INDEX OF STATE COURT PLEADINGS AND FILING DATES PAGE 1

D/1052014v1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARQUITA WAFER

PLAINTIFF,

v.

SAM’S WEST, INC. d/b/a SAM’S 

CLUB

DEFENDANT.

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§

§

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§

CIVIL ACTION NO.__________________

INDEX OF STATE COURT PLEADINGS AND FILING DATES

TAB DOCUMENT DATE

1. State Court Docket Sheet of the County Court at Law No. 5, Dallas, 

County Texas; Cause No. CC-22-04495-E

09/14/2022

2. Plaintiff’s Original Petition 08/14/2022

3. Citation Issued to Defendant Sam’s West, Inc. d/b/a Sam’s Club 08/17/2022

4. Citation issued to Sam’s West, Inc. d/b/a Sam’s Club 08/17/2022

5. Executed Citation to Sam’s West, Inc. d/b/a Sam’s Club 08/22/2022

6. Letter to Andrew R. Scott regarding Dismissal Hearing Set for 

November 28, 2922

08/24/2022

7. Defendant’s Wal-Mart Stores Texas, LLC’s Original Answer to 

Plaintiff’s Original Complaint

09/09/2022

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 1 of 35 PageID 12
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TAB NO. 1

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TAB NO. 2

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 7 of 35 PageID 18
FILED

8/17/2022 10:31 AM

JOHN F. WARREN

CC—22-04495-E CAUSE NO. MARQUITA WAFER IN THE COUNTY COURT

VS. AT LAW NO.

3%8 WEST, INC. dlb/a SAM’S DALLAS COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION

NOW COMES Plaintiff, Marquita Wafer, complaining of Defendant, Sam’s West, Inc.

d/b/a Sam’s Club, and for causes of action would respectfully

show the Court as follows: DISCOVERY LEVEL

1. Plaintiff affinnatively pleads

that she seeks monetary relief over $250,000 but not more

than $1,000,000. Discovery is to be conducted under Level 3, Tex. R. Civ. P. 190.4.

PARTIES

2. Plaintiff is an individual resident ofDallas County, Texas.

3. Defendant, Sam’s West, Inc. d/b/a Sam’s Club,

is corporation doing business in the

State of Texas and can be served through its registered agent, CT Corporation System located at

1999 Bryan Street, Ste. 900, Dallas, Texas 75201.

JURISDICTION AND VENUE

4. The subject matter in controversy

is within the jurisdictional

limits ofthis court.

5. This court has jurisdiction over Defendant because said Defendant purposefully availed

itself of the privilege of conducting activities in the State of Texas and established minimum

contacts sufficient to confer jurisdiction over said Defendant, and the assumption ofjurisdiction

over Defendant will not offend traditional notions of fair play and substantial justice and is

consistent with the constitutional requirements of due process.

Plaintifi" Original Petition Page

COUNTY CLERK DALLAS COUNTY

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 8 of 35 PageID 19
6. Plaintiff would also show that the cause of action arose from or relates to the contacts of

Defendant to the State of Texas, thereby conferring specific jurisdiction with respect

to

Defendant.

7. Furthermore, Plaintiff would show that Defendant engaged in activities consulting

business in the State of Texas as provided by section 17.042 of the Texas Civil Practice and

Remedies Code, in that said Defendant committed tort in Texas.

8. Venue in Dallas County is proper

in this cause under Section 15.002(a)(1) of the Texas

Civil Practice and Remedies Code because all or substantial part of the events or omissions

giving rise to this lawsuit occurred in this county.

LAC—TS.

9. On or about December 4, 2021, Plaintiff, Marquita Wafer, was an invitee at Defendant

Sam’s West, Inc. d/b/a Sam’s Club’s store located at 2900 W. Wheatland Rd., Dallas, TX 7523 7.

As Plaintiff was shopping at Defendant’s store, she slipped on strawberry

that was on the floor.

Consequently, Plaintiff slipped, fell, and injured various areas ofher body.

PLAINTIFF’S CLAIM 0F PREMISES DEFECT AGAINST DEFENDANT

10. At all times mentioned herein, Defendant had such control over the premises in question

that Defendant owed certain duties to Plaintiff, the breach of which proximately

caused the

injuries

set forth herein.

ll. Defendant, Defendant’s agents, and employees

failed to make the premises reasonably

safe by failing to inspect

the premises.

12. Defendant failed to maintain safe environment by failing to provide clear, dry, and

safe walkway.

Plaintiffs Original Petition Page

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 9 of 35 PageID 20
l3. At all times pertinent herein, Defendant and any of Defendant’s agents, who were acting

in the scope oftheir employment, were guilty of negligent contact toward Plaintiff:

In Defendant’s failing to timely inspect

the area where Plaintiff was walking;

In Defendant creating dangerous condition by not regularly inspecting the premises;

In Defendant’s failing to timely inspect

the floor for dangerous conditions;

In Defendant’s, through its employee(s), failing to use due and reasonable care to avoid

creating dangerous conditions;

In Defendant’s failing to properly train its. employees

to identify and make safe dangerous conditions, which pose an unreasonable risk of injury;

In Defendant’s failing to warn Plaintiffof strawberry on the floor; g. In Defendant’s, through its employee(s), causing the unreasonable risk of harm by failing

to properly maintain the walkway and creating dangerous condition thereby putting Defendant on notice because when an owner or occupier of premises, or those whose

conduct it is reasonable, creates condition that poses an unreasonable risk of harm, an

inference of knowledge may arise that Defendant knew of should have known about the

risk of dangerto Plaintiff. Keetch v. Kroger, 845 S.W.2d 262, 265 (Tex. 1992); Robledo

v. Kroger, 597 S.W.2d 560 (Tex. Civ. App.-Eastiand 1980, writ refd n.r.e.); See Wal- Mart Stores, Inc. v. Diaz, 109 S.W.3d 584, 589 (Tex 2003).

PROXIMATE CAUSE

14. Each and every, all and singular of the foregoing acts and omissions, on the part of

Defendant, taken separately and/or collectively, constitute direct and proximate cause of the

injuries and damages

set forth below. DAMAGES FOR PLAINTIFF

15. As direct and proximate result ofthe occurrence made the basis ofthis lawsuit, Plaintiff

was caused to suffer physical injuries, and to incur the following damages:

Reasonable medical care and expensesin the past; Reasonable and necessary medical care and expenses which will in all reasonable probability be incurred in the future; Physical pain and suffering in the past; Physical pain and suffering in the future; Physical impairment sustained in the past; Physical impairment sustained in the future; Loss of earnings

in the past; and

Plaintiff Original Petition —— Page

b.

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 10 of 35 PageID 21
h. Loss of earning capacity

in the future.

P_R_A.XE_R WHERFORE, PREMISES CONSIDERED, Plaintiff, Marquita Wafer, respectfillly prays

that Defendant, Sam’s West, Inc. d/b/a Sam’s Club, be duly cited to appear and answer herein,

and that upon final hearing of the cause, judgment be entered for the Plaintiff against

Defendant for damages

in an amount within the jurisdictional limits of the Court; together with

pro-judgment

interest (fiom the date ofinjury through the date ofjudgment) at the maximum rate

allowed by law; postjudgment

interest at the legal rate; costs of court; and such other and fin'ther

relief to which the Plaintiff may be entitled at law or in equity.

Respectfiilly submitted,

BEST, WATSON GILBERT, P.C. 870 W. 1-30 Garland, Texas 75043

ascott@,bestlawcenter.com

(214) 528-6060

(214) 528—6020 [Telecopier]

By Andrew R. Scott State Bar No. 24095195 ATTORNEYS FOR PLAINTIFF

Plaintiff Original Petition Page

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 11 of 35 PageID 22
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 certificate of service that complies with all applicable rules.

Robyn George on behalf of Andrew Scott Bar No. 24095195

rgeorge@bestlawcenter.com

Envelope ID: 67377364

Status as of 8/17/2022 10:47 AM CST

Case Contacts Name Andrew RScott Robyn George

Email

ascott@bestlawcenter.com

rgeorge@bestlawcenter.com

BarNumber TimestampSubmitted Status 8/17/2022 10:31 :08 AM SENT

8/17/2022 10:31:08 AM SENT

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 12 of 35 PageID 23
D/1052014v1

TAB NO. 3

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 13 of 35 PageID 24
FILED

8/17/2022 10:31 AM Best, Watson Gllbert, P.C.

Attorneys and Counselors

Andrew R. Scott ascott@best1awcenter.com

Attorney (214) 528-6060 August 17, 2022

Via E-Service Dallas County Clerk 00-22-04495-E George L. Allen Courts Building

600 Commerce Street, Suite 101 Dallas, Texas 75202

Re: Marquita Wafer vs. Sam ’s West, Inc. d/b/a Sam 's Club

Dear Clerk:

Enclosed please find Plaintiff’s Original Petition in the above-referenced matter. Please

issue citation for service of the Defendant and return the file-marked copies ofthe Petition and

the citation to me at rgeorge@bestlawcenter.com.

Thank you for your attention to this matter.

Sincerely, @efi‘a Robyn George Paralegal to Andrew R. Scott

rgeorge@bestlawcenter.com

/rg Enclosure

Cc: Via U.S. Mail, E—Mail Facsimile Attn: Patricia Bland Walmart Claims Services P.O. Box 14731 Lexington, KY 40512

File Number: 9933758 Date of Loss: 12/04/2021 Facility 8282

Fax: (877) 219-0742 Email: trisha.bland@walmart.corn

870 W. Interstate 30, Garland, Texas 75043

(214) 528-6060 Fax: (214) 528—6020

JOHN F. WARREN

COUNTY CLERK DALLAS COUNTY

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 14 of 35 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 certificate of service that complies with all applicable rules.

Robyn George on behalf of Andrew Scott Bar No. 24095195

rgeorge@bestlawcenter.com

Envelope ID: 67377364

Status as of 8/17/2022 10:47 AM CST

Case Contacts Name Andrew RScott Robyn George

Email

ascott@bestlawcenter.com

rgeorge@bestlawcenter.com

BarNumber TimestampSubmitted Status 8/17/2022 10:31 :08 AM SENT

8/17/2022 10:31:08 AM SENT

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 15 of 35 PageID 26
D/1052014v1

TAB NO. 4

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 16 of 35 PageID 27
T0:

THE STATE OF TEXAS CITATION

CAUSE N0. CC-22-04495—E COUNTY COURT AT LAW NO. Dallas County, Texas

SAM'S WEST, INC. D/B/A SAM'S CLUB

REGISTERED AGENT: CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900 DALLAS, TX 75201

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

the clerk who issued this citation by 10:00 A.M. on the Monday next following the expiration oftwenty days after you were served this citation and PLAINTIFF'S ORIGINAL PETITION, default judgment may be taken against you. In

addition to filing 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. ofDallas County, Texas at the Court House of said County, 600 Commerce Street, Suite 101, Dallas, Texas 75202. MARQUITA WAFER

Plainttffls)

VS.

SAM'S WEST, INC. D/B/A SAM‘S CLUB

Defendant(s)

Filed in said Court on the 17th day ofAugust, 2022, copy of which accompaniesthis 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 17th day of August, 2022 A.D.

JOHN F. WARREN, Dallas County Clerk

By —, Deputy Momodou Bayo

NO OFFIGR‘S FEES HAVE BEEN

COU_ECTED BY DALlfiS (DUN'IY CLERK

ATTORNEY CITATION

PLAINTIFF'S ORIGINAL PETITION

CC-22-04495-E

IN THE COUNTY COURT 0F DALLAS

County Court at Law No. Dallas County, Texas MARQUITA WAFER, Plainnfl(s)

VS.

SAM'S WEST, INC. D/B/A SAM'S CLUB, Defendant(s)

SERVE: SAM'S WEST, INC. D/B/A SAM'S CLUB

REGISTERED AGENT: CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900 DALLAS TX 75201

ISSUED THIS

17TH DAY OF AUGUST, 2022

JOHN F. WARREN, COUNTY CLERK BY: MOMODOU BAYO, DEPUTY

Attorney for Plaintiff ANDREW SCOTT BEST WATSON GILBERT PC

870 WEST INTERSTATE 30 GARLAND TX 75043 214-528-6060 semi

Rm“!

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 17 of 35 PageID 28
OFFICER’S RETURN

CC-22-04495-E County Court at Law No. MARQUITA WAFER vs. SAM'S WEST, INC. D/B/A SAM'S CLUB

ADDRESS FOR SERVICE: REGISTERED AGENT: CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900 DALLAS, TX 75201

Fees: Came to hand on the day of 20 at o’clock .m., and executed in County, Texas by delivering to SAM'S WEST, INC. D/B/A SAM'S CLUB in person, 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 County, Texas

By: Deputy

Affiant

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 18 of 35 PageID 29
D/1052014v1

TAB NO. 5

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 19 of 35 PageID 30
TO:

THE STATE OF TEXAS CITATION

CAUSE NO. CC—22-04495~E COUNTY COURT AT LAW NO. Dallas County, Texas

SAM'S WEST, INC. D/B/A SAM'S CLUB

REGTSTERED AGENT: CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE .90!) DALLAS, TX 75291

“You have been sued. You may employ an attorney. If you or your Attomcy do not fiie WRiTTEN ANSWER with

the clerk who issued this citation by 10:00 A..M. on the Monday next foilowing the expiration of twenty days after you were served this citation and PLAINTIFF‘S ORIGINAL PETITION, dofaui:

judgment may be taken against you. In

adriition to filing written auSWer 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 dork. Find

out more at TexasLawHelporg.” Your answer should be addressed to the clerk of County Court at Law No. of Dallas

FILED

8/22/2022 6:41 PM

JOHN F. WARREN

COUNTY CLERK DALLAS COUNTY

County, Texas at the Court House of said. County, 680 Common: Street, Suite :01, Dailas, Texas 75202. MARQUITA WAFER

Plaintiffls)

VS.

SAM’S WEST, INC. D/BIA SAM'S CLUB

Defendantt’s)

Filed in said Court on tho 17th day of August, 2022, copy ofwhich accompanies

this citation. WITNESS: JOHN F. WARREN, Cicrk ofthe County Courts of Dallas County, Texas. GIVEN UNDER MY HAND AND SEAL OF OFFICE, at Dallas, Texas, and issued this 17th day of August, 2022 AD.

JOHN F. WARREN, Ballas County Clerk

BY Deputy Momodou Bayo

Electronicaily Served

EMT/2622 4:39 PM

ATTORNEY CITATION

PLAINTIFF'S ORIGINAL PETITION

CC—22w8449S-E

IN THE COUNTY COURT OF DALLAS

County Court at Law No. Dallas County, Texas MARQUiTA WAFER, Plaintitfls)

VS.

SAM‘S WEST, {NC DfBz‘A SAM'S CLUB, Defendanfis)

SERVE: SAM'S WEST, INC. BIB/A SAM'S CLUB

REGISTERED AGENT: CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900 DALLAS TX 75291

ISSUED THIS

17TH DAY OF AUGUST, 2022

JOHN F. WARREN, COUNTY CLERK BY: MOMODOU BAYO, DE9UTY

Attorney for Flaintiff ANDREW SCOTT BEST WATSON GILBERT PC

870 WEST INTERSTATE 30 GARLAND TX 75043

224—528~6060

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 20 of 35 PageID 31
Officer or Authorized return

Came to hand on the 22nd day of August A.D., 2022, at 8:00 O’clock. A.M. and executed by deiivering Sam’s West, inc. d/b/a Sam’s Club Iggistered agent CT

Corporation Svstem accepted by Terri Thonqsavat on the 22nd day ofAugust AD. 2022, at 12:49 O’clock P.M.,mthe Within named defendant, in person, true copy of

this Citation, together with copy of original petition with date of service marked thereon, at

the following location, 1999 Bryan Street, stifle 900 Dailas Texas 75201

Citation CC~2“2-04495-E

Witness Fee:

_. For mileage For Notary

:QJLQX PSC 4688 expires 2/28/2024

Dave Valfer, 1801 Vassar Drive Richardson, Texas Authorized Person.

COMPLETE EF YOU ARE PERSON OTHER THAN SHERIFF, CONSTABLE. OR CLERK OF THE COURT.

in accordance with Rate 107: The officer or authorized person who serves, or attempts to serve, citation shat! sign the return. The

signature is not required to be verified, if the return is signed by person other than sheriff, constable, or the cierk of the court, the

return shail be signed under penalty oi perjury and contain the following statement:

My name is Dave Vatfer

My date of birth is; July 2, “£960 and my address is; 1801 Vassar Drive Richardson Texas 75081 Daiias Coming, Texas DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND

CORRECT.

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 21 of 35 PageID 32
Dave Valfer

From: CLS~SOPDALTEAM@WOLTERSKLUWERLOM

Sent: Monday, August 22, 2022 12:49 PM

To: premierprocess@swbe¥|.net Subject: Intake Portal lob #191754 has been recelved

Hello David Valfer, We confirm receipt of the following documents via the Intake Portal on the date, time and location indicated below.

Date: Mon, Aug 22, 2022

Time: 12:49 PM

Name: David Valfer

Juris Served: TX

Job ID: 191754

SAM’S WEST,iNC. “F CORPORATION SYSTEM cc~22«04495~e

You can also view the status of your job at httpszlllntake.ctcorporation.com/

Thank you

Intake Specialist: Terri Thongsavat CT Corporation, Wolters Kiuwer Company

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 22 of 35 PageID 33
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 certificate of service that complies with all applicable rules.

Envelope ID: 67532816

Status as of 8/24/2022 10:24 AM CST

Associated Case Party: SAM'S WEST, INC. D/B/A SAM'S CLUB

Name BarNumber Email TimestampSubmitted Status ROBYN GEORGE rgeorge@bestlawcenter.com 8/22/2022 6:41 :25 PM SENT

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 23 of 35 PageID 34
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 certificate of service that complies with all applicable rules.

Envelope ID: 67532816

Status as of 8/24/2022 10:24 AM CST

Case Contacts Name BarNumber Email TimestampSubmitted Status Andrew RScott ascott@bestlawcenter.com 8/22/2022 6:41 :25 PM SENT

Robyn George rgeorge@bestlawcenter.com 8/22/2022 6:41:25 PM SENT David Valfer premierprocess@swbell.net 8/22/2022 6:41:25 PM SENT

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 24 of 35 PageID 35
D/1052014v1

TAB NO. 6

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 25 of 35 PageID 36
JUDGE JUAN RENTERIA

COUNTY COURT AT LAW N0. GEORGE ALLEN, SR. COURTS BUILDING

600 COMMERCE STREET, 5th FLOOR DALLAS, TEXAS 75202-5792 214-653-6503 Chambers ofJuan Renteria August 24, 2022

ANDREW SCOTT BEST WATSON GILBERT PC

870 WEST INTERSTATE 30 GARLAND TX 75043

Re: Cause No CC-22-04495—E

Cause Style: MARQUITA WAFER VS.SAM‘S WEST, INC. D/B/A SAM'S CLUB

Dear Attorney:

The above case is set for dismissal, pursuantto Rule 165A, Texas Rule ofCivil Procedure, on: November 28,2022 at 9:00 a.m.

If no answer has been filed, or ifthe answer filed is insufficient as matter of law to place any ofthe facts alleged in your petition in issue, you will be expected to have moved for, and to have had heard, summary

judgment or to have proved up default judgment on or prior

to that date. Your failure to have done so will

result in the dismissal of the case on the above date.

If an answer has been filed that is sufficient to create fact issue that prevents disposition ofthe entire case, or

if you have been unable to obtain service of process, you should plan to notify the court to obtain reset of the dismissal date or trial setting as appropriate.

In no event will live witnesses be required unless the default prove-up is for an un—liquidated claim. Liquidated claims and attorneys

fees may be proved up by affidavit with form ofjudgment.

If you should have any questions, please feel free to callus.

Very Truly Yours,

(Dix/"7

Judge Juan Renteria County Court at Law No. Dallas County, Texas

*IF JURYDEMAND IS REQUESTED, IT MUST BE MADE IN WRITING AND SUBMITED WITH $22.00 FOR THE JURY

FEES TO: MR. JOHN WARREN, DALLAS COUNTY CLERK, 600 COMMERCE, #101, DALLAS, TEXAS 75202*

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 26 of 35 PageID 37
D/1052014v1

TAB NO. 7

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 27 of 35 PageID 38
CAUSE NO. CC-22-04495-E MARQUITA WAFER IN THE COUNTY COURT PLAINTIFF,

v. AT LAW N0. SAM’S WEST, INC. d/b/a SAM’S CLUB DEFENDANT. DALLAS COUNTY, TEXAS

DEFENDANT SAM’S EAST, INC., AN ARKANSAS CORPORATION’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, SAM’S EAST, INC., an Arkansas Corporation (incorrectly named

SAM’S WEST, INC. d/b/a SAM’S CLUB) (“Defendant”)

in the above-styled and numbered

cause, and files this Original Answer to Plaintiff‘s Original Petition, and in support hereof would

respectfully show the Court the following.

I. GENERAL DENIAL

l. Defendant denies each and every, all and singular, the material allegations made

and contained in the Original Petition and any petition which Plaintiff may hereinafter file by

way of amendment or supplement, and, in accordance with Texas law, demands that Plaintiff

prove by preponderance of the credible evidence each and every such allegation made and

contained therein, or the prevailing standard ofproofrequired by applicable law.

II. AFFIRMATIVE DEFENSES

2. Pleading further, and in the affirmative, Defendant asserts the doctrine of

comparative causation as set forth in Chapter 33 of the TEXAS CIVIL PRACTICE REMEDIES

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE OF

FILED

9/9/2022 3:47 PM

JOHN F. WARREN

COUNTY CLERK DALLAS COUNTY

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 28 of 35 PageID 39
CODE, which may bar any recovery by Plaintiff, or may

in the alternative reduce the amount of

recovery by Plaintiffbased on the Plaintiff‘s own percentage of fault.

3. Pleading further, if necessary, Plaintiff failed to mitigate Plaintiff’s damages which may have resulted from the occurrence made the basis of this lawsuit.

4. In the alternative, and without waiving the foregoing, Defendant affirmatively

pleads

the defense set forth in TEXAS CIVIL PRACTICE REMEDIES CODE 18.091, requiring

Plaintiff to prove Plaintiff‘s loss of earning and/or loss of earning capacity in the form which

represents Plaintiff’ net loss after reduction for income tax payments or unpaid tax liability on

said loss or earning claim pursuantto any federal income tax law. Id. Additionally, Defendant

requests

the Court to instruct the jury as to whether any recovery for compensatory damages

sought by the Plaintiff, if any, is subject

to federal to state income taxes.

5. Additionally, to the extent Plaintiff’s medical expenses exceed the amount

actually paid on Plaintiff’s behalf to Plaintiff‘s medical providers, Defendant asserts the statutory

defense set forth in 41.0105 of the TEXAS CIVIL PRACTICE REMEDIES CODE. Thus, recovery

of medical or health care expensesincurred by Plaintiff, if any, are limited to the amount actually

paid or incurred by or on behalf of Plaintiff.

6. Pleading further, Defendant would show that it is entitled to credit or offset

equal to the amount of any and all sums that the Plaintiff has received, or may hereinafter

receive, by way of settlement with any person or party. Alternatively, pursuant

to Rule 48 of the

TEXAS RULES OF CIVIL PROCEDURE, Defendant contends that it is entitled to proportionate

reduction of any damagesfound againstit based upon the percentage of negligence attributable

to the settling tortfeasor, cross claimant, designated third party, or other party to this case.

7. Pleading further, and in the affirmative, Defendant alleges Plaintiff claims for

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE OF

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 29 of 35 PageID 40
pre-judgment

interest are limited by the dates and amounts set forth in 304.101 of the TEXAS

FINANCE CODE and 41.007 of the TEXAS CIVIL PRACTICE REMEDIES CODE.

8. Pleading further, and in the affirmative, Defendant invokes §41.0105 of the

TEXAS CIVIL PRACTICE REMEDIES CODE concerning Plaintiff‘s claim for the recovery of health

care expenses and other related damages, past and future.

9. Pleading filrther, and in the affirmative, Defendant asserts the doctrine of

proportionate responsibility of TEXAS CIVIL PRACTICE REMEDIES CODE Chapter 33, which may bar any recovery by Plaintiff, or may in the alternative, reduce the amount of recovery by

Plaintiffbased on Plaintiffs own percentage of fault.

10. Pleading further, and in the affirmative, Defendant would show that the alleged

occurrence made the basis of this lawsuit was the result of circumstances and/or events that were

not of Defendant’s own creation. Defendant would further show that it acted just as similar

situated reasonable premises owner would have acted under the same or similar circumstances

surrounding the matters made the basis of this lawsuit.

11. Pleading fiIrther, and in the affirmative, Defendant allegesthat the injuries and

damages alleged by Plaintiff may be due to Plaintiff’s own negligence and recklessness in that

Plaintiff failure to exercise ordinary care proximately caused, in Whole or in part, the alleged

injuries and damages complained of by Plaintiff. Plaintiff’s acts and omissions, whether taken

together or separately, may be the sole proximate cause, or proximate cause of the injuries and

damages Plaintiff has alleged in this lawsuit. Any recovery by Plaintiff is therefore barred, or

alternatively should be reduced in accordance with the applicable law.

12. Pleading further, and in the affirmative, the injuries pled by Plaintiff may have

been caused, in Whole or in part, by superseding and/or intervening causes, including preexisting

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE OF

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 30 of 35 PageID 41
conditions and/or injuries and subsequently occurring injuries and/or conditions that were not

Defendant’s own creation.

13. Pleading further, if necessary, Plaintiff’s claims may have been caused by an

unavoidable accident, Act of God, or an occurrence without any fault on the part of Defendant.

14. Pleading further and in the alternative, Defendant allegesthat any claims for or

recovery of exemplary damages against

it violates the Fifth, Eighth, and Fourteenth Amendments

to the United States Constitution, and Sections 3, 13 and 19 of Article of the Texas

Constitution, because such claims as made are arbitrary, unreasonable, and violate Defendant’s

rights

to due process and equal protection of the laws.

15. Pleading further and in the alternative, to the extent any recovery of exemplary

damages is found to be constitutional, Defendant invokes all the limitations upon damages and

exemplary damages contained in Chapter 41 of the Texas Civil Practice Remedies Code, both

in terms of the maximum amount of damages

that can be awarded pursuantto that statute and the

procedural safeguards guaranteed by the referenced provisions.

16. Pleading further and in the alternative, Defendant also invokes all other applicable

state law, federal law, statutory and/or common-law caps or limitations on exemplary damages.

17. Pleading further and in the alternative, Defendant affirmatively asserts that

Plaintiff did not exercise due diligence to effectively “bring suit” Within the two-yeartime statute

oflimitation period prescribed by Chapterl6 of the Texas Civil Practice Remedies Code. See

also Grant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990).

III. NOTICE OF INTENT

l8. Defendant further places Plaintiff on notice pursuantto TEXAS RULE OF CIVIL

PROCEDURE 193.7 that it may use in pretrial proceedings or at trial any and all documents and

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE OF

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 31 of 35 PageID 42
tangible things produced in discovery by plaintiff.

IV. DEMAND FOR JURY TRIAL

19. In accordance with Rule 216 of the TEXAS RULES 0F CIVIL PROCEDURE,

Defendant hereby demands trial by jury.

WHEREFORE, PREMISES CONSIDERED, Defendant prays

that Plaintiff take

nothing by this suit against Defendant, that Defendant be discharged, and that the Court grant

such other and further relief, both general and special, at law and in equity to which Defendant may be justly entitled.

Respectfully submitted,

COOPER SCULLY, P.C.

By: /s/Derek S. Davis DEREK S. DAVIS

Texas Bar No. 00793 591 Email: Derek.Davis@CooperScully.com

JAMES KURITZKES

Texas Bar No. 24120956 Email: ames.Kuritzkes@CooperScully.com

900 Jackson Street, Suite 100 Dallas, Texas 75202

Telephone: (214) 712-9500

Facsimile: (214) 712-9540

ATTORNEY FOR DEFENDANT SAM’S EAST, INC., AN ARKANSAS CORPORATION

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE OF

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 32 of 35 PageID 43
CERTIFICATE OF SERVICE

hereby certify that on the 9th day of September, 2022, true and correct copy of the

foregoing document was served on counsel of record via the Court’s ECF filing service as

follows:

Andrew R. Scott BEST, WATSON, GILBERT, P.C. State Bar No. 24095195

870 W. 1-30 Garland, Texas 75043

Telephone: (214) 528-6060

Facsimile: (214) 528-6020

ascott@bestlawcenter.com

ATTORNEY FOR PLAINTIFF

/s/Derek S. Davis DEREK S. DAVIS

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE OF

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 33 of 35 PageID 44
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 certificate of service that complies with all applicable rules.

Heather Savant on behalf of Derek Davis Bar No. 793591 heather.savant@cooperscully.com

Envelope ID: 68121086

Status as of 9/9/2022 4:02 PM CST

Associated Case Party: SAM'S WEST, INC. D/B/A SAM'S CLUB

Name BarNumber Email TimestampSubmitted Status ROBYN GEORGE rgeorge@bestlawcenter.com 9/9/2022 3:47:48 PM SENT

Kim Denton kim.denton@cooperscully.com 9/9/2022 3:47:48 PM SENT

James Kuritzkes james.kuritzkes@cooperscully.com 9/9/2022 3:47:48 PM SENT Heather Savant heather.savant@cooperscully.com 9/9/2022 3:47:48 PM SENT

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 34 of 35 PageID 45
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 certificate of service that complies with all applicable rules.

Heather Savant on behalf of Derek Davis Bar No. 793591 heather.savant@cooperscully.com

Envelope ID: 68121086

Status as of 9/9/2022 4:02 PM CST

Case Contacts Name BarNumber Email TimestampSubmitted Status Andrew RScott ascott@bestlawcenter.com 9/9/2022 3:47:48 PM SENT David Valfer premierprocess@swbell.net 9/9/2022 3:47:48 PM SENT

Robyn George rgeorge@bestlawcenter.com 9/9/2022 3:47:48 PM SENT

Case 3:22-cv-02041-L Document 1-3 Filed 09/15/22 Page 35 of 35 PageID 46