Dennis Edward Rayner, Even Better Logistics, LLC, and Michelle Cora Croom v. Ronnie Claxton and Sandra Claxton ( 2021 )

ACCEPTED
08-20-00145-CV
08-20-00145-CV EIGHTH COURT OF APPEALS
EL PASO, TEXAS
10/29/2021 9:41 AM
ELIZABETH G. FLORES
CLERK
FILED IN
8th COURT OF APPEALS
EL PASO, TEXAS
10/29/2021 9:41:09 AM
ELIZABETH G. FLORES
Clerk
October 29, 2021
Honorable Elizabeth G. Flores
Clerk of the Court
Eighth Court of Appeals
500 E. San Antonio Ave., Suite 1203
El Paso, Texas 79901-2408
Via E-File
Re: No. 08-20-00145-CV; Dennis Edward Rayner, Even Better Logistics,
LLC, and Michelle Cora Croom v. Ronnie Claxton and Sandra
Claxton; in the Court of Appeals for the Eighth District of Texas
Dear Ms. Flores:
This letter is in response to Appellants’ suggestion that U-Haul Intern.,
Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012), requires this Court to review the
legal sufficiency of the gross negligence findings and exemplary damage
awards even if it reverses and remands the ordinary negligence claims for a
new trial. But Waldrip does not require such review. The conclusion and
footnote in Waldrip which approved of rendition was not a statement of
necessary appellate procedure which must be followed in every case but was
instead a tailored reaction to the specific evidence and public policy concerns
presented in that case. This case presents important legal and factual
differences.
First, the Court in Waldrip expressed particular concern about the
policy implications on future cases if an employer could be found guilty of
gross negligence even if it provided subsequent safety training.
P.O. Box 224626 Dallas, TX 75222 | 214.946.8000 phone 214.946.8433 fax | www.dpslawgroup.com
Lisa Matz, Clerk
October 29, 2021
Page 2 of 5
Further, we are concerned about the impact the court of appeals'
reasoning may have on future gross-negligence cases involving
alleged reckless hiring. Under the court of appeals' reasoning,
any time an employer hires a previously inexperienced
employee requiring training in specific safety tasks, the
employer conceivably may be found grossly negligent and
subject to punitive damages if the employee acts negligently in
performing her tasks. However, a party cannot be liable for gross
negligence when it actually and subjectively believes that
circumstances pose no risk to the injured party, even if they are
wrong.
Waldrip, 380 S.W.3d at 140–41. As Appellants pointed out in oral argument,
Mr. Rayner had been driving trucks for 45 years, and there was no allegation
of improper training. Accordingly, Waldrip’s reasoning need not be followed
here, because the policy implications that influenced the Waldrip decision are
not present.
Second, even in Waldrip, whether to render judgment on a claim for
gross negligence depends on the nature of the evidence admitted at trial.
The Waldrip court reversed and rendered judgment on the jury’s punitive
damage award against U-Haul Texas because of testimony that conclusively
established that the corporate defendant had no knowledge of any extreme risk
from hiring an inexperienced field manager because it believed (1) the
position required no experience or specialized knowledge and (2) that any
necessary training would be provided by U-Haul. Id. at 139-41. In sharp
contrast, the testimony of Defendants Croom and EBL here included actual
admissions that it was reckless and posed an extreme risk of danger to Texas
drivers to have a truck with these safety violations on the road.
The other cases cited by Appellants also reveal that consideration of
gross negligence and any rendition on that issue is proper only when there
is already legally insufficient evidence of gross negligence that could not be
corrected on re-trial. Importantly, in the footnote which sets out cases that
provide authority for its position, the Waldrip court also acknowledged a
different holding in Nissan Motor Co. v. Armstrong, 145 S.W.3d 131 (Tex.
2004). In Nissan, the supreme court “revers[ed]for new trial based on
Lisa Matz, Clerk
October 29, 2021
Page 3 of 5
erroneous admission of prejudicial evidence but declin[ed] to render on the
gross-negligence claims because the record apparently included some
evidence of gross negligence.” Waldrip, 380 S.W.3d at 141, n. 23. Likewise,
in the Guerra case cited in Appellants’ letter brief, the Texas Supreme Court
rendered judgment only on the claims against the parent company, but
remanded all claims— including gross negligence claims—against its Texas
subsidiary. Serv. Corp. Intern. v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011).
In summary, Waldrip is unique and does not state a general proposition
that must be followed in every case. Moreover, Appellants cite no cases out
of the Austin Court of Appeals (the court from which this case was
transferred and whose precedent would be binding on this Court) that
require the sort of review and rendition Appellants suggest.
Finally, Appellants’ argument ignores the nature of the evidence at
issue here. Appellees presented evidence that Rayner was negligent not
only for hitting the bridge, but for failing to conduct an adequate pre-trip
inspection. The determination of Rayner’s gross negligence will therefore
require the jury to evaluate the degree to which that evidence establishes not
only ordinary negligence but may also rise to the level of gross negligence.
Accordingly, if the Court determines a remand of the negligence issue is
warranted, it makes sense to also remand the gross negligence issue so the
same jury can determine whether the evidence of what Rayner actually
knew supports both negligence and gross negligence findings. The Eastern
District of Texas remanded in a similar circumstance and cited with approval
the Nissan case which the supreme court acknowledged in Waldrip.
Whether the defendant had actual knowledge of the alleged
defect is relevant to whether punitive damages should be
awarded. … Moreover, in Nissan the Texas Supreme Court
remanded the exemplary damages issue for consideration,
stating that there was testimony which could be construed to
indicate Nissan knew of the defect claims prior to the accident at
issue. Nissan, 145 S.W.3d at 148. Thus, Plaintiff is correct that
evidence of notice may be relevant to an award of exemplary
damages.
Lisa Matz, Clerk
October 29, 2021
Page 4 of 5
Hendricks v. Ford Motor Co., No. 4:12CV71, 2012 WL 4478308, at *4 (E.D. Tex.
Sept. 27, 2012) (internal citations omitted). Appellants have cited no case,
including Waldrip, that precludes a remand of both negligence and gross
negligence claims when there is legally sufficient evidence of ordinary
negligence.
Of course, Appellants believe that the findings of negligence and gross
negligence against Rayner should be affirmed. But, if the Court decides
there is insufficient evidence to support the jury’s finding that Rayner was
negligent, both Rayner’s negligence and his gross negligence should be
remanded for further consideration.
Respectfully submitted,
/s/ Tammy Holt
Tammy Holt
Counsel for Appellees
Lisa Matz, Clerk
October 29, 2021
Page 5 of 5
CERTIFICATE OF SERVICE
I hereby certify that on October 29, 2021, a true and correct copy of
Appellees’ Response to Letter Brief was caused to be served on the following
counsel of record in accordance with Rule 21a of the Texas Rules of Civil
Procedure.
James C. Marrow John P. Donovan
marrow@wrightclosebarger.com John.Donovan@knchlaw.com
Jessica Z. Barger Koeller, Nebeker, Carlson & Haluck,
barger@wrightclosebarger.com LLP
Elizabeth F. Turco 5900 Southwest Parkway,
turco@wrightclosebarger.com Suite 5-520
Wright Close & Barger, LLP Austin, TX 78735
One Riverway, Ste 2200
Houston, TX 77056
/s/ Tammy Holt
Tammy M. Holt
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.
Kristi Lassiter on behalf of Tammy Holt
Bar No. 796771
klassiter@dpslawgroup.com
Envelope ID: 58663857
Status as of 10/29/2021 10:28 AM MST
Associated Case Party: Even Better Logistics, LLC
Name BarNumber Email TimestampSubmitted Status
James C. Marrow marrow@wrightclosebarger.com 10/29/2021 9:41:09 AM SENT
Jessica Z. Barger barger@wrightclosebarger.com 10/29/2021 9:41:09 AM SENT
John Donovan John.Donovan@knchlaw.com 10/29/2021 9:41:09 AM SENT
Associated Case Party: Ronnie Claxton
Name BarNumber Email TimestampSubmitted Status
L. ToddKelly tkellyefile@carlsonattorneys.com 10/29/2021 9:41:09 AM SENT
John W. Greenway john@greenwaylawfirm.com 10/29/2021 9:41:09 AM SENT
Jaime Lynn jlynn@carlsonattorneys.com 10/29/2021 9:41:09 AM SENT
Vernon K.Elkins velkins@carlsonattorneys.com 10/29/2021 9:41:09 AM SENT
Kirk Pittard kpittard@dpslawgroup.com 10/29/2021 9:41:09 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Kirk Pittard kpittard@dpslawgroup.com 10/29/2021 9:41:09 AM SENT
Alicia Dubois Alicia.Dubois@traviscountytx.gov 10/29/2021 9:41:09 AM SENT
Kristi Lassiter klassiter@dpslawgroup.com 10/29/2021 9:41:09 AM SENT
Tammy Holt tholt@dpslawgroup.com 10/29/2021 9:41:09 AM SENT
Kelly Blackburn efile@dpslawgroup.com 10/29/2021 9:41:09 AM SENT