10/8/2018 10:16 AM

Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-18-004799 D-1-GN-18-004799
Melissa Romero

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STEVEN VICTOR MROSKI § IN THE DISTRICT COURT OF

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and ZACHARY A. ROSENFELD §

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Plaintiff, §
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§ TRAVIS COUNTY, TEXAS
SAN MARCOS GREEN INVESTORS, §

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LLC, ELEVATE MULTIFAMILY, LLC §

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AND DEBORAH JONES §

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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

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COMES NOW, DEFENDANTS SAN MARCOS GREEN INVESTORS, LLC,

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ELEVATE MULTIFAMILY, LLC, AND DEBORAH JONES, (“DEFENDANTS”)
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Defendants in the above – entitled and numbered cause, and file this Original Answer and
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Request for Disclosure to Plaintiffs’ Original Petition subject to its previously filed Motion to
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Transfer Venue and would respectfully show unto the Court as 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 Plaintiffs’ Original Petition and any amendments and
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supplement thereto, demand strict proof thereof, and, to the extent such matter are questions of
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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
 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
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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
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event, Defendants say that they are entitled to contribution, credit, and/or indemnity, as provided

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

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:

 (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.

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(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
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America, Inc. v. Gore, 517 U.S. 559 (1996); Pacific Mutual Life Insurance Company v.

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.

 (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
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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
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emphasis on a defendant’s wealth inevitably lead to variations in result without any rational basis

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.

 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.

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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

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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

 WHEREFORE, PREMISES CONSIDERED, DEFENDANTS SAN MARCOS

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GREEN INVESTORS, LLC, ELEVATE MULTIFAMILY, LLC, AND DEBORAH

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JONES, pray that Plaintiffs take nothing by this suit; for an award of all costs and expenses

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incurred on its behalf; and for such other and further relief, both at law and in equity, to which

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Defendants may show itself to be justly entitled.

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Respectfully submitted,

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/s/ Jennifer D. Akre 

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DARREL L. BARGER

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State Bar No.01733800
dbarger@hdbdlaw.com

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JENNIFER D. AKRE
State Bar No. 24059950

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jakre@hdbdlaw.com
KRISTINA EVERHART
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State Bar No. 24102458
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keverhart@hdbdlaw.com
HARTLINE DACUS BARGER DREYER L.L.P.
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1980 Post Oak Blvd., Suite 1800

Houston, Texas 77056
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Telephone: (713) 759-1990

Facsimile: (713) 652-2419
ATTORNEYS FOR DEFENDANTS SAN
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MARCOS GREEN INVESTORS, LLC,

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ELEVATE MULTIFAMILY, LLC, AND

DEBORAH JONES
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 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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Anthony G. Buzbee
Ryan S. Pigg

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Leah M. Fiedler
THE BUZBEE LAW FIRM

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JP Morgan Chase Tower

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600 Travis, Ste. 7300
Houston, Texas 77002

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tbuzbee@txattorneys.com
rpigg@txattorneys.com

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lfiedler@txattorneys.com tri
/s/ Jennifer D. Akre
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JENNIFER D. AKRE
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