Judy Weirich v. IESI Corporation and Southside Wrecker, Inc. ( 2015 )

ACCEPTED
03-14-00819-cv
4869265
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/13/2015 4:12:37 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00819-CV
__________________________________________________________________
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE COURT OF APPEALS FOR THE 4/16/2015 4:32:37 PM
THIRD COURT OF APPEALS DISTRICT JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
__________________________________________________________________
JUDY WEIRICH,
Appellants
v.
IESI CORPORATION and SOUTHSIDE WRECKER, INC.,
Appellees
__________________________________________________________________
BRIEF OF APPELLANT
JUDY WEIRICH
__________________________________________________________________
ZACHARY P. HUDLER
State Bar No. 24032318
ZACHARY P. HUDLER, P.C.
100 East Pecan, Suite One
P.O. Box 1728
Johnson City, Texas, 78636
830.868.7651
830.868.7636 Facsimile
Zachary@hudlerlaw.com
ATTORNEY FOR APPELLANT
JUDY WEIRICH
APPELLANT DOES NOT REQUEST ORAL ARGUMENT
i
IDENTITY OF PARTIES AND COUNSEL
The following is a list of all parties to this appeal and the names and
addresses of those parties’ counsel.
APPELLANT/PLAINTIFF COUNSEL FOR APPELLANT
Judy Weirich Zachary P. Hudler
Zachary P. Hudler, P.C.
100 East Pecan, Suite One
P.O. Box 1728
Johnson City, Texas 78636
zachary@hudlerlaw.com
APPELLEE/DEFENDANT COUNSEL FOR APPELLEE
IESI Corporation Mr. Vaughan E. Waters
Thornton, Biechlin, Segrato,
Reynolds & Guerra, L.C.
Fifth Floor- One International Centre
100 N.E. Loop 410
San Antonio, Texas 78216
vwaters@thorntonfirm.com
Southside Wrecker, Inc. George J. Petras V
The Petras Law Firm
1504 San Antonio Street
Austin, Texas 78701
gpetras@petraslawfirm.com
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ii
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES iv
STATEMENT OF THE CASE vi
ISSUES PRESENTED vi
STATEMENT OF FACTS 2
SUMMARY OF THE ARGUMENT 3
ARGUMENT 4
CONCLUSION AND PRAYER 8
CERTIFICATE OF COMPLIANCE 12
CERTIFICATE OF SERVICE 12
APPENDIX 13
iii
TABLE OF AUTHORITIES
CASES Page
Brownlee v. Brownlee,
665 S.W.2d 111, 112 (Tex.1984) 7
Forbes, Inc. v. Granada Biosciences, Inc,.
124 S.W.3d 167, 172 (Tex.2003) 5
Lehrer v. Zwernemann,
14 S.W.3d 775, 777 (Tex.App.—Houston [1st Dist.] 2000, pet denied) 5
Mansions in the Forest, LP v. Montgomery Cty.,
365 S.W.3d 314, 316-17 (Tex. 2012) 7
Merriman v. XTO Energy, Inc.,
407 S.W.3d 244, 248 (Tex.2013) 5
Nabors Drilling, USA, Inc. v. Escoto,
288 S.W.3d 401, 404 (Tex. 2009) 9
Omega Contracting, Inc. v. Torres,
191 S.W.3d 828, 840-841 (Tex.App.—Fort Worth, 2006, no pet.) 9
Thomas v. Omar Invs.
156 S.W.3d 681, 684 (Tex.App.—Dallas 2005, no pet.) 5
Ryland Grp. v. Hood
924 S.W.2d 120, 122 (Tex. 1996) 7, 8
Sosa v. Central Power & Light
909 S.W.2d 893, 895 (Tex.1995) 6
Western Invs. V. Urena
162 S.W.3d 547, 550 (Tex.2005) 9
iv
STATUTES
Tex.Transp. Code Ann. §547.004(a) & §548.604(a) 9
Tex.R.Civ.P.166(a)(i) 5
Tex.R.Civ.P.166a(c) 7, 8
Tex.R.Civ.P.63 6
Tex.R.Civ.P. 166a(f) 7
v
STATEMENT OF THE CASE
Nature Of The Case: This case arises from a dispute involving an
automobile accident in Johnson City, Blanco
County, Texas. The large garbage truck owned by
IESI was being towed by Southside Wrecker and
completely lost one of its wheels which then struck
Judy Weirich’s car and caused property and
personal injury damages.
Trial Court: The Honorable J. Allan Garrett, Presiding Judge of
the 424th Judicial District Court, Blanco County,
Texas.
Trial Court’s Actions: The trial court rendered no evidence motion for
summary judgment orders in favor of Defendants
purporting to dismiss all of Plaintiff’s claims. The
Court further struck Plaintiff Judy Weirich’s
Affidavit in support of her response.
ISSUES PRESENTED
1. Whether this Court has standing in light of Plaintiff’s timely amended
petition asserting additional claims and theories of recovery, including
but not limited to res ipsa loquitur and negligence per se where the
Defendants’ no evidence motions for summary judgment did not address
those claims?
2. Whether the trial court erred by striking Plaintiff Judy Weirich’s affidavit
in support of her response to Defendants’ no-evidence motions for
summary judgment in its entirety?
3. Whether the trial court erred by granting Defendant IESI and Defendant
Southside’s no-evidence motion for summary judgment or whether
Plaintiff Judy Weirich produced sufficient summary judgment evidence
to warrant a jury trial?
vi
No. 03-14-00819-CV
__________________________________________________________________
IN THE COURT OF APPEALS FOR THE
THIRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS
__________________________________________________________________
JUDY WEIRICH,
Appellant
v.
IESI CORPORATION and SOUTHSIDE WRECKER, INC.,
Appellees
__________________________________________________________________
BRIEF OF APPELLANT
JUDY WEIRICH
__________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
Appellant Judy Weirich (“Weirich”) respectfully submits this brief in
support of her appeal from the trial court’s orders granting no-evidence summary
judgments in favor of IESI Corporation (“IESI”) and Southside Wrecker, Inc.
(“Southside”). The parties will be referred to by name or by their designation in
the trial court.
The Clerk’s 1-volume record will be cited by page number as “CR____
[page #].” The Court Reporter’s record consists of portions of the summary
judgement hearing transcripts entitled “Motion for Summary Judgment”. The
1
Court Reporter’s record will be cited as “RR MSJ, [page # of Court Reporter’s
transcript].
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STATEMENT OF THE FACTS
This is a personal injury case. The automobile driven by Plaintiff Weirich
on or about January 9, 2012 was struck by a wheel of an IESI garbage truck which
was being towed by Southside Wrecker in Blanco County, Texas. CR 138-139.
As a result of the entire wheel dislodging from the IESI garbage truck and striking
Weirich’s car, Weirich’s car was totaled and she suffered personal injuries and
other damages. CR 138; CR 127, et seq. (Plaintiff’s live Petition). The factual
details of this personal injury case are set forth in Weirich’s affidavit which is
attached to Plaintiff’s response to Defendants’ no-evidence motions for summary
judgments and incorporated by reference herein as if set forth at length. CR 138-
139.
Defendants moved for a no-evidence motion for summary judgment.
Weirich filed a timely response and amended pleading alleging, among other
things, negligence and gross negligence, as previously plead and added claims of
negligence per se, and res ipsa loquitur. CR 127. Defendants each filed replies
and objected to Weirich’s summary judgment evidence, to wit, Weirich’s Affidavit
and the Affidavit of her legal counsel. CR 140- 165.
The trial court struck the Affidavit of Judy Weirich and her counsel and
granted each of Defendants’ no-evidence motion for summary judgments. Weirich
filed her notice of this appeal.
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SUMMARY OF THE ARGUMENT
The Court erred in striking the affidavit of Judy Weirich and granting
Defendants’ No-Evidence Motions for Summary Judgment. The Affidavit of Judy
Weirich is competent summary judgment evidence which raises a genuine issue of
material fact concerning the negligence and gross negligence of each Defendant to
warrant the case to be tried to a jury. Further, Weirich timely amended her
pleadings to include claims of negligence per se and liability under res ipsa
loquitur against Defendant IESI and Defendant Southside which was not addressed
in either Defendant’s no-evidence motion for summary judgment. This court lacks
standing to decide this case as the purported judgments do not dispose of all
claims. In the alternative, the summary judgment evidence on file supports those
additional claims and creates a genuine issue of fact that should be tried to a jury.
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ARGUMENT
A. No-Evidence Motion for Summary Judgment Legal Authorities
The burden on the non-movant regarding a no-evidence motion summary
judgment is to raise a genuine issue of material fact about the element challenged
by the motion for summary judgment. See Merriman v. XTO Energy, Inc., 407
S.W.3d 244, 248 (Tex.2013). The trial court must resolve all reasonable doubts
about the facts in favor of the non-movant. See Lehrer v. Zwernemann, 14 S.W.3d
775, 777 (Tex.App.—Houston [1st Dist.] 2000, pet denied). A no-evidence motion
for summary judgment is essentially a motion for a pretrial directed verdict. See
Thomas v. Omar Invs., 156 S.W.3d 681, 684 (Tex.App.—Dallas 2005, no pet.).
To defeat a no-evidence motion for summary judgment, the non-movant must
produce more than a scintilla of evidence to raise a genuine issue of material fact.
TRCP 166(a)(i); Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172
(Tex.2003).
B. The Trial Court’s Orders improperly state that the Judgments
are final and erred to the extent that it impliedly struck Weirich’s additional
theories of recovery set forth in her Fourth Amended Original Petition.
Weirich timely amended her petition seven days prior to the hearing and
specifically included, among other things, additional theories of recovery,
including negligence per se and res ipsa loquitur. CR 127-134. The trial court
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must render a summary judgment on the pleadings on file at the time of the
hearing. TRCP 166a(c). A party may file an amended petition seven days prior to
the hearing. TRCP 63; Sosa v. Central Power & Light, 909 S.W.2d 893, 895
(Tex.1995). Here, the Defendant’s no-evidence motion for summary judgment did
not address the additional theories of recovery asserted by Weirich in her timely
filed amended petition. Thus, having no final judgment as set forth in the order,
this court lacks standing to hear this case and it should be remanded to the trial
court. See TRCP 166a(c); TRCP 63; Sosa v. Central Power & Light, 909 S.W.2d
893, 895 (Tex.1995).
In the alternative, Weirich’s affidavit and summary judgment evidence
clearly supports a genuine fact issue on the claims of negligence per se and res ipsa
loquitur asserted in the amendment. CR 127-134 & CR 138-139. As to
negligence per se, the statutes cited below were plainly designed to protect the
class of people such as Weirich and the violation of the statutes proximately caused
Weirich’s injuries. As to res ipsa loquitur, the incident “speaks for itself” and (1)
Weirich’s injuries would not have occurred without negligence, and (2) the IESI
garbage truck was under the sole possession and control of Southside Wrecker at
the time of the incident.
C. The Trial Court erred in Striking Plaintiff Judy Weirich’s
Affidavit from the Summary Judgment Evidence
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In Texas, affidavits are routinely recognized as competent summary
judgment evidence. See Mansions in the Forest, LP v. Montgomery Cty., 365
S.W.3d 314, 316-17 (Tex. 2012). In fact, it is so commonplace that it goes without
citation that the most common form of summary judgment evidence is the
affidavit. The minimum requirement for an affidavit is that it must be sworn. See
id. The affidavit must contain facts that would be admissible in evidence at a
conventional trial on the merits. TRCP 166a(f). It must also affirmatively show
that the witness is competent to testify about the matters in the affidavit and that
the facts are based on personal knowledge. TRCP 166a(f). An affidavit must not
be based on legal or factual conclusions. See Brownlee v. Brownlee, 665 S.W.2d
111, 112 (Tex.1984). The statements must be susceptible to being readily
controverted. See TRCP 166a(c); Ryland Grp. v. Hood, 924 S.W.2d 120, 122
(Tex. 1996).
In this case, Judy Weirich who had personal knowledge of the facts at issue
as she was involved in the automobile accident and gave a sworn affidavit to
support her response to Defendants’ no-evidence motions for summary judgment.
CR 138-139. Weirich is competent to testify in this matter as she was 61 years of
age at the time of her testimony. Id. The affidavit clearly shows that she was
involved in the accident and knew that her car was struck with a wheel of an IESI
garbage truck which was being towed by Southside Wrecker. See id. In fact,
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Weirich’s affidavit sets forth the incident made the basis of this lawsuit with
specific facts. See id. The facts contained in the affidavit are susceptible to being
readily controverted in this simple personal injury case. CR 138-139; See TRCP
166a(c); Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Instead of
controverting the facts, the Defendants’ made general statements that Weirich’s
affidavit was conclusory. CR 149-164.
Clearly, Weirich’s affidavit constitutes competent summary judgment
evidence, should not have been struck from the summary judgment record, and
plainly creates a genuine issue of fact on the theories of recovery set forth in
Weirich’s live pleading. CR 127, et seq.
As a result, the trial court committed error by dismissing Weirich’s claims
and must be reversed. This Court should remand this case to the trial court for a
determination on the merits.
D. The Trial Court Erred in Granting No-Evidence Motion for
Summary Judgments on Weirich’s Negligence and Gross-Negligence Claims
The trial court erred in granting Defendants’ no-evidence motions for
summary judgment because Weirich presented summary judgment evidence to
support all elements of her claims in this personal injury lawsuit. CR 138-139.
The elements of a negligence action are the following: (1) the defendant owed a
legal duty to the plaintiff, (2) the defendant breached the duty, and (3) the breach
8
proximately caused the plaintiff’s injury. See Western Invs. V. Urena, 162 S.W.3d
547, 550 (Tex.2005).
The existence of a duty is generally a question of law. See Nabors Drilling,
USA, Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). The duty for owners and
drivers to assure that vehicles are safe on our Texas highways is deeply rooted in
our jurisprudence. In Texas, drivers and owners of vehicles, including but not
limited to IESI and Southside, have a duty to ensure that their vehicles either
driven or towed are in safe working order. The Texas Transportation Code affirms
this duty and prohibits the operation of an unsafe vehicle or a vehicle in a
mechanical condition that endangers a person. Tex.Transp. Code Ann.
§547.004(a) & §548.604(a).
Moreover, Texas courts have specifically recognized the duty of a motor
carrier to ensure the lug nuts on wheels are not loose. See Omega Contracting, Inc.
v. Torres, 191 S.W.3d 828, 840-841 (Tex.App.—Fort Worth, 2006, no pet.). This
duty includes a requirement to inspect the vehicle and assure that the vehicle is in a
safe operating condition.
Southside Wrecker was towing the IESI garbage truck on the day the entire
wheel of the IESI truck came off and struck Weirich’s automobile. CR 138-139.
IESI’s obvious failure to maintain its vehicle to avoid the entire wheel separating
from its garbage truck clearly constitutes a breach of its duty. CR 138-139.
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Indeed, IESI’s breach was the proximate cause of damages set forth in Weirich’s
affidavit.
Similarly, Southside’s failure to ensure that the vehicle it was towing was in
safe operating condition, i.e. that the lug nuts were secure on the wheel, constitutes
a breach of duty which proximately caused Weirich’s damages. CR 138-139.
Defendants offer no excuse for the wheel coming off. The only reasonable
explanation for it occurring is negligence on behalf of the Defendants. At a
minimum, Weirich’s summary judgment evidence establishes a genuine issue of
fact and would survive the standard for a directed verdict.
E. Defendants’ conduct amounted to gross negligence
Defendant IESI’s conduct amounted to gross negligence. IESI as a garbage
disposal company and owner of vehicles clearly understands that failing to provide
minimal maintenance to its vehicles to ensure that the wheels of the vehicle remain
attached to the body of the vehicle involves an extreme degree of risk to the public
as directly evidenced by what happened here. CR 138-139. IESI was aware of this
risk just as every other reasonable Texas citizen. However, it proceeded with
conscious indifference to what could and did happen to others on the highway. See
id.
Defendant Southside Wrecker’s conduct amounted to gross negligence.
Southside Wrecker as a towing company and owner of vehicles clearly understands
10
that failing to minimally inspect a vehicle that it tows to ensure that the wheels of
the vehicle remain attached to the body of the vehicle involves an extreme degree
of risk to the public as directly evidenced by what happened here. CR 138-139.
Southside Wrecker was aware of this risk just as every other reasonable Texas
citizen. However, it proceeded with conscious indifference to what could and did
happen to others on the highway. CR 138-139.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant Judy Weirich
respectfully prays that this Court reverse the trial court’s granting of Defendant’s
no-evidence motions for summary judgment. Appellant further prays that the
Court grant to Appellant such other and further relief to which she is justly entitled.
Respectfully submitted,
/s/ Zachary P. Hudler
Zachary P. Hudler
State Bar No. 24032318
ZACHARY P. HUDLER, P.C.
100 E. Pecan Street, Suite One
P.O. Box 1728
Johnson City, Texas 78636
830.868.7651 (Telephone)
830.868.7636 (Facsimile)
ATTORNEY FOR APPELLANT JUDY
WEIRICH
11
CERTIFICATE OF COMPLIANCE
I, Zachary P. Hudler, attorney for Appellant Judy Weirich, certify that this
document was generated by a computer using Microsoft Word 2010 which
indicates that the word count of this document is 1,502 per Tex. R. App. P. 9.4 (i).
/s/ Zachary P. Hudler
Zachary P. Hudler
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Brief of Appellant has
been served on the attorneys listed below by e-service, on the 8th day of April,
2015:
Mr. Vaughan E. Waters
Thornton, Biechlin, Segrato, Reynolds & Guerra, L.C.
Fifth Floor - One International Centre
100 N.E. Loop 410
San Antonio, Texas 78216
vwaters@thorntonfirm.com
George J. Petras V
The Petras Law Firm
1504 San Antonio Street
Austin, Texas 78701
gpetras@petraslawfirm.com
/s/ Zachary P. Hudler
Zachary P. Hudler
12
APPENDIX
1. Order on Defendant IESI TX CORP.’s No-Evidence Motion for Summary
Judgment signed by Judge J. Allan Garrett on November 12, 2014.
2. Order Granting Southside Wrecker, Inc.’s No-Evidence Motion For
Summary Judgment, For Severance and Final Judgment signed by Judge J.
Allan Garrett on December 8, 2014.
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