DEMAND Page 3 REQUEST FOR DISCLOSURE 13. Pursuant to TEX. R. CIV. P. 194 and TEX R. CIV. P. 190.2 (b)(6), Defendant requests Plaintiff disclose within thirty (3 0) days of the service 0f this request, the information or material described in Rule 194.2(a) — (1). PRAYER 14. WHEREFORE, PREMISES CONSIDERED, Defendant prays that, upon final hearing, the Court enter a judgment in accordance with the law, the pleadings, and the evidence; Plaintiff take nothing by this suit; Defendant be fully and finally dismissed With prejudice; Defendant recovers costs; and for such other and further relief, both general and special, at law and in equity, to Which Defendant may be justly entitled. Respectfully submitted, CHAVEZ LEGAL GROUP /s/ Ann S. Austin ANN S. AUSTIN State Bar No. 01434150 11900 N. 26th s., Ste. 200 Edinburg, TX 78539 (972) 419-3800 Telephone (972) 239—5046 Facsimile austin@chavezlegalgroup.com ATTORNEY FOR DEFENDANT OPPORTUN MUZERWA CERTIFICATE 0F SERVICE I hereby certify that, on this the 1“ day of September, 2020, a true and correct copy of the foregoing instrument was served upon all parties below by electronic service pursuant t0 Rules 21 and 21a of the Texas Rules of Civil Procedure, and the electronic transmission was reported as complete. My email address is austin@chavezlegalgroup.c0m DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE AND JURY DEMAND Page 4 VIA ESERVICE: ESERVICE@BENABBOTT.COM David Maldonado Ben Abbott & Associates, PLLC 1934 Pendleton Drive Garland, TX 75041 /s/ Ann S. Austin ANN S. AUSTIN DEFENDANT’S ORIGINAL ANSWER, REQUEST FOR DISCLOSURE AND JURY DEMAND Page 5 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. Ann Austin on behalf of Ann Austin Bar No. 1434150 austin@chavezlegalgr0up.com Envelope ID: 45877517 Status as of 9/2/2020 10:33 AM CST Associated Case Party: JENNIFER MARTINEZ Name BarNumber Email TimestampSubmitted Status DAVID MALDONADO eService@benabbott.com 9/1/20201:31:44 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Ann Austin austin@chavezlegalgroup.com 9/1/2020 1:31:44 PM SENT