- 1 -

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARY MOON, §

Plaintiff, §

§

v. § CIVIL ACTION NO. 3:22-cv-01756

§

KROGER TEXAS, L.P. &

THE KROGER CO., d/b/a K035

KROGER EAST/DALLAS

§

§

§

Defendants. §

DEFENDANTS’ NOTICE OF REMOVAL

TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

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

Kroger Texas, L.P. and The Kroger Co., d/b/a K035 Kroger East/Dallas (referred to as 

“Defendants”), in the case styled “Mary Moon v. Kroger Texas, LP and The Kroger Co., d/b/a K035 

Kroger East/Dallas” originally pending as Cause No. CC-22-03526-D in the County Court at Law 

No. 4, Dallas County, Texas, file this Notice of Removal of the cause to the United States District 

Court for the Northern District of Texas, Dallas Division.

I.

BASIS FOR REMOVAL

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

Diversity jurisdiction exists in this case because there is complete diversity of citizenship between 

the parties, Defendants are not citizens 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 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 1 of 29 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

The Kroger Co., at the time of the initial filing of this action and at the time of the removal 

of this action, was and is a corporation formed under the laws of Ohio with its principal place of 

business in Ohio. The Kroger Co. has never been a resident of, incorporated in, or had its principal 

place of business in the State of Texas.

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 with its 

principal place of business in 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 March 8, 2022, while shopping at Defendant’s store

located at 1919 Faithon P. Lucas Sr., Boulevard, Mesquite, Texas 75181, she tripped and fell on a 

price channel strip that was protruding into the aisle.

3 Plaintiff filed suit on July 5, 2022, in the

2

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

3

Id. at p. 2, ¶ 4.

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 2 of 29 PageID 2
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County Court at Law No. 4, Dallas County, Texas, alleging premises liability and negligence-based 

claims against Defendants.

4

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) physical 

disfigurement; (6) loss of enjoyment of life; and (7) out-of-pocket expenses.

6 As a Plaintiff alleges 

damages in an amount over $250,000.7 As a result, the amount in controversy in this case exceeds 

$75,000.00, exclusive of interest and costs, and this case is removable.8

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.”

9 Defendants first 

became aware this case was removable on or about July 12, 2022, when Defendant Kroger Texas,

L.P. was served with Plaintiff’s Original Petition.

10 Accordingly, this removal is timely because it 

4

Id. at pp. 3-5.

5

Id. at p 6..

6

Id. at p. 5.

7

Id. at p. 6.

8

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).

9

28 U.S.C. § 1446(b). 

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

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 3 of 29 PageID 3
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is made within thirty days after the receipt by Defendants 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 July 5, 2022.11

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

Defendants filed with the Clerk of the County Court at Law No. 4, of Dallas 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 August 11, 2022);

(2) Plaintiff’s Original Petition (filed July 5, 2022) with Service of Citation; and

(3) Defendants Original Answer (filed July 28, 2022).

Also, in compliance with Local Rule 81.1, Defendants have filed the following documents 

with the Notice:

• Civil Cover Sheet

• Supplemental Civil Cover Sheet

11 See id.

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 4 of 29 PageID 4
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• Certificate of Interested Persons

WHEREFORE, PREMISES CONSIDERED, Defendants respectfully pray that this case be 

removed to the United States District Court for the Northern District of Texas, Dallas Division.

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 DEFENDANTS

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 August 11, 2022.

/s/ B. Kyle Briscoe

B. Kyle Briscoe

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 5 of 29 PageID 5
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TO: 

THE STATE OF TEXAS 

CITATION 

CAUSE NO. CC-22-03526-D 

COUNTY COURT AT LAW NO.4 

Dallas County, Texas 

KROGER TEXAS L.P. 

SERVE ITS REGISTERED AGENT CORPORATION SERVICE COMPANY D/B/A CSC-LA WYERS 

INCORPORATION SERVICE COMPANY 

211 E 7TH STREET SUITE 620 

AUSTIN TX 78701 

"You have been sued. You may employ an attorney. If you or your Attorney do not file a WRITTEN ANSWER with 

the clerk who issued this citation by 10:00 A.M. on the Monday next following the expiration of twenty days after you 

were served this citation and PLAINTIFF'S ORIGINAL PETITION, a default judgment may be taken against you. In 

addition to filing a written answer with the clerk, you may be required to make initial disclosures to the other parties of 

this suit. These disclosures generally must be made no later than 30 days after you file your answer with the clerk. Find 

out more at TexasLawHelp.org." Your answer should be addressed to the clerk of County Court at Law No.4 of Dallas 

County, Texas at the CourtHouse of said County, 600 Commerce Street, Suite 101, Dallas, Texas 75202. 

MARY MOON 

Plllintiff(s) 

vs. 

KROGER TEXAS L.P. ; THE KROGER CO D/B/A K035 KROGER EAST/DALLAS 

Defendant(s) 

filed in said Court on the 5th day of July, 2022, a copy of which accompanies this citation. 

WITNESS: JOHN F. WARREN, Clerk of the County Courts of Dallas County, Texas. GIVEN UNDER MY 

HAND AND SEAL OF OFFICE, at Dallas, Texas, and issued this 7th day of July, 2022 A.D. 

JOHN F. WARREN, Dallas County Clerk 

By fZudtL ti-~~ .. Deputy 

Guisla Hernandez · · 

ATTORNEY 

CITATION 

Electronically Served 

717/2022 2:44 PM 

PLAINTIFF'S ORIGINAL PETITION 

CC-22-03526--D 

IN THE COUNTY COURT OF DALLAS 

County Court at Law No. 4 

Dallas County, Texas 

MARY MOON, Plaintiff(s) 

vs. 

KROGER TEXAS L.P. ; THE KROGER 

CO D/B/A K035 KROGER 

EAST/DALLAS, Defendant(s) 

SERVE: 

KROGER TEXAS L.P. 

SERVE ITS REGISTERED AGENT 

CORPORATION SERVICE COMPANY 

DIB/A CSC-LA WYERS 

INCORPORATION SERVICE 

COMPANY 

211 E 7TH STREET SUITE 620 

AUSTIN TX 78701 

ISSUED THIS 

7TH DAY OF JULY, 2022 

JOHN F. WARREN, COUNTY CLERK 

BY: GUISLA HERNANDEZ, DEPUTY 

Attorney for Plaintiff 

MARY CHRISTIAN BARR 

BURT BARR & ASSOCIATES LLP 

PO BOX 223667 

DALLAS TX 75222-3667 

214-943-0012 

NO OFfiCER'S FEES HAVE BEEN 

OOUECTED BY DAllAS C..OUN1Y CLERK 

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 13 of 29 PageID 13
CC-22-03526-D 

CAUSE NO. _________ _ 

MARY MOON, 

Plaintiff, 

v. 

KROGER TEXAS, L.P. & 

THE KROGER CO., d/b/a K035 

KROGER EAST/DALLAS., 

Defendants, 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE COUNTY COURT 

NO. ___ _ 

DALLAS COUNTY, TEXAS 

PLAINTIFF'S ORIGINAL PETITION 

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW, Mary Moon, (hereinafter "Plaintiff'), complaining of The Kroger Co., and 

Kroger Texas, L.P. dtb/a K035 Koger East/Dallas, (hereinafter "Defendants"), and would 

respectfblly show unto the Court as follows: 

I. DISCOVERY CONTROL PLAN 

Pursuant to Tex. R. Civ. P. 190.1, Plaintiff intends to conduct discovery under Level 3 and 

requests that a Discovery Control Plan be entered by the Court pursuant to Rule 190.4. 

11. PARTffiS 

Plaintiff, Mary Moon is an individual residing in Dallas County, Texas. 

Defendant, Kroger Texas, L.P. is a company doing business in Texas, and may be served with 

process by serving its registered agent, Corporation Service Company d/b/a CSC-Lawyers 

h1corporation Service Company, 211 E. 71h Street, Suite 620, Austin, Texas 78701. 

Defendant, The Kroger Co., d/b/a as K035 Kroger East/Dallas is a company doing business in 

Texas and may be served with process by serving its registered agent, Corporation Service 

Company d/b/a CSC-Lawyers Incorporation Service Company, 211 E. 71h Street, Suite 620, 

Austin, Texas 78701. 

LAW OFFICES OF 

BURT BARR & ASSOCIATES, L.L.P. 

P.O. BOX 223667 

DALLAS, TEXAS 75222-3667 

Pl.A1N'11n s OJUGlNM. n ; rrrroN J'"ll• 1 

>.Ll:!.Wl 

FILED 

71512022 1:40PM 

JOHN F. WARREN 

COUNTY CLERK 

DALLAS COUNTY 

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 14 of 29 PageID 14
In the event any parties are misnamed or are not included herein, it is Plaintiff's contention 

that such was a ''misidentification," "misnomer" ahdlor such parties are/were "alter egps" of 

parties named herein. Alternatively, Plaintiff contends that such "cqrporate veils" should be 

pierced to bold such parties properly included iu the interest of justice. 

Ill. VENUE AND JURISDICTION 

This Court. has jurisdiction over this case because the amoU1'lt in controversy is within the 

Court's jurisdictional lirruts. Tbis Court has pei'Sonal jurisdiction over Defendants because 

Defendants do business in Texas. 

Venue is proper in Dallas County, Texas, pursuant to Tex. Civ. Prac. & Rem. Code Ann. 

§1 5.002(a)(l) because all or a substantial part of the events or omissions giving rise. to this claim 

occurred in Dallas County, Texas. 

IV. .FACTS 

On or about March 8, 2021, during normal business hours, Plaintiff entered the Defendants' 

business premises locates at 1919 f.aitbon P Lucas Sr. Boulevard Mesquite, TeMs 75181, a/k/a 

Kroger. While walking down the chip aisle, Plaintiff tripped and fell on a price channel strip that 

was protruding into the aisle on .Defendants' premises. 

As a result, Plaintiff suffered a hard fall, causing severe personal/bodily injuries and resulting 

damag~s. Additionally, and more specifically, on information and belief, at the ti~e of Plaintiff's. 

trip an<J fall, the price cbam1el strip tbat was protruding into the aisle was dear plastic, making it 

difficult for a customer/invitee to be aware of this hazard, whi~h had not been repaired. As a d1rect 

and proximate result of this fall, Plaintiff suffered severe, pennanent and debilitating bodily 

injuries and resulting damages. 

LAW OFFICES OF 

BURT BARR & ASSOCIATES, LLP. P.O. BOX 223667 

DALLAS, TEXAS 75222-3667 

PI.4!NTJEfi & ORJCJN4T, PF:TITlO~- PIQ,"\: 2 

.ll.llQ.J!J. 

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 15 of 29 PageID 15
Defendants. extended an open.invitation to the public, including Plaintiff to enter the premises 

and purchase goods arid services. Plaintiff entered the premises for the purpase of purchasing 

goods. Accordingly, Plaintiff was an invitee to whom Defendm1ts owed the duty to use ordinary 

care in making its premises reasonably safe and/or warning Plaintiff of any dangerous conditions 

or activities existing upon said premises. Defendants breached this duty of care to make its 

premises reasonably safe and warn the Plaintiff of any dangerous conditions or activities existing 

upon said premises. 

V. NEGLIGENCE AGAINST ALL .DE-FENDANTS 

Defendants as owners, occupiers, controllers and/or managers of the premil;;es in question, at 

all times material hereto, owed a duty to act a reasonable and prudent property owner would have 

done undet similar circumstances. Defendants were negligent and such negligence was the 

pro::dmate cause of Plaintiff's .injuries and damages. Defendants breached their duty by, among 

other acts -and/or omissions, as follows: 

a) ,Failing to properly and adequately maintain the premises; 

b) Failing to provide competent safety management; 

c) Failing to remove known or discoverable/knowable hazards from the premises; 

d) Failing to identify/detect the hazard as a person of ordinary prudence would have identified 

under the same or similar circumstances; 

e) Fajling to properly and timely inspect the area in question f'dr k.'nown or 

discoverable/lmowable hazards; 

f) F~iling to properly and timely remedy/repair the loose price channel strip; 

g) Failing to properly maintain the area and failed. to adequately warn and alert Plaintiff and 

others to the danger; 

h) Failing to properly train its agents, seryants, and/or employees regarding the _proper manner 

in which to rnake the premises reasonably .safe; 

LAW OFFICES OF 

BURT BARR & ASSOCIATES, L.L.P. 

P.O. BOX 22366·7 

DALLAS, TEXAS 75222-3667 

PT.AINTIFF' S QRIGINM, PF.TmON - P~~j;d 

3JJ:w·m 

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 16 of 29 PageID 16
i) Failing to implement proper policies, rules, and/or procedures to make its premises 

reasonably safe; and 

j) Failing to enforce proper policies, rules, and/or procedw·es to make its premises reasonably 

safe. 

The above enwn.erated acts and omissJons, singularly or in combination with others, 

individUally and collectively constituted negligence, which prox:imate.ly caused the incident and 

proximately caused the injuries and damages to Plaintiff. 

VL PREMISE LIABILITY 

At all times material to this lawsuit, Defendants owned, operated, manag~d, and controlled the 

premises, which includes where the subject incident occurred. Plaintiff was an invitee on the 

premises in question. Defendants knew, or .in the exercise of ordinary care, should have known an 

unreasonably dangerous condition existed which posed an unreasonable risk or·bann to the general 

public~ including Plaintiff, but failed to inspect make safe or adequately warn Plaintiff of the 

condition. Furthem1ore, Plaintiff was without knowledge of the dangerous condition of the 

premises prior to the incident in question. 

At the time and on the occasion in question: 

a) A condition ex~sted on Defendants' premises that posed an unreasonable risk of harm to a 

person, such ~s Plaintiff: present on the premises; 

b) Defendants knew, or shoul<;i have known 'in the exercise of ordinary care, that the conditibn 

of the premises posed an. unreasonable risk of harm; 

c) Defendants should have anticipated that a person, such as Plaintiff, on the premises would 

not discover the danger or would fail fo protect themselves agait~st it; 

d) Defendants were negligent in that Defendants or its employees created the condition, knew 

about the condition, and negligently failed to correct it or should have known about the 

condition; and 

e) The condition of Defendants' premises caused Plaintiff'.s injuries and ·damages. 

LAW OFFICES OF 

BURT BARR& ASSOCIATES, L.L.P. P.O. BOX 223667 

DALLAS, TEXAS 75222-3667 

l'J.~JllrllFF'll QIUC:IN.t.T, PKfJIION- P"l,'<~ 

lli2Ml 

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 17 of 29 PageID 17
As ·an inviteeJ Defendants owed a duty to Plaintiff to inspect and make the said condition &a{e, 

or at least warn Plaintiff of the existence of the unreasonably dangerous condition prior to the 

subject incident.. Defendants failed to satisfy its legal duty to Plaintiffin both re~pects. Defendants 

are, therefore, liable for the unreasonably dangerous condition under a premises liability theory. 

Vfi. "RESPONDEAT SUPERIOR 

Defendants are liable for the torts committed by its employees during the eout'se and scope of 

their employment. Defendants' employees, while acting within the course and scope of their 

~mp oyment (and in furtherance of Defendants' business), had a general duty to exercise 

reasonable care in performing their work. Defendants' employees fai1ed to exercise. the requisite 

standard of care under the circumstances. As a result, Defendants are liable for injuries sustained 

by Plaintiff. 

Vlll. DAMAGES 

Plaintiff would show that as a direct and prpximate result of the acts and/or omissions 

committed by Defendants, Plaintiff was caused to suffer damages including but.not limited to: 

a) Past and future .medical expenses; 

b) Past and future .Physical pain and suffering; 

c) Past and future ·mental anguish; 

d) Past and future physical irrtpainnent; 

e) Past and future.physical disfigurement; and 

f) Past and future loss of enjoyment of life; and 

g) Out-of-pocket expenses. 

LAW OFFICES OF 

BURT BARR & ASSOCIATES, L.L.P. P.O. BOX 223667 

DALLAS, TEXAS 75222·3667 

I'UTSTTFF·s ORJCPIM, PprrroN ~·; 

3112.0 !11 

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 18 of 29 PageID 18
In satisfaction of the requirement of Tex. R. Civ. P. 47(c), .Plaintiff states that she seeks 

monetary 'relief over $250,000. This ·statement is made solely for the plirpose of providing 

infonnation on the nature of this case, does not affect Plaintiff's substant~ve right&, and is made 

subject to Plaintiff's 1ight to amend. 

IX. RULE 193.7 NOTICE 

Pursuant to Tex. R. Civ . .P. 193.7, Plaintiff gives notice to Defendants that any documents 

produced in response to written discovery will be used in pretrial proceedings and/or attrial without 

the necessity of authenticating the documents unless Defendants object pursuant to Tex. R. Civ. P. 

193.7. 

PRAYER 

For these reasons, Plaintiff Mary Moon, respectfully requests that the Court issued citation 

commanding Defendants, The Kroger Co., and Kroger Texas, L.P. d/b/a K035 Koger East/Dallas 

to appear and answer,. and that .Plaintiff take judgment against Defendants for acij.tal damages, prejudwent and post-judgment interest, costs of court, and further relief to which Plaintiff may be 

entitled. 

LAW OFFICES OF 

BURT BARR & ASSOCIATES, L.L.P. 

P.O. BOX 223667 

DALLAS, TEXAS 75222-3667' 

Respectfuliy submitted, 

BURT BARR & ASSOCIATES, L.L.P. 

Is/ Alarv Christian Barr 

JOHN HOLMAN BARR 

SBN: 01798700 

Mary Christian Barr 

SBN: 24082586 

P.O. Box 223667 

Dallas, Texas 75222-3667 

Telephone 214-943-0012 

Telecopier 214-943-0048 

j barr@.~.!!:.£Qill 

mcbarr@bbatT.com 

ATTORNEYS FOR PLAINTIFF 

PJ.ATN'TTFfis OBtGpp.T, PF.TrtJON- i'%"C6 

1I..W.!!l 

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 19 of 29 PageID 19
EXHIBIT 3

Exhibit 3

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 20 of 29 PageID 20
DEFENDANTS’ ORIGINAL ANSWER AND SPECIAL EXCEPTIONS Page 1 of 7 

CAUSE NO. CC-22-03526-D 

MARY MOON, § IN THE COUNTY COURT 

Plaintiff, § 

§ 

vs. § NO. 4 

§ 

KROGER TEXAS L.P. & 

THE KROGER CO., d/b/a K035 

KROGER EAST/DALLAS, 

§ 

Defendants. § DALLAS COUNTY, TEXAS 

DEFENDANTS’ ORIGINAL ANSWER AND SPECIAL EXCEPTIONS 

Defendants Kroger Texas L.P. and The Kroger Co. (erroneously Identified as The Kroger 

Co., d/b/a K035 Kroger East/Dallas”) file their Original Answer and Special Exceptions to Plaintiff’s 

Original Petition and, in support thereof, respectfully shows the Court as follows: 

I. 

VERIFIED DENIAL 

By way of verified denial pursuant to Rule 93 of the Texas Rules of Civil Procedure, 

Defendants deny that Plaintiff is entitled to recover from "The Kroger Co., d/b/a K035 Kroger 

East/Dallas" in the capacity in which this entity has been sued. Defendant denies that "The Kroger 

Co., d/b/a K035 Kroger East/Dallas" owned or operated the store at issue on the date of this 

incident. Defendant also denies that ""The Kroger Co., d/b/a K035 Kroger East/Dallas"” as named, 

is an entity in existence. Consequently, Plaintiff has no right or potential right of recovery against 

"The Kroger Co., d/b/a K035 Kroger East/Dallas" because the proper party has not been sued. 

Ray Malooly Trust v. Juhl, 186 S.W.3d 568, 571 (Tex. 2006). 

FILED

7/28/2022 12:03 PM

JOHN F. WARREN

COUNTY CLERK

DALLAS COUNTY

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 21 of 29 PageID 21
DEFENDANTS’ ORIGINAL ANSWER AND SPECIAL EXCEPTIONS Page 2 of 7 

II. 

ANSWER 

A. GENERAL DENIAL

Defendants deny each and every, all and singular, the material allegations contained in 

Plaintiff’s Original Petition, demand strict proof thereof and, to the extent that such matters are 

questions of fact, say Plaintiff should prove such facts by a preponderance of the evidence to a 

jury if she can so do. 

B. DEFENSES

1. Defendants had neither actual nor constructive knowledge of the condition about 

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

“unreasonably dangerous.” 

2. Plaintiff’s damages or injuries, if any, were caused by the acts of third persons not 

under the control of Defendants. 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. 

3. The alleged premises condition of which Plaintiff complains was already 

appreciated by Plaintiff, was open and obvious, was not concealed, and/or was a known risk and, 

therefore, Defendants deny that they owed any duty to warn Plaintiff of the alleged premises 

condition or protect Plaintiff from same. Austin v. Kroger Texas L.P., 465 S.W.3d 193, 203 (Tex. 

2015). 

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 

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

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 22 of 29 PageID 22
DEFENDANTS’ ORIGINAL ANSWER AND SPECIAL EXCEPTIONS Page 3 of 7 

omissions of Plaintiff were the sole and/or a producing and/or a proximate and/or a supervening 

and/or an intervening cause of Plaintiff’s damages or injuries, if any. 

5. In the alternative, the accident complained of was an unavoidable accident, as 

that term is defined under Texas law. 

6. Defendants respectfully request 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. 

7. In the unlikely event an adverse judgment is rendered against Defendants in this 

matter, Defendants respectfully pray for contribution, indemnity and/or all available credits as 

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

8. To the extent that the damages about which Plaintiff complains, if any, were the 

result of prior or pre-existing or subsequent injuries, accidents or conditions, said prior or preexisting or subsequent injuries, accidents or conditions were the sole and/or a contributing cause 

of Plaintiff’s damages alleged against Defendants. 

9. To the extent that Plaintiff breached Plaintiff’s duty to mitigate damages by failing 

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

damages, such damages are not reasonable or necessary. 

10. To the extent that Plaintiff is malingering and/or exaggerating the nature and 

severity of Plaintiff’s injuries in order to continue treatment, Defendants contend said treatment 

is not medically necessary or reasonable. 

11. Any claims for past and future medical or health care expenses are limited to the 

customary and usual amounts charged for reasonable and necessary medical care and, with 

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 23 of 29 PageID 23
DEFENDANTS’ ORIGINAL ANSWER AND SPECIAL EXCEPTIONS Page 4 of 7 

respect to past medical expenses, are further limited to the amounts actually paid or incurred by 

or on behalf of Plaintiff, pursuant to Texas Civil Practice and Remedies Code § 41.0105. 

12. 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 

13. Defendants object and specially except to the section of Plaintiff’s Original 

Petition, titled “Rule 193.7 Notice,” paragraph IX, which improperly attempts to invoke Rule 

193.7 of the Texas Rules of Civil Procedure. Specifically, such section of Plaintiff’s Original Petition 

states that “Pursuant to Tex.R.Civ.P. 193.7, Plaintiff gives notice to Defendants that any 

documents produced in response to written discovery will be used in pretrial proceedings and/or 

at trial without the necessity of authenticating the documents unless Defendants object pursuant 

to Tex.R.Civ.P. 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 tenday 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

Accordingly, it is clear that Rule 193.7 requires more than a mere blanket statement that all 

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

2

 Id., cmt. 7 (emphasis added).

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 24 of 29 PageID 24
DEFENDANTS’ ORIGINAL ANSWER AND SPECIAL EXCEPTIONS Page 5 of 7 

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. Moreover, Plaintiff’s statement 

is overly broad, inasmuch as it improperly tries to authenticate documents “produced by any 

party,” which goes far beyond the provision of Rule 193.7. Therefore, Defendants request that 

the Court strike section of Plaintiff’s Original Petition, titled “Plaintiff’s Rule 193.7 Notice to 

Defendant” in its entirety. 

IV. 

COURT REPORTER RQUESTED 

14. Defendants respectfully demand a court reporter be present at all proceedings 

before the Court. 

V. 

PRAYER 

WHEREFORE, PREMISES CONSIDERED, Defendants Kroger Texas L.P. and The Kroger Co. 

(erroneously Identified as The Kroger Co., d/b/a K035 Kroger East/Dallas”) pray that their special 

exceptions be granted. Further, Defendants respectfully pray Plaintiff take nothing by this cause, 

that Defendants be permitted to recover the costs expended on their behalf, and for such other 

and further relief to which they may show themselves to be justly entitled, in law or in equity. 

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 25 of 29 PageID 25
DEFENDANTS’ ORIGINAL ANSWER AND SPECIAL EXCEPTIONS Page 6 of 7 

Respectfully submitted, 

 /s/ B. Kyle Briscoe 

B. Kyle Briscoe 

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 DEFENDANTS 

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 28, 2022. 

 /s/ B. Kyle Briscoe 

B. Kyle Briscoe 

 

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 26 of 29 PageID 26
VERIFICATION 

STATE OF TEXAS 

COUNTY OF TARRANT 

Before me, the undersigned authority, did personally appear Margaret M. Knott, wh 

upon her oath deposes and says that she is one of the attorneys for Defendants, that she has 

never been convicted of a crime, and that she is over the age of 21 and competent to make this 

verification. Accordingly, Mrs. Knott verifies that the facts al leged in the section of the foregoi_[lg 

pleading entitled "VERIFIED DENIAL" are true and correct. 

Subscribed and sworn to before me on~~22 ~!1f J'F7Z"" 

~?x~Notarv ,,,,,,,,,, ELIZABETH Public. 

CONTRERAS 

State otTexas NOTARY 

~ PUBLIC in and for the ~ State of Texas 

;~! .. ~,.:~~ Comm. Expires 02-06-2024 

~!,fof'~.f Notary 10 129335398 

. '""'' 

I 

DEFENDANTS' ORIGINAL ANSWER AND SPECIAL EXCEPTIONS Page 7 of 7 

' 

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 27 of 29 PageID 27
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: 66760210

Status as of 7/28/2022 1:14 PM CST

Associated Case Party: MARY MOON

Name BarNumber Email TimestampSubmitted Status

John HolmanBarr jbarr@bbarr.com 7/28/2022 12:03:57 PM SENT

Mary ChristianBarr mcbarr@bbarr.com 7/28/2022 12:03:57 PM SENT

Carol Chambers cchambers@bbarr.com 7/28/2022 12:03:57 PM SENT

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 28 of 29 PageID 28
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: 66760210

Status as of 7/28/2022 1:14 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Kyle Briscoe kbriscoe@peavlerbriscoe.com 7/28/2022 12:03:57 PM SENT

Margaret M. Knott mknott@peavlerbriscoe.com 7/28/2022 12:03:57 PM SENT

Erika Pina epina@peavlerbriscoe.com 7/28/2022 12:03:57 PM SENT

Liz Contreras econtreras@peavlerbriscoe.com 7/28/2022 12:03:57 PM SENT

Remigio DiMarco RDimarco@PeavlerBriscoe.com 7/28/2022 12:03:57 PM SENT

Case 3:22-cv-01756-N Document 1 Filed 08/11/22 Page 29 of 29 PageID 29