FILED

8/24/2018 10:47 AM 4 cits pps- sac 2

Donna Kay McKinney
Bexar County District Clerk w/ jd
Accepted By: Victoria Angeles
2018CI16080
CAUSE NO.: - - - - -

LEON MORRIS § IN THE DISTRICT COURT

§
Plaintiff §
§ 73rd
vs. § JUDICIAL DISTRICT
§
TIMMS TRUCKING & EXCAVATING, LTD, §
C.A. TIMMS TRUCKING SERVICE, TIMMS §
GROUP MANAGEMENT, LLC, AND §
RAYMOND MORALES §
Defendants. § BEXAR COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION &

APPLICATION FOR TEMPORARY RESTRAINING ORDER

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, LEON MORRIS, hereinafter referred to by name or as Plaintiff, and

complains of RAYMOND MORALES (hereinafter referred to as "Defendant Morales"), TIMMS

TRUCKING & EXCAVATING, LTD., C.A. TIMMS TRUCKING SERVICE, and TIMMS

GROUP MANAGEMENT, LLC (hereinafter TIMMS TRUCKING & EXCAVATING, LTD.,

C.A. TIMMS TRUCKING SERVICE, and TIMMS GROUP MANAGEMENT, LLC shall

collectively be referred to as "Defendant Timms") (also, Defendant Morales and Defendant Timms

shall sometimes collectively be referred to as "Defendants"), and for cause of action would

respectfully show unto the Court as follows:

1. Plaintiff is an individual residing in Bexar County, Texas. Plaintiff intends that

discovery be conducted under Level 3 of Rule 190.4 Texas Rules of Civil Procedure.
 2. Defendant TIMMS TRUCKING & EXCAVATING, LTD. is a Texas Corporation

and may be served with process through its registered agent, Charles A. Timms, at 12685 Somerset

Road, Von Ormy, Texas 78073-3126.

3. Defendant C.A. TIMMS TRUCKING SERVICE is a Texas Corporation and may

be served with process through its registered agent, Charles A. Timms, at 12685 Somerset Road,

Von Ormy, Texas 78073-3126.

4. Defendant TIMMS GROUP MANAGEMENT, LLC is a Texas Corporation and

may be served with process through its registered agent, Charles A. Timms, at 12685 Somerset

Road, Von Ormy, Texas 78073-3126.

5. Defendant, RAYMOND MORALES, is an individual residing in Bexar County,

Texas and may be served with citation at 5944 Von Ormy Road, Von Ormy, Texas 78073.

6. Venue in Bexar County is proper in this cause under Section 15.002(a)(l) of the

TEXAS CIVIL PRACTICE AND REMEDIES CODE because all or a substantial part of the events or

omissions giving rise to this lawsuit occurred in this county. Additionally, venue is proper in Bexar

County pursuant to §15.002(a)(2) of the Texas Civil Practice & Remedies Code as it is the county

in which Defendant Juarez resided at the time the cause of action accrued.

7. On or about August 20, 2018, Defendant Morales, while operating an 18-wheeler,

made an unsafe lane change and caused a crash. Defendant Morales failed to pay attention to the

road and failed to keep a proper lookout when he struck Plaintiff's vehicle. At the time of the

incident, Defendant Morales was in the course and scope of his employment with Defendant

Timms and was driving a vehicle owned, leased or under the permit of Defendant Timms. The

crash proximately caused severe injuries to the Plaintiff.

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 8. Defendant Morales was negligent in many ways, including failing to act as a driver

exercising ordinarily prudent care would have done under the same or similar circumstances would

by choosing to violate rules, requirements, regulations, standards, and laws for the provision of

safe driving on our roadways as follows:

a. failing to change lanes safely;

b. driving while distracted;

c. failing to keep a proper lookout or such lookout, which a person of ordinary

prudence would have maintained under same or similar circumstances;

d. failing to timely apply the brakes of the vehicle in order to avoid the collision in

question;

e. failing to turn the vehicle in an effort to avoid the collision in question;

f. failing to maintain a safe speed;

g. failing to yield the right of way to Plaintiff; and

h. failing to maintain an assured clear distance.

Defendant Morales's negligence was a proximate cause of Plaintiffs injuries alleged herein.
9. Defendant Morales's negligence amounts to negligence per se because his

negligence included violating laws, including the Texas Transportation Code as follows:

Violation of Tex. Trans. Code §545.35l(a)(l)-(2)-An operator may not drive at a

speed greater than is reasonable and prudent under the circumstances then existing
and shall control the speed of the vehicle as necessary to avoid colliding with
another person or vehicle that is on or entering the highway in compliance with law
and the duty of each person to use due care.

Violation of Tex. Trans. Code § 545.060(a)(l )(2)- An operator on a roadway divided

into two or more clearly marked lanes for traffic shall drive as nearly as practical entirely
within a single lane, and may not move from the lane unless that movement can be made
safely.
Violation of Tex. Trans. Code§ 545.401 -A person commits an offense [ofreckless
driving] if the person drives a vehicle in willful or wanton disregard for the safety of
persons or property.

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 Violation of Section 19-255, Article VII of the City Code of San Antonio, Texas. (b) A
person commits an offense if the person uses a hand-held mobile communication device
to: (1) engage in a call; (2) send, read, or write a text message; (3) view pictures or
written text whether transmitted by internet or other electronic means; (4) engage in
gaming; or (5) engage in any other use of the device while operating a moving motor
vehicle.

Such violations were proximate causes of Plaintiff's injuries alleged herein. Plaintiff was within

the class of people sought to be protected by such statutes.

10. Defendant Timms is liable under the doctrine of respondeat superior and under the

FMCSA for the conduct of Defendant Morales because he was operating the vehicle in the course

and scope of his employment and under the DOT permit for Defendant Timms at the time the

incident occurred. Defendant Timms is legally responsible for the conduct of Defendant Morales

under DOT laws, rules and regulations including 49 C.F.R. §376.12(c)(l) and 49 U.S.C. §14702.

Also, Defendant Timms is directly negligent in many ways, including failing to act as a corporation

exercising ordinarily prudent care would have done under the same or similar circumstances by

choosing to violate rules, requirements, regulations, standards, and laws for the provision of safe

driving by Defendant Driver on our roadways as follows:

a. failing to hire qualified drivers;

b. failing to entrust vehicles to qualified drivers; and
c. failing to properly train, monitor, and supervise its drivers to be safe.

All such acts of negligence were a proximate cause of the occurrence, injuries and damages to

Plaintiff.

11. Each of these acts and/or omissions, whether taken singularly or in any combination

constitutes negligence and negligence per se and gross negligence which proximately caused the

collision and injuries and other losses as specifically set forth herein, all of which the Plaintiff

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suffered and which the Plaintiff will continue to suffer in the future, if not for the remainder of

their natural life. All Defendants were grossly negligent as defined under Texas law to the extent

that the law allows the imposition of exemplary/punitive damages. For each Defendant, the

conduct stated above that amounts to negligence also amounts to gross negligence in this case.

Such conduct was more than momentary thoughtlessness or inadvertence. Rather, Defendants'

conduct involved an extreme degree of risk, considering the probability and magnitude of the

potential harm to Plaintiff Defendants had actual, subjective awareness of the risk involved but,

nevertheless, proceeded in conscious indifference to the rights, safety, or welfare of Plaintiff or

others similarly situated. Defendant's gross negligence was a proximate cause of Plaintiffs

injuries alleged herein. In addition, Defendant Timms is responsible for the gross negligence of

Defendant Morales.

12. The negligence of Defendants has proximately caused the crash and damages to

Plaintiff far in excess of the minimum jurisdictional limits of this Court, including the following:

a. Physical pain and mental suffering in the past;

b. Physical pain and mental suffering in the future;

c. Loss of earning capacity in the past;

d. Loss of earning capacity in the future;

e. Past medical care expenses;

f. Future medical care expenses;

g. Physical impairment in the past;

h. Physical impairment in the future;

i. Physical disfigurement in the past;

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 J. Physical disfigurement in the future; and

k. Exemplary/punitive damages.

1. Pre-judgment and post-judgment interest.

13. The Court via Rule 47 of the Texas Rules of Civil Procedure requires those seeking

affirmative relief to plead the amount of damages sought, despite the fact that Plaintiff wants the

jury to decide the amount of the verdict. Therefore, only because the Court and Defendants requires

this statement, Plaintiff at this time seeks monetary relief of more than one million and 00/100

dollars ($1,000,000.00), but Plaintiff wants to leave the determination of the verdict amount to the

JUry.

14. Plaintiff further requests both pre judgment and post judgment interest on all

damages as allowed by law.

15. Plaintiff demands a trial by jury. The required jury fee has been paid.

16. Pursuant to Rule 194, Texas Rules of Civil Procedure, Defendants are requested to

disclose, within fifty (50) days of service hereof, the information and material described in each

section of Rule 194.2 of the Texas Rules of Civil Procedure.

17. Pursuant to Texas Rule of Civil Procedure 193.7, Plaintiff hereby gives actual

notice to Defendants that any and all documents produced by any Defendant in response to written

discovery may be used against any and all Defendants producing the documents at any pre-trial

proceeding and/or at the trial of this matter, without the necessity of authenticating the documents.

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 APPLICATION FOR TEMPORARY RESTRAINING ORDER AND
ORDER SETTING HEARING FOR TEMPORARY INJUNCTION

COMES NOW, Plaintiff, Leon Morris, before this Honorable Court and files a motion for

temporary injunction and in connection therewith, presents a motion for a temporary restraining

order together with his original petition for injunction and affidavit supporting the motion

presented.

I.
Plaintiff requests a temporary restraining order and temporary injunction that unless

Defendants Morales and Timms, their agents, servants, and employees or anyone acting in concert

therewith, are immediately deterred from taking any action that might alter, damage or destroy (1)

any and all documents related to the incident which occurred on August 20, 2018 on I-35 near St.

Mary's Street in Bexar County, Texas; (2) any and all of the remains of the tractor-trailer involved

in the incident which occurred on August 20, 2018 on I-35 near St. Mary's Street exit in Bexar

County, Texas; (3) any and all videos and/or photographs of the incident and/or scene of the wreck

which occurred on August 20, 2018 on I-35 near St. Mary's Street in Bexar County, Texas; (4)

any and all witness statements, video, and/or audio of the incident that occurred on August 20,

2018 on I-35 near St. Mary's Street in Bexar County, Texas; (5) the condition of the trail, roadway,

or land where the incident occurred; (6) any and all dashcam videos from the 2015 International

Tractor Trailer driven by Defendant Morales, all GPS information re the 2015 International Tractor

Trailer driven by Defendant Morale, all Qualcomm or similar type recording information from the

2015 International Tractor Trailer driven by Defendant Morales, all downloadable electronic

information from the 2015 International Tractor Trailer driven by Defendant Morales; (7) any and

all electronic and handheld devices in Defendants' possession or in the tractor-trailer at the time

of this wreck; (8) any cell phone in Defendants' possession at the time of this wreck or in the

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tractor-trailer in its original condition, stored in airplane mode and subsequently powered off; (9)

any and all tangible evidence, as herein described, they will commit said acts before notice of the

hearing on the Motion for a temporary injunction can be served and hearing had; that if the

commission of said acts are not immediately restrained, Plaintiffs will suffer irreparable injury, to

wit: Defendants' repair, removal, destruction, disposal, inspection, or testing of the evidence

involved herein may destroy or severely alter the condition of the evidence and prevent Plaintiffs

from asserting the right to inspect or test the evidence as provided by the Texas Rules of Civil

Procedure.

II.

WHEREFORE PREMISES CONSIDERED, Plaintiff respectfully request that the Court

order that Defendants Timms and Morales and any and all other individuals, their agents, servants,

employees or anyone having knowledge of this order are hereby commanded forthwith to desist

and refrain from taking any action that might alter, damage or destroy, in any way: (1) any and all

documents related to the incident which occurred on August 20, 2018 on I-35 near St. Mary's

Street in Bexar County, Texas; (2) any and all of the remains of the tractor-trailer involved in the

incident which occurred on August 20, 2018 on I-35 near St. Mary's Street in Bexar County,

Texas; (3) any and all videos and/or photographs of the incident and/or scene of the wreck which

occurred on August 20, 2018 on I-35 near St. Mary's Street in Bexar County, Texas; (4) any and

all witness statements, video, and/or audio of the incident that occurred on August 20, 2018 on I-

35 near St. Mary's Street in Bexar County, Texas; (5) the condition of the trail, roadway, or land

where the incident occurred; (6) any and all dashcam videos from the 2015 International Tractor

Trailer driven by Defendant Morales, all GPS information re the 2015 International Tractor Trailer

driven by Defendant Morales, all Qualcomm or similar type recording information from the 2015

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International Tractor Trailer driven by Defendant Morales, all downloadable electronic

information from the 2015 International Tractor Trailer driven by Defendant Morales; (7) any and

all electronic and handheld devices in Defendants' possession or in the tractor-trailer at the time

of this wreck; (8) any cell phone in Defendants' possession at the time of this wreck or in the

tractor-trailer in its original condition, stored in airplane mode and subsequently powered off; (9)

any and all tangible evidence, as herein described.

Plaintiff further moves this Honorable Court to order that Defendants be cited to appear

and show cause and that upon such hearing a temporary injunction be issued enjoining such

Defendants, their agents, their servants, and employees or anyone acting in concert therewith from

taking any such action or from taking any action that might alter, damage or destroy in any way,

the vehicle involved in the August 20, 2018 incident or any other evidence involved in this incident

or from removing, repairing or testing said evidence without notice to and consent of Plaintiff, and

that Defendants allow Plaintiff or his representatives to inspect, photograph and videotape the

vehicle involved in the incident made the basis of this injunction, and that Defendants provide

Plaintiff an inventory of such evidentiary matters not in their possession, and for such other relief

and may be proper and just at equity and at law.

III.

Plaintiffs are not aware of any counsel representing Defendants at this time.

WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that the Court enter its

Temporary Restraining Order and, upon hearing, Temporary Injunction, that Defendants Morales

and Timms be cited to appear and answer, and on final trial hereafter, the Plaintiff have judgment

against Defendants, jointly and severally, in an amount within the jurisdictional limits of this

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Court, together with all pre judgment and post judgment interest as allowed by law, costs of Court,

and for such other and further relief to which Plaintiff may be justly entitled by law and equity,

including, but not limited to:

a. Pain and suffering in the past;

b. Pain and suffering in the future;

c. Mental anguish in the past;

d. Mental anguish in the future;

e. Past medical expenses;

f. Future medical expenses;

g. Physical impairment in the past;

h. Physical impairment in the future;

1. Physical disfigurement in the past;

J. Physical disfigurement in the future;

k. Loss of earnings;

1. Loss of earning capacity;

m. Pre judgment interest;

n. Post judgment interest;

0. Costs of court;

p. Exemplary damages;

q. Property damage;

r. Loss of use; and

s. Such other and further relief of any kind to which Plaintiff may show himselfjustly entitled.

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RESPECTFULLY SUBMITTED,

LAW OFFICES OF THOMAS J. HENRY

521 STARR STREET

BY:

MES F. MARTIN
STATE BARNO. 13077700
*email: jma(tj11::::-;_~~c!JJl:i_oi_n~1s.il1t;nrvlaw.com
ATTORNEYS FOR PLAINTIFFS

*service by email to this address only

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