FILED

7/6/2023 3:28 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Ricky Brashear DEPUTY

CAUSE NO. DC-22-08005

ROLANDO DAVILA, § IN THE DISTRICT COURT

INDIVIDUALLY AND AS §
REPRESENTATIVE OF THE §
ESTATE OF GAVINO NICHOLAS §
DAVILA, DECEASED AND TIFFNEY §
DAWN DAVILA, INDIVIDUALLY §
Plaintiffs, §
§
vs. § 298TH JUDICIAL DISTRICT
§
JOHN MIER, FOUNDATION §
BUILDING MATERIALS, INC., §
FOUNDATION BUILDING §
MATERIALS, LLC, AND §
SOUTHWEST INTERNATIONAL §
TRUCKS, INC. §
Defendants. § DALLAS COUNTY, TEXAS

PLAINTIFFS’ FIRST AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, ROLANDO DAVILA, Individually and As Representative of the

Estate of GAVINO NICHOLAS DAVILA, Deceased and TIFFNEY DAWN DAVILA,

Individually, Plaintiffs herein, and files this their First Amended Original Petition

complaining of JOHN MIER, FOUNDATION BUILDING MATERIALS, INC.,

FOUNDATION BUILDING MATERIALS, LLC and SOUTHWEST INTERNATIONAL

TRUCKS, INC., Defendants, and for cause of action would respectfully show the Court

the following:

I. JURISDICTION AND VENUE

1.1 Venue is proper in Dallas County, Texas under Tex. Civ. Prac. & Rem. Code

§ 15.002(a)(2) in that Dallas County is the county of Defendant, JOHN MIER’S residence

at the time the cause of action accrued.

 II. PARTIES

2.1 Plaintiff, ROLANDO DAVILA is a citizen of the United States and a

resident of Lewisville, Texas and brings suit in his Individual capacity and as

Representative of the Estate of GAVINO NICHOLAS DAVILA for the wrongful death of

his son, GAVINO NICHOLAS DAVILA, deceased. Plaintiff is the surviving father of

GAVINO NICHOLAS DAVILA.

2.2 Plaintiff, TIFFNEY DAWN DAVILA, brings suit in her Individual capacity.

Plaintiff resides in Lewisville, Texas. Plaintiff is the surviving mother of GAVINO

NICHOLAS DAVILA, deceased.

2.3 Defendant, JOHN MIER, is an Individual residing in Irving, Dallas County,

Texas. Specifically, JOHN MIER may be served at 4813 N. O’Connor Road, Apt. 227,

Irving, Texas 75062. Defendant has answered and appeared herein.

2.4 Defendant, FOUNDATION BUILDING MATERIALS, INC. is a Delaware

corporation doing business in the State of Texas, including but not limited to Denton and

Dallas County, Texas. Specifically, FOUNDATION BUILDING MATERIALS, INC. may

be served with process by serving its President, Vice-President or Secretary at 2520

Redhill Avenue, Santa Ana, CA 92705. Defendant has answered and appeared herein.

2.5 Defendant, FOUNDATION BUILDING MATERIALS, LLC is a limited

liability entity, doing business in the State of Texas, including but not limited to Denton

and Dallas County, Texas. Specifically, FOUNDATION BUILDING MATERIALS, LLC

may be served through its agent, Cogency Global, Inc., 1601 Elm Street, Suite 4360, Dallas,

Texas 75201. Defendant has answered and appeared herein.

2.6 Defendant, SOUTHWEST INTERNATIONAL TRUCKS, INC. is a Delaware

corporation doing business in the State of Texas, including but not limited to Denton and

Dallas County, Texas. Specifically, SOUTHWEST INTERNATIONAL TRUCKS, INC.

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may be served with process by serving its registered agent, C T Corporation System, 1999

Bryan Street, Suite 900, Dallas, Texas 75201. Defendant has answered and appeared

herein.

III. MISNOMER AND ALTER EGO

3.1 In the event any parties are either misnamed or not included herein, it is

Plaintiffs’ contention that such was a “misidentification,” “misnomer,” and/or such

parties are/were “alter egos” of the parties named herein.

IV. DISCOVERY PLAN

4.1 Plaintiffs plead this case should be assigned to Discovery Track Three.

V. RULE 47 – STATEMENT OF DAMAGES

5.1 In accordance with Tex. R. Civ. P. 47(c), Plaintiffs state that they seek

monetary relief over $1,000,000.00, including damages of any kind, penalties, costs,

expenses, pre-judgment interest, and attorney’s fees, along with a declaratory

judgment to which Plaintiffs are entitled.

VI. FACTS

6.1 This case involves an incident that occurred on December 6, 2021. On this

date, GAVINO NICHOLAS DAVILA was driving a 2019 Kawasaki motorcycle. JOHN

MIER was driving a 2022 Volvo flatbed truck with a second trailer, owned by

SOUTHWEST INTERNATIONAL TRUCKS, INC. and leased by FOUNDATION

BUILDING MATERIALS. JOHN MIER while in his scope of employment for

FOUNDATION BUILDING MATERIALS failed to yield the right of way to GAVINO

NICHOLAS DAVILA causing GAVINO NICHOLAS DAVILA to run into the flatbed

truck, causing the death of GAVINO NICHOLAS DAVILA and injuries to ROLANDO

DAVILA and TIFFNEY DAWN DAVILA.

VII. CAUSE OF ACTION FOR NEGLIGENCE AGAINST DEFENDANT, JOHN MIER

7.1 At the time and on the occasion in question, Defendant, JOHN MIER, while

operating the 2022 Volvo Flatbed with a second trailer failed to yield the right of way to
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GAVINO NICHOLAS DAVILA, on the occasion in question, committed acts of omission

and commission, which collectively and severally constituted negligence, which

negligence was a proximate cause of the death of GAVINO NICHOLAS DAVILA and

injuries and damages to ROLANDO DAVILA and TIFFNEY DAWN DAVILA.

VIII. NEGLIGENCE OF FOUNDATION BUILDING MATERIALS, INC. AND FOUNDATION

BUILDING MATERIALS, LLC (“COLLECTIVELY FOUNDATION BUILDING MATERIALS”) AND
SOUTHWEST INTERNATIONAL TRUCKS, INC.

8.1 Defendants, FOUNDATION BUILDING MATERIALS and SOUTHWEST

INTERNATIONAL TRUCKS, INC. committed acts of omission and commission, which

collectively and severally, constitute negligence which negligence was a proximate cause

of the death of GAVINO NICHOLAS DAVILA and injuries and damages suffered by

ROLANDO DAVILA and TIFFNEY DAWN DAVILA.

IX. NEGLIGENCE, NEGLIGENCE PER SE AND GROSS NEGLIGENCE

9.1 At the time and place in question, the Defendants, each of them, acting by

and through their duly authorized agents, employees, and servants, were guilty of acts of

omission and commission, which, collectively and severally, constituted negligence,

negligence per se, and gross negligence, which were the proximate cause or causes of the

collision in question, the death of GAVINO NICHOLAS DAVILA and of the injuries and

damages sustained by ROLANDO DAVILA and TIFFNEY DAWN DAVILA.

X. CAUSE OF ACTION FOR NEGLIGENCE AGAINST DEFENDANTS,

FOUNDATION BUILDING MATERIALS, INC. AND FOUNDATION BUILDING MATERIALS, LLC
(“COLLECTIVELY FOUNDATION BUILDING MATERIALS”) AND SOUTHWEST
INTERNATIONAL TRUCKS, INC.

10.1 At the time and on the occasion in question, Defendants, FOUNDATION

BUILDING MATERIALS and SOUTHWEST INTERNATIONAL TRUCKS, INC. by

allowing JOHN MIER to operate their vehicle on the occasion in question, committed acts

of omission and commission, which collectively and severally constituted negligence,

which negligence was a proximate cause of the death of GAVINO NICHOLAS DAVILA

and injuries and damages to ROLANDO DAVILA and TIFFNEY DAWN DAVILA.
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 XI. DAMAGES

11.1 Nearly all of the elements of damages for personal injury are unliquidated

and, therefore, not subject to precise computation. Plaintiffs seek to recover damages in

amounts that the jury finds the evidence supports and that the jury finds to be

appropriate under all of the circumstances. This amount is in excess of one (1) million

dollars.

A. SURVIVAL DAMAGES OF GAVINO NICHOLAS DAVILA

11.2 As a result of the incident in question, GAVINO NICHOLAS DAVILA

sustained excruciating pain, mental anguish, and terror associated with the knowledge of

his impending death and the devastation of leaving his parents and siblings. GAVINO

NICHOLAS DAVILA’S ESTATE is entitled to recover for his mental anguish, physical

pain, necessary funeral bills and expenses, for which recovery is sought herein in an

amount far in excess of the minimal jurisdictional limits of this Court.

B. WRONGFUL DEATH DAMAGES – ROLANDO DAVILA AND TIFFNEY DAWN DAVILA

11.3 At the time of his death, GAVINO NICHOLAS DAVILA was in good

health, very vibrant and active and with a reasonable life expectancy of many years.

During his lifetime, the decedent was a good, caring son/sibling who gave love, comfort

and companionship to his family. In all reasonable probability, he would have continued

to do so for the remainder of his natural life.

11.4 As a result of the death of GAVINO NICHOLAS DAVILA, his surviving

parents, ROLANDO DAVILA and TIFFNEY DAWN DAVILA, have suffered damages in

the past and in the future, including pecuniary damages, mental anguish, loss of

companionship and society, and loss of familial consortium, for which damages are

sought under the Wrongful Death Act and Survival Act in an amount far in excess of the

minimal jurisdictional limits of this Court.

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PERSONAL INJURY DAMAGES – ROLANDO DAVILA AND TIFFNEY DAWN DAVILA

11.5 As a result of the incident in question, ROLANDO DAVILA and TIFFNEY

DAWN DAVILA have suffered personal injury damages as a result of the incident made

the basis of this litigation. In that regard, ROLANDO DAVILA and TIFFNEY DAWN

DAVILA have suffered all of the legal elements of damages recognized by law, including,

but not limited to physical pain and mental anguish – past and future.

XII. PRE-JUDGMENT AND POST-JUDGMENT INTEREST

12.1 Plaintiffs seek pre-judgment and post-judgment interest as allowed by

law.

XIII. JURY DEMAND

13.1 Plaintiffs request a trial by jury for all issues of fact. A jury fee has been

paid timely and properly.

XIV. RULE 193.7 NOTICE OF INTENTION TO USE DOCUMENTS AS TRIAL EVIDENCE

14.1 Pursuant to the self-authenticating provisions of Rule 193.7 of the Texas

Rules of Civil Procedure, Plaintiffs, ROLANDO DAVILA and TIFFNEY DAWN

DAVILA, do hereby give actual notice that they intend to utilize as evidence all of the

documents produced by all parties in response to written discovery at any pretrial

proceeding or at the time of trial.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants take

notice of the filing of this Action, that this cause be set for trial before a jury, and that upon

final hearing of this cause, that Plaintiffs have judgment of and from Defendants, jointly and

severally, for the damages in such amount as the evidence may show, and the jury may

determine, to be proper, together with costs of Court, pre-judgment and post-judgment

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interest as heretofore provided by law, and for such other and further relief to which

Plaintiffs may show themselves to be justly entitled.

Respectfully submitted,

WIGINGTON RUMLEY DUNN

& BLAIR, L.L.P.
123 North Carrizo Street
Corpus Christi, Texas 78401
Tel: (361) 885-7500
Fax: (361) 885-0487

/s/ Jerry Guerra

Jeffrey G. Wigington
State Bar No. 00785246
jwigington@wigrum.com
Jerry Guerra
State Bar No. 00789326
jguerra@wigrum.com
David Bart Waxman
State Bar No. 24070817
bwaxman@wigrum.com

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

The undersigned attorney does hereby certify that a true and correct copy of the
foregoing instrument was forwarded to all counsels of record as listed below, by the
method of service indicated, on this, the 6th day of July, 2023.

Barry L. Hardin Via Eservice: Bhardin@Wslawpc.Com

James Murrell Via Eservice: jmurrell@wslawpc.com
WADDELL SERAFINO GEARY RECHNER
JENEVEIN, P.C.
1717 Main Street, 25th Floor
Dallas, Texas 75201
Attorneys for Defendants
Foundation Building Materials, Inc.,
Foundation Building Materials, LLC,
John Mier and Southwest International Trucks, Inc.

/s/ Jerry Guerra

Jerry Guerra

Page 7
 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.

Susan Winegeart on behalf of Jerry Guerra

Bar No. 789326
swinegeart@wigrum.com
Envelope ID: 77268857
Filing Code Description: Miscellanous Event
Filing Description: PLAINTIFF'S EXPERT DISCLOSURES AND REPORT
Status as of 7/7/2023 8:20 AM CST

Associated Case Party: TIFFNEYDAWNDAVILA

Name BarNumber Email TimestampSubmitted Status

Jeffrey GWigington jwigington@wigrum.com 7/6/2023 3:28:08 PM SENT

Marlene Martinez mmartinez@wigrum.com 7/6/2023 3:28:08 PM SENT

Susan J.Winegeart swinegeart@wigrum.com 7/6/2023 3:28:08 PM SENT

David "Bart"Waxman bwaxman@wigrum.com 7/6/2023 3:28:08 PM SENT

Griselda Green ggreen@Wigrum.com 7/6/2023 3:28:08 PM SENT

Associated Case Party: JOHN MIER

Name BarNumber Email TimestampSubmitted Status

Barry L Hardin bhardin@wslawpc.com 7/6/2023 3:28:08 PM SENT

Teresa Reeves treeves@wslawpc.com 7/6/2023 3:28:08 PM SENT

Alexis N.Ondris aondris@wslawpc.com 7/6/2023 3:28:08 PM SENT

James M.Murrell jmurrell@wslawpc.com 7/6/2023 3:28:08 PM SENT

Associated Case Party: ROLANDO DAVILA

Name BarNumber Email TimestampSubmitted Status

JERRY GUERRA jguerra@wigrum.com 7/6/2023 3:28:08 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Howard Close close@wrightclosebarger.com 7/6/2023 3:28:08 PM SENT

Johanna Trees trees@wrightclosebarger.com 7/6/2023 3:28:08 PM SENT

 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.

Susan Winegeart on behalf of Jerry Guerra

Bar No. 789326
swinegeart@wigrum.com
Envelope ID: 77268857
Filing Code Description: Miscellanous Event
Filing Description: PLAINTIFF'S EXPERT DISCLOSURES AND REPORT
Status as of 7/7/2023 8:20 AM CST

Case Contacts

Andy Love love@wrightclosebarger.com 7/6/2023 3:28:08 PM SENT