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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARIA CARMEN LOZANO, §

Plaintiff, §

§

v. § CIVIL ACTION NO. 3:22-cv-01773

§

KROGER TEXAS L.P. §

Defendant. §

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 case styled “Maria Carmen Lozano v. Kroger Texas L.P.,” originally pending as 

Cause No. CC-22-03787-A in County Court at Law No. 1 of Dallas County, Texas, files 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. In 

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

citizenship between Plaintiff (a citizen of the State of Texas) and Defendant Kroger Texas L.P. (a 

citizen of the State of Ohio), and the amount in controversy exceeds $75,000.00, exclusive of 

interest and costs.1

1

See 28 U.S.C. § 1332 (2018); see also id. § 1441(b)(2).

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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.

Defendant 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., have ever been a resident of, incorporated in, or had their principal place(s) of business in 

the State of Texas.

III.

FACTUAL BACKGROUND

On August 8, 2020, Plaintiff claims that while patronizing the Kroger, she slipped and fell 

on what she believed to be water on the floor.

2 Plaintiff filed suit on July 19, 2022, in County 

Court at Law No. 1 of Dallas County, Texas, alleging negligence-based causes of action against 

Defendant.

3

2

Pl’s Pet. (attached as Exhibit 2), at p. 2, ¶V.

3

Id. at pp.2-3, ¶ VI.

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IV.

THE AMOUNT IN CONTROVERSY

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

$250,000 but less than $1,000,000.00.

4 Specifically, Plaintiff seeks recovery of damages for past 

and future: medical expenses; physical and mental pain and suffering; physical and mental 

impairment; disfigurement; depression; physical and mental disability; anguish; and loss of 

enjoyment of life, as well as lost wages.

5 As a result, the amount in controversy in this case 

exceeds $75,000.00, exclusive of interest and costs, and this case is removable.6

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.”

7 Defendant first 

became aware this case was removable on or about July 25, 2022, when Defendant was served 

with Plaintiff’s Original Petition. 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 

4

Id., at p. 1, ¶I (“Plaintiff states that the monetary relief sought is more than $250,000 . . .”); see also 28

U.S.C. § 1446(c)(2); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938) (“. . . unless the law gives a 

different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith”).

5

Pl’ Pet. (Exh. 2) at pp. 3-4, ¶VII.

6

See Menendez v. Wal-Mart Stores, Inc., 364 F. App'x 62, 67 (5th Cir. 2010) (citing several cases and holding 

allegations of several personal injuries and related damages established amount in controversy was in excess of 

the jurisdictional threshold); see also 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).

7

28 U.S.C. § 1446(b). 

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 3 of 27 PageID 3
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removable. Moreover, more than one year has not passed since the commencement of the 

action in State court on July 19, 2022.

8

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 County Court at Law No. 1 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 12, 2022);

(2) Plaintiff's Original Petition (filed July 19, 2022) with Service of Citation; and 

(3) Defendant’s Original Answer (filed August 11, 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

8

See id.

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VIII.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this case be 

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

and for all other and further relief, both general and special, at law and in equity, to which it may 

show itself to be justly entitled.

Respectfully submitted,

/s/ B. Kyle Briscoe

B. Kyle Briscoe

State Bar No. 24069421

kbriscoe@peavlerbriscoe.com

Michael W. Stumbaugh

State Bar No. 24041987

mstumbaugh@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 August 12, 2022.

/s/ B. Kyle Briscoe

B. Kyle Briscoe

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 5 of 27 PageID 5
EXHIBIT 1

Exhibit 1

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 6 of 27 PageID 6
8/12/22, 11:27 AM Details

https://courtsportal.dallascounty.org/DALLASPROD/Home/WorkspaceMode?p=0 1/3

Case Information

CC-22-03787-A | MARIA CARMEN LOZANO vs.KROGER TEXAS, L.P.

Case Number

CC-22-03787-A

Court

County Court at Law No. 1

Judicial Officer

BENSON, D'METRIA

File Date

07/19/2022

Case Type

DAMAGES (NON COLLISION)

Case Status

OPEN

Party

PLAINTIFF

LOZANO, MARIA CARMEN

Address

12222 MERIT DRIVE, SUITE 1200

DALLAS TX 75251

Active Attorneys 

Lead Attorney

WOLF, JULIE F

Retained

DEFENDANT

KROGER TEXAS, L.P.

Address

SERVE ITS REGISTERED AGENT: CORPORATION SERVICE

COMPANY

211 E. 7TH STREET, SUITE 620

AUSTIN TX 78701

Events and Hearings

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 7 of 27 PageID 7
8/12/22, 11:27 AM Details

https://courtsportal.dallascounty.org/DALLASPROD/Home/WorkspaceMode?p=0 2/3

Financial

07/19/2022 NEW CASE FILED (OCA)

07/19/2022 ORIGINAL PETITION 

PLAINTIFF S ORIGINAL PETITION

Comment

PLAINTIFF'S ORIGINAL PETITION

07/19/2022 ISSUE CITATION 

ISSUE CITATION

Comment

E-SERVE ENV# 66462023

07/19/2022 CITATION (SERVICE) 

Unserved

Anticipated Server

ATTORNEY

Anticipated Method

08/11/2022 ORIGINAL ANSWER 

ORIGINAL ANSWER

Comment

DEFENDANT S ORIGINAL ANSWER AND SPECIAL EXCEPTION

LOZANO, MARIA CARMEN

Total Financial Assessment $358.00

Total Payments and Credits $358.00

7/19/2022 Transaction Assessment $358.00

7/19/2022 CREDIT CARD - TEXFILE

(CC)

Receipt # CV-2022-

06767

LOZANO, MARIA

CARMEN

($221.00)

7/19/2022 STATE CREDIT ($137.00)

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 8 of 27 PageID 8
8/12/22, 11:27 AM Details

https://courtsportal.dallascounty.org/DALLASPROD/Home/WorkspaceMode?p=0 3/3

Documents

PLAINTIFF S ORIGINAL PETITION

ISSUE CITATION

ORIGINAL ANSWER

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 9 of 27 PageID 9
EXHIBIT 2

Exhibit 2

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 10 of 27 PageID 10
Notice of Service of Process

null / ALL

Transmittal Number: 25296064

Date Processed: 07/29/2022

Primary Contact: Venessa C. Wickline Gribble

The Kroger Co.

1014 Vine Street

Cincinnati, OH 45202-1100

Entity: Kroger Texas L.P.

Entity ID Number 2172000

Entity Served: Kroger Texas, L.P.

Title of Action: Maria Carmen Lozano vs. Kroger Texas, L.P.

Matter Name/ID: Maria Carmen Lozano vs. Kroger Texas, L.P. (12625218)

Document(s) Type: Citation/Petition

Nature of Action: Personal Injury

Court/Agency: Dallas County Court at Law, TX

Case/Reference No: CC-22-03787-A

Jurisdiction Served: Texas

Date Served on CSC: 07/25/2022

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

Originally Served On: CSC

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 | sop@cscglobal.com

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 11 of 27 PageID 11
TO: 

THE STATE OF TEXAS 

CITATION 

CAUSE NO. CC-22-03787-A 

COUNTY COURT AT LAW NO.1 

Dallas County, Texas 

KROGER TEXAS, L.P. 

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

INCORPORATED 

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. I ofDallas 

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

MARIA CARMEN LOZANO 

Plaintiff(s) 

vs. 

KROGER TEXAS, L.P. 

Deje11dant(s) 

filed in said Court on the 19th 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 19th day of July, 2022 A.D. 

JOHN F. WARREN, Dallas County Clerk 

By {/ttd.la.- ~~~$oeputy Guisla Hernandez 

ATTORNEY 

CITATION 

Electronically Served 

7/19/2022 2:12PM 

PLAINTIFF'S ORIGINAL PETITION 

CC-22-03787-A 

IN THE COUNTY COURT OF DALLAS 

County Court at Law No. I 

Dallas County, Texas 

MARIA CARMEN LOZANO, 

Plailltijf(s) 

vs. 

KROGER TEXAS, L.P., Defendant(s) 

SERVE: 

KROGER TEXAS, L.P. 

SERVE ITS REGISTERED AGENT 

CORPORATION SERVICE COMPANY 

D/B/A CSC-LA WYERS 

INCORPORATED 

211 E 7TH STREET SUITE 620 

AUSTIN TX 78701 

ISSUED THIS 

19TH DAY OF JULY, 2022 

JOHN F. WARREN, COUNTY CLERK 

BY: GUISLA HERNANDEZ, DEPUTY 

Attorney for Plaintiff 

JULIE FWOLF 

WOLF LAW PLLC 

12222 MERIT DR 

SUITE 1200 

DALLAS TX 75251 

972-338-4477 

NO OFFiaR'S FEES HAVE BEEN 

COUECTED BY DA.lJ..AS COUNlY CLERK 

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 12 of 27 PageID 12
OFFICER'S RETURN 

CC-22-03787-A County Court at Law No. 1 

MARIA CARMEN LOZANO vs.KROGER TEXAS, L.P. 

ADDRESS FOR SERVICE: 

SERVE ITS REGISTERED AGENT CORPORATION SERVICE COMPANY D/B/A CSC-LAWYERS INCORPORATED 

211 E 7TH STREET SUITE 620 

AUSTIN TX 78701 

Fees: 

Came to hand on the __ day of , 20 at __ o'clock __ .m., and executed in County, Texas by delivering to KROGER 

TEXAS, L.P. in person, a true copy of this Citation together with the accompanying copy of the PLAINTIFF'S ORIGINAL PETITION with the date and service at the 

following times and places to-wit: 

Name Date/Time Place, Course and Distance from Courthouse 

And not executed as to the defendant(s), --------------------------------------------

The diligence used in finding said defendant(s) being: 

and the cause or failure to execute this process is: 

and the information received as to the whereabouts of said defendant(s) being: 

Serving Petition and Copy $ __ _ ______________ ,Officer 

Total $ ---- ____________ ,Councy,Texas 

By: ____________ ,, Depucy 

_________________ ,Affiant 

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 13 of 27 PageID 13
CC-22-03787 -A CAUSE NO. _______ _ 

MARIA CARMEN LOZANO, 

Plaintiff, 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE COUNTY COURT 

v. AT LAW NO.· ---

KROGER TEXAS, L.P. 

Defendant. DALLAS COUNTY, TEXAS 

PLAINTIFF'S ORIGINAL PETITION 

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW, Maria Carmen Lozano, (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 

FILED 

7/19/202211:05AM 

JOHN F. WARREN 

COUNTY CLERK 

DALLAS COUNTY 

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 $250,000.00 but 

less than $1,000,000.00. 

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

Rules of Civil Procedure. 

II. PARTIES AND SERVICE 

Plaintiff is a resident of Dallas County, Texas. 

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

PLAINTIFF'S ORIGINAL PETITION Page 1 of5 

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 14 of 27 PageID 14
business in the State of Texas. Defendant may be served by serving 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 Dallas 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 Dallas 

County, Texas. 

V. FACTS 

At all times relevant, Defendant was the possessor in control of the Kroger store in Dallas, 

County. On August 8, 2020, Plaintiff was patronizing the Kroger, when all of a sudden she slipped 

and fell on liquid that was on the floor, that she believed to be water. 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 ofhann in that condition was 

extremely dangerous. Defendant knew or reasonably should have known of the condition of the 

PLAINTIFF'S ORIGINAL PETITION Page 2 ofS 

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 15 of 27 PageID 15
premises because Defendant it was there for a long enough time that a reasonable inspection would 

have revealed it. 

At all relevant times Defendant was guilty ofnegligenc~ 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. Failure to provide warning of the condition by posting signage, a barrier, or other 

marker indicating the presence of danger; and 

d. 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 and 

disabling 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 of life. 

In all reasonable probability, Plaintiff will continue to suffer in this mmmer 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 

for necessary medical care and attention in the future for the injuries she incurred in the incident 

in sums unknown at this time. Plaintiff's compensatory damages specifically include, but are not 

PLAINTIFF'S ORIGINAL PETITION Page 3 of5 

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 16 of 27 PageID 16
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 

Plaintiff has 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 determined by a jury; 

f. Past and future disfigurement; 

g. Lost Wages; 

h. Costs of Court; 

i. 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 

PLAINTIFF'S ORIGINAL PETITION Page 4 ofS 

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 17 of 27 PageID 17
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 

~:~.~w~ Texas Bar No. 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 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 18 of 27 PageID 18
.tu' 1 '''' ,,,q I'· ''Ill'' I'll'''' uJ!! 11 '

1 II 1l· 1

1

1111 1 I 'I 

fEGAL DOCUMEN 

·· :5931 l .BJ FREEWAY SUITE 307 

·". ·- ln\LLAS, TEXAS 75240 

,_,_,} ----__ , -~ . .....,..,___._~.:·-~-~~--~ -·--~'--~--~·-·--~~-l 

1 

7021 0950 0001 8321 7637 

CORPORATION SERVICE COMPANY 

211 E. 7th STf:C.cT., #620 

AUSTIN, TEXAS 78701 

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 19 of 27 PageID 19 J 
EXHIBIT 3

Exhibit 3

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 20 of 27 PageID 20
DEFENDANT’S ORIGINAL ANSWER AND SPECIAL EXCEPTION Page 1 of 5

CAUSE NO. CC-22-03787-A

MARIA CARMEN LOZANO, § IN THE COUNTY COURT 

Plaintiff, §

§

vs. § AT LAW NO. 1 

§

KROGER TEXAS, L.P., §

Defendant. § DALLAS COUNTY, TEXAS

DEFENDANT’S ORIGINAL ANSWER AND SPECIAL EXCEPTION

COMES NOW, Defendant Kroger Texas L.P. in the above-entitled and numbered cause and 

files its Original Answer and Special Exception, and, in support thereof, would respectfully show 

the Court as follows:

I.

ORIGINAL ANSWER

A. GENERAL DENIAL

Defendant denies each and every, all and singular, the material allegations contained in 

Plaintiff’s 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.

B. DEFENSES

1. 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.”

2. Plaintiff’s damages or injuries, if any, were 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 

FILED

8/11/2022 3:37 PM

JOHN F. WARREN

COUNTY CLERK

DALLAS COUNTY

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 21 of 27 PageID 21
DEFENDANT’S ORIGINAL ANSWER AND SPECIAL EXCEPTION Page 2 of 5

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, Defendant denies that it 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 

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. 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.

7. 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. 

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 preCase 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 22 of 27 PageID 22
DEFENDANT’S ORIGINAL ANSWER AND SPECIAL EXCEPTION Page 3 of 5

existing or subsequent injuries, accidents or conditions were the sole and/or a contributing cause 

of Plaintiff’s damages alleged against Defendant. 

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, Defendant contends 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 

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.

C. COURT REPORTER REQUESTED

Defendant respectfully demands a court reporter be present at all proceedings before the 

Court.

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 23 of 27 PageID 23
DEFENDANT’S ORIGINAL ANSWER AND SPECIAL EXCEPTION Page 4 of 5

II.

SPECIAL EXCEPTION

Defendant objects and specially excepts to section VIII of Plaintiff’s Original Petition, titled 

“Notice of Intent,” which improperly attempts to invoke Rule 193.7 of the Texas Rules of Civil 

Procedure. Specifically, paragraph VIII states that “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.” 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 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. 

Therefore, Defendant requests that the Court strike section VIII of Plaintiff’s Original Petition, 

titled “Notice of Intent” in its entirety.

III.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant Kroger Texas L.P. prays that its special 

exception be granted. Further, Defendant respectfully prays Plaintiff take nothing by this cause 

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

2

Id., cmt. 7 (emphasis added).

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 24 of 27 PageID 24
DEFENDANT’S ORIGINAL ANSWER AND SPECIAL EXCEPTION Page 5 of 5

and that Defendant be permitted to recover the costs expended on its behalf. Defendant also 

prays for all other and further relief, both general and special, at law and in equity, to which it

may show itself to be justly entitled.

Respectfully submitted,

/s/ B. Kyle Briscoe

B. Kyle Briscoe

State Bar No. 24069421

kbriscoe@peavlerbriscoe.com

Michael W. Stumbaugh

State Bar No. 24041987

mstumbaugh@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 August 11, 2022.

/s/ B. Kyle Briscoe

B. Kyle Briscoe

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 25 of 27 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: 67201374

Status as of 8/12/2022 8:18 AM CST

Associated Case Party: MARIACARMENLOZANO

Name BarNumber Email TimestampSubmitted Status

Wolf Law PLLC service@wolflawpllc.com 8/11/2022 3:37:45 PM SENT

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 26 of 27 PageID 26
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: 67201374

Status as of 8/12/2022 8:18 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Kyle Briscoe kbriscoe@peavlerbriscoe.com 8/11/2022 3:37:45 PM SENT

Michael Stumbaugh mstumbaugh@peavlerbriscoe.com 8/11/2022 3:37:45 PM SENT

Liz Contreras econtreras@peavlerbriscoe.com 8/11/2022 3:37:45 PM SENT

Remigio DiMarco RDimarco@PeavlerBriscoe.com 8/11/2022 3:37:45 PM SENT

Case 3:22-cv-01773-B Document 1 Filed 08/12/22 Page 27 of 27 PageID 27