CourtListener 10664031

Full text

ORIGINAL CLERKS RECORD

VOLUME I
FILED IN
15th COURT OF APPEALS
APPELLATE COURT NO. 15-25-00139-CV AUSTIN, TEXAS
8/25/2025 4:11:28 PM
NON-PARTY TEXAS ALCOHOLIC BEVERAGE COMMISSION CHRISTOPHER A. PRINE
Clerk
APPELLANT(S)

VS. TRIAL COURT CASE NO. 2023-07113

FROM THE 281ST District Court of Harris County, at Houston, Texas

HON., JUDGE CHRISTINE WEEMS PRESIDING.

Applied for by PATRICK TODD on the 22ND day of AUGUST, 2025, A.D., and delivered to the

“FIFTEENTH” COURT OF APPEALS A.D.

MARILYN BURGESS
Harris County, District Clerk

By: /s/ Tonisha Ricks
Tonisha Ricks, Deputy District Clerk
Civil/Family Post Trial

Attorney(s) for Appellant(s):
PATRICK TODD
ASSISTANT ATTORNEY GENERAL
P.O. BOX 12548, CAPITOL STATION
AUSTIN, TX 78711

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Attorney(s) for Appellee:

DARAGH CARTER CARLOS BALIDO
SMITH & HASSLER WALTERS BALIDO & CRAIN L.L.P.
1225 NORTH LOOP WEST, SUITE 525 10440 N CENTRAL EXPY STE 1500
HOUSTON, TX 77008 DALLAS, TX 75231-2299

BRIAN CANO MUHAMMAD AZIZ
FEE, SMITH & SHARP, L.L.P. ABRAHAM, WATKINS, NICHOLS,
2777 ALLEN PKWY STE 800 HOUSTON, AGOSTO, AZIZ & STOGNER
TX 77019-2129 800 COMMERCE ST
HOUSTON, TX 77002-1707

MICHAEL LOGAN DANIELLE HOLLIS
KANE RUSSELL COLEMAN LOGAN PC WILSON ELSER
901 MAIN ST STE 5200 909 FANNIN STREET, SUITE 3300
DALLAS, TX 75202-3705 HOUSTON, TX 77010

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INDEX

NON-PARTY TEXAS ALCOHOLIC BEVERAGE COMMISSION

VS. CAUSE NO. 2023-07113 APPELLATE # 15-25-00139-CV

INDEX PAGE(S) ............................................................................. 3

PLAINTIFFS ORIGINAL PETITION FILED
FEBRUARY 2, 2023 ....................................................................... 7

DEFENDANTS KELLY RAY WREN AND DRAGGIN TOOLS
TRUCKING, LLC'S GENERAL DENIAL ORIGINAL ANSWER
AND AFFIRMATIVE DEFENSES FILED
MARCH 10, 2023 ............................................................................ 14

DEFENDANTS ORIGINAL ANSWER AND NOTICE OF
APPEARANCE FILED MARCH 13, 2023 .................................... 21

PLAINTIFFS' FIRST AMENDED PETITION FILED
AUGUST 6, 2024 ............................................................................ 24

PLAINTIFFS FIRST AMENDED PETITION FILED
AUGUST 6, 2024 ............................................................................ 38

DEFENDANTS GENERAL DENIAL, ORIGINAL ANSWER
AND AFFIRMATIVE DEFENSES TO ORLANDO HAYWARD
INDIVIDUALLY AND AS REPRESENTATIVES OF THE
ESTATE OF NIGUEL HAYWARD, DECEASED FILED
SEPTEMBER 3, 2024 ..................................................................... 46

DEFENDANT, LIFELEY, INC. D/B/A MOLLY'S PUB
(CONROE)'S ORIGINAL ANSWER TO PLAINTIFF ASHLIE
DOMINGUEZ'S FIRST AMENDED PETITION FILED
SEPTEMBER 27, 2024 ................................................................... 54

3
INDEX

NON-PARTY TEXAS ALCOHOLIC BEVERAGE COMMISSION

VS. CAUSE NO. 2023-07113 APPELLATE # 15-25-00139-CV

ASHLEY DOMINGUEZ, ORLANDO HAYWARD AND REYNA HAYWARD,
INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF NIGUEL
HAYWARD, DECEASED, EDUARDO MORENO, KELLY RAY WREN, AND
DRAGGIN TOOLS TRUCKING, LLC
PAGE
DEFENDANT, LIFELEY, INC. D/B/A MOLLY'S PUB
(CONROE)'S ORIGINAL ANSWER TO PLAINTIFF ASHLIE
DOMINGUEZ'S FIRST AMENDED PETITION FILED
SEPTEMBER 27, 2024 ................................................................... 61

PLAINTIFF'S MOTION TO COMPEL THIRD PARTY
COMPLIANCE AND MOTION TO OVERRULE OBJECTIONS
FILED OCTOBER 7, 2024 ............................................................. 68

DEFENDANT LIFFEY, INC. D/B/A MOLLY’S PUB
(CONROE)’S AMENDED ANSWER TO PLAINTIFFS
ORLANDO HAYWARD AND REYNA HAYWARD,
INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF NIGUEL HAYWARD, DECEASED’S FIRST
AMENDED PETITION FILED OCTOBER 10, 2024 ................... 76

SANDBAGGERS PUB'S ORIGINAL ANSWER TO PLAINTIFF
ASHLIE DOMINGUEZ'S FIRST AMENDED PETITION FILED
OCTOBER 14, 2024 ........................................................................ 84

NON-PARTY TEXAS ALCOHOLIC BEVERAGE
COMMISSIONS RESPONSE TO PLAINTIFFS MOTION TO
COMPEL FILED OCTOBER 30, 2024 .......................................... 90

PLAINTIFFS' SECOND AMENDED PETITION FILED
NOVEMBER 8, 2024 ...................................................................... 112

PLAINTIFFS SECOND AMENDED PETITION FILED
NOVEMBER 8, 2024 ...................................................................... 130

DEFENDANT LIFFEY LEASING, INC. D/B/A MOLLY'S PUB
FIRST AMENDED ANSWER TO PLAINTIFF ASHLIE 139

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INDEX

NON-PARTY TEXAS ALCOHOLIC BEVERAGE COMMISSION

VS. CAUSE NO. 2023-07113 APPELLATE # 15-25-00139-CV

ASHLEY DOMINGUEZ, ORLANDO HAYWARD AND REYNA HAYWARD,
INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF NIGUEL
HAYWARD, DECEASED, EDUARDO MORENO, KELLY RAY WREN, AND
DRAGGIN TOOLS TRUCKING, LLC
PAGE
DOMINGUEZ'S FIRST AMENDED PETITION FILED
NOVEMBER 18, 2024 ....................................................................

DEFENDANT LIFFEY LEASING, INC. D/B/A MOLLY'S PUB'S
ORIGINAL ANSWER TO PLAINTIFFS ORLANDO HAYWARD
AND REYNA HAYWARD, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF NIGUEL HAYWARD,
DECEASED'S SECOND AMENDED PETITION FILED
NOVEMBER 18, 2024 .................................................................... 147

TIME TO SPARE, LLC'S ORIGINAL ANSWER TO
PLAINTIFFS' SECOND AMENDED PETITIONS FILED
DECEMBER 19, 2024..................................................................... 155

PLAINTIFFS' REPLY TO TEXAS ALCOHOL BEVERAGE
COMMISSION'S RESPONSE TO PLAINTIFFS' MOTION TO
COMPEL THIRD PARTY COMPLIANCE AND MOTION TO
OVERRULE OBJECTIONS FILED
FEBRUARY 3, 2025 ....................................................................... 160

PLAINTIFFS' MOTION TO COMPEL DISCOVERY
RESPONSES AND MOTION TO OVERRULE OBJECTIONS
FROM DEFENDANT SANDBAGGER'S PUB, NP FILED
APRIL 30, 2025 ............................................................................... 166

DEFENDANT SANDBAGGERS PUB'S RESPONSE TO
PLAINTIFFS' MOTION TO COMPEL DISCOVERY RESPONSES
AND OVERRULE OBJECTIONS FILED MAY 13, 2025 ........... 175

DEFENDANT TIME TO SPARE, LLC'S RESPONSE TO
PLAINTIFFS' MOTION TO COMPEL DISCOVERY RESPONSES
AND OVERRULE OBJECTIONS FILED MAY 13, 2025 ........... 188

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INDEX

NON-PARTY TEXAS ALCOHOLIC BEVERAGE COMMISSION

VS. CAUSE NO. 2023-07113 APPELLATE # 15-25-00139-CV

ORDER COMPELLING DISCOVERY SIGNED
MAY 27, 2025 ................................................................................. 197

ORDER COMPELLING PRODUCTION IN PART SEE ORDER
SIGNED JULY 30, 2025 ................................................................. 200

ACTIVITY SCREEN ...................................................................... 202

DOCKET SHEET ............................................................................ 205

NOTICE OF APPEAL BY PATRICK TODD FILED
AUGUST 19, 2025 .......................................................................... 206

REQUEST FOR CLERKS RECORD BY PATRICK TODD
FILED AUGUST 22, 2025 .............................................................. 213

CERTIFICATE ................................................................................ 220

BILL OF COST ............................................................................... 222
COMPLETED ORIGINAL CLERKS RECORD. TR

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2/2/2023 3:36 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 72388783
2023-07113 /Court: 281 By: Derrick Abram
Filed: 2/2/2023 3:36 PM

Cause No.

ASHLIE DOMINGUEZ § IN THE DISTRICT COURT
§
§
vs. § JUDICIAL DISTRICT
§
§
EDUARDO MORENO, KELLY RAY §
WREN AND DRAGGIN TOOLS §
TRUCKING, LLC § HARRIS COUNTY, TEXAS

PLAINTIFF’S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOWASHLIE DOMINGUEZ (“PLAINTIFF”) and files this Original Petition

complaining of Defendants EDUARDO MORENO, KELLY RAY WREN and DRAGGIN

TOOLS TRUCKING, LLC and respectfully would show this court as follows:

PARTIES

1. Plaintiff ASHLIE DOMINGUEZ resides in Harris County, Texas.

2. Defendant EDUARDO MORENO (“DEFENDANT MORENO”) is an adult male

individual residing at 927 N BRIGHT DRIVE, HOUSTON, TX 77073 and may be served

with process at his last known residential address or wherever he may be found. Citation is

requested.

3. Defendant KELLY RAY WREN (“DEFENDANT WREN”) is an adult male

individual residing at 22402 GLENMONT ESTATES BLVD., MAGNOLIA, TX 77355 and

may be served with process at his last known residential address or wherever he may be

found. Citation is requested.

4. Defendant DRAGGIN’ TOOLS TRUCKING, LLC (“DRAGGIN TOOLS”) is an

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entity organized under the laws of the State of Texas, doing business in the State of Texas,

and may be served with process by serving its registered agent, PAUL TULLOS at 11133

INTERSTATE 45 SOUTH, SUITE 400, CONROE, TX 77302 Citation is requested.

JURISDICTION & VENUE

5. This court has jurisdiction over this controversy because the damages are

within the jurisdictional limits of this court. Venue is proper in HARRIS County, Texas, per

Tex CPRC §15.002(a)(2) because DEFENDANT MORENO resides in HARRIS County.

DISCOVERY LEVEL

6. PLAINTIFF requests that discovery in this case be governed at the level 3

category, pursuant to Tex. R. Civ. P. 190.4.

FACTUAL BACKGROUND AND CAUSES OF ACTION

5. PLAINTIFF was severely injured in a motor vehicle collision that occurred in

the early morning hours of November 15, 2022.

6. PLAINTIFF was riding as a restrained passenger in a Chrysler sedan driven

by Niguel Hayward. The Chrysler was traveling northbound, in the northbound lanes, of

Interstate 45 near mile marker 102.

7. DEFENDANT MORENO was operating a Jeep Wrangler, traveling

southbound in the northbound lanes of Interstate 45 near mile marker 102. Stated

differently, DEFENDANT MORENO was driving the wrong way on the freeway.

8. DEFENDANT MORENO caused the Jeep to collide head-on with the

Chrysler. The damaged and disabled Chrysler spun out on the freeway, coming to rest

facing southwest in the middle lane.

9. DEFENDANT WREN was traveling northbound in the northbound lanes of

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Interstate 45. DEFENDANT WREN was driving an 18-wheeler in the course and scope of

DEFENDANT WREN’S employment for DEFENDANT DRAGGIN TOOLS.

10. DEFENDANT WREN came upon the disabled Chrysler, occupied by

PLAINTIFF. DEFENDANT WREN failed to avoid the disabled Chrysler, causing the 18-

wheeler to collide with the Chrysler.

11. Two separate crash reports were prepared: one for the initial collision

between the Chrysler and DEFENDANT MORENO’S Jeep, another for the secondary

collision between the Chrysler and DEFENDANT DRAGGIN TOOLS’ 18-wheeler. Both

crash reports were prepared by Dept, of Public Safety Trooper Riley Cooper.

12. The crash report for the collision between the Chrysler and DEFENDANT

DRAGGIN TOOLS’ 18-wheeler documents that the previous crash between the Jeep and

the Chrysler . .had already stabilized and that this incident was a secondary crash."

NEGLIGENCE OF DEFENDANT WREN

13. DEFENDANT WREN was negligent on the occasion in question.

DEFENDANT WREN owed PLAINTIFF a duty to operate the 18-wheeler on a public

roadway as would a person of ordinary prudence. DEFENDANT WREN breached this duty

in one or more of the following ways:

a. Failing to adjust his speed in the face of a disabled vehicle in the roadway;

b. Failing to take evasive action to avoid colliding with the disabled Chrysler;

c. Failing to keep a proper lookout;

d. Failing to timely apply brakes;

e. Falling to control the speed of the 18-wheeler;

f. Failed to use a designated lane of travel; and

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g. Driving while too fatigued to operate a motor vehicle in a safe manner.

NEGLIGENCE OF DEFENDANT DRAGGIN TOOLS

14. DEFENDANT DRAGGIN TOOLS is negligent for failing to properly train and

supervise DEFENDANT WREN, including but not limited to causing DEFENDANT WREN to

operate the 18-wheeler on a public roadway while in a fatigued state.

15. Further, DEFENDANT DRAGGIN TOOLS is vicariously liable, under the

doctrine of respondeat superior, for the negligent acts and omissions of DEFENDANT

WREN. At all times pertinent to the Incident, giving rise to PLAINTIFF’S claims,

DEFENDANT WREN was acting within the course and scope of his employment for

DRAGGIN TOOLS.

NEGLIGENCE OF DEFENDANT MORENO

16. DEFENDANT MORENO was negligent on the occasion in question.

DEFENDANT MORENO owed PLAINTIFF a duty to operate his vehicle on a public

roadway as would a person of ordinary prudence. DEFENDANT MORENO breached this

duty in one or more of the following ways:

a. Driving the wrong way on the freeway;

b. Failing to take evasive action to avoid colliding with the Chrysler;

c. Failing to keep a proper lookout;

d. Failing to timely apply brakes;

h. Falling to control speed;

i. Failing to yield the right-of-way to the Chrysler; and

j. Driving while impaired by drugs and/or alcohol.

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DAMAGES

17. As a direct and proximate result of the above-described acts of negligence,

PLAINTIFF will show she suffered actual damages within the jurisdictional limits of this

Court. Plaintiff seeks fair and reasonable compensation for the following elements of

damages:

a. PHYSICAL PAIN in the past and future;

b. MENTAL ANGUISH in the past and future;

c. PHYSICAL IMPAIRMENT in the past and future;

d. DISFIGUREMENT AND SCARRING in the past and future;

e. LOSS OF EARNING CAPACITY in the past and future;

f. Prejudgment and post-judgment interest; and

g. All other special items of damage necessarily incurred as a result of Defendants’
conduct.
JURY DEMAND

18. PLAINTIFF hereby demands a trial by jury.

RULE 193.7 NOTICE

19. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, PLAINTIFF

hereby gives actual notice to Defendants that any and all documents produced may be

used against the Defendants at any pre-trial proceeding and or at the trial of this matter

without the necessity of authenticating the documents.

STATEMENT OF RELIEF SOUGHT

20. Pursuant to Texas Rule of Civil Procedure 47, PLAINTIFF is seeking

monetary relief over $1,000,000.

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PRAYER

21. For these reasons PLAINTIFF prays this court cite Defendants to appear and

answer herein and that PLAINTIFF have judgment taken against Defendants and recover

all damages allowed by law, pre-judgment and post judgment interest as allowed by law,

costs of court, and such other and further relief, both general and special, at law or in

equity, to which PLAINTIFF is justly entitled.

Respectfully submitted,

/s/ Paraph Carter
Daragh Carter
TBN: 24050387
Smith & Hassler
1225 North Loop West, Suite 525
Houston, Texas 77008
(713) 739-1250
(713) 864-7226 Facsimile

ATTORNEY FOR PLAINTIFF
ASHLIE DOMINGUEZ

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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.

Abigail Villegas on behalf of Daragh Carter
Bar No. 24050387
avillegas@smithandhassler.com
Envelope ID: 72388783
Status as of 2/2/2023 4:04 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Daragh Carter 24050387 dcarter@smithandhassler.com 2/2/2023 3:36:29 PM SENT

Abigail Villegas avillegas@smithandhassler.com 2/2/2023 3:36:29 PM SENT

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3/10/2023 3:59 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73567313
By: Lewis John-Miller
Filed: 3/10/2023 3:59 PM

PRG.16074
CAUSE NO. 2023-07113

ASHLIE DOMINGUEZ, § IN THE DISTRICT COURT
Plaintiff, §
§
V. §
§ 281st JUDICIAL DISTRICT
EDUARDO MORENO, KELLY RAY §
WREN, and DRAGGIN TOOLS §
TRUCKING, LLC, §
Defendants. § HARRIS COUNTY, TEXAS

DEFENDANTS KELLY RAY WREN AND DRAGGIN TOOLS TRUCKING, LLC’s
GENERAL DENIAL, ORIGINAL ANSWER, AND AFFIRMATIVE DEFENSES

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, KELLY RAY WREN and DRAGGIN TOOLS TRUCKING, LLC,

Defendants named in the above entitled and numbered cause, and files this their General Denial,

Original Answer, and Affirmative Defenses and for same would respectfully show unto the Court

as follows:

I.
General Denial

Subject to such stipulations as may hereafter be made, Defendants assert a general denial

as is authorized by Rule 92 of the Texas Rules of Civil Procedure, and Defendants respectfully

demand that Plaintiff be required to prove the charges and allegations against Defendants by a

preponderance of the evidence as is required by the Constitution and law of the State of Texas.

II.
Affirmative Defenses

First Affirmative Defense

As a first separate and affirmative defense to Plaintiffs Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants assert at the time and on

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the occasion in question, the claimed injuries and corresponding damages complained of therein

were proximately caused, in whole or in part, by the acts, omissions, fault, negligence, negligence

per se, responsibility, or other conduct, on the part of Plaintiff, including but not limited to failing

to keep proper lookout, failure to pay attention, failing to timely apply the brakes, to take evasive

action, and other negligent conduct or omissions.

Second Affirmative Defense

As a second separate and affirmative defense to Plaintiff’s Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants ask the Court and jury to

compare the relative percentages of fault of Plaintiff, all other parties to this lawsuit, and any

negligent, culpable, and/or strictly liable third-party or parties and/or any other responsible third-

party or parties, whether a party to this suit or otherwise, with that of Defendants, if any, pursuant

to the doctrine of proportionate responsibility. See Texas Civil Practice & Remedies Code §

33.001, etseq. Such other responsible third-parties include those who may be responsible in whole

or in part for the injuries and/or damages alleged by Plaintiff and/or for which a responsibility

submission would be proper pursuant to Texas Civil Practice & Remedies Code §33.001, et

seq.

Third Affirmative Defense

As a third separate and affirmative defense to Plaintiffs Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants assert that Plaintiff failed,

in whole or in part, to mitigate or reasonably avoid their damages, if any, and Defendants are not

responsible for damages, if any, resulting from the Plaintiffs failure to act with ordinary prudence

to eliminate or reduce the effects of their damages, if any, that resulted from the events in question.

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Fourth Affirmative Defense

As a fourth separate and affirmative defense to Plaintiffs Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants assert that some and/or all

of the injuries and conditions of which Plaintiff complains are due, in whole or in part, to pre¬

existing and degenerative injuries and conditions, wholly unrelated to the incident at issue and for

which Defendants are not responsible.

Fifth Affirmative Defense

As a fifth separate and affirmative defense to Plaintiffs Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants assert that any award to

Plaintiff should not include pre-judgment interest because any delay in the trial of the case has not

been caused by Defendants. Accordingly, an award of pre-judgment interest would be

unreasonable and improper given the circumstances of the case.

Sixth Affirmative Defense

As a sixth separate and affirmative defense to Plaintiffs Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants assert that Plaintiffs prior

collision and becoming disabled in a lane of travel constituted a sudden emergency such that the

impact with Plaintiffs vehicle by Defendant Wren was not proximately caused by Defendant

Wren. Furthermore, Defendant acted reasonably and prudently under the circumstances.

Seventh Affirmative Defense

As a seventh separate and affirmative defense to Plaintiffs Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants assert that the collision

with Plaintiff was an unavoidable accident that resulted from Defendant Moreno’s vehicle

colliding with Defendant Plaintiff s vehicle. As such, Defendants asserts that the accident between

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Plaintiff and Defendant Wren did not result due to any negligent action of Defendant Wren, and

that Defendant Wren could not prevent the accident that resulted with Plaintiff through the exercise

of due care. Specifically, Plaintiffs vehicle came to rest in the middle of a lane of travel on

Interstate 45 and Defendant Wren could not change lanes to avoid Plaintiffs vehicle due to the

presence of other vehicles in adjacent lanes.

III.
Section 18.091

Defendants invoke Section 18.091 of the Texas Civil Practice and Remedies Code. To

the extent Plaintiff seeks recovery for loss of earnings, loss of earning capacity, loss of

contributions of a pecuniary value or loss of inheritance, the evidence to prove such loss must be

presented in the form of net loss after reduction of income tax payments or unpaid tax liability.

Defendants further request the Court to instruct the jury as to whether any recovery for

compensatory damages sought by Plaintiff are subject to federal or state income taxes.

IV.
Section 41.0105

Defendants invoke Section 41.0105 of the Texas Civil Practice and Remedies Code.

To the extent Plaintiff seeks recovery of medical or healthcare expenses incurred, the evidence to

prove such loss must be limited to the amount actually paid or incurred by or on behalf of Plaintiff.

Defendants further request the Court to instruct the jury as to whether any recovery for medical or

healthcare expenses sought by Plaintiff are limited to the amount actually paid or incurred by or

on behalf of Plaintiff.

V.
Right To Amend

Defendants respectfully reserve the right to Amend this Answer to Plaintiff’s allegations,

amendments, supplement or other allegations after he has had an opportunity to more closely

17
investigate the claims, as is his right and privilege under the Texas Rules of Civil Procedure

and the laws of the State of Texas.

VI.
Notice To Plaintiff

Defendants hereby give notice of the intent to utilize items produced in discovery in the

trial of this matter and the authenticity of said items is self-proven under Rule 193.7 of the Texas

Rules of Civil Procedure.

VII.
Jury Demand

In accordance with Rule 216 of the Texas Rules of Civil Procedure, Defendants have

demanded a trial by jury, all fees having previously been paid or are being contemporaneously

paid with the filing of this pleading.

WHEREFORE, PREMISES CONSIDERED, Defendants, KELLY RAY WREN and

DRAGGIN TOOLS TRUCKING, LLC, pray that the Plaintiff takes nothing by this suit, that

Defendants go hence with their costs without delay, and for such other and further relief, both

general and special, at law and in equity, to which Defendants may show themselves justly entitled.

Respectfully submitted,

Fee, Smith & Sharp L.L.P.

<y
BRIAN G. CANO
State Bar No. 24045613
STEPHEN M. MENGIS
State Bar No. 24094842
2777 Allen Parkway, Suite 800
Houston, Texas 77019
713-362-8313
713-362-8302 [Fax]
beano @ feesmi th .com
smengis@feesmith.com
ATTORNEYS FOR DEFENDANTS
5

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CERTIFICATE OF SERVICE

This Will Certify that a true and correct copy of the foregoing instrument has been
mailed, telecopied or hand delivered to all attorneys of record in this cause of action on the 10th
day of March, 2023.

_£
BRIAN G. CANO

19
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.

Kourtney Mouton on behalf of Brian Cano
Bar No. 24045613
kmouton@feesmith.com
Envelope ID: 73567313
Status as of 3/10/2023 4:11 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Daragh Carter dcarter@smithandhassler.com 3/10/2023 3:59:52 PM SENT

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3/13/2023 3:15 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73609395
By: Derrick Abram
Cause No. 2023-07113 Filed: 3/13/2023 3:15 PM

ASHLIE DOMINGUEZ § IN THE DISTRICT COURT
§
VS. § 281ST JUDICIAL DISTRICT
§
EDUARDO MORENO, KELLY RAY § HARRIS COUNTY, TEXAS
WREN AND DRAGGIN' TOOLS
TRUCKING, LLC

Defendant's Original Answer and Notice of Appearance

Defendant Eduardo Moreno (driver’s license number XXXXX852, social security

number XXX-XX-X276) answers as follows:

Defendant asserts a general denial as authorized by Texas Rule of Civil Procedure 92.

Jury Demand

Pursuant to the provisions of Texas Rule of Civil Procedure 216, Defendant requests a

jury trial and is electronically submitting payment for the jury fee simultaneously with this filing.

Notice

All attorneys and staff of Linda M. Villarreal & Associates are employees of the Law

Department of State Farm Mutual Automobile Insurance Company.

Defendant Eduardo Moreno respectfully requests that Plaintiff take nothing, that

Defendant recover costs, and that the Court grant other relief, both general and special, to which

Defendant is entitled.

21
Respectfully submitted,

Linda M. Villarreal & Associates

Larry itnapp C/ ff
Texas Bar Number: 11581500
1221 Lamar, Suite 900
Houston, Texas 77010
Telephone: (713)437-8200
Facsimile: (855) 460-3974
Email: stex.law-villarreal@statefarm.com
Attorneys for Defendant
Eduardo Moreno

Certificate of Service

I certify that a copy of this document was served pursuant to the Texas Rules of Civil
Procedure on all parties and/or their respective attorneys of record on March 13, 2023.

Via E-Service
Mr. Daragh J. Carter
Smith & Hassler
1225 N Loop W, Suite 525
Houston, TX 77008

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 a
certificate of service that complies with all applicable rules.

Envelope ID: 73609395
Filing Code Description: Answer/ Response I Waiver
Filing Description: Defendant's Original Answer and Notice of Appearance
and Jury Fee
Status as of 3/13/2023 4:08 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Daragh Carter dcarter@smithandhassler.com 3/13/2023 3:15:12 PM SENT

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8/6/2024 1:1 9 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 90584783
By: Talitha McCarty
Filed: 8/6/2024 1:1 9 PM

CAUSE NO. 2023-07113

ASHLIE DOMINGUEZ § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § HARRIS COUNTY, TEXAS
§
EDUARDO MORENO, KELLY RAY §
WREN, AND DRAGGIN TOOLS §
TRUCKING, LLC, §
§
Defendants. § 281st JUDICIAL DISTRICT

Consolidated with'.

CAUSE NO. 2023-36840

ORLANDO HAYWARD AND REYNA § IN THE DISTRICT COURT OF
HAYWARD, INDIVIDUALLY AND AS §
REPRESENTATIVES OF THE ESTATE §
OF NIGUEL HAYWARD, DECEASED §
§
Plaintiffs, §
§
v. § HARRIS COUNTY, TEXAS
§
EDUARDO MORENO §
§
Defendant. § 215th JUDICIAL DISTRICT

PLAINTIFFS’ FIRST AMENDED PETITION

COME NOW, Orlando Hayward and Reyna Hayward, Individually and as Representatives

of the Estate of Niguel Hayward, Deceased, (hereinafter collectively “Plaintiffs”), and file this

First Amended Petition against Eduardo Moreno, Draggin’ Tools Trucking LLC, Kelley Ray Wren,

Sandbaggers Pub NP, and Lifey Leasing, Inc. d/b/a Molly’s Pub (hereinafter collectively “Defendants”),

and in support thereof would respectfully show this Honorable Court the following:

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I.
DISCOVERY CONTROL PLAN

1. Pursuant to Rules 190. 1 and 190.4 of the Texas Rules of Civil Procedure, Plaintiffs

intend that discovery be conducted under Level 3.

II.
PARTIES

2. Plaintiff, Orlando Hayward, is the biological father of Niguel Hayward, Deceased,

and is a Texas resident.

3. Plaintiff, Reyna Hayward, is the biological mother of Niguel Hayward, Deceased,

and is a Texas resident.

4. Defendant, Eduardo Moreno (“Moreno”), is an individual residing in Harris

County, Texas. Defendant Moreno has appeared and answered herein.

5. Defendant, Draggin’ Tools Trucking LLC (“Draggin’ Tools Trucking”), is a

domestic limited liability company with its principal place of business in the State of Texas.

Defendant Draggin’ Tools Trucking may be served through its registered agent: Paul Tullos at

11133 Interstate 45 South, Suite 400, Conroe, Texas 77302, or wherever he may be found.

6. Plaintiffs specifically invoke their right to institute this suit against whatever entity

was conducting business using the assumed or common name of “Draggin’ Tools Trucking” with

regard to the events described in this Petition. Plaintiffs expressly invoke their right under Rule 28

of the Texas Rules of Civil Procedure to have the true name of this party substituted at a later time

upon the motion of any party or on the Court’s own motion.

7. Defendant, Kelley Ray Wren (“Wren”), is an individual residing in Montgomery

County, Texas and may be served with process at his last known address, 22402 Glenmont Estates

Boulevard, Magnolia, Texas 77355, or wherever he may be found.

2
25
8. Defendant, Sandbaggers Pub NP (“Sandbaggers Pub”), is a domestic nonprofit

corporation with its principal place of business in the State of Texas. Defendant Sandbaggers Pub

may be served through its registered agent: Raymond Earl Walters at 11799 FM 1485, Conroe,

Texas 77306, or wherever he may be found.

9. Plaintiffs specifically invoke their right to institute this suit against whatever entity

was conducting business using the assumed or common name of “Sandbaggers Pub” with regard

to the events described in this Petition. Plaintiffs expressly invoke their right under Rule 28 of the

Texas Rules of Civil Procedure to have the true name of this party substituted at a later time upon

the motion of any party or on the Court’s own motion.

10. Defendant, Lifey Leasing Inc. d/b/a Molly’s Pub (“Molly’s Pub”), is a domestic

for-profit corporation with its principal place of business in the State of Texas. Defendant Molly’s

Pub may be served through its registered agent: Karen S. Vilt at 10701 Corporate Drive, Suite 236,

Stafford, Texas 77477, or wherever she may be found.

11. Plaintiffs specifically invoke their right to institute this suit against whatever entity

was conducting business using the assumed or common name of “Molly’s Pub” with regard to the

events described in this Petition. Plaintiffs expressly invoke their right under Rule 28 of the Texas

Rules of Civil Procedure to have the true name of this party substituted at a later time upon the

motion of any party or on the Court’s own motion.

III.
JURISDICTION AND VENUE

12. The Court has jurisdiction of the subject matter of this lawsuit and the amount in

controversy is above the minimum jurisdictional limits of this Honorable Court as Plaintiffs seek

aggregate monetary relief over $1,000,000.00. See Tex. R. Civ. P. 47. Additionally, removal to

federal court would be improper because this lawsuit does not involve a federal question, this

3
26
lawsuit lacks diversity and/or because of the forum defendant rule.

13. Venue is proper pursuant to Section 15.002(a)(2) of the Texas Civil Practice and

Remedies Code because Harris County is the county of Defendant Eduardo Moreno’s residence at

the time the cause of action accrued. Because Plaintiffs have established proper venue against

Defendant Eduardo Moreno, venue is proper in Harris County as to all Defendants in all claims or

actions arising out of the same transaction, occurrence, or series of transactions or occurrences.

See Tex. Civ. Prac. & Rem. Code Ann. § 15.005.

IV.
FACTS

14. On or about November 15, 2022, Decedent Niguel Hayward (“Decedent”) was

driving northbound on IH-45, in Walker County, Texas.

15. At the same time, Defendant Eduardo Moreno was intoxicated and driving

southbound in the northbound lanes on IH-45, on the wrong side of the road, when he struck

Decedent’s vehicle head on (“Incident”). Decedent’s vehicle was left disabled facing southwest

in the center lane.

16. Following the Incident, a second collision occurred. Defendant Kelley Ray Wren

was travelling northbound on IH-45. Defendant Wren was operating a tractor, pulling a trailer.

Defendant Wren struck Decedent’s vehicle causing it to spin. Upon information and belief,

Defendant Draggin’ Tools Trucking was the owner and/or operator of the tractor trailer being

operated by Defendant Wren.

17. As a result of the Incident, Decedent suffered fatal injuries and was pronounced

deceased on scene.

18. Upon information and belief, Defendant Moreno had been drinking at Defendant

Sandbaggers Pub and Molly’s Pub prior to the incident occurring.

4
27
V.
CAUSES OF ACTION AGAINST DEFENDANT EDUARDO MORENO

A. Negligence

19. Incorporating the above-stated facts, at the time and on the occasion in question,

Defendant Moreno failed to use ordinary care by various acts or omissions and/or commissions,

including but not limited to the following:

a. Driving while intoxicated;

b. Failure to control the speed of his vehicle;

c. Failure to operate his vehicle in obedience to traffic laws and regulations;

d. Failure to properly brake;

e. Failure to take proper evasive actions;

f. Failure to turn in a manner to avoid the collision;

g. Failure to keep a proper lookout;

h. Failure to warn or timely warn; and

i. Any and all other acts or omissions that are deemed negligent.

20. Such negligence, either singularly or in combination, proximately caused the

collision, Decedent’s fatal injuries, and Plaintiffs’ resulting damages.

B. Negligence Per Se

21. In addition, and in the alternative, Defendant Moreno’s actions constituted

negligence per se. Defendant Moreno violated the Texas Penal Code by driving while intoxicated

in violation of Texas Penal Code § 49.04 and causing injury to another while intoxicated in

violation of Texas Penal Code § 49.07. Thus, Defendant Moreno was negligent per se. Such

negligence per se was a proximate cause of the collision in question and of Decedent’s fatal injuries

and Plaintiffs’ resulting damages.

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28
22. Decedent Niguel Hayward was a member of the class that the Texas Penal Code

was designed to protect, and the collision was the type of incident to be protected against.

C. Gross Negligence

23. Plaintiffs make a claim for punitive damages pursuant to the Texas Constitution;

therefore, Plaintiffs will not be prohibited from introducing evidence of actual damages. Plaintiffs

seek punitive damages for the gross negligence and/or malicious conduct of Defendant Moreno

which was a proximate cause of the collision in question and of Decedent’s fatal injuries and

Plaintiffs’ resulting damages.

VI.
CAUSES OF ACTION AGAINST DEFENDANT DRAGGIN’ TOOLS TRUCKING

A. Negligent Hiring

24. Plaintiffs plead that Defendant Draggin’ Tools Trucking owed a legal duty to

protect Decedent from the negligence of Defendant’s driver while he was acting in the course and

scope of his employment with, or alternatively, while he was on a mission on behalf of Defendant.

Plaintiff’s and Decedent sustained damages proximately caused by Defendant Draggin’ Tools

Trucking’s breach of said duty. In particular, Defendant Draggin’ Tools Trucking was negligent

in hiring Defendant’s driver, an incompetent, unfit, or reckless employee-driver whom Defendant

Draggin’ Tools Trucking knew, or by the exercise of reasonable care should have known, to be

incompetent, unfit, or reckless, thereby creating an unreasonable risk of harm to others.

B. Negligent Retention

25. Plaintiffs further plead that Defendant Draggin’ Tools Trucking negligently

retained Defendant’s driver as an employee-driver. Draggin’ Tools Trucking owed Decedent a

legal duty to protect Decedent from the negligence of Defendant’ s driver while he was acting in

the course and scope of his employment with, or alternatively, while he was on a mission on behalf

6
29
of Draggin’ Tools Trucking. Plaintiffs and Decedent sustained damages proximately caused by

Draggin’ Tools Trucking’s breach of said duty. In particular, Draggin’ Tools Trucking was

negligent in retaining Defendant’s driver, an incompetent, unfit, or reckless employee-driver

whom Draggin’ Tools Trucking knew, or by the exercise of reasonable care should have known,

to be incompetent, unfit, or reckless, thereby creating an unreasonable risk of harm to others.

C. Negligent Entrustment

26. Plaintiffs further plead Defendant Draggin’ Tools Trucking negligently entrusted

their motor vehicle to their employee, Defendant’s driver. Draggin’ Tools Trucking was the owner

of the motor vehicle involved in the incident and consented to and permitted their employee,

Defendant’ s driver, to operate the motor vehicle at the time of the incident. Defendant’s driver was

an incompetent or reckless driver and Draggin’ Tools Trucking knew or should have known

Defendant’ s driver was an incompetent or reckless driver. Defendant’ s driver was negligent on the

occasion in question in a manner that was reasonably foreseeable by Draggin’ Tools Trucking, and

the negligence proximately caused Plaintiffs’ and Decedent’s injuries.

D. Respondeat Superior

27. Plaintiffs affirmatively plead that any alleged acts or negligence of Defendant’s

driver was committed while he was acting in the course and scope of his employment with, or

alternatively, while he was on a mission on behalf of Defendant Draggin’ Tools Trucking and are

thus imputed on to Draggin’ Tools Trucking under legal theory of respondeat superior.

VII.
CAUSES OF ACTION AGAINST DEFENDANT KELLEY RAY WREN

A. Negligence

28. At the time and on the occasion in question, Defendant Wren committed acts of

omission and commission, which collectively and separately constituted negligence. Defendant

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30
Wren had a duty to exercise ordinary care, meaning that degree of care that would be used by any

individual of ordinary prudence under the same or similar circumstances. Defendant Wren

breached that duty, including but not limited to, one or more of the following ways:

a. Failing to maintain a proper lookout;

b. Failing to operate the truck in obedience with traffic laws and regulations;

c. Failing to operate the truck in a reasonable and prudent manner;

d. Failing to properly maneuver the truck to avoid a collision;

e. Failing to take proper evasive action to avoid a collision;

f. Failing to control speed;

g. Failing to pay attention to the conditions of the tractor-trailer, the road, weather, and/or
traffic;

h. Failing to operate the vehicle in a non-negligent manner; and

i. Driving the truck in willful and wanton disregard for the rights, safety, and welfare of
persons.

29. Such negligence, either singularly or in combination, proximately caused the

injuries and damages sustained by the Plaintiffs and Decedent.

B. Gross Negligence

30. Defendant Wren’s acts and omissions, as previously described, were committed

with complete and reckless disregard for, and with willful, wanton, and actual conscious

indifference to, the rights, safety, and welfare of Decedent, and the general public. Specifically,

Defendant Wren endangered Decedent and the general public when he failed to take proper evasive

action. The nature of Defendant Wren’s acts and omissions were of such a nature as to constitute

gross negligence and malice. Specifically, Defendant Wren undertook a continuous course of

action in the form of conscious decisions, with subjective knowledge and awareness of the risks

8
31
and hazards presented by each decision as discussed above and incorporated herein, to expose

Plaintiff and others on the roadway to life threatening hazards. When viewed objectively from the

standpoint of Defendant Wren at the time of their occurrence, said acts and omissions involved an

extreme degree of physical risk and danger, considering the probability and the magnitude of the

potential harm to others. Defendant Wren committed various acts and omissions constituting gross

negligence, as outlined above. Such gross negligence was a proximate cause of the Incident and

Plaintiffs’ and Decedent’s resulting injuries and damages. Therefore, Plaintiffs are entitled to

punitive and/or exemplary damages.

VIII.
CAUSES OF ACTION AGAINST DEFENDANTS SANDBAGGERS PUB AND
MOLLY’S PUB

A. Dram Shop Act Violations

31. Defendants Sandbaggers Pub and Molly’s Pub, their agents, servants, employees,

security personnel, and management violated the Dram Shop Act codified as V.T.C.A. Alcohol

Beverage Code § 2.02. Defendants Sandbaggers Pub and Molly’s Pub were the negligent providers

under the Act, in that they served, sold, or provided alcoholic beverages to a person who was

obviously intoxicated to the extent that they presented a clear danger to themselves and others.

This conduct by Defendants Sandbaggers Pub and Molly’s Pub contributed to Defendant Moreno’ s

state of intoxication and were thus a proximate cause of the injuries sustained by Decedent. The

bartenders, wait staff, and employees who served alcohol to Defendant Moreno were all acting in

the course and scope of their employment with Defendants Sandbaggers Pub and Molly’s Pub.

Thus, Defendants Sandbaggers Pub and Molly’s Pub are responsible for the actions of their

management, bartenders, wait staff, security personnel, and all other employees under the legal

theory of respondeat superior.

9
32
32. To the extent Defendants Sandbaggers Pub and Molly’s Pub seek to shield

themselves from liability by claiming protection under the safe harbor provisions of the Dram

Shop Act, Defendants Sandbaggers Pub and Molly’s Pub directly and/or indirectly encouraged

their servers to violate the Dram Shop Act by continuing to serve intoxicated persons. Thus,

Defendants Sandbaggers Pub and Molly’s Pub are not entitled to claim safe harbor protections.

B. Respondeat Superior

33. At all times relevant hereto, Defendants Sandbaggers Pub and Molly’ s Pub had

the right to control the physical details of the manner of performance of the conduct of its

employees or agents so as to subject Defendants Sandbaggers Pub and Molly’s Pub to vicarious

liability for the torts of its employees or agents.

34. Alternatively, at all times relevant hereto, the acts of the employees of

Defendants Sandbaggers Pub and Molly’s Pub were performed during their employment with

Defendants Sandbaggers Pub and Molly’s Pub, to further their business and to accomplish the

objective for which they were hired and were within the course and scope of employment or

within the authority delegated to them so as to subject Defendants Sandbaggers Pub and Molly’s

Pub to vicarious liability for their torts.

IX.
SURVIVAL ACTION

35. As a result of the wrongful conduct of Defendant as described above, Decedent

suffered physical pain, suffering and mental anguish prior to his death. Additionally, his Estate

incurred medical and funeral expenses for which Defendants are liable. As representative of

Decedent’s Estate, Plaintiffs asserts the above-pled causes of action against Defendants on behalf

of Decedent’s Estate pursuant to Texas Civil Practice & Remedies Code § 71.021.

36. As result of the wrongful conduct of Defendant, Plaintiffs, as Representative of the

10
33
Estate of Niguel Hayward, Deceased, brings this survival action for the following damages Niguel

Hayward sustained, which survive Decedent’s untimely death:

a. Past physical pain and mental anguish;

b. Funeral expenses; and

c. Medical expenses.

X.
WRONGFUL DEATH

37. Because the wrongful conduct of Defendant, and their agents and employees

described above, caused the death of Decedent, and because Decedent would have a cause of action

against Defendant for his injuries had he lived, Plaintiffs have a cause of action against Defendant

to recover damages for the wrongful death of Niguel Hayward pursuant to Texas Civil Practice &

Remedies Code §§ 71.002 and 71.003. These damages include:

a. Past and future pecuniary losses;

b. Past and future loss of companionship and society;

c. Past and future mental anguish; and

d. Loss of inheritance.

XI.
DAMAGES

38. As a result of this incident, Plaintiffs sustained serious injuries and seek

compensation for the following damages:

a. Past and future mental anguish;

b. Past and future medical expenses;

c. Past and future lost wages or loss of earning capacity;

d. Loss of household services;

11
34
e. Loss of companionship and society;

f. Loss of enjoyment of life;

g. Costs of suit;

h. Pre-judgment and post-judgment interest as allowed by law; and

i. Any and all other damages to which Plaintiffs may be justly entitled.

XII.
TRCP 193.7

39. Pursuant to Texas Rule of Civil Procedure 193.7, Defendants are hereby put on

actual notice that any documents produced in response to written discovery will be used in pretrial

proceedings and at trial and will be deemed authentic unless they make valid objections to

authenticity pursuant to this rule.

XIII.
PRESERVATION OF EVIDENCE

40. Plaintiffs hereby request and demand that Defendants and their agents, attorneys

and insurers preserve and maintain all evidence pertaining to any claim or defense to the incident

made the basis of this lawsuit, or the damages resulting therefrom, including but not limited to

photographs; videotapes; audiotapes; recordings; business records; memoranda; files; facsimiles;

e-mails; voicemails; text messages; sales receipts; invoices; commission records; tax records;

telephone messages; telephone calling card transactions; calendar entries; diary entries; any

incident report; and any electronic image, data or information related to the referenced incident.

Failure to maintain such items, including but not limited to any other items previously requested

and demanded to be preserved before the subject lawsuit ensued, will constitute a “spoliation” of

the evidence and may subject Defendants to sanctions.

12
35
PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to

appear and answer herein, and that upon final hearing, Plaintiffs have judgment for all damages in

accordance with their pleadings and proof, for costs of Court herein expended, for interest, both

pre-and post-judgment, to which they are entitled under the law, and for such other and further

relief, both general and special, legal and equitable, to which they may be justly entitled.

Respectfully submitted,

ABRAHAM, WATKINS, NICHOLS,
AGOSTO, AZIZ & STOGNER

By: /s/ Muhammad S. Aziz
Muhammad S. Aziz
Texas Bar No. 24043538
800 Commerce Street
Houston, Texas 77002
Telephone: (713)222-7211
Facsimile: (713)225-0827
maziz@awtxlaw.com

ATTORNEY FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that on this 6th day of August 2024, a true and correct copy of the foregoing
document was served upon all counsel of record in accordance with the Texas Rules of Civil
Procedure.

/s/ Muhammad A. Aziz
Muhammad S. Aziz

13
36
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.

Jessica Dean on behalf of Muhammad Aziz
Bar No. 24043538
jdean@awtxlaw.com
Envelope ID: 90584783
Filing Code Description: Amended Filing
Filing Description: Plaintiffs' First Amended Petition
Status as of 8/6/2024 1:42 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Carlos A.Balido BalidoEDocsNotifications@wbclawfirm.com 8/6/2024 1:19:05 PM SENT

Laura Wright WrightEdocsNotifications@wbclawfirm.com 8/6/2024 1:19:05 PM SENT

Brian G.Cano bcano@feesmith.com 8/6/2024 1:19:05 PM SENT

Stephen Mengis smengis@feesmith.com 8/6/2024 1:19:05 PM SENT

Gina Williams gwilliams@feesmith.com 8/6/2024 1:19:05 PM SENT

Jaclyn Degollado jdegollado@feesmith.com 8/6/2024 1:19:05 PM SENT

Stephen Mengis 24094842 smengis@feesmith.com 8/6/2024 1:19:05 PM SENT

Daragh Carter dcarter@smithandhassler.com 8/6/2024 1:19:05 PM SENT

Abigail Villegas avillegas@smithandhassler.com 8/6/2024 1:19:05 PM SENT

Brian G.Cano bcano@feesmith.com 8/6/2024 1:19:05 PM SENT

MUHAMMAD S.AZIZ maziz@awtxlaw.com 8/6/2024 1:19:05 PM SENT

Jessica L.Dean jdean@awtxlaw.com 8/6/2024 1:19:05 PM SENT

37
8/7/2024 10:28 AM
Marilyn Burgess - District Clerk Harris County
Envelope No. 90622006
By: Talitha McCarty
Filed: 8/6/2024 3:13 PM
Cause No. 2023-07113

ASHLIE DOMINGUEZ § IN THE DISTRICT COURT
§
§
vs. § 281st JUDICIAL DISTRICT
§
§
EDUARDO MORENO, KELLY RAY §
WREN AND DRAGGIN TOOLS §
TRUCKING, LLC § HARRIS COUNTY, TEXAS

PLAINTIFF’S FIRST AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Ashlie Dominguez, Plaintiff, and files her First Amended Petition

complaining of Defendants Eduardo Moreno, Sandbaggers Pub NP, and Lifey Leasing Inc.

d/b/a Molly’s Pub, and respectfully would show this court as follows:

PARTIES

1. Plaintiff Ashlie Dominguez resides in Harris County, Texas.

2. Defendant Eduardo Moreno (“Defendant Moreno”) is an adult male individual

residing at 927 N BRIGHT DRIVE, HOUSTON, TX 77073 and may be served with process

at his last known residential address or wherever he may be found. This Defendant has

appeared and answered.

3. Defendant SANDBAGGERS PUB NP (“Defendant Sandbaggers”) is an entity

organized under the laws of the State of Texas, doing business in the State of Texas, and

may be served with process by serving its registered agent, RAYMOND EARL WALTERS

at 11799 FM 1485, CONROE, TEXAS 77306. Citation requested.

4. Defendant LIFEY LEASING, INC. d/b/a MOLLY’S PUB (“Defendant Molly’s

38
Pub”) is an entity organized under the laws of the State of Texas, doing business in the

State of Texas, and may be served with process by serving its registered agent, KAREN S.

VILT at 10701 CORPORATE DRIVE, SUITE 236, STAFFORD, TEXAS 77477 Citation

requested.

5. Plaintiff Ashlie Dominguez specifically invokes her right to institute this suit

against whatever entity was conducting business using the assumed or common name of

“Molly’s Pub” regarding the events described in this Petition. Plaintiff expressly invokes her

right under Rule 28 of the Texas Rules of Civil Procedure to have the true name of this

party substituted later upon the motion of any party or on the Court’s own motion.

JURISDICTION & VENUE

6. This court has jurisdiction over this controversy because the damages are

within the jurisdictional limits of this court. Venue is proper in Harris County, Texas, per

Tex CPRC §15.002(a)(2) because Defendant Moreno resides in Harris County.

DISCOVERY LEVEL

7. Plaintiff Dominguez requests that discovery in this case be governed at the

level 3 category, pursuant to Tex. R. Civ. P. 190.4.

FACTUAL BACKGROUND AND CAUSES OF ACTION

8. PLAINTIFF was severely injured in a motor vehicle collision that occurred in

the early morning hours of November 15, 2022.

9. Plaintiff Dominguez was riding as a restrained passenger in a Chrysler sedan

driven by Niguel Hayward. The Chryslerwas traveling northbound, in the northbound lanes,

of Interstate 45 near mile marker 102.

10. Defendant Moreno was operating a Jeep Wrangler, traveling southbound in

the northbound lanes of Interstate 45 near mile marker 102. Stated differently, Defendant

39
Moreno was driving the wrong way on the freeway.

11. Defendant Moreno caused the Jeep to collide head-on with the Chrysler. The

damaged and disabled Chrysler spun out on the freeway, coming to rest facing southwest

in the middle lane.

12. Defendant Kelly Ray Wren was traveling northbound in the northbound lanes

of Interstate 45, driving an 18-wheeler in the course and scope of Defendant Wren’s

employment for Defendant Draggin’ Tools Trucking LLC.

13. Defendant Wren came upon the disabled Chrysler, occupied by Plaintiff

Dominguez. Defendant Wren failed to avoid the disabled Chrysler, causing the 18-wheeler

to collide with the Chrysler.

14. Upon information and belief, Defendant Moreno had been drinking at

Defendant Sandbaggers and Defendant Molly’s Pub prior to the collision.

CAUSES OF ACTION AGAINST DEFENDANT MORENO

A. NEGLIGENCE

15. Defendant Moreno was negligent on the occasion in question. Defendant

Moreno owed Plaintiff Dominguez a duty to operate his vehicle on a public roadway as

would a person of ordinary prudence. Defendant Moreno breached this duty in one or more

of the following ways:

a. Driving the wrong way on the freeway;

b. Failing to take evasive action to avoid colliding with the Chrysler;

c. Failing to keep a proper lookout;

d. Failing to timely apply brakes;

e. Falling to control speed;

f. Failing to yield the right-of-way to the Chrysler; and

40
g. Driving while intoxicated.

B. NEGLIGENCE PERSE

16. Defendant Moreno’s actions constituted negligence per se. Defendant

Moreno violated the Texas Penal Code by driving while intoxicated in violation of Texas

Penal Code § 49.04 and causing injury to another while intoxicated in violation of Texas

Penal Code § 49.07. Therefore, Defendant Moreno was negligent per se.

C. GROSS NEGLIGENCE

17. Plaintiff Dominguez makes a claim for punitive damages pursuant to the

Texas Constitution; therefore, Plaintiff Dominguez will not be prohibited from introducing

evidence of actual damages. Plaintiff seeks punitive damages for the gross negligence

and/or malicious conduct of Defendant Moreno, which was a proximate cause of the

collision in question, and Plaintiff Dominguez’s severe injuries and resulting damages.

CAUSES OF ACTION AGAINST
DEFENDANTS SANDBAGGERS, AND MOLLY’S PUB

A. DRAM SHOP VIOLATIONS

18. Defendants Sandbaggers and Molly’s Pub, their agents, servants, employees,

security personnel, and management, violated the Dram Shop Act codified as V.T.C.A.

Alcohol Beverage Code § 2.02. Defendants Sandbaggers and Molly’s Pub were the

negligent providers under the Act, in that they served, sold, or provided alcoholic beverages

to a person who was obviously intoxicated to the extent that they presented a clear danger

to themselves and others. This conduct by Defendants Sandbaggers and Molly’s Pub

contributed to Defendant Moreno’s state of intoxication and were thus a proximate cause of

the injuries sustained by Plaintiff Dominguez. The bartenders, waitstaff, and employees

who served alcohol to Defendant Moreno were all acting in the course and scope of their

41
employment with Defendants Sandbaggers and Molly’s Pub. Thus, Defendants

Sandbaggers and Molly’s Pub are responsible for the actions of their management,

bartenders, waitstaff, security personnel, and all other employees under the legal theory of

respondeat superior.

19. To the extent Defendants Sandbaggers and Molly’s Pub seek to shield

themselves from liability by claiming protection under the safe harbor provisions of the

Dram Shop Act, Defendants Sandbaggers and Molly’s Pub directly and/or indirectly

encouraged their servers to violate the Drawm Shop Act by continuing to serve intoxicated

persons. Thus, Defendants Sandbaggers and Molly’s Pub are not entitled to claim safe

harbor protections.

B. RESPONDEAT SUPERIOR

20. At all times relevant hereto, Defendants Sandbaggers and Molly’s Pub had

the right to control the physical details of the manner of performance of the conduct of their

employees or agents, to subject Defendants Sandbaggers and Molly’s Pub to vicarious

liability for the torts of its employees or agents.

21. Alternatively, at all times relevant hereto, the acts of the employees of

Defendants Sandbaggers and Molly’s Pub were performed during their employment with

Defendants Sandbaggers and Molly’s Pub, to further their business and to accomplish the

objective for which they were hired, and where within the course and scope of employment

or within the authority delegated to them so as to subject Defendants Sandbaggers and

Molly’s Pub to vicarious liability for their torts.

DAMAGES

22. As a direct and proximate result of the above-described acts of negligence,

and gross negligence, Plaintiff Dominguez will show she suffered actual damages within

42
the jurisdictional limits of this Court. Plaintiff Dominguez seeks fair compensation for the

following damages:

a. Physical pain in the past and future;

b. Mental Anguish in the past and future;

c. Physical Impairment in the past and future;

d. Disfigurement and scarring in the past and future;

e. Prejudgment and post-judgment interest;

f. Exemplary damages for gross negligence and/or malice; and

g. Any other damages to which Plaintiff Dominguez may be justly entitled.

STATEMENT OF RELIEF SOUGHT

23. Pursuant to Texas Rule of Civil Procedure 47, Plaintiff Dominguez seeks

monetary relief over $1,000,000.

PRAYER

24. For these reasons Plaintiff Dominguez prays this court cite Defendants to

appear and answer herein and that Plaintiff Dominguez have judgment taken against

Defendants and recover all damages allowed by law, pre-judgment, and post judgment

interest as allowed by law, costs of court, and such other and further relief, both general

and special, at law or in equity, to which Plaintiff Dominguez is justly entitled.

43
Respectfully submitted,

/s/ Daraqh Carter
Daragh Carter
TBN: 24050387
Smith & Hassler
1225 North Loop West, Suite 525
Houston, Texas 77008
(713) 739-1250
(713) 864-7226 Facsimile

ATTORNEY FOR PLAINTIFF
ASHLIE DOMINGUEZ

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was
electronically served Pursuant to Rules 21 and 21a of the Texas Rules of Civil Procedure
on all parties or their counsel of record on 08/06/2024.

/s/ Daragh Carter
Daragh Carter

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 a
certificate of service that complies with all applicable rules.

Abigail Villegas on behalf of Daragh Carter
Bar No. 24050387
avillegas@smithandhassler.com
Envelope ID: 90622006
Filing Code Description: Amended Filing
Filing Description: Amended Filing
Status as of 8/7/2024 10:36 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Carlos A.Balido BalidoEDocsNotifications@wbclawfirm.com 8/7/2024 10:28:31 AM SENT

Brian G.Cano bcano@feesmith.com 8/7/2024 10:28:31 AM SENT

Stephen Mengis 24094842 smengis@feesmith.com 8/7/2024 10:28:31 AM SENT

Stephen Mengis smengis@feesmith.com 8/7/2024 10:28:31 AM SENT

Gina Williams gwilliams@feesmith.com 8/7/2024 10:28:31 AM SENT

Daragh Carter dcarter@smithandhassler.com 8/7/2024 10:28:31 AM SENT

Abigail Villegas avillegas@smithandhassler.com 8/7/2024 10:28:31 AM SENT

Brian G.Cano bcano@feesmith.com 8/7/2024 10:28:31 AM SENT

Laura Wright WrightEdocsNotifications@wbclawfirm.com 8/7/2024 10:28:31 AM SENT

MUHAMMAD S.AZIZ maziz@awtxlaw.com 8/7/2024 10:28:31 AM SENT

Jessica L.Dean jdean@awtxlaw.com 8/7/2024 10:28:31 AM SENT

Jaclyn Degollado jdegollado@feesmith.com 8/7/2024 10:28:31 AM SENT

45
9/3/2024 9:02 AM
Marilyn Burgess - District Clerk Harris County
Envelope No. 91562155
By: Patricia Gonzalez
Filed: 9/3/2024 9:02 AM

PRG.16074
CAUSE NO. 2023-07113

ASHLIE DOMINGUEZ, § IN THE DISTRICT COURT
Plaintiff §
§
V. §
§ 281st JUDICIAL DISTRICT
EDUARDO MORENO, KELLY RAY §
WREN, and DRAGGIN TOOLS §
TRUCKING, LLC, §
Defendants. § HARRIS COUNTY, TEXAS

Consolidated with

CAUSE NO. 2023-36840

ORLANDO HAYWARD AND REYNA § IN THE DISTRICT COURT
HAYWARD, INDIVIDUALLY AND AS §
REPRESENTATIVES OF THE §
ESTATE OF NIGUEL HAYWARD, §
DECEASED, §
Plaintiffs, § 215th JUDICIAL DISTRICT
§
V. §
§
EDUARDO MORENO, §
Defendants. § HARRIS COUNTY, TEXAS

DEFENDANTS KELLY RAY WREN AND DRAGGIN TOOLS TRUCKING, LLC’s
GENERAL DENIAL, ORIGINAL ANSWER, AND AFFIRMATIVE DEFENSES TO
ORLANDO HAYWARD INDIVIDUALLY AND AS REPRESENTATIVES OF THE
ESTATE OF NIGUEL HAYWARD, DECEASED

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, KELLY RAY WREN and DRAGGIN TOOLS TRUCKING, LLC,

Defendants named in the above entitled and numbered cause, and files this their General Denial,

Original Answer, and Affirmative Defenses to Orlando Hayward and Reyna Hayward,

Individually and as Representatives of the Estate of Niguel Hayward, Deceased, and for same

would respectfully show unto the Court as follows:

1
4868-9097-5968, v. 1
46
I.
General Denial

Subject to such stipulations as may hereafter be made, Defendants assert a general denial

as is authorized by Rule 92 of the Texas Rules OF Civil Procedure, and Defendants respectfully

demand that Plaintiffs be required to prove the charges and allegations against Defendants by a

preponderance of the evidence as is required by the Constitution and law of the State of Texas.

II.
Affirmative Defenses

First Affirmative Defense

As a first separate and affirmative defense to Plaintiffs’ Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants assert at the time and on

the occasion in question, the claimed injuries and corresponding damages complained of therein

were proximately caused, in whole or in part, by the acts, omissions, fault, negligence, negligence

per se, responsibility, or other conduct, on the part of Plaintiffs, including but not limited to failing

to keep proper lookout, failure to pay attention, failing to timely apply the brakes, to take evasive

action, and other negligent conduct or omissions.

Second Affirmative Defense

As a second separate and affirmative defense to Plaintiffs’ Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants ask the Court and jury to

compare the relative percentages of fault of Plaintiffs, all other parties to this lawsuit, and any

negligent, culpable, and/or strictly liable third-party or parties and/or any other responsible third-

party or parties, whether a party to this suit or otherwise, with that of Defendants, if any, pursuant

to the doctrine of proportionate responsibility. See TEXAS CIVIL PRACTICE & REMEDIES CODE §

33.001, etseq. Such other responsible third-parties include those who may be responsible in whole

or in part for the injuries and/or damages alleged by Plaintiffs and/or for which a responsibility
2
4868-9097-5968, v. 1
47
submission would be proper pursuant to TEXAS CIVIL PRACTICE & REMEDIES CODE §33.001, et

seq.

Third Affirmative Defense

As a third separate and affirmative defense to Plaintiffs’ Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants assert that Plaintiffs failed,

in whole or in part, to mitigate or reasonably avoid their damages, if any, and Defendants are not

responsible for damages, if any, resulting from the Plaintiffs’ failure to act with ordinary prudence

to eliminate or reduce the effects of their damages, if any, that resulted from the events in question.

Fourth Affirmative Defense

As a fourth separate and affirmative defense to Plaintiffs’ Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants assert that any award to

Plaintiffs should not include pre-judgment interest because any delay in the trial of the case has

not been caused by Defendants. Accordingly, an award of pre-judgment interest would be

unreasonable and improper given the circumstances of the case.

Fifth Affirmative Defense

As a fifth separate and affirmative defense to Plaintiffs’ Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants assert that Plaintiffs’ prior

collision and becoming disabled in a lane of travel constituted a sudden emergency such that the

impact with Plaintiffs’ vehicle by Defendant Wren was not proximately caused by Defendant

Wren. Furthermore, Defendant acted reasonably and prudently under the circumstances.

Sixth Affirmative Defense

As a sixth separate and affirmative defense to Plaintiffs’ Original Petition, and all

subsequently filed supplemental and/or amended petitions, Defendants assert that the collision

with Plaintiffs was an unavoidable accident that resulted from Defendant Moreno’s vehicle
3
4868-9097-5968, v. 1
48
colliding with Plaintiffs’ vehicle. As such, Defendants asserts that the accident between Plaintiffs

and Defendant Wren did not result due to any negligent action of Defendant Wren, and that

Defendant Wren could not prevent the accident that resulted with Plaintiffs through the exercise

of due care. Specifically, Plaintiffs’ vehicle came to rest in the middle of a lane of travel on

Interstate 45 and Defendant Wren could not change lanes to avoid Plaintiffs’ vehicle due to the

presence of other vehicles in adjacent lanes.

Seventh Affirmative Defense

As a seventh separate and affirmative defense to Plaintiffs’ Original Petition, and all

subsequently filed supplemental and/or amended petitions, to the extent that Plaintiffs settle all or

a part of any of their claims herein with any entity, person, or party, Defendants assert the doctrine

of accord and satisfaction and release.

Eighth Affirmative Defense

As an eighth separate and affirmative defense to Plaintiffs’ Original Petition, and all

subsequently filed supplemental and/or amended petitions, to the extent that any party has settled

or may in the future settle with Plaintiffs, Defendants are entitled to and seek an appropriate credit

or reduction of any judgment against it, however unlikely. Defendants will make their request for

a credit or reduction at the appropriate time.

III.
Section 18.091

Defendants invoke Section 18.091 of the Texas Civil Practice and Remedies Code. To

the extent Plaintiffs seek recovery for loss of earnings, loss of earning capacity, loss of

contributions of a pecuniary value or loss of inheritance, the evidence to prove such loss must be

presented in the form of net loss after reduction of income tax payments or unpaid tax liability.

4
4868-9097-5968, v. 1
49
Defendants further request the Court to instruct the jury as to whether any recovery for

compensatory damages sought by Plaintiffs are subject to federal or state income taxes.

IV.
Section 41.0105

Defendants invoke Section 41.0105 of the Texas Civil Practice and Remedies Code.

To the extent Plaintiffs seek recovery of medical or healthcare expenses incurred, the evidence to

prove such loss must be limited to the amount actually paid or incurred by or on behalf of Plaintiffs.

Defendants further request the Court to instruct the jury as to whether any recovery for medical or

healthcare expenses sought by Plaintiffs are limited to the amount actually paid or incurred by or

on behalf of Plaintiffs.

V.
Punitive Damages

Pleading further, Defendants specifically invoke the provisions of Sections 41.008, 41.006,

and 41.011 of Texas Civil Practice & Remedies Code and the punitive damages limitations

contained therein. Plaintiffs are barred from recovering punitive damages from these Defendants.

In the alternative, Defendants plead the applicable statutes place a limitation or "cap" on the

punitive damages or statutory damages which Plaintiffs seek. Furthermore, in response to all

claims to punitive or statutory damages, Defendants affirmatively plead the right to due process

and the prohibition against excessive fines and penalties under both the United States and Texas

Constitutions.

VI.
Right To Amend

Defendants respectfully reserve the right to Amend this Answer to Plaintiffs’ allegations,

amendments, supplement or other allegations after he has had an opportunity to more closely

5
4868-9097-5968, v. 1
50
investigate the claims, as is his right and privilege under the Texas Rules of Civil Procedure

and the laws of the State of Texas.

VII.
Notice To Plaintiffs

Defendants hereby give notice of the intent to utilize items produced in discovery in the

trial of this matter and the authenticity of said items is self-proven under Rule 193.7 of the TEXAS

Rules of Civil Procedure.

VIII.
Jury Demand

In accordance with Rule 216 of the Texas Rules of Civil Procedure, Defendants have

demanded a trial by jury, all fees having previously been paid or are being contemporaneously

paid with the filing of this pleading.

WHEREFORE, PREMISES CONSIDERED, Defendants, KELLY RAY WREN and

DRAGGIN TOOLS TRUCKING, LLC, pray that the Plaintiffs take nothing by this suit, that

Defendants go hence with their costs without delay, and for such other and further relief, both

general and special, at law and in equity, to which Defendants may show themselves justly entitled.

Respectfully submitted,

Fee, Smith & Sharp L.L.P.

bSiX^ G. CANO
State Bar No. 24045613
STEPHEN M. MENGIS
State Bar No. 24094842
2777 Allen Parkway, Suite 800
Houston, Texas 77019
713-362-8313
713-362-8302 [Fax]
bcano@feesmith.com

ATTORNEYS FOR DEFENDANTS
6
4868-9097-5968, v. 1
51
CERTIFICATE OF SERVICE

This Will Certify that a true and correct copy of the foregoing instrument has been
mailed, telecopied or hand delivered to all attorneys of record in this cause of action on the 3rd day
of September, 2024.

BRIAN G. CANO

7
4868-9097-5968, v. 1
52
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.

Jaclyn Degollado on behalf of Stephen Mengis
Bar No. 24094842
jdegollado@feesmith.com
Envelope ID: 91562155
Filing Code Description: Answer/ Response I Waiver
Filing Description: Defendants General Denial, Original Answer and
Affirmative Defenses to Orlando Hayward and Reyna Hayward,
Individually and as Representatives of the Estate of Niguel Hayward,
Deceased
Status as of 9/3/2024 9:39 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Carlos A.Balido BalidoEDocsNotifications@wbclawfirm.com 9/3/2024 9:02:09 AM SENT

Laura Wright WrightEdocsNotifications@wbclawfirm.com 9/3/2024 9:02:09 AM SENT

Brian G.Cano bcano@feesmith.com 9/3/2024 9:02:09 AM SENT

Stephen Mengis smengis@feesmith.com 9/3/2024 9:02:09 AM SENT

Gina Williams gwilliams@feesmith.com 9/3/2024 9:02:09 AM SENT

Jaclyn Degollado jdegollado@feesmith.com 9/3/2024 9:02:09 AM SENT

Stephen Mengis 24094842 smengis@feesmith.com 9/3/2024 9:02:09 AM SENT

Daragh Carter dcarter@smithandhassler.com 9/3/2024 9:02:09 AM SENT

Abigail Villegas avillegas@smithandhassler.com 9/3/2024 9:02:09 AM SENT

Brian G.Cano bcano@feesmith.com 9/3/2024 9:02:09 AM SENT

MUHAMMAD S.AZIZ maziz@awtxlaw.com 9/3/2024 9:02:09 AM SENT

Jessica L.Dean jdean@awtxlaw.com 9/3/2024 9:02:09 AM SENT

53
9/27/2024 1:28 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 92540437
By: Gelisa Dieujuste
Filed: 9/27/2024 1:28 PM

CAUSE NO. 2023-07113

ASHLIE DOMINGUEZ § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § HARRIS COUNTY, TEXAS
§
EDUARDO MORENO, KELLY RAY §
WREN, AND DRAGGIN TOOLS §
TRUCKING, LLC §
§
Defendants. § 281st JUDICIAL DISTRICT
Consolidated with:

CAUSE NO. 2023-36840

DEFENDANT LIFFEY, INC. D/B/A MOLLY’S PUB (CONROE)’S ORIGINAL
ANSWER TO PLAINTIFF ASHLIE DOMINGUEZ’S FIRST AMENDED
PETITION

COMES NOW, Defendant LIFFEY, INC. D/B/A MOLLY’S PUB (CONROE)

(incorrectly named Lifey Leasing, Inc. d/b/a Molly’s Pub (“Defendant”), and files this its Original

Answer to Plaintiff Ashlie Dominguez’s First Amended Petition and would respectfully show as

follows:

54
I. GENERAL DENIAL

Defendant hereby enters a general denial to all allegations in Plaintiffs First Amended

Petition (“Petition”) and demands strict proof thereof as permitted by Rule 92 of the Texas Rules

of Civil Procedure.

II. SPECIFIC AND AFFIRMATIVE DEFENSES

Defendant affirmatively pleads that Texas Alcoholic Beverage Code §2.02 is Plaintiffs

sole and exclusive remedy for recovery against Defendant and Plaintiff may not bring common

law or other statutory law warranties against Defendant.

For further answer, if such be necessary, Defendant affirmatively pleads that pursuant to

Texas Alcoholic Beverage Code §106.14, Defendant is not liable for the actions of its employees

as a matter of law because (1) Defendant required its employees to attend a commission-approved

seller training program; (2) each employee actually attended such a program; and (3) Defendant

did not directly or indirectly encourage its employees to violate any such training or other

applicable service-related laws.

Pleading further, or in the alternative, no act or omission of Defendant was a proximate

cause of Plaintiff s alleged injuries.

To the extent the evidence shows that Plaintiff failed to act as ordinarily prudent person,

Defendant asserts its right to show that the incident complained of in Plaintiffs Petition was a

result of the negligence and carelessness on the part of the Plaintiff, and Plaintiff was contributorily

55
negligent or solely negligent on the occasion in question, and that her negligence proximately

caused the incident in question.

Pleading further and subject to the foregoing without waiving the same, Defendant asserts

that the incident made the basis of this suit was caused solely or in part by the negligence of a third

party or third parties over whom this Defendant has no control, and said negligence was a

proximate cause, or in the alternative, was the sole proximate cause of Plaintiff s damages.

Defendant invokes all rights, remedies and elections afforded it pursuant to Chapters 32

and 33 of the Texas Civil Practice & Remedies Code regarding contribution, indemnity,

comparative and/or proportionate responsibility to the extent the same are or may be applicable.

Pleading further, or in the alternative, Defendant would show, in the unlikely event that

any liability be found on the part of Defendant, that such liability should be reduced by the

percentage of the causation found to have resulted from the acts or omissions of Plaintiff, Niguel

Hayward, Co-Defendants and/or Responsible Third Parties.

Pleading further, Defendant, still urging and relying on the matters set forth above, asserts

that to the extent that alleged past medical expenses of Plaintiff exceeds the amount actually paid

on Plaintiff s behalf, Section 41.0105 of the Texas Civil Practice & Remedies Code applies to limit

Plaintiffs recovery of such past medical expenses, if any. Therefore, the recovery of medical or

healthcare expenses incurred by the Plaintiff is limited to no more than the amount actually paid

by or on behalf of the Plaintiff. See Haygood v. De Escobedo, 356 S.W.3d 390 (Tex. 2011).

56
I.

Pleading further, or in the alternative, Defendant asserts that the occurrence in question

was the result of a new, independent and intervening cause, unforeseeable to the Defendant.

Pleading further, or in the alternative, Defendant alleges that subsequent and precedent to

any conduct on its part, whether active or passive, there was intervening and superseding conduct

on the part of third parties or other parties, persons or entities, and that such conduct on the part of

the other entities acts as a total bar to the claim that is being made or that could be made by Plaintiff

in this case.

Pleading further, or in the alternative, without waiving any of the foregoing, Defendant

would show that the damages complained of were the result of pre-existing conditions and not due

to any negligence by Defendant.

Pleading further, Defendant alleges pre-judgment interest should be calculated on the

shortest length of time permitted by law. Defendant further asserts that prejudgment interest is not

calculated on future interest. See Tex. Fin. Code § 304.1045. If it should be necessary, Defendant

further asserts that pre-judgment interest is not calculated on exemplary damages. See Tex. Civ.

Prac. & Rem. Code § 41.007. Defendant further pleads that Section 304.105 of the Texas

Financial Code applies when settlement offers have been made. See Tex. Fin. Code § 304.105.

To the extent Plaintiff is seeking to recover either lost wages or reduced wage-earning

capacity, then Plaintiff must prove the loss(es) in the form of a net loss after reduction for income

57
tax payments or unpaid tax liability pursuant to applicable federal income tax law. Tex. Civ. Prac.

&Rem. Code § 18.091.

For further answer, and subject to the preceding paragraphs herein, and without waiving

same, Defendant would further show that injuries, if any, of which Plaintiff complains, were the

result of circumstances and events outside of, and beyond Defendant’s control. If the events

alleged in fact occurred, they were the result of events which intervened such that the conduct of

Defendant was not the proximate cause of any injuries to Plaintiff, as that term is defined by the

laws of the State of Texas.

III. NOTICE UNDER TEX. R. CIV. P 193.7

Defendant notifies Plaintiff of its intention to use any document produced by any party

during discovery without the necessity of authenticating the document.

IV. REQUIRED DISCLOSURES

Plaintiff is required to disclose, within thirty (30) days of the first answer or general

appearance in this lawsuit, the information and material described in Texas Rule of Civil Procedure

194.2.

V. JURY DEMAND

Defendant demands a trial by jury on all issues.

VI. PRAYER

WHEREFORE, Defendant, LIFFEY, INC. D/B/A MOLLY’S PUB (CONROE) prays that

Plaintiff, Ashlie Dominguez, take nothing, that Plaintiffs suit be dismissed with prejudice, that

Defendant recover its costs from Plaintiff and for all other relief to which Defendant is entitled.

58
Respectfully submitted,

Wilson Elser Moskowitz
Edelman & Dicker, LLP

Zs/ banielle L. Hollis
KENT M. ADAMS
State Bar No. 00869200

DANIELLE I . HOI I IS
State Bar No. 24085380

CAMERON J. KEENER
State Bar No. 24107827

909 Fannin Street, Suite 3300
Houston, Texas 77010
(713) 353-2000 Telephone
(713) 785-7780 Facsimile

ATTORNEYS FOR DEFENDANT
LIFFEY INC. D/B/A MOLLY’S PUB
(CONROE)

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the above foregoing document has been served on all
counsel of record pursuant to the Texas Rules of Civil Procedure on September 27, 2023.

/s/ banielle L. Hollis
Danielle L. Hollis

59
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.

Lysandra Ramirez on behalf of Danielle Hollis
Bar No. 24085380
lysandra.ramirez@wilsonelser.com
Envelope ID: 92540437
Filing Code Description: No Fee Documents
Filing Description: Defendant, Lifeley, Inc. d/b/a Molly's Pub (Conroe)'s
Original Answer to Plaintiff Ashlie Dominguez's First Amended Petition
Status as of 9/27/2024 2:09 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Carlos A.Balido BalidoEDocsNotifications@wbclawfirm.com 9/27/2024 1:28:17 PM SENT

Laura Wright WrightEdocsNotifications@wbclawfirm.com 9/27/2024 1:28:17 PM SENT

Brian G.Cano bcano@feesmith.com 9/27/2024 1:28:17 PM SENT

Stephen Mengis smengis@feesmith.com 9/27/2024 1:28:17 PM SENT

Gina Williams gwilliams@feesmith.com 9/27/2024 1:28:17 PM SENT

Jaclyn Degollado jdegollado@feesmith.com 9/27/2024 1:28:17 PM SENT

Michael ALogan mlogan@krcl.com 9/27/2024 1:28:17 PM SENT

Elizabeth Lampert ELampert@krcl.com 9/27/2024 1:28:17 PM SENT

Kimberly Hayes KHayes@krcl.com 9/27/2024 1:28:17 PM SENT

Stephen Mengis 24094842 smengis@feesmith.com 9/27/2024 1:28:17 PM SENT

Daragh Carter dcarter@smithandhassler.com 9/27/2024 1:28:17 PM SENT

Abigail Villegas avillegas@smithandhassler.com 9/27/2024 1:28:17 PM SENT

Brian G.Cano bcano@feesmith.com 9/27/2024 1:28:17 PM SENT

MUHAMMAD S.AZIZ maziz@awtxlaw.com 9/27/2024 1:28:17 PM SENT

Jessica L.Dean jdean@awtxlaw.com 9/27/2024 1:28:17 PM SENT

Kayla Bright kbright@krcl.com 9/27/2024 1:28:17 PM SENT

Lysandra Ramirez lysandra.ramirez@wilsonelser.com 9/27/2024 1:28:17 PM SENT

Kent M.Adams Kent.Adams@wilsonelser.com 9/27/2024 1:28:17 PM SENT

Danielle Hollis danielle.hollis@wilsonelser.com 9/27/2024 1:28:17 PM SENT

Niki Fischer niki.fischer@wilsonelser.com 9/27/2024 1:28:17 PM SENT

Cameron Keener cameron.keener@wilsonelser.com 9/27/2024 1:28:17 PM SENT

60
9/27/2024 1:32 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 92541611
By: Gelisa Dieujuste
Filed: 9/27/2024 1:32 PM

CAUSE NO. 2023-07113

CAUSE NO. 2023-36840

DEFENDANT LIFFEY, INC. D/B/A MOLLY’S PUB (CONROE)’S ORIGINAL
ANSWER TO PLAINTIFF ASHLIE DOMINGUEZ’S FIRST AMENDED
PETITION

COMES NOW, Defendant LIFFEY, INC. D/B/A MOLLY’S PUB (CONROE)

(incorrectly named Lifey Leasing, Inc. d/b/a Molly’s Pub (“Defendant”), and files this its Original

Answer to Plaintiffs Orlando Hayward and Reyna Hayward, Individually and as Representatives

of the Estate of Niguel Hayward, Deceased’s First Amended Petition and would respectfully show

as follows:

61
I. GENERAL DENIAL

Defendant hereby enters a general denial to all allegations in Plaintiffs’ First Amended

Petition (“Petition”) and demands strict proof thereof as permitted by Rule 92 of the Texas Rules

of Civil Procedure.

II. SPECIFIC AND AFFIRMATIVE DEFENSES

Defendant affirmatively pleads that Texas Alcoholic Beverage Code §2.02 is Plaintiffs’

sole and exclusive remedy for recovery against Defendant and Plaintiffs may not bring common

law or other statutory law warranties against Defendant.

For further answer, if such be necessary, Defendant affirmatively pleads that pursuant to

Texas Alcoholic Beverage Code §106.14, Defendant is not liable for the actions of its employees

as a matter of law because (1) Defendant required its employees to attend a commission-approved

seller training program; (2) each employee actually attended such a program; and (3) Defendant

did not directly or indirectly encourage its employees to violate any such training or other

applicable service-related laws.

Pleading further, or in the alternative, no act or omission of Defendant was a proximate

cause of Plaintiffs’ alleged injuries.

To the extent the evidence shows that Niguel Hayward failed to act as an ordinarily prudent

person, Defendant asserts its right to show that the incident complained of in Plaintiffs’ Petition

was a result of the negligence and carelessness on the part of the Niguel Hayward, and Niguel

62
Hayward was contributorily negligent or solely negligent on the occasion in question, and that his

negligence proximately caused the incident in question.

Pleading further and subject to the foregoing without waiving the same, Defendant asserts

that the incident made the basis of this suit was caused solely or in part by the negligence of a third

party or third parties over whom this Defendant has no control, and said negligence was a

proximate cause, or in the alternative, was the sole proximate cause of Plaintiffs’ damages.

Defendant invokes all rights, remedies and elections afforded it pursuant to Chapters 32

and 33 of the Texas Civil Practice & Remedies Code regarding contribution, indemnity,

comparative and/or proportionate responsibility to the extent the same are or may be applicable.

Pleading further, or in the alternative, Defendant would show, in the unlikely event that

any liability be found on the part of Defendant, that such liability should be reduced by the

percentage of the causation found to have resulted from the acts or omissions of Niguel Hayward,

Ashlie Dominguez, Co-Defendants and/or Responsible Third Parties.

Pleading further, Defendant, still urging and relying on the matters set forth above, asserts

that to the extent that alleged past medical expenses of Plaintiffs exceed the amount actually paid

on Plaintiffs’ behalf, Section 41.0105 of the Texas Civil Practice & Remedies Code applies to limit

Plaintiffs’ recovery of such past medical expenses, if any. Therefore, the recovery of medical or

healthcare expenses incurred by the Plaintiffs is limited to no more than the amount actually paid

by or on behalf of the Plaintiffs. See Haygood v. De Escobedo, 356 S.W.3d 390 (Tex. 2011).

63
I.

Pleading further, or in the alternative, Defendant asserts that the occurrence in question

was the result of a new, independent and intervening cause, unforeseeable to the Defendant.

Pleading further, or in the alternative, Defendant alleges that subsequent and precedent to

any conduct on its part, whether active or passive, there was intervening and superseding conduct

on the part of third parties or other parties, persons or entities, and that such conduct on the part of

the other entities acts as a total bar to the claim that is being made or that could be made by

Plaintiffs in this case.

Pleading further, or in the alternative, without waiving any of the foregoing, Defendant

would show that the damages complained of were the result of pre-existing conditions and not due

to any negligence by Defendant.

Pleading further, Defendant alleges pre-judgment interest should be calculated on the

shortest length of time permitted by law. Defendant further asserts that prejudgment interest is not

calculated on future interest. See Tex. Fin. Code § 304.1045. If it should be necessary, Defendant

further asserts that pre-judgment interest is not calculated on exemplary damages. See Tex. Civ.

Prac. & Rem. Code § 41.007. Defendant further pleads that Section 304.105 of the Texas

Financial Code applies when settlement offers have been made. See Tex. Fin. Code § 304.105.

To the extent Plaintiffs are seeking to recover either lost wages or reduced wage-earning

capacity, then Plaintiffs must prove the loss(es) in the form of a net loss after reduction for income

64
tax payments or unpaid tax liability pursuant to applicable federal income tax law. Tex. Civ. Prac.

&Rem. Code § 18.091.

For further answer, and subject to the preceding paragraphs herein, and without waiving

same, Defendant would further show that injuries, if any, of which Plaintiffs complain, were the

result of circumstances and events outside of, and beyond Defendant’s control. If the events

alleged in fact occurred, they were the result of events which intervened such that the conduct of

Defendant was not the proximate cause of any injuries to Plaintiffs, as that term is defined by the

laws of the State of Texas.

III. NOTICE UNDER TEX. R. CIV. P 193.7

Defendant notifies Plaintiffs of its intention to use any document produced by any party

during discovery without the necessity of authenticating the document.

IV. REQUIRED DISCLOSURES

Plaintiffs are required to disclose, within thirty (30) days of the first answer or general

appearance in this lawsuit, the information and material described in Texas Rule of Civil Procedure

194.2.

V. JURY DEMAND

Defendant demands a trial by jury on all issues.

VI. PRAYER

WHEREFORE, Defendant, LIFFEY, INC. D/B/A MOLLY’S PUB (CONROE) prays that

Plaintiffs, Orlando Hayward and Reyna Hayward, Individually and as Representatives of the

Estate of Niguel Hayward, Deceased, take nothing, that Plaintiffs’ suit be dismissed with prejudice,

65
that Defendant recover its costs from Plaintiffs and for all other relief to which Defendant is

entitled.

Respectfully submitted,

Wilson Elser Moskowitz
Edelman & Dicker, LLP

Zs/ banielle L. Hollis
KENT M. ADAMS
State Bar No. 00869200

DANIELLE L. HOLLIS
State Bar No. 24085380

CAMERON J. KEENER
State Bar No. 24107827

909 Fannin Street, Suite 3300
Houston, Texas 77010
(713) 353-2000 Telephone
(713) 785-7780 Facsimile

ATTORNEYS FOR DEFENDANT
LIFFEY INC. D/B/A MOLLY’S PUB
(CONROE)

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the above foregoing document has been served on all
counsel of record pursuant to the Texas Rules of Civil Procedure on September 27, 2023.

/s/ banielle L. Hollis
Danielle L. Hollis

66
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.

Lysandra Ramirez on behalf of Danielle Hollis
Bar No. 24085380
lysandra.ramirez@wilsonelser.com
Envelope ID: 92541611
Filing Code Description: No Fee Documents
Filing Description: Defendant, Lifeley, Inc. d/b/a Molly's Pub (Conroe)'s
Original Answer to Plaintiff Ashlie Dominguez's First Amended Petition
Status as of 9/27/2024 2:23 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Carlos A.Balido BalidoEDocsNotifications@wbclawfirm.com 9/27/2024 1:32:06 PM SENT

Laura Wright WrightEdocsNotifications@wbclawfirm.com 9/27/2024 1:32:06 PM SENT

Brian G.Cano bcano@feesmith.com 9/27/2024 1:32:06 PM SENT

Stephen Mengis smengis@feesmith.com 9/27/2024 1:32:06 PM SENT

Gina Williams gwilliams@feesmith.com 9/27/2024 1:32:06 PM SENT

Jaclyn Degollado jdegollado@feesmith.com 9/27/2024 1:32:06 PM SENT

Michael ALogan mlogan@krcl.com 9/27/2024 1:32:06 PM SENT

Elizabeth Lampert ELampert@krcl.com 9/27/2024 1:32:06 PM SENT

Kimberly Hayes KHayes@krcl.com 9/27/2024 1:32:06 PM SENT

Stephen Mengis 24094842 smengis@feesmith.com 9/27/2024 1:32:06 PM SENT

Daragh Carter dcarter@smithandhassler.com 9/27/2024 1:32:06 PM SENT

Abigail Villegas avillegas@smithandhassler.com 9/27/2024 1:32:06 PM SENT

Brian G.Cano bcano@feesmith.com 9/27/2024 1:32:06 PM SENT

MUHAMMAD S.AZIZ maziz@awtxlaw.com 9/27/2024 1:32:06 PM SENT

Jessica L.Dean jdean@awtxlaw.com 9/27/2024 1:32:06 PM SENT

Kayla Bright kbright@krcl.com 9/27/2024 1:32:06 PM SENT

Danielle Hollis danielle.hollis@wilsonelser.com 9/27/2024 1:32:06 PM SENT

Cameron Keener cameron.keener@wilsonelser.com 9/27/2024 1:32:06 PM SENT

Lysandra Ramirez lysandra.ramirez@wilsonelser.com 9/27/2024 1:32:06 PM SENT

Niki Fischer niki.fischer@wilsonelser.com 9/27/2024 1:32:06 PM SENT

Kent M.Adams Kent.Adams@wilsonelser.com 9/27/2024 1:32:06 PM SENT

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10/7/2024 1:32 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 92870184
By: Bonnie Lugo
Filed: 10/7/2024 1:32 PM

CAUSE NO. 2023-07113

ASHLIE DOMINGUEZ § IN THE DISTRICT COURT OF
§
Plaintiff §
§
V. § HARRIS COUNTY, TEXAS
§
EDUARDO MORENO, KELLY RAY §
WREN, AND DRAGGIN TOOLS §
TRUCKING, LLC, §
§
Defendants. § 281st JUDICIAL DISTRICT

Consolidated with'.

CAUSE NO. 2023-36840

Plaintiff’s Motion to Compel Third Party Compliance and Motion to Overrule
Objections

COMES NOW, Plaintiffs, pursuant to the Texas Rules of Civil Procedure, hereby file this

Motion to Compel Third Party Compliance and Motion to Overrule Objections from the Texas

Alcohol and Beverage Commission (“TABC”). In support, Plaintiffs would respectfully show the

Court as follows.

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I. Background

This is a personal injury case arising from the death of Niguel Hayward on or about

November 15, 2022, due to the negligence of Defendant Eduardo Morenos by driving while under

the influence after allegedly consuming alcoholic beverages at Defendants Sandbaggers Pub NP,

and Lifey Leasing, Inc. d/b/a Molly’s Pub establishments (and potentially additional

establishments) and subsequently hitting Niguel Hayward head-on.

On May 6, 2024, Plaintiffs served TABC with a subpoena duces tecum seeking production

of correspondence and documents regarding the Defendants establishments, as well as information

regarding TABC’ s investigation and procedures. The discovery upon which this Motion to Compel

is based is attached hereto as Exhibit A.

On June 24, 2024, TABC refused to comply with any of the requests for production of

documents from the Plaintiffs. The information is relevant to the claims made in this lawsuit and

could potentially identify additional defendants. As the statute of limitations approaches, it is

imperative the TABC be compelled to fully respond.

II. Summary of Discovery Sought

The discovery sought by Plaintiffs is relevant to the subject matter of this lawsuit and as

such Plaintiffs move to compel TABC to comply with the subpoena and produce the following:

1. All documents or correspondence regarding TRACE Investigation resulting from

the car accident involving Eduardo Moreno and Orlando Hayward that occurred on

November 15, 2022.

2. All documents or correspondence relating to Sandbagger's Pub located at 13027

Highway 105 E, Conroe, Texas 77306 for the years 2021 and 2022.

3. All documents or correspondence relating to Molly's Pub located at 901 N Loop

69
336 W, Conroe, TX 77301 for the years 2021 and 2022.

4. Documents you provide to TABC agents regarding how to conduct source

investigations.

5. Documents you provide to TABC agents regarding how to conduct TRACE

investigations.

6. Policies and procedures for TABC agents' investigations of over-service including,

but not limited to, TRACE investigations.

7. Any checklists provided to TABC agents for investigations of over-service.

8. Any criteria provided to TABC agents to assist with investigations of over-service.

9. Training materials you provide to TABC agents to assist with investigations of

over-service.

TABC refused to produce any of the above documents and information requested asserting

the following global objections:

1. The subpoena and all requests therein are barred by sovereign immunity. TABC, a

state agency, retains sovereign immunity from the subpoena because the subpoena

does not fall within an express waiver of sovereign immunity under state law.

2. The subpoena seeks information that is confidential or protected by law under

Section 5.48 of the Texas Alcoholic Beverage Code and/or Section 30.006(c) of the

Texas Civil Practice & Remedies Code.

3. The subpoena is overly broad and unduly burdensome to a non-party. It is not

confined to claims and injuries alleged or issues relevant to the underlying lawsuit

and constitutes a "fishing expedition." It does not specify the items to be produced

by individual item or category and does not describe with reasonable particularity

70
each item and category. It is not sufficiently limited in time or subject matter.

Each reasoning TABC sets forth above and provided in Exhibit B are invalid basis for

refusing to comply with Plaintiffs discovery requests, and as such should be compelled to do so.

III. Argument and Authorities

A party may compel discovery from a nonparty by serving a subpoena compelling an oral

deposition, a deposition on written questions; a request for production of documents or tangible

things, pursuant to Rule 199.2 (b)(5) or Rule 200.1(b), served with notice of deposition on oral

examination or written questions; and a request for production of documents and tangible things

under this rule. TEX. R. CIV. P. 205.1.

Sovereign immunity does not apply to TABC because although a state agency, it is not a

party to this case and is thus not subject to liability or suit in which damages are sought which

would give rise to protection by sovereign immunity. In refusing to provide the requested

information by Plaintiffs’, TABC admits that they are a non-party and are not confined to the

claims and injuries alleged or issues relevant to the underlying lawsuit.

“On motion of a party, the court may order discovery from a nonparty law enforcement

agency of information, records, documents, evidentiary materials, and tangible things described

by Subsection (c) if the court determines, after in camera inspection, that: (1) the discovery sought

is relevant; and (2) there is a specific need for the discovery.” Tex. Civ. Prac. & Rem. Code. §

30.006(d).

If a subpoena commanding testimony is directed to a corporation, partnership, association,

governmental agency, or other organization, and the matters on which examination is requested

are described with reasonable particularity, the organization must designate one or more persons

to testify on its behalf as to matters known or reasonably available to the organization. Tex. R.

71
ClV.P. 176.6.

Plaintiffs have provided with reasonable particularity the information requested, the

information sought is limited to time and scope, and the requests are narrowly tailored to the

matters relevant to the claims asserted by the Plaintiffs against the Defendants in this case. The

specific requests are matters that are known and or reasonably available to TABC because it is

information that TABC personally collects and is responsible for maintaining as a law enforcement

agency.

Prayer

WHEREFORE, PREMISES CONSIDERED, Plaintiffs request that the Court grant this

Motion to Compel Third Party Compliance and Motion to Overrule Objections and enter an order

compelling the production of the aforementioned documents and information, and for such other

and further relief to which Plaintiffs may be justly entitled.

Respectfully submitted,

ABRAHAM, WATKINS, NICHOLS,
AGOSTO, AZIZ & STOGNER

By: /s/ Muhammad S. Aziz
Muhammad S. Aziz
Texas Bar No. 24043538
800 Commerce Street
Houston, Texas 77002
Telephone: (713)222-7211
Facsimile: (713)225-0827
maziz@awtxlaw.com

72
Certificate of Service

I hereby certify that on this October 7, 2024, a true and correct copy of the foregoing

document was served upon all counsel of record in accordance with the Texas Rules of Civil

Procedure.

/s/ Muhammad A. Aziz
Muhammad S. Aziz

73
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.

Jessica Dean on behalf of Muhammad Aziz
Bar No. 24043538
jdean@awtxlaw.com
Envelope ID: 92870184
Filing Code Description: No Fee Documents
Filing Description: PLAINTIFFS MOTION TO COMPEL THIRD PARTY
COMPLIANCE AND MOTION TO OVERRULE OBJECTIONS
Status as of 10/7/2024 2:33 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Carlos A.Balido BalidoEDocsNotifications@wbclawfirm.com 10/7/2024 1:32:25 PM SENT

Laura Wright WrightEdocsNotifications@wbclawfirm.com 10/7/2024 1:32:25 PM SENT

Brian G.Cano bcano@feesmith.com 10/7/2024 1:32:25 PM SENT

Stephen Mengis smengis@feesmith.com 10/7/2024 1:32:25 PM SENT

Gina Williams gwilliams@feesmith.com 10/7/2024 1:32:25 PM SENT

Jaclyn Degollado jdegollado@feesmith.com 10/7/2024 1:32:25 PM SENT

Michael ALogan mlogan@krcl.com 10/7/2024 1:32:25 PM SENT

Elizabeth Lampert ELampert@krcl.com 10/7/2024 1:32:25 PM SENT

Kimberly Hayes KHayes@krcl.com 10/7/2024 1:32:25 PM SENT

Stephen Mengis 24094842 smengis@feesmith.com 10/7/2024 1:32:25 PM SENT

Daragh Carter dcarter@smithandhassler.com 10/7/2024 1:32:25 PM SENT

Abigail Villegas avillegas@smithandhassler.com 10/7/2024 1:32:25 PM SENT

Brian G.Cano bcano@feesmith.com 10/7/2024 1:32:25 PM SENT

MUHAMMAD S.AZIZ maziz@awtxlaw.com 10/7/2024 1:32:25 PM SENT

Jessica L.Dean jdean@awtxlaw.com 10/7/2024 1:32:25 PM SENT

Kim Spurlock kspurlock@awtxlaw.com 10/7/2024 1:32:25 PM SENT

Hailey Hutson hhutso n@awtxlaw.com 10/7/2024 1:32:25 PM SENT

Kayla Bright kbright@krcl.com 10/7/2024 1:32:25 PM SENT

Danielle Hollis danielle.hollis@wilsonelser.com 10/7/2024 1:32:25 PM SENT

Cameron Keener cameron.keener@wilsonelser.com 10/7/2024 1:32:25 PM SENT

Lysandra Ramirez lysandra.ramirez@wilsonelser.com 10/7/2024 1:32:25 PM SENT

Niki Fischer niki.fischer@wilsonelser.com 10/7/2024 1:32:25 PM SENT

74
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.

Case Contacts

Niki Fischer niki.fischer@wilsonelser.com 10/7/2024 1:32:25 PM SENT

Kent M.Adams Kent.Adams@wilsonelser.com 10/7/2024 1:32:25 PM SENT

75
10/10/2024 10:53 AM
Marilyn Burgess - District Clerk Harris County
Envelope No. 93014103
By: Bonnie Lugo
Filed: 10/10/2024 10:53 AM

CAUSE NO. 2023-07113

CAUSE NO. 2023-36840

DEFENDANT LIFFEY, INC. D/B/A MOLLY’S PUB (CONROE)’ S AMENDED
ANSWER TO PLAINTIFFS ORLANDO HAYWARD AND REYNA HAYWARD,
INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF NIGUEL
HAYWARD, DECEASED’S FIRST AMENDED PETITION

COMES NOW, Defendant LIFFEY, INC. D/B/A MOLLY’S PUB (CONROE)

(incorrectly named Lifey Leasing, Inc. d/b/a Molly’s Pub (“Defendant”), and files this its

Amended Answer to Plaintiffs Orlando Hayward and Reyna Hayward, Individually and as

Representatives of the Estate of Niguel Hayward, Deceased’s First Amended Petition and would

respectfully show as follows:

76
I. GENERAL DENIAL

Defendant hereby enters a general denial to all allegations in Plaintiffs’ First Amended

Petition (“Petition”) and demands strict proof thereof as permitted by Rule 92 of the Texas Rules

of Civil Procedure.

II. SPECIFIC AND AFFIRMATIVE DEFENSES

Defendant affirmatively pleads that Texas Alcoholic Beverage Code §2.02 is Plaintiffs’

sole and exclusive remedy for recovery against Defendant and Plaintiffs may not bring common

law or other statutory law warranties against Defendant.

For further answer, if such be necessary, Defendant affirmatively pleads that pursuant to

Texas Alcoholic Beverage Code §106.14, Defendant is not liable for the actions of its employees

as a matter of law because (1) Defendant required its employees to attend a commission-approved

seller training program; (2) each employee actually attended such a program; and (3) Defendant

did not directly or indirectly encourage its employees to violate any such training or other

applicable service-related laws.

Pleading further, or in the alternative, no act or omission of Defendant was a proximate

cause of Plaintiffs’ alleged injuries.

To the extent the evidence shows that Niguel Hayward failed to act as an ordinarily prudent

person, Defendant asserts its right to show that the incident complained of in Plaintiffs’ Petition

was a result of the negligence and carelessness on the part of the Niguel Hayward, and Niguel

77
Hayward was contributorily negligent or solely negligent on the occasion in question, and that his