Sanctimonious Sanctioned Legal Bandit Clay Vilt Wants Sanctions Against Unblemished Texas Lawyers

DEFENDANT TIAN, LLC’S ORIGINAL ANSWER AND VERIFIED DENIAL, AFFIRMATIVE DEFENSES, AND SPECIAL EXCEPTIONS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Defendant Tian, LLC, filing its Original Answer and Verified Denial, Affirmative Defenses, and Special Exceptions to Plaintiff Georgiana Ilie’s (hereinafter referred to as “Plaintiff”) Original Petition, respectfully showing the Court as follows:

I. GENERAL DENIAL

Subject to such stipulations as may hereafter be made, Defendant asserts a general denial as is authorized by Rule 92 of the Texas Rules of Civil Procedure and generally deny all of the claims and allegations in Plaintiff’s Original Petition. Defendant respectfully requests that Plaintiff be required to prove all claims and allegations against Defendant by a preponderance of the evidence as is required by the Constitution and laws of the State of Texas. Defendant further reserves the right to amend this Answer at a future date in accordance with the Texas Rules of Civil Procedure.

II. VERIFIED DENIAL

Subject to and without waiving the foregoing General Denial, Defendant specially denies it is liable in the capacity in which it has been sued. Specifically, Defendant Dengke Li is not, and at no time has ever been, an employee of this Defendant or subject to this Defendant’s control.

III. AFFIRMATIVE DEFENSES

Defendant asserts that Dengke Li is not and has never been an employee of Defendant Tian, LLC. As such, Tian, LLC is not vicariously liable for the negligent acts of Defendant Li, if any.

At all times, Defendant exercised reasonable care in renting the subject vehicle to Defendant Li.

Defendant followed standard industry practices and complied with all applicable laws and regulations.

Defendant had no actual or constructive knowledge that Defendant Li was incompetent, unfit, or otherwise incapable of safely operating a vehicle.

Any injuries or damages alleged by Plaintiff were not proximately caused by any act or omission on the part of Defendant, but rather the result of the actions of third parties over whom Defendant had no control.

Defendant asserts that the incident complained of in Plaintiff’s Original Petition was caused by negligence, carelessness, and/or fault on the part of Plaintiff and/or of third parties or instrumentalities over which Defendant had no control.

Any such negligence, carelessness, and/or comparative fault on the part of such Defendant or third party was either the sole cause, or in the alternative, a proximate cause, and/or producing cause of the incident and injuries made the basis of this lawsuit.

Defendant alleges they are entitled to ask the trier of fact to determine the responsibility of any and all claimants, settling parties, Plaintiffs, Defendants, and responsible thirdparties, pursuant to Texas Civil Practice and Remedies Code §33.001 et seq, or other statute or common law, for causing the harm, if any, complained of by Plaintiff.

Defendant requests contribution and/or indemnity from any other named defendant, counter defendant, cross defendant, contribution defendant, responsible third party, or third-party defendant in accordance with the Texas Civil Practices and Remedies Code.

Defendant would show that the condition of the property did not present an unreasonable risk of harm as there were no dangerous conditions present.

Defendant would respectfully show the court that Plaintiff is not entitled to any award of exemplary damages.

Defendants respectfully allege that if exemplary damages are awarded, any award should be subject to the limits imposed by the Texas Rules of Civil Procedure and Texas Civil Practice and Remedies Code.

Any award of exemplary damages violates the due process clause of the Fifth Amendment and Fourteenth Amendment to the United States Constitution, in addition to Article 1, Section 19, of the Texas Constitution, in that:

a.       Such punitive damages are intended to punish and deter a defendant and thus this proceeding becomes essentially criminal in nature;

b.      Defendant is being compelled to be a witness against themselves in a proceeding that is essentially and effectively criminal in nature, in Violation of Defendant’s right to due process, and in Violation of the Constitutions of the United States and of the State of Texas;

c.       Plaintiffs’ burden of proof to establish punitive damages in this proceeding, which is effectively criminal in nature, is less than the burden of proof required in all other criminal proceedings, and thus violates Defendant’s right to due process as guaranteed by the Fourteenth Amendment of the United States Constitution and the rights of Defendant under Article 1, Section 19, of the Texas Constitution; and

d.      Inasmuch as this proceeding is essentially and effectively criminal in nature, Defendant is being denied the requirements of adequate notice of the elements of the offense, and that such statutory and common law theories purported authorizing punitive damages are sufficiently vague and ambiguous, and Plaintiff’s Petition purporting to invoke such statutory and/or common law theory is so vague and ambiguous as to be in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and in Violation of Article 1, Section 19.

Defendant respectfully alleges that Plaintiffs’ claim for punitive or exemplary damages violates Defendant’s right to protection from being subjected to excessive fines, as provided in Article 1, Section 13, of the Texas Constitution.

Defendant would further show that at the time and on the occasion in question, Plaintiff failed to exercise that degree of care and caution which would have been exercised by an ordinarily prudent person under the same or similar circumstances and that said failure upon the part of Plaintiff was a proximate cause, or in the alternative, the sole proximate cause of the occurrence in question and Plaintiff’s damages, if any.

Defendant asserts the defense of the Due Process Clause of the Constitutions of the State of Texas and of the United States of America, and the defenses to unreasonably exemplary damages, set forth in the Texas Damages Act, State Farm Mut. Auto. Ins. Co. v. Campbell,1 and Phillip Morris USA v. Williams.2

By way of further defense, Defendant asserts the defenses contained within Chapter 41 of the Texas Civil Practice & Remedies Code. Defendant asserts the defense relating to the recovery of exemplary damages, including, but not limited to damage caps, the clear and convincing burden of poof and the requirement of a unanimous verdict.

Defendant states that the contributory negligence and/or comparative fault of Plaintiff must be determined by the trier of fact in this case.

Any award of damages to Plaintiff in this case is subject to Chapter 33 of the Texas Civil Practice & Remedies Code, which provides that “a claimant may not recover damages if his percentage of responsibility is greater than 50 percent.”3

Moreover, pursuant to § 33.003, the trier of fact shall determine the percentage of responsibility for each claimant. Thus, Defendant requests that Plaintiff’s negligence be submitted to the jury for

1 State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S.Ct. 1513 (2003).

2 Phillip Morris USA v. Williams, 127 S.Ct. 1057 (2007).

3 TEX. CIV. PRAC. & REM. CODE § 33.001.

which apportionment of responsibility for causing or contributing to cause the harm for which recovery is sought in this case.4

Defendant also invokes § 18.091 of the Texas Civil Practice and Remedies Code and request that to the extent that Plaintiff seeks to recover for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or a loss of inheritance, that the evidence to prove such loss must be presented in the form of a net loss after reduction for income tax payments or unpaid tax liability.

Defendant further requests that the Court instruct the jury as to whether any recovery for compensatory damages sought by Plaintiff is subject to federal income taxes.

Defendant invokes § 41.0105 of the Texas Civil Practice and Remedies Code and request that to the extent Plaintiff seeks recovery of medical or healthcare expenses, the evidence to prove such loss be limited to the amount actually paid by or on behalf of the Plaintiff, as opposed to the amount charged.

Defendant would show that Plaintiff has failed to mitigate his damages as a reasonably prudent person would have under the same or similar circumstances and that such failure to mitigate damages is the sole cause, or the proximate cause, of Plaintiff’s damages, if any.

Defendant asserts that the calculation of pre- and post-judgment interest is governed by Chapter 304 of the Texas Finance Code.

Defendant asserts that the calculation of pre-judgment interest is disallowed on future damages pursuant to Texas Finance Code §304.1045.

To the extent Plaintiff now pleads or plans to plead gross negligence/exemplary damages, Defendant affirmatively pleads the following provisions of Chapter 41 of the Texas Civil Practice & Remedies Code:

4 TEX. CIV. PRAC. & REM. CODE § 33.003.

a.                   § 41.003, which requires (a) that Plaintiff prove by clear and convincing evidence, as defined by § 41.001(2), that the harm with regard to which they seek recovery resulted from fraud, malice or gross negligence; (b) that the burden may not be shifted to this Defendant or satisfied by evidence of ordinary negligence, bad faith or a deceptive trade practice; (d) that exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages; and (e) that the jury must be instructed as to the requirement of unanimity regarding a decision on exemplary damages.

b.                  § 41.004, which states (a) that except as provided by Subsection (b), exemplary damages may be awarded only if damages other than nominal damages are awarded; and (b) exemplary damages may not be awarded to a claimant who elects to have his recovery multiplied under another statute.

c.                   § 41.006, which requires that, in an action in which there are two or more Defendants, an award of exemplary damages must be specific as to each Defendant, and each Defendant is liable only for the amount of each award made against that specific Defendant.

d.                  § 41.007, which precludes the assessment or recovery of prejudgment interest on awards of exemplary damages.

e.                   § 41.008, which (a) requires the trier of fact to determine the amount of economic damages separately from the amount of other compensatory damages; and (b) places limitations on the Plaintiff’s recovery of exemplary damages to the greater of (1) two times the amount of economic damages, as defined by § 41.001(4), plus an amount equal to non-economic damages found by the jury, not to exceed $750,000.00; or (2) $200,000.00.

f.                    § 41.008(e), which provides that the preceding limitations may not be made known to the jury.

g.                  § 41,009, which requires a bifurcated trial upon motion by any Defendant.

h.                  § 41.010 and § 41.012, which provide the jury instructions and considerations necessary before making and awarding exemplary damages.

i.                    § 41.011, which provides the six areas of evidence that the trier of the fact shall consider relating to exemplary damages and providing that evidence that is relevant only to the amount of exemplary damages is not admissible during the first phase of a bifurcated trial.

j.                    § 41.013, which sets forth the standard for judicial review of the award.

k.                  § 41.0105, which states that in addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount of medical or health care expenses actually paid or incurred by or on behalf of the claimant.

In the event that this chapter does not apply, then:

a.                   There should be no recovery of exemplary or punitive damages for the reason that an award of such damage would be unconstitutional in failing to place a limit on the amount of such damage award; an award of such damages would be void for vagueness and violated of the Equal Protection Clause of the Fifth and Fourteenth Amendments to the U.S. Constitution; an award of such damages would violate Art 1, § 10 and § 13 of the Constitution of the State of Texas.

b.                  Any award of punitive damages would violate the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.

c.                   Punitive damages are a form of punishment imposed by the Court, and the standard of proof to sustain such damages must be clear and convincing evidence to comport with the Due Process Clause of the Fourteenth Amendment of the United States Constitution, Section 19 of the Constitution of the State of Texas, or the Constitution and laws of any other state deemed to apply in this case.

Any award of exemplary damages would be imposed under a standard of conduct formulated years after any of Defendant’s actions; a retroactive application of the standard of conduct would be a violation of due process.

IV. SPECIAL EXCEPTIONS

Defendant specially excepts to Paragraphs 20-21 of Plaintiff’s Original Petition which claim that Defendant Li was within the course and scope of employment with Defendant Tian, LLC at the time of the incident and thus, Defendant Tian, LLC is liable for Defendant Li’s alleged negligence under the doctrine of respondeat superior. Defendant Li was not and never has been an employee of Defendant Tian, LLC and was not within the course and scope of his employment with them at the time of this accident.

Defendant specially excepts to Paragraphs 22-24 for the reason that Plaintiff has failed to identify specific facts to support his asserted cause of action for direct negligence and negligent entrustment against Tian, LLC. Such vague and imprecise pleading fails to inform the reader as to what exact acts or omissions will be contended to be negligence at trial.

Plaintiff has failed to show in what specific manner Defendant Tian, LLC was negligent, what fact or facts their duties arise from, and how those duties were breached in a way that proximately caused Plaintiff’s damages.

In particular, Plaintiff fails to state and/or plead specific facts as to what duty Defendant Tian, LLC owed to Plaintiff. Defendant Li was not an employee of Defendant Tian, LLC.

Similarly, Plaintiff fails to articulate how Defendant Tian, LLC breached a duty to Plaintiff to proximately cause his damages. The controverting evidence shows that Defendant Li was not employed by Defendant Tian, LLC at the time of this incident and they assumed no responsibility for Defendant Li or Plaintiff’s safety.

Defendant reserves the right to set these issues for hearing and request the Court to sustain its special exceptions and order Plaintiff to replead and cure such defects to place it on fair notice of his claims.

Should Plaintiff not cure such defects, Defendant prays the Court strike the defective portions of Plaintiff’s First Amended Original Petition and dismiss this lawsuit.

V. JURY DEMAND

In accordance with Rule 216 of the Texas Rules of Civil Procedure, Defendants demand a trial by jury and, if not already paid by Plaintiff, hereby tender the applicable jury fee.

PRAYER

WHEREFORE, Defendant Tian, LLC prays that Plaintiff take nothing by this lawsuit, that Defendant be awarded their costs without delay, and for such other and further relief, both general and special, at law and in equity, to which Defendant may show themselves justly entitled.