10/8/2018 10:10 AM

Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-18-003866 D-1-GN-18-003866
Chloe Jimenez

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PHILLIP MIRANDA, INDIVIDUALLY § IN THE DISTRICT COURT OF

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AND AS REPRESENTATIVE §

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OF THE ESTATE OF §
JAMES MIRANDA, DECEASED §
Plaintiff, §

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v. § TRAVIS COUNTY, TEXAS

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SAN MARCOS GREEN INVESTORS, §

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LLC, ELEVATE MULTIFAMILY, LLC §
AND DEBORAH JONES §
Defendants. § 200TH JUDICIAL DISTRICT

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DEFENDANTS’ ORIGINAL ANSWER AND REQUEST FOR DISCLOSURE SUBJECT

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TO ITS PREVIOUSLY FILED MOTION TO TRANSFER VENUE TO INTERVENOR
MARISELA RORIGUEZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE

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ESTATE BELINDA MOATS, DECEASED’S ORIGINAL PETITION
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COMES NOW, DEFENDANTS SAN MARCOS GREEN INVESTORS, LLC,
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ELEVATE MULTIFAMILY, LLC, DEBORAH JONES, AND THOMAS STEUBING,

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JR., (“DEFENDANTS”) Defendants in the above – entitled and numbered cause, and file this
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Original Answer and Request for Disclosure to Intervenor Marisela Rodriguez, Individually and
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as Representative of the Estate of Belinda Moats, deceased’s Original Petition subject to its
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previously filed Motion to Transfer Venue and would respectfully show unto the Court as
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follows:
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I. GENERAL DENIAL
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1. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants deny each
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and every material allegation contained in Intervenor Marisela Rodriguez, Individually and as
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Representative of the Estate of Belinda Moats, deceased’s Original Petition and any amendments
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and supplement thereto, demand strict proof thereof, and, to the extent such matter are questions
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 of fact, Plaintiffs should prove such facts by a preponderance of the evidence to a jury if they can

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do so.

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II. AFFIRMATIVE DEFENSES

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2. Pleading further and in the alternative, Defendants say that the occurrence in

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question as well as the damages complained of were proximately caused, in whole or in part, by

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the acts, omissions, fault, negligence, or other conduct of third parties or persons or entities over

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whom Defendants have no right of control nor for whom Defendants are legally responsible.

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Accordingly, Defendants are entitled to a jury instruction on sole proximate cause and new and

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independent or superseding cause.

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3. Pleading further and in the alternative, Defendants would show that in the event
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they are found liable to the Plaintiffs, any such liability being expressly denied, then, in that
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event, Defendants will show that they are entitled to a reduction for the negligence, liability, fault
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or other conduct which is attributable to any other party in accordance with the Doctrine of
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Comparative Fault or Causation as enunciated by the Supreme Court of the State of Texas.
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4. Pleading further and in the alternative, Defendants say that they are entitled to a
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credit or offset for all monies or consideration paid to the Plaintiffs by virtue of any type or form
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of settlement agreement entered into by and between the Plaintiffs and any defendant herein or
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any other person or entity not a party to this litigation. Further, Defendants would assert the

affirmative defenses of accord and satisfaction, release, payment, credit, offset, acts of God,
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sudden emergency, res judicata, collateral estoppel, waiver and laches, as provided under Rule
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94 of the Texas Rules of Civil Procedure.

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5. Pleading further and in the alternative, Defendants would show that in the event
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that they are found liable to Plaintiffs, any such liability being expressly denied, then, in that
 event, Defendants say that they are entitled to contribution, credit, and/or indemnity, as provided

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by the laws and statutes of the State of Texas including, but not limited to, the provisions of

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Chapter 32 and Chapter 33 of the Texas Civil Practices and Remedies Code, as well as other

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applicable laws and statutes.

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6. Pleading further, alternatively, and by way of affirmative defense, Defendants

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contend that any claims for medical or health care expenses are limited to the amount actually

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paid or incurred by or on behalf of Plaintiffs pursuant to Section 41.0105 of the Texas Civil

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Practice and Remedies Code.

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7. For any claims for pre-judgment interest, Defendants invoke the limitations on

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prejudgment interest contained in the Texas Civil Practices and Remedies Code.
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8. Pleading further, alternatively, and by way of affirmative defense, Defendants
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invoke all rights and limitations found in Chapter 41 of the Texas Civil Practice and
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Remedies Code, including the limitations on damage awards.

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9. Pleading further, alternatively, and by way of affirmative defense, Defendants

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plead the defense of unconstitutionality, in that any award of punitive or exemplary damages
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would constitute the imposition of a criminal penalty without the safeguards guaranteed by the
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Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution of the United States and
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similar provisions of the Texas Constitution. Furthermore, the imposition of such punitive or

exemplary damages constitutes an excessive fine under the Eighth Amendment, denies
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Defendants’ equal protection of the law under the Fourteenth Amendment, and violates the due
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process clauses of the Fifth and Fourteenth Amendments. Defendants plead that any claim by
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Plaintiffs for punitive or exemplary damages should be stricken as unconstitutional and that any
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award of punitive or exemplary damages should be set aside for the reasons stated above.
 10. Pleading further, alternatively, and by way of affirmative defense, Defendants

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would show that the imposition of punitive damages sought by Plaintiffs violates Defendants’

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rights to due process and equal protection under the Fourteenth Amendment of the United States

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Constitution, to due course of law and equal protection under Article 1, Sections 3 and 19 of the

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Texas Constitution, and the prohibition against excessive fines in Article 1, Section 13 of the

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Texas Constitution, in that:

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(a) Texas law and the Texas punitive-damage scheme, both facially and as

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applied in this case, provide no constitutionally adequate or meaningful standards to

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guide a jury or the court in determining whether, and if so in what amount, to award

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punitive damages; there is no sufficiently clear definition of the conduct or mental state
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that makes punitive damages permissible, and no sufficiently clear standard for
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determining the appropriate size of an award. Texas law and the Texas punitive-damage
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scheme leave the determination whether to award and, if so, the amount of punitive
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damages to the arbitrary discretion of the trier of fact without providing adequate or
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meaningful guidelines for or limits to the exercise of that discretion.

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(b) Under Texas law and the Texas punitive-damage scheme, the jury is not
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instructed on the limits on punitive damages imposed by the purposes for which such
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damages are assessed.

(c) Under Texas law and the Texas punitive-damage scheme, the jury is not
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expressly prohibited from awarding punitive damages, in whole or in part, on the basis of
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invidiously discriminatory characteristics, including the corporate status of a defendant.

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(d) No provision of Texas law or the Texas punitive-damage scheme provides

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adequate procedural safeguards consistent with the criteria set forth in BMW of North
 America, Inc. v. Gore, 517 U.S. 559 (1996); Pacific Mutual Life Insurance Company v.

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Haslip, 499 U.S.1 (1990), and Matthews v. Eldridge, 424 U.S. 319 (1976), for the

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imposition of a punitive award.

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(e) Texas law and the Texas punitive-damage scheme do not provide for

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adequate post-trial review of punitive-damage awards or the amount thereof, and do not

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provide objective standards for such review.

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(f) Texas law and the Texas punitive-damage scheme do not provide for

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adequate appellate review of punitive-damage awards or the amount thereof, and do not

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provide objective standards for such review. Those inadequacies are compounded by the

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constraints upon review of such awards by the Texas Supreme Court, including Article 5,
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Section 6 of the Texas Constitution and Section 22.225 of the Texas Government Code.
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(g) In the admission of evidence, the standards provided the trier of fact
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(including jury instructions), and post-trial and appellate review, Texas law and the Texas
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punitive-damage scheme, including Sections 41.001 through 41.013 of the Texas Civil
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Practice and Remedies Code, place undue emphasis on a defendant’s wealth as a basis for
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making and enhancing a punitive damage award, and do not require that the award not be
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based on any desire to redistribute wealth.

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(h) Under Texas law and the Texas punitive-damage scheme, there is no limit

on the number of times Defendant could be held accountable for punitive damages based
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on the same alleged conduct as that alleged in this case.

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11. Pleading further, alternatively, and by way of affirmative defense, Defendants

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would show that the net effect of Texas’s punitive-damage system is to impose punitive damages
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in an arbitrary and discriminatory manner. The lack of adequate guidelines or review and undue
 emphasis on a defendant’s wealth inevitably lead to variations in result without any rational basis

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for differentiation, and without serving any legitimate governmental purpose or interest. As a

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result, the federal and state constitutional mandates for equal protection (U.S. Const. Amend 14;

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Texas Const. Art. 1, § 3) are violated. Insofar as the lodestone of the Texas punitive-damage

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system is in the depth of the defendant’s pockets, that invidious discrimination is itself an affront

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to the federal and state constitutions’ equal-protection mandates.

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12. Pleading further, alternatively, and by way of affirmative defense, Defendants

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would show that by virtue of Section 41.008 of the Texas Civil Practice and Remedies Code, any

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award of punitive damages is subject to the cap specified in that section and any award in excess

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of that cap must be reduced accordingly. tri
13. Defendants reserves the right to amend this Answer to assert additional
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defenses, affirmative or otherwise, to challenge venue, and to assert third-party claims, all as
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may be required upon the completion of reasonable discovery and investigation

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14. In accordance with Rule 193.7 of the Texas Rules of Civil Procedure, Defendants
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hereby provide written notice to Plaintiffs that any and all documents produced during discovery
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may be used against Plaintiffs, if any, at any pre-trial proceeding and/or trial of this matter
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without the necessity of authenticating the document.

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III. JURY DEMAND

15. Defendants respectfully demand a jury for the trial of this matter.
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IV. REQUEST FOR COURT REPORTERS

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16. Defendants respectfully request that a court reporter attend all sessions of court in
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connection with this case, and that said court reporter take full notes of all testimony offered,
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 together with any objections, rulings, and remarks by Defendants. See Christie v. Price, 558

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S.W.2d 922 (Tex. Civ. App.—Texarkana 1977, no writ).

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V. REQUEST FOR DISCLOSURE

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17. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, you are requested to

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disclose, within 50 days of service of this request, the information or material described in Rule

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194.2. Tex. R. Civ. P. 194.2

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VI. CONCLUSION AND PRAYER

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WHEREFORE, PREMISES CONSIDERED, DEFENDANTS SAN MARCOS

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GREEN INVESTORS, LLC, ELEVATE MULTIFAMILY, LLC, DEBORAH JONES,

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AND THOMAS STUEBING, JR., pray that Plaintiffs take nothing by this suit; for an award of
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all costs and expenses incurred on its behalf; and for such other and further relief, both at law
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and in equity, to which Defendants may show itself to be justly entitled.

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Respectfully submitted,
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/s/ Jennifer D. Akre 

DARREL L. BARGER
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State Bar No.01733800

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dbarger@hdbdlaw.com
JENNIFER D. AKRE
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State Bar No. 24059950

jakre@hdbdlaw.com
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KRISTINA EVERHART
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State Bar No. 24102458

keverhart@hdbdlaw.com
HARTLINE DACUS BARGER DREYER L.L.P.
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1980 Post Oak Blvd., Suite 1800

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Houston, Texas 77056

Telephone: (713) 759-1990
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Facsimile: (713) 652-2419

ATTORNEYS FOR DEFENDANTS SAN
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MARCOS GREEN INVESTORS, LLC,

ELEVATE MULTIFAMILY, LLC, DEBORAH
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JONES, AND THOMAS STEUBING, JR.

 CERTIFICATE OF SERVICE

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I hereby certify that a true and correct copy of the foregoing document has been

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forwarded to all known parties and counsel of record in this cause in accordance with the Texas

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Rules of Civil Procedure on this the 8th day of October 2018.

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John H. Patterson, Jr. Kurt B. Arnold

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ATTORNEY AT LAW, PLLC J. Kyle Findley
6800 Park Ten Blvd., Ste. 220N Kala F. Sellers

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San Antonio, Texas 78213 Adam D. Lewis
john@johnpatlaw.com ARNOLD & ITKIN, LLP

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6009 Memorial Drive

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Houston, Texas 77007
karnold@arnolditkin.com

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kfindley@arnolditkin.com
ksellers@arnolditkin.com

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alewis@arnolditkin.com
e-service@arnolditkin.com
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/s/ Jennifer D. Akre

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JENNIFER D. AKRE
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