Defendant Says Lawyer Should Blame Himself

     HOUSTON (CN) – After a trial lawyer sued two men who he claims hospitalized him with serious brain injuries, one of the alleged attackers responded that the man’s “injuries resulted from his own behavior, best described as aggression fueled by alcohol.”
     Walter Cubberly sued Walter P. “Trip” Zivley III and Daniel C. Feiler on Sept. 11, 2014 in Harris County Court .
     Cubberly claimed he was at his Houston home watching TV around midnight on Jan. 5, 2014.
     “His dog started barking at the window, which wasn’t something his dog typically did; so Mr. Cubberly walked outside to investigate,” the complaint states. “Upon walking outside, Mr. Cubberly saw defendants urinating on his house. Mr. Cubberly did not know either defendant. When Mr. Cubberly confronted defendants about urinating on his home in the middle of the night, they attacked him and beat him unconscious.”
     Cubberly claimed Zivley and Feiler then decided to have some fun with him.
     “They then dragged Mr. Cubberly into his home, put him in a chair, videotaped him on a smart phone, taunting him with expletives as Mr. Cubberly sat there bruised, bloodied and barely conscious. Defendants then posted this video on Snapchat and sent it to their friends,” according to Cubberly’s original complaint.
     Cubberly filed an amended complaint six weeks later that did not say anything about the defendants posting a video of them taunting him.
     In the amended lawsuit, filed Oct. 29 in Harris County Court, Cubberly says he confronted Zivley and Feiler after he saw them urinating in his front yard, and Zivley knocked him down.
     “At this point, defendant Feiler took several steps back and then ran forward and kicked Mr. Cubberly in the head, causing it to go up and then land back down on the gravel in the front yard,” the amended complaint states.
     Emergency responders found Cubberly knocked out in his driveway and took him to a hospital, where he was diagnosed with a traumatic brain injury and doctors had to sew his left ear on, according to the amended lawsuit.
     Cubberly claims he suffered mental problems from the assault that do not bode well for his career as a trial attorney. Cubberly was 33 when he filed his original complaint.
     Cubberly dropped trespass allegations in the amended complaint.
     He sued Feiler for assault and Zivley for negligent failure to aid or protect. He claimed Zivley shouldn’t have let Feiler kick his head when he was defenseless on the ground.
     Zivley is the son of a prominent Houston attorney.
     Zivley’s attorney filed a first amended original answer on March 11 that calls Cubberly’s allegations “so egregious in their falsity and so defamatory in their intent and effect on the reputation of the Zivley family as a whole, as to render a ‘general denial’ of the facts asserted inadequate as a public pleading.”
     Zivley’s attorney Michael Reviere told Courthouse News that it’s unusual for civil defense attorneys to go on the offensive for their clients.
     “Defense lawyers have no burden of proof, so defense lawyers don’t put out, ‘Well here’s what happened,'” Reviere said.
     “The reason we did that is when the plaintiff amended his petition and dropped a lot of the egregious facts that were alleged in the first petition and changed it; the suspicion was the first petition was filed for the purpose of doing damage to the family’s reputation.”
     Reviere said Zivley is a college student and his family is concerned that Cubberly’s allegations could “impact his future.”
     In his answer, Zivley claims he never urinated in Cubberly’s driveway and that he had a reason to be there: that his cousin was Cubberly’s roommate at the time.
     “The plaintiff did not come outside his house upon being alerted by his dog, as is pled,” Zivley’s answer states.
     “Rather, plaintiff approached defendants coming down the street from the direction of Richmond Avenue. Medical records provided through discovery make clear plaintiff was heavily intoxicated, his blood alcohol level being more than twice the legal limit.”
     Zivley claims Cubberly had been drinking all day, first at an event at Top Golf, a restaurant and bar that includes an indoor driving range, and then at a wedding.
     Zivley claims he never posted Snapchat footage taunting Cubberly.
     “There is no ‘taunting’ in the videos. Furthermore, the videos were not sent to ‘his friends,’ but to his cousin, John Zivley, asking who the plaintiff was,” Zivley’s answer states.
     Reviere declined to give Courthouse News a copy of the Snapchat footage, saying he didn’t want to inflame litigation that could put reputations on the line.
     “I mean, we have this altercation: One is the son of a lawyer, one is a lawyer. It would be my desire that this thing doesn’t further ruin anybody’s reputation,” Reviere said.
     Nonetheless, Reviere said, he wants to clear his client’s name.
     “The first petition paints Zivley as almost being a monster; the second petition is a dramatic change. You don’t see all that Snapchat video garbage that he’s talking about. There was no taunting that went on,” Reviere said.
     Cubberly’s attorney, Christopher Johns, with Lapeze Johns of Houston said: “We stand by our client’s version of events as set forth in our most recent petition.”

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