UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

BREE McCLESKEY * 

V. * Civil Action No. 1:20-CV-00166

TOLTECA ENTERPRISES INC.,

 DBA PHOENIX RECOVERY GROUP *

& TRAVELERS CASUALTY AND SURETY

CO. OF AMERICA *

Defendant TRAVELER’SCASUALTY&SURETYCO.OFAMERICA, (“Traveler’s”) 

files this Original Answer to Plaintiff’s Complaint. 

1. Travelers enters a general denial.

2. Travelers denies any and all allegations that it has any vicarious liability as it is merely

the bond company without any direct involvement in the matters Plaintiff alleges in her

Complaint. 

3. Travelers denies any and all allegations of collective action and joint enterprise as it

is merely the bond company without any direct involvement in the matters Plaintiff alleges in

her Complaint.

II. Affirmative Defenses and Pleas in Avoidance

4. Travelers is informed and believes, and thereon alleges, that in the event one or more

of the Defendants are held liable to Plaintiff, which liability is denied and contested, then the

liability of Travelers would be passive, derivative, or secondary, while other Defendants and/or

third parties would be actively or primarily liable for Plaintiffs’ alleged injuries and damages. 

Travelers would show that it had no involvement in any of the claims and causes of action

Plaintiff has brought in this lawsuit against any party. Travelers did not direct, encourage, solicit,
or participate in any way in the events, acts, or omissions giving rise to Plaintiff’s allegations or

in the underlying lease and debt account transaction. 

5. Travelers is informed and believes, and thereon alleges, that the Plaintiff is not within

the the class of persons protected under the bond Travelers has on file for Tolteca Enterprises

Inc.

6. Travelers is informed and believes, and thereon alleges, that Plaintiff is barred from

recovery as requisite conditions of the bond, contract, and statutes pursuant to which the bond

was written were not met. 

7. Travelers is informed and believes, and thereon alleges, that the items claimed by the

Plaintiff are not payable pursuant to the terms and conditions of the bond.

8. Travelers is informed and believes, and thereon alleges, that any liability on the bond

in this lawsuit is limited to the penal sum set forth on the bond, and should valid claims on the

bond exceed the penal sum, such claims may only be satisfied on a pro rata basis up to the penal

sum of the bond.

9. Travelers is informed and believes, and thereon alleges, that it is entitled to assert any

and all defenses and pleas of its principal, Tolteca Enterprises Inc., under any surety bond that

may be applicable. Travelers hereby incorporates by reference any and all defenses and pleas

to Plaintiff’s lawsuit that could be asserted by Tolteca Enterprises Inc.

10. Travelers is informed and believes, and alleges, Travelers is entitled to

indemnification and/or contribution in whole or in part from all persons or Defendants whose

conduct, acts, omissions, or fault proximately contributed to Plaintiff’s damages, or who may

otherwise be liable for such damages, if any.

11. Travelers may have additional, and as yet unstated defenses. Travelers reserves all
rights under the law to assert additional affirmative defenses as they become known during the

course of the litigation.

12. Travelers further asserts that it is merely a surety company for its principal, Tolteca

Enterprises Inc., and Travelers has no liability for any cause of action Plaintiff has asserted in

this lawsuit and there is no basis in fact or law for Travelers to be held liable in this lawsuit. 

Travelers is not a party to any contract, lease, conduct, acts, omissions, or activity involving or

concerning the Plaintiff. Travelers would show it has no liability herein unless there is full and

strict compliance with all of its terms and conditions of the bond and conditions precedent

thereto, and not unless Plaintiff obtains a final, non-appealable, unsatisfied judgment against

Travelers’ principal, Tolteca Enterprises Inc. Accordingly, Travelers would show that Plaintiff

has no standing to assert any claims against Travelers; that Travelers has been misjoined into this

lawsuit; that there is no justiciable and ripe claim against Travelers; that there is no case or

controversy between Travelers and the Plaintiff, and for such reasons there is a lack of

jurisdiction concerning Travelers. Travelers should be dismissed from this lawsuit.

WHEREFORE, Travelers asks the court to dismiss this case with prejudice and/or render

a take nothing judgment against the Plaintiff and that Plaintiff be assessed all costs and fees. 

Travelers prays for such other and further relief as may be just.

S/TOM CLARKE

Texas Bar No. 04318600

8026 Vantage Dr. #105

San Antonio, Texas 78230

210/340-8448

210/348-7946 Fax

tclarkeatty7@aol.com

Attorney for Travelers
CERTIFICATE OF SERVICE

This document has been e-filed with the court’s CM/ECF electronic filing system on

December 9, 2020, which will give electronic notice to Plaintiff’s attorney, Brent Devere.

S/Tom Clarke