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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

BARBARA BETTS, §

Plaintiff, §

§

v. § CIVIL ACTION NO. 4:22-cv-00645

§

KROGER TEXAS L.P. §

Defendant. § JURY DEMANDED

DEFENDANT’S NOTICE OF REMOVAL

TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

Pursuant to the terms and provisions of 28 U.S.C. §§ 1441 and 1446, Defendant Kroger 

Texas L.P. in the cause styled “Barbara Betts v. Kroger Texas L.P.,” originally pending as Cause 

No. 096-334164-22 in the 96th Judicial District Court of Tarrant County, Texas, files this Notice of 

Removal of the cause to the United States District Court for the Northern District of Texas, Fort 

Worth Division.

I.

BASIS FOR REMOVAL

The basis of the removal of this action is diversity jurisdiction under 28 U.S.C. § 1332. In 

particular, diversity jurisdiction exists in this case because there is complete diversity of 

citizenship between the parties, Defendant is not a citizen of the State of Texas, and the amount 

in controversy exceeds $75,000.00, exclusive of interest and costs.1 

1

See 28 U.S.C. § 1332 (2018).

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 1 of 26 PageID 1
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II.

DIVERSITY JURISDICTION

Plaintiff, at the time of the initial filing of this action and at the current time of the removal 

of this action, was and is a citizen, resident, and domicile of the State of Texas.

2

Kroger Texas L.P. at the time of the initial filing of this action and at the time of the 

removal of this action, was and is a limited partnership formed under the laws of Ohio. The 

general partner of Kroger Texas L.P. is KRGP Inc., an Ohio corporation with its principal place of 

business in Ohio. The only limited partner is KRLP Inc., an Ohio corporation with its principal place 

of business in Ohio. Neither KRGP Inc. nor KRLP Inc., the only two partners of Kroger Texas L.P., 

has ever been a resident of, incorporated in, or had its principal place of business in the State of 

Texas.

III.

FACTUAL BACKGROUND

Plaintiff claims that, on or about July 17, 2020, while shopping in Defendant’s store

located at 1631 SW Wilshire Blvd., Burleson, Texas 76028, she slipped and fell on what she 

believes to be produce that had fallen on the floor and been squashed.

3 Plaintiff filed suit on June 

21, 2022, in the 96th Judicial District Court of Tarrant County, Texas, alleging premises-liability

and negligence-based causes of action against Defendant.

4

2

See Plaintiff’s Original Petition. attached hereto as Exhibit 2, at p. 1, ¶ 2.

3

Id. at p. 2, ¶ 5.

4

Id. at p. 2-3, ¶ 6.

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 2 of 26 PageID 2
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IV.

THE AMOUNT IN CONTROVERSY

Plaintiff judicially admits in her Original Petition that she is seeking damages in excess of 

$75,000.

5

 Specifically, Plaintiff seeks damages for past and future: (1) medical expenses, (2)

physical pain and suffering, (3) mental anguish, (4) physical impairment, (5) disfigurement, and 

(6) lost wages.

6 Plaintiff alleged damages in an amount more than $250,000 but not more than 

$1,000,000. As a result, the amount-in-controversy in this case exceeds $75,000.00, exclusive of 

interest and costs, and this case is removable.7

V.

REMOVAL IS TIMELY

This removal is timely because it is filed “within thirty days after receipt, through service 

or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may 

first be ascertained the case is one which is or has just become removable.”

8 Defendant first 

became aware this case was removable on or about June 28, 2022, when Defendant was served 

with Plaintiff's Original Petition.

9 Accordingly, this removal is timely because it is made within 

thirty days after the receipt by Defendant of the document that first demonstrated the case was 

removable. Moreover, more than one year has not passed since the commencement of the 

action in State court on June 21, 2022.

10

5

Id. at p. 1, ¶ 1.

6

Id. at p. 3 – p. 4.

7

See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996); see also Laughlin v. Kmart Corp., 50 

S.W.3d 871, 873 (10th Cir. 1995) (amount in controversy is ordinarily determined by allegations in complaint).

8

28 U.S.C. § 1446(b). 

9

See Service of Citation attached to Pl’s Orig. Pet. (Exh. 2).

10 See id.

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 3 of 26 PageID 3
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VI.

VENUE

Venue is proper in this district under 28 U.S.C. § 1441(a) because this district and division 

embrace the county in which the removed action has been pending.

VII.

PROCEDURAL REQUIREMENTS

Defendant filed with the Clerk of the 96th Judicial District Court of Tarrant County, Texas 

a Notice of Filing Notice of Removal to Federal Court contemporaneously with the filing of this 

Notice of Removal.

Pursuant to Local Rule 81.1, the following documents are attached hereto for the Court’s 

reference: 

(1) State court docket sheet (as of July 27, 2022);

(2) Plaintiff's Original Petition (filed June 21, 2022) with Service of Citation

(effectuated on June 28, 2022); and 

(3) Defendant Kroger Texas, L.P.’s Original Answer and Special Exception (filed July 

14, 2022).

Also, in compliance with Local Rule 81.1, Defendant has filed the following documents 

with the Notice:

• Civil Cover Sheet;

• Supplemental Civil Cover Sheet; and

• Certificate of Interested Persons.

WHEREFORE, PREMISES CONSIDERED, Defendant Kroger Texas L.P. respectfully prays

that this case be removed to the United States District Court for the Northern District of Texas, 

Fort Worth Division.

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 4 of 26 PageID 4
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Respectfully submitted,

/s/ B. Kyle Briscoe

B. Kyle Briscoe

Attorney-In-Charge

State Bar No. 24069421

kbriscoe@peavlerbriscoe.com

Margaret M. Knott

State Bar No. 15287250

mknott@peavlerbriscoe.com

PEAVLER|BRISCOE

2215 Westgate Plaza

Grapevine, Texas 76051

214-999-0550 (telephone)

214-999-0551 (fax)

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

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

forwarded to all counsel of record pursuant to and in accordance with the Federal Rules of Civil 

Procedure on July 27, 2022.

/s/ B. Kyle Briscoe

B. Kyle Briscoe

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 5 of 26 PageID 5
EXHIBIT 1

Exhibit 1

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 6 of 26 PageID 6



 	

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Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 8 of 26 PageID 8
EXHIBIT 2

Exhibit 2

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 9 of 26 PageID 9
\/J. 

esc 

Notice of Service of Process 

null/ ALL 

Transmittal Number: 25156469 

Date Processed: 07/02/2022 

Primary Contact: 

Entity: 

Entity Served: 

Title of Action: 

Matter Name/ID: 

Document(s) Type: 

Nature of Action: 

Court/Agency: 

Case/Reference No: 

Jurisdiction Served: 

Date Served on CSC: 

Venessa C. Wickline Gribble 

The Kroger Co. 

1014 Vine Street 

Cincinnati, OH 45202-1100 

Kroger Texas L. P. 

Entity ID Number 2172000 

Kroger Texas LP 

Barbara Betts vs. Kroger Texas, L.P. 

Barbara Betts vs. Kroger Texas, L.P. (12514927) 

Citation/Petition 

Personal Injury 

Tarrant County District Court, TX 

096-334164-22 

Texas 

06/28/2022 

Answer or Appearance Due: 10:00 am Monday next following the expiration of 20 days after service 

Originally Served On: esc 

How Served: Certified Mail 

Sender Information: Wolf Law, PLLC 

972-338-4477 

Information contained on this transmittal form is for record keeping, notification and forwarding the attached document(s). It does not 

constitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action. 

To avoid potential delay, please do not send your response to CSC 

251 Little Falls Drive, Wilmington, Delaware 19808-1674 (888) 690-2882 1 sop@cscglobal.com 

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 10 of 26 PageID 10
THE STATE OF TEXAS 

DISTRICT COURT, TARRANT COUNTY 

CITATION Cause No. 096-334164-22 

BARBARA BETTS 

vs. 

KROGER TEXAS, L.P. 

TO: KROGER TEXAS LP 

B/S REG AGT/CSC·LAWYERS INCORPORATED 211 E 7TH ST STE 620 AUSTIN, TX 78701-

You said DEFENDANT are hereby commanded to appear by filing a written answer to the PLAINTIFF'S ORIGINAL PETITION 

at or before 10 o'clock A.M. of the Monday next after 

the expiration of 20 days after the date of service hereof before the S6th District Court 

,100 N CALHOUN, in and for Tarrant County, Texas, at the Courthouse in the City of Fort Worth, Tarrant County, Texas 

said PLAINTIFF being 

BARBARA BETTS 

Filed in said Court on June 21st, 2022 Against 

KROGER TEXAS LP 

For suit, said suit being numbered 096·334164-22 the nature of which demand is as shown on said 

PLAINTIFF'S ORIGINAL PETITION a copy of which accompanies this citation. 

JULIE WOLF 

Attorney for BARBARA BETTS Phone No. (972}338-4477 

Address 12222 MERIT DR STE 1200 DALLAS, TX 75251 

Thomas A. Wilder , Clerk of the District Court of Tarrant County, Texas. Given under my hand and the seal 

of said Court" at office in the City of Fort Worth, this the 22nd day of June, 2022. ..-c;~;· 

:t 

~Ukttk. ~ \t ~j OISTRICTCLERK 

·~ i8 ~'i THOMASA WlLOER 

By ---~=-=-==-=-~~-=~~~;....!... _____ \~.. . .. · .. TB~~~~~!~XAS 

NATALt;,f£;PEN •·····•··· 

tiOTICE: Ycu ha., ba:n sued. y.., m>y employ aa 1110mey. Jr yau or )'CUl"IIU>rncy do 1101 file a '"linen""'""'' with the clerk ..too iUU«<Ihls ciwioa by 10:00 liM. on the Monll>y .. II rouo..;oa !he t•piratioo of 

..,.~nry <lays ofltr yoo ,.. .... ~ lhlscitlllOD llld pcthiou, a ckt:.Wtjudgomnl oaybe \II= qainsl >'""·In addiuon to filing 1 writrtD """""'with the clezk. )'llU may be re~rtd 10 malt initial disdosun:s 

to t1u: D<her pznic.. of lhls suit. These diJ<:Io>Ures gerx:rolly must be made oo l.llu 11wo 30 days a.lb:r >'""!lie )'CUl"IIISwer ..;th the elerk. F"uod out mon: 11 Teuslawllelp.Ofi. 

Thomas A. Wilder, Tarrant County District Clerk, 100 N CALHOUN, FORT WORTH TX 76196-0402 

OFFICER'S RETURN *09633416422000004* 

Received this Citation on the ___ day of ------------• __ at ___ o'clock _M; and executed at 

-----------------within the county of , State of at o'clock _M 

on the ---- day of --------• __ by delivering to the within named (Def.): 

defendant(s), a true copy of this Citation together with the accompanying copy of PLAINTIFF'S ORIGINAL PETITION 

, having first endorsed on same the date of delivery. 

Authorized Person/Constable/Sheriff: 

County of -------------------- State of ______ _ By ---------------------------- Deputy Fees$ ___ _ 

State of ------- County of ----------------- (Must be verified if served outside the State of Texas) 

Signed and sworn to by the said ------------------------------ before me this __ day of 

to certify which witness my hand and seal of office 

(Seal) 

county of ------------· State of 

----· --

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 11 of 26 PageID 11
CITATION 

Cause No. 096-334164-22 

BARBARA BEITS 

.vs. 

KROGER TEXAS, L.P. 

ISSUED 

This 22nd day of June, 2022 

Thomas A. Wilder 

Tarrant County District Clerk 

100 N CALHOUN 

FORT WORTH TX 76196-0402 

By NATALffi THIGPEN Deputy 

JULIE WOLF 

Attorney for: BARBARA BETTS 

Phone No. (972)338-4477 

ADDRESS: 12222 MERIT DR STE 1200 

DALLAS, TX 75251 

CNILLAW 

II~ IIIII ~11111111 ~II ~II IIlii~ I~ IIIII ~111111~ II~ II~ II~ Ill~ Ill~ 1~1 ~II *09633416422000004* 

SERVICE FEES NOT COLLECTED 

BY TARRANT COUNTY DISTRICT CLERK 

ORIGINAL 

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 12 of 26 PageID 12
096-334164-22 

CAUSE NO. _______ _ 

FILED 

TARRANT COUNTY 

6/21/2022 12:00 AM 

THOMAS A. WILDER 

DISTRICT CLERK 

BARBARA BETTS, 

Plaintiff, 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

v. JUDICIAL DISTRICT 

KROGER TEXAS, L.P. 

Defendant. TARRANT COUNTY, TEXAS 

PLAINTIFF'S ORIGINAL PETITION 

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW, Barbara Betts, (hereinafter referred to as "Plaintiff'), who files this 

Plaintiffs Original Petition against Kroger Texas, L.P. (hereinafter referred to as "Defendant"), 

and respectfully shows this Court as follows: 

I. TEXAS RULE 47 DAMAGES STATEMENT 

Plaintiff prefers to have a judge or a jury determine the fair amount of compensation for 

Plaintiffs damages, and Plaintiff places the decision regarding the amount of compensation to be 

awarded in the jury or judge's hands. However, pursuant to Rule 47 of the Texas Rules of Civil 

Procedure, Plaintiff is required to provide a statement regarding the amount of monetary relief 

sought. Accordingly, Plaintiff states that the monetary relief sought is more than $250,000 but not 

more than $1,000,000.00 

Plaintiff submits this action under Discovery Control Plan II, per Rule 190.3 ofthe Texas 

Rules of Civil Procedure. 

II. PARTIES AND SERVICE 

Plaintiff is a resident of Tarrant County, Texas. 

Defendant Kroger Texas, L.P. (hereinafter referred to as "Kroger") is a company doing 

PLAINTIFF'S ORIGINAL PETITION Page 1 of5 

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 13 of 26 PageID 13
business in the State of Texas. Defendant may be served by servmg its registered agent 

Corporation Service Company d/b/a CSC-Lawyers Incorporated located at 211 E. 7111 Street Suite 

620, Austin, Texas 78701. Issuance of citation is requested at this time. 

III. JURISDICTION 

This Court has jurisdiction as Plaintiffs damages exceed the minimum jurisdictional limits 

of this Court. The Court has personal jurisdiction over the Defendant as Defendant performed 

work, and/or hired personnel to perform work in the State of Texas. 

IV. VENUE 

Venue is proper in Tarrant County, Texas, pursuant to 15.002(3) of the Texas Civil Practice 

and Remedies Code, because the facts that give rise to the causes of action occurred in Tarrant 

' 

County, Texas. 

V. FACTS 

At all times relevant, Defendant was the possessor in control of the property and/or area 

where Plaintiff was injured located at 1631 SW Wilshire Blvd. Burleson, TX 76028. On July 17, 

2020, Plaintiffwas patronizing the Kroger, when she was walking and all of a sudden, she slipped 

and fell on what she believes to be produce that had fallen on the floor and been squashed. This 

fall caused Plaintiff significant personal injuries. 

VI. NEGLIGENCE 

Defendant was the owner, operator, and/or in control of the Kroger store where Plaintiff 

was injured. Plaintiff was an invitee at the time of the injury because she was a customer at Kroger. 

Since the business was open to the public, Defendant extended an invitation to Plaintiff. Defendant 

thus owed Plaintiff the duty to inspect the premises and maintain them in a reasonably safe 

condition. The condition of the premises posed an unreasonable risk ofharm in that condition was 

PLAINTIFF'S ORIGINAL PETITION Page 2 ofS 

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 14 of 26 PageID 14
extremely dangerous. Defendant knew or reasonably should have known of the condition of the 

premises because it was there for a long enough time that a reasonable inspection would have 

revealed it. 

At all relevant times Defendant was guilty of negligence towards Plaintiff in the following 

respects: 

a. Failing to keep the premises in a reasonably safe condition for Plaintiff; 

b. Failing to inspect the premises to discover the latent defect; 

c. Creating an unreasonably dangerous condition on the premises; 

d. Failure to provide warning of the condition by posting signage, a barrier, or other 

marker indicating the presence of danger; and 

e. Failure to take any action to eliminate or reduce the unreasonable risk of danger 

presented by the condition. 

Defendant's failure to use reasonable care was a proximate cause of Plaintiff sustaining 

injuries and damages that are described below. 

VII. DAMAGES 

As a direct and proximate result of Defendant's negligence, Plaintiff suffered severe 

injuries, for which Plaintiff required medical treatment and has incurred medical bills. Plaintiff 

also suffered physical and mental pain, suffering, physical and mental impairment, disfigurement, 

depression, physical and mental disability, anguish, and loss of enjoyment oflife. 

In all reasonable probability, Plaintiff will continue to suffer in this manner for a long time 

into the future, if not for the balance of her life. Solely as a result of the injuries she sustained due 

to Defendant's conduct and/or omissions, Plaintiff has incurred doctor and medical expenses, and 

lost wages. There is a more than reasonable probability that Plaintiff will incur additional expenses 

PLAINTIFF'S ORIGINAL PETITION Page 3 ofS 

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 15 of 26 PageID 15
for necessary medical care and attention in the future for the injuries she incun·ed in the incident 

in sums unknown at this time. Plaintiffs compensatory damages specifically include, but are not 

limited to, past and future pecuniary losses, emotional pain and suffering, inconvenience, mental 

anguish, loss of enjoyment of life, disfigurement, and impairment, and other damages which 

Plaintiffhas incurred due to Defendant's conduct. 

VIII. NOTICE OF INTENT 

Plaintiff hereby gives notice of intent to utilize any and all items produced in discovery in 

the trial of this matter and the authenticity of such items is self-proven per the Texas Rules of Civil 

Procedure 193.7. 

PRAYER 

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be cited to 

appear and answer in this cause and that, upon final trial, Plaintiff be awarded a final judgment 

against Defendant for the following: 

a. All reasonable and necessary past medical expenses; 

b. A sum for future medical expenses and treatment in an amount to be determined at 

trial; 

c. Monetary damages for past physical pain and suffering and mental anguish in an 

amount to be established at trial; 

d. Monetary damages for future physical pain and suffering and mental anguish; 

e. Past and future physical impairment as detem1ined by a jury; 

f. Past and future disfigurement; 

g. Lost Wages; 

h. Costs of Court; 

PLAINTIFF'S ORIGINAL PETITION Page 4 of5 

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 16 of 26 PageID 16
1. Pre-judgment interest on all damages awarded at the highest legal rate; 

J. Post-judgment interest on all sums awarded herein at the highest legal rate until 

paid; and 

k. Such other and further relief to which Plaintiff may be justly entitled at law or in 

equity, specific or general. 

PLAINTIFF'S ORIGINAL PETITION 

Respectfully submitted, 

Wolf Law, PLLC 

Texas 

~~.•w~ BarNo. 24051542 

julie@wolflawpllc.com 

12222 Merit Dr., Suite 1200 

Dallas, Texas 75251 

Tel. (972) 338-4477 

Fax. (972) 338-5044 

Attorney for Plaintiff 

Page 5 of5 

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 17 of 26 PageID 17
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. 

Julie Wolf on behalf of Julie Wolf 

Bar No. 24051542 

julie@wolflawpllc.com 

Envelope ID: 65589230 

Status as of 6/21/2022 8:09AM CST 

Associated Case Party: BARBARA BETTS 

Name BarN umber Email TimestampSubmitted Status 

Wolf Law PLLC service@wolflawpllc.com 6/20/2022 1 :01 :05 PM SENT 

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 18 of 26 PageID 18
LE~~ ~~~;;;,~:,::'~~''"'''1'"'''' nmrt~- 111 , Ill II 

DALLAS, TEXAS 75240 II 7022 0410 0000 1231 0269 

CORPORATION SERVICE COMPANY .... . A -- -- '"'TR-ET #620 " i a r:: ... ~ .. ....; , a:. ., AUSTIN, TEXAS 78701 

. . 

~::.:;~:{:::~~·~ ~~: ii0~~:f~~:ios-~ET_ . ___ _ 

II [, -~-~-~ --:.:: 

~~~ --~ ~~~ 

.r II 

_J 'I 

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 19 of 26 PageID 19
EXHIBIT 3

Exhibit 3

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 20 of 26 PageID 20
DEFENDANT'S ORIGINAL ANSWER Page 1

CAUSE NO. 096-334164-22

BARBARA BETTS, § IN THE DISTRICT COURT

Plaintiff, §

§

vs. § 96th JUDICIAL DISTRICT

§

KROGER TEXAS L.P., §

Defendant. § TARRANT COUNTY, TEXAS

DEFENDANT’S ORIGINAL ANSWER

COMES NOW Defendant Kroger Texas L.P. and files its Original Answer, and in support 

thereof, would respectfully show the Court as follows:

I.

GENERAL DENIAL

1. Defendant denies each and every material allegation contained in Plaintiff’s 

Original Petition, demands strict proof thereof, and to the extent that such matters are questions 

of fact, says Plaintiff should prove such facts by a preponderance of the evidence to a jury if she 

can so do.

II.

DEFENSES

2. Defendant specifically denies Plaintiff’s claims that it was negligent and denies 

that its alleged acts or omissions proximately caused Plaintiff’s alleged damages.

3. Defendant had neither actual nor constructive knowledge of the condition about 

which Plaintiff complains, and further asserts that, in any event, the alleged hazard was not 

“unreasonably dangerous.”

4. Plaintiff failed to use that degree of care and caution that would have been used 

by a reasonable person under the same or similar circumstances, thereby producing or 

096-334164-22 FILED

TARRANT COUNTY

7/14/2022 3:08 PM

THOMAS A. WILDER

DISTRICT CLERK

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 21 of 26 PageID 21
DEFENDANT'S ORIGINAL ANSWER Page 2

proximately causing or contributing to cause Plaintiff’s injuries and damages, if any. Such acts or 

omissions of Plaintiff were the sole and/or a producing and/or a proximate cause of Plaintiff’s 

damages or injuries, if any.

5. Plaintiff’s damages or injuries, if any, were likely caused by the acts of third 

persons not under the control of Defendant. Such acts or omissions of said third persons were 

the sole and/or a producing and/or a proximate and/or an intervening and/or a supervening 

cause of Plaintiff’s damages or injuries, if any. 

6. Defendant owed no duty to warn or protect Plaintiff against the alleged hazard 

because it likely was already known to Plaintiff, was open and obvious, was not concealed, and/or 

was a commonly known hazard. Austin v. Kroger Texas L.P., 465 S.W.3d 193, 203 (Tex. 2015).

7. In the alternative, the accident complained of was an “unavoidable accident,” as 

that term is defined under Texas law, not proximately caused by the negligence of any party.

8. The damages about which Plaintiff complains, if any, may have been the result of 

prior or pre-existing or subsequent injuries, accidents and/or conditions, and such prior or preexisting or subsequent injuries, accidents and/or conditions were the sole and/or a contributing 

cause of Plaintiff’s claimed injuries and damages, if any.

9. Plaintiff may have breached Plaintiff’s duty to mitigate damages by failing to 

exercise reasonable care and diligence to avoid loss and minimize the consequences of damages.

10. Plaintiff may be malingering and/or exaggerating the nature and severity of the 

alleged injuries to inflate Plaintiff’s alleged damages. Further, to the extent Plaintiff has been or 

is malingering and/or exaggerating the nature and severity of the alleged injuries in order to 

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 22 of 26 PageID 22
DEFENDANT'S ORIGINAL ANSWER Page 3

continue treatment and thereby increase medical damages, Defendant contends said extended 

treatment is not medically necessary or reasonable. 

11. Defendant respectfully requests that the factfinder allocate responsibility, if any, 

among all parties, settling parties, and responsible third parties, in accordance with Chapters 32 

and 33 of the Texas Civil Practice and Remedies Code.

12. In the unlikely event an adverse judgment is rendered against Defendant in this 

matter, Defendant respectfully prays for contribution, indemnity and/or all available credits as 

provided for in the Texas Civil Practice and Remedies Code and under Texas law. 

13. Any claims for medical or health care expenses incurred are limited to the usual 

and customary charges actually by or on behalf of Plaintiff for reasonable and necessary 

treatment, and, to the extent they relate to past medical charges, are limited to amounts actually 

paid or incurred pursuant to Texas Civil Practice and Remedies Code §41.0105. 

14. Pursuant to Texas Civil Practice & Remedies Code § 18.091, to the extent that 

Plaintiff is seeking a recovery for loss of earnings, lost wages, loss of earning capacity and/or loss 

of contributions of pecuniary value, evidence of such alleged losses must be presented by Plaintiff 

in the form of a net loss after reduction for income tax payments, or unpaid tax liability to any 

federal income tax law.

III.

SPECIAL EXCEPTIONS

15. Defendant objects and specially excepts to the section of Plaintiff’s Original 

Petition, titled “Notice of Intent” (paragraph 8), which improperly attempts to invoke Rule 193.7 

of the Texas Rules of Civil Procedure. Specifically, paragraph 8 states that “Plaintiff hereby gives 

notice of intent to utilize any and all items produced in discovery in the trial of this matter and 

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 23 of 26 PageID 23
DEFENDANT'S ORIGINAL ANSWER Page 4

the authenticity of such items is self-proven per the Texas Rules of Civil Procedure 193.7.” 

However, Rule 193.7 requires that the party invoking Rule 193.7 provide “actual notice that the 

document will be used” to the producing party.1 Furthermore, “the ten-day period allowed for 

objection to authenticity . . . does not run from the production of the material or information but 

from the party’s actual awareness that the document will be used.”2

16. Accordingly, it is clear that Rule 193.7 requires more than a mere blanket 

statement that all documents produced in discovery will be authenticated against the producing 

party. Such a blanket statement not only fails to satisfy the requirements of Rule 193.7, but it 

also places an unreasonable burden upon Defendant to review all documents it produces and 

prophylactically render objections regarding the authenticity of said documents. 

 IV.

COURT REPORTER REQUESTED

17. Defendant respectfully demands a court reporter be present at all proceedings 

before the Court.

V.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant Kroger Texas L.P. respectfully praysthat 

Plaintiff take nothing by this cause of action, that Defendant be permitted to recover the costs 

1 TEX. R. CIV. P. 193.7 (2021) (emphasis added).

2

Id., cmt. 7 (emphasis added).

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 24 of 26 PageID 24
DEFENDANT'S ORIGINAL ANSWER Page 5

expended on its behalf, and for such other and further relief to which Defendant may show itself

justly entitled, in law or in equity.

Respectfully submitted,

/s/ B. Kyle Briscoe

B. Kyle Briscoe

Attorney-In-Charge

State Bar No. 24069421

kbriscoe@peavlerbriscoe.com

Margaret M. Knott

State Bar No. 15287250

mknott@peavlerbriscoe.com

PEAVLER|BRISCOE

2215 Westgate Plaza

Grapevine, Texas 76051

214-999-0550 (telephone)

214-999-0551 (fax)

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

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

forwarded to all counsel of record pursuant to and in accordance with the Texas Rules of Civil 

Procedure on July 14, 2022.

/s/ B. Kyle Briscoe

B. Kyle Briscoe

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 25 of 26 PageID 25
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.

Remi DiMarco on behalf of Bryan Briscoe

Bar No. 24069421

rdimarco@peavlerbriscoe.com

Envelope ID: 66332570

Status as of 7/14/2022 3:16 PM CST

Case Contacts

Name

Wolf Law PLLC

Kyle Briscoe

Margaret M. Knott

Erika Pina

Liz Contreras

Remigio DiMarco

Julie Wolf

BarNumber Email

service@wolflawpllc.com

kbriscoe@peavlerbriscoe.com

mknott@peavlerbriscoe.com

epina@peavlerbriscoe.com

econtreras@peavlerbriscoe.com

RDimarco@PeavlerBriscoe.com

julie@wolflawpllc.com

TimestampSubmitted

7/14/2022 3:08:15 PM

7/14/2022 3:08:15 PM

7/14/2022 3:08:15 PM

7/14/2022 3:08:15 PM

7/14/2022 3:08:15 PM

7/14/2022 3:08:15 PM

7/14/2022 3:08:15 PM

Status

SENT

SENT

SENT

SENT

SENT

SENT

ERROR

Case 4:22-cv-00645-O Document 1 Filed 07/27/22 Page 26 of 26 PageID 26