                                                                                   ACCEPTED
                                                                                04-14-00899-cv
                                                                   FOURTH COURT OF APPEALS
                                                                        SAN ANTONIO, TEXAS
                                                                          4/29/2015 2:31:00 PM
                                                                                KEITH HOTTLE
                                                                                        CLERK




                          NO. 04-14-00899-CV              FILED IN
                                                    4th COURT OF APPEALS
    ______________________________________________________________
                                                     SAN ANTONIO, TEXAS
                                                      04/29/2015 2:31:00 PM
                     IN THE COURT OF APPEALS           KEITH E. HOTTLE
                FOR THE FOURTH DISTRICT OF TEXAS            Clerk
                       AT SAN ANTONIO, TEXAS
     ____________________________________________________________

  LETICIA ZEPEDA VASQUEZ, Individually and on Behalf of the Estate of
                   Jose Abraham Vasquez, Jr.
                                      Appellant
                              v.
    LEGEND NATURAL GAS III, LP; LEGEND NATURAL GAS, LLC;
   LEWIS ENERGY GROUP, LP, LEWIS PETRO PROPERTIES, INC.,
  ROSETTA RESOURCES OPERATING, LP, VIRTEX HOLDINGS, LLP,
     VIRATEX OPERATING CO., INC., ENTERPRISE PRODUCTS
   HOLDINGS, LLC; ENTERPRISE PRODUCTS COMPANY; and XTO
                        ENERGY, INC.,
                                      Appellees

      ___________________________________________________________

         BRIEF OF APPELLEES LEWIS ENERGY GROUP, LP AND
                   LEWIS PETRO PROPERTIES, INC.
      ___________________________________________________________

                                       David L. Ortega
                                       State Bar Number 00791377
                                       James M. “Jamie” Parker, Jr.
                                       State Bar Number 15488710
                                       NAMAN HOWELL SMITH & LEE, PLLC
                                       Union Square II
                                       10001 Reunion Place, Suite 600
                                       San Antonio, Texas 78216
                                       (210) 731-6364
                                       Fax (210) 785-2964
                                       Email: jparker@namanhowell.com
                                       ATTORNEYS FOR APPELLEES
                                       LEWIS ENERGY GROUP, LP AND
                                       LEWIS PETRO PROPERTIES, INC.


{03304369.DOCX / }
                           Identity of Parties and Counsel

        Appellants:            Leticia Zepeda Vasquez

        Appellant’s Counsel:   Jeffrey Lee Dorrell
                               H. Mark Burck
                               Daniel Dutko
                               Hanzen Laporte, LLP
                               11767 Katy Freeway, Suite 850
                               Houston, Texas 77079
                               (713) 522-9444
                               (713) 524-2580 (fax)

        Appellees and counsel: Lewis Energy Group, LP. and
                               Lewis Petro Properties, Inc.

                               David L. Ortega
                               James M. “Jamie” Parker, Jr.
                               NAMAN HOWELL SMITH & LEE, PLLC
                               Union Square II
                               10001 Reunion Place, Suite 600
                               San Antonio, Texas 78216
                               (210) 731-6364
                               Fax (210) 785-2964
                               Email: jparker@namanhowell.com

                               Virtex Holdings, LLP and
                               Virtex Operating Co., Inc.

                               Christopher Lowrance
                               ROYSTON RAYZOR VICKERY & WILLIAMS
                               802 N. Carancahua, Suite 1300
                               Corpus Christi, Texas 78401
                               (361) 884-8808
                               Fax (361) 884-7261




{03304369.DOCX / }
                                       ii
                     XTO Energy, Inc.

                     Jose G. Garcia
                     Francisco R. Villarreal
                     GARCIA & VILLAREAL
                     4311 N. McColl Road
                     McAllen, Texas 78504
                     (956) 630-0081
                     Fax (956) 630-3631

                     Rosetta Resources Operating, LP

                     William A. Abernethy
                     DONNELL ABERNETHY & KIESCHNICK
                     555 N. Carancahua, Suite 1770
                     Corpus Christi, Texas 78401
                     (361) 888-5551
                     Fax (361) 880-5618

                     Enterprise Products Holdings, LLC, and
                     Enterprise Products Company

                     E. Michael Rodriguez
                     ATLAS HALL & RODRIGUEZ
                     50 W. Morrison Road, Suite A
                     Brownsville, Texas 78520
                     (956) 574-9333
                     Fax (956) 574-9337

                     Legend Natural Gas III, LP, and
                     Legend Natural Gas, LLC

                     Isaac J. Huron
                     DAVIS CEDILLO & MENDOZA, INC.
                     McCombs Plaza, Suite 500
                     755 E. Mulberry Avenue
                     San Antonio, Texas 78213
                     (210) 822-6666
                     Fax (210) 882-1151

{03304369.DOCX / }
                            iii
                               Record References


        Appellee will refer to the Clerk’s record as “(CR___)” and the Clerk’s

Supplemental record as (CR1__)”.




{03304369.DOCX / }
                                       iv
                                                Table of Contents

                                                                                                                     Page

Identity of Parties and Counsel ............................................................................ ii, iii

Index of Authorities .................................................................................... vi, vii, viii

Statement of the Case................................................................................................ix

Response to the Issues Presented ..............................................................................xi

Statement of Facts ......................................................................................................1

Summary of Argument ..............................................................................................2

Argument....................................................................................................................3

Response Point 1 ….…………………………………………………….…………3

There is no duty for a private party to maintain public roads, or otherwise warn
motorists of road wear conditions, because such maintenance is an exclusive
function of the state and its subdivisions


Response Point 2……..…………………………………………………………….6

The duty sought to be created by Appellant here is not only unsupported by the
authority cited, it is contrary to the law of the State of Texas, and it is completely
unworkable under any conceivable set of facts

Prayer……………..……………………………………………………………….13

Certificate of Compliance ……………………………………………………..…15

Certificate of Service……………………………………………………………..14




{03304369.DOCX / }
                                                             v
                           Index of Authorities

Cases                                                         Page

Ball v. Martin,
277 S.W.2d 182 (Tex Civ. App.—Austin 1955, no pet)…………………………11

Buchanan v. Rose,
159 S.W.2d 390 (Tex. 1942)……………………………………………………….8

Caterpillar, Inc. v. Shears,
911 S.W.2d 379 (Tex.1995)…………………………………………………..…..11

City of Denton v. Van Page,
701 S.W. 2d 831 (Tex.1986)………...……………………………………………..4

City of Piney Point Village v. Harris County,
479 S.W.2d 358 (Tex. Civ. App.—Houston……………………………………….3

City of San Antonio v. City of Boerne,
111S.W.3d 22 (Tex. 2003)………………………………………………………3, 5

City of Waco v. Archenhold Auto. Supply Co.,
386 S.W.2d 174 (Tex.1965)………..………………………………………………5

County of Cameron v. Brown,
80 S.W.3d 549 (Tex.2002)……..…………………………………………………..4

Doe v. Boys Club of Greater Dallas, Inc.,
907 S.W.2d 472 (Tex.1995)……………………………………………………..12

Halepeska v. Callihan Interests, Inc.,
371 S.W.2d 368 (Tex.1963)…….………………………………………………..11

Hoechst Celanese Corp. v. Compton,
899 S.W.2d 215 (Tex. App.—Houston [14th Dist.] 1994, pet. denied)………….6

J.P. Morgan Chase Bank, N.A. v. Texas Contract Carpet, Inc.,
302 S.W.3d 515 (Tex.App.—Austin 2009, no pet)………………………………7

{03304369.DOCX / }
                                    vi
Kroger Co. V. Elwood,
197 S.W.3d 793, (Tex. 2006)……………………………………………………..11

Lubbock County v. Trammel’s Lubbock Bail Bonds,
80 S.W.3d 580 (Tex.2002)………………………………………………………..7

Mosheim v. Rollins
79 S.W.2d 672 (Tex. Civ. App.—San Antonio 1935, writ dism’d w.o.j.)…………3

New Way Lumber Co. v. Smith,
96 S.W.2d 282 (Tex.1936)…..…………………………………………………….3

Reyna v. Ayco Dev. Corp,
788 S.W.2d 722 (Tex. App.—Austin 1990, writ denied)…………………………4

San Benito Bank & Trust Co. v. Travels,
31 S.W.3d 312 (Tex.App.—Corpus Christi 200, no pet)………………………7, 10

Shell Oil Co. v. Slade,
133 F 2d 518 (5th Cir. 1943)……………………………………………………...11

SmithKline Beecham Corp. v. Doe,
903 S.W.2d 347 (Tex.1995)………………..………………………………………6

Wales Trucking Co. v. Stallcup,
474 S.W.2d 184 (Tex.1971)…….…………………………………………………3

Wilhelm v. Flores,
195 S.W.3d 96 (Tex. 2006)………………………………………………………11

Williamson County v. Voss,
284 S.W.2d 897 (Tex. App.—Austin 2009, no pet)………………………………..4

Statutes and Rules

Texas Administrative Code, §21.141………………………………………………8

Texas Administrative Code, §21.401 …………………………………………… 8

Tex. Transp. Code § 201.001, et. seq………………..………...……...……………8
{03304369.DOCX / }
                                   vii
Tex. Transp. Code § 201.901………………………………………………………8

Tex. Transp. Code § 224.031 …………..…………………………………………5

Tex. Transp. Code §544.006(a)……………………………………………….…10

Tex. Rule App. P. 38.1(f)………………………………………………………......1




{03304369.DOCX / }
                         viii
                            Statement of the Case

        Nature of Underlying proceeding: This case arises from a single vehicle
                                         accident in which the decedent was
                                         killed when he inexplicably veered off
                                         the road when following a Lewis
                                         Energy truck down a public road.
                                         Appellant brought a negligence suit
                                         against all Appellees urging that their
                                         simple use of the public roadway had
                                         created a dangerous condition which
                                         led to the accident. Appellees moved
                                         for dismissal of the case under Rule
                                         91a, which was granted by the trial
                                         court

        Trial Court:                         81rd District Court of LaSalle County,
                                             the Honorable Stella Saxon, Presiding


        Orders appealed from:                On November 20, the trial court
                                             granted the Appellees’ motion to
                                             dismiss under Rule 91a on all claims
                                             arising from the supposed “creation of
                                             a dangerous condition” on the
                                             roadway by defendants who used the
                                             road.




{03304369.DOCX / }
                                        ix
                     STATEMENT REGARDING ORAL ARGUMENT

      Lewis Energy believes that the issues in this case can be decided without
oral argument, but would request argument time if oral argument is granted to
Appellant.




{03304369.DOCX / }
                                      x
                      Response to the Issues Presented

Response Point 1: There is no duty for a private party to maintain public
roads, or otherwise warn motorists of road wear conditions, because such
maintenance is an exclusive function of the state and its subdivisions

Response Point 2: The duty sought to be created by Appellant here is not only
unsupported by the authority cited, it is contrary to the law of the State of
Texas, and it is completely unworkable under any conceivable set of facts




{03304369.DOCX / }
                                      xi
                             STATEMENT OF FACTS

        Appellant’s description of the accident as “tragic,” that the accident “could

have been avoided,” that the road was “once safe” and that the road is

“dangerously dilapidated” are arguments that have no place in the factual section

of a brief. See Tex. Rule App. P. 38.1(f). Likewise, this case involves a one

vehicle accident which the plaintiff did not survive, and whether the decedent was

“blinded” by a dust cloud is nothing more than rank speculation, as is the statement

about how many trucks operated by the Appellees use the road in question every

year. Lewis Energy contends that there is no evidence that its trucks were operated

negligently, that its trucks were over any weight limits, that they were operated at

an “excessive” speed, or that any Appellee knew that their operations had allegedly

created a dangerous condition. Lewis Energy does admit, for purposes of this

appeal only, that it did not repair the roadway or post warnings of the condition of

the public road, which appears to be the only true statement in Appellant’s

statement of facts.

        Contrary to Appellant’s description, the facts of this case are simple.

Appellant’s lawsuit claims that all Defendants owed a duty to the decedent either

to repair a public roadway or warn of its condition. (CR001). Lewis Energy and

the other Defendants filed their respective answers, and urged that there was no

basis for Plaintiff’s claim as a matter of law or fact under Rule 91a (CR051).


                                           1
{03304369.DOCX / }
Appellant filed an amended petition attempting to comply with the Rule 91a filings

(CR079), and then filed a response to the motions. (CR126). After a full hearing,

the trial court granted the Defendants’ motions to dismiss (CR74, 147), and then

later issued an amended order of dismissal that also severed certain remaining

claims so that the dismissal order could become final (CR1-007). This appeal

followed. (CR1001).

                         SUMMARY OF ARGUMENT

        Appellant’s arguments are short but nonsensical. None of the Appellants

have a duty to maintain a public roadway. Control and maintenance of public

roadways is exclusively the duty of the State and its subdivisions not of individual

users or companies. Likewise, even if the use of the roadway by the traveling

public (which pays for that road in the way of taxes and fees) can be said to

“create” a dangerous condition, there can be no duty to warn of a condition (like a

rough and dusty road) that is open and obvious, or one that simply provides the

setting for an accident to occur.     Moreover, Appellees could not legally or

practically provide the allegedly necessary warning on a public right-of-way

without it being a public nuisance under State law. Therefore, the trial court

correctly granted the Appellees’ Rule 91a motion to dismiss, and this Court should

affirm.




                                         2
{03304369.DOCX / }
                                         ARGUMENT


Response Point 1: There is no duty for a private party to maintain public
roads, or otherwise warn motorists of road wear conditions, because such
maintenance is an exclusive function of the state and its subdivisions

        The basis of Appellant’s claims here is that Appellees, by their allegedly

frequent and damaging use of the public roadway, somehow created a legal duty of

care to either maintain the public roadway or warn all other drivers using the road

of its allegedly dangerous condition.

        The first problem with this argument is that courts have consistently held

that roadways are the responsibility of the State of Texas and its subdivisions, and

that it is their duty and responsibility to make them safe. See e.g. City of San

Antonio v. City of Boerne, 111 S.W.3d 22, 31-32 Tex. 2003)(by granting county

general control over the roads, the Legislature imposed on them a duty to make the

roadways safe for public travel). Put another way, the roads are public property

over which the State (or its designees within Constitutional limits) have control.

See New Way Lumber Co. v. Smith, 96 S.W.2d 282, 285 (Tex. 1936) 1. With that


1
  See also Wales Trucking Co. v. Stallcup, 474 S.W.2d 184, 187(Tex. 1971)(government
authorities have a duty to properly maintain public roads, and “have the corresponding power
and responsibility to enact reasonable regulations for the use of streets and roads”); City of Piney
Point Village v. Harris County, 479 S.W.2d 358, 364 (Tex. Civ. App.—Houston [1st Dist.] 1972,
writ ref’d n.r.e.) (“Establishment and control of public roads is primarily a function belonging to
the state, and the legislature, except where restricted by the Constitution, may delegate the
function to political subdivisions of the state or to such other agency or instrumentality, general
or local in its scope, as it may determine.”); Mosheim v. Rollins, 79 S.W.2d 672, 675 (Tex. Civ.
App.—San Antonio 1935, writ dism’d w.o.j.)(general public highway easement “extends to

                                                 3
{03304369.DOCX / }
control, comes the State’s general duty to make the property safe. See e.g., County

of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002) (concluding that, for

purposes of premises-liability claim, county assumed sufficient control over state-

owned causeway because it had maintenance contract with state that included

responsibilities over causeway's streetlight system) (quoting City of Denton v. Van

Page, 701 S.W.2d 831, 835 (Tex.1986)). “The relevant inquiry is whether the

defendant assumed sufficient control over the part of the premises that presented

the alleged danger so that the defendant had the responsibility to remedy it.” Id. In

other words, in the absence of a contract to the contrary, the duty to maintain a

public roadway belongs to the State, not individual users.

        As the easement holder of the land on which the road in question here sits,

the State or County was in control of the roadway, and therefore owed any duty to

maintain the roadway. See Reyna v. Ayco Dev. Corp., 788 S.W.2d 722, 724 (Tex.

App.-- Austin 1990, writ denied) (where city, as holder of easement, had exclusive

use and control of easement property, apartment complex property owner had no

control over and thus no duty to repair open and energized electrical switching

cabinet that caused injury to child tenant). This is true even though they are

governmental entities and are entitled to immunity for the supposed failure to

maintain the roadway. See Williamson County v. Voss, 284 S.W.2d 897, 902 (Tex.

limits of highway as located, and consists in privilege of passage, with incidental powers and
privileges, such as right to construct and maintain safe and convenient roadway….”).

                                              4
{03304369.DOCX / }
App. – Austin 2009, no pet)(alleged negligent creation of dust cloud by County

leading to auto accident provides no basis for waiver of sovereign immunity)

        Recognizing this control, the Legislature has specifically established the

duties of counties and the State in constructing, maintaining, designing, and

ensuring the safety of their roadways.         See Tex. Transp. Code § 224.031

(“[TxDOT] has exclusive and direct control of all improvement of the state

highway system.”); see also City of San Antonio v. City of Boerne, 111 S.W.3d 22,

29 (Tex. 2003) (“[T]he commissioners court of each county shall regard [public

transportation] as a system, to be laid out, changed, repaired, improved, and

maintained, as far as practical, as a whole to the best interest and welfare of all the

people of the county.”); City of Waco v. Archenhold Auto. Supply Co., 386 S.W.2d

174, 180 (Tex. Civ. App.—Waco 1964), aff’d, 396 S.W.2d 111 (Tex. 1965)

(“[T]he state or a municipality has the right to reroute, relocate, improve, abandon

or vacate its streets in any reasonable manner that it deems necessary for public

safety, health, comfort, convenience or welfare of the community.”).

        Because regulation of traffic is a governmental function, and Texas law

gives the authority to regulate traffic to state and local government, only governing

authorities and their agents are entitled to regulate traffic on public roadways and

private entities have no authority to regulate or direct traffic on public roads. See




                                           5
{03304369.DOCX / }
Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 226-27 (Tex. App. –

Houston [14th Dist.] 1994, pet. denied).

        Defendants are all private entities, with no authority to do anything with

regard to the public road at issue, whether that was to repair the road or somehow

“warn” other motorists of existing road conditions. In other words, the State

and/or the County was in control of the “premises” as a matter of law, and

therefore Defendants could not have been liable for its condition or for a duty to

warn.


Response Point 2: The duty sought to be created by Appellant here is not only
unsupported by the authority cited, it is contrary to the law of the State of
Texas, and it is completely unworkable under any conceivable set of facts

        Appellant’s basic argument is that Defendants created a dangerous condition

through their everyday use of a public road, and therefore had a duty to warn other

motorists of its condition. No such duty exists, even under the authorities cited by

Plaintiff, and there is no reasonable basis for the creation of a new duty.

        The existence of a legal duty is a question of law. See SmithKline Beecham

Corp. v. Doe, 903 S.W.2d 347, 351 (Tex. 1995). In determining whether a legal

duty exists the court takes into account “not only the law and policies of this State,

but the law of other states and the United States, and the views of respected and

authoritative restatements and commentators.” Id.         The factors considered in

determining whether a new common law duty should be created include: (1) social,

                                           6
{03304369.DOCX / }
economic, and political questions and their application to the facts at hand; (2) the

risk, foreseeability, and likelihood of injury weighed against the social utility of the

actor's conduct, the magnitude of the burden of guarding against the injury, and the

consequences of placing the burden on the defendant; and (3) whether one party

would generally have superior knowledge of the risk or a right to control the actor

who caused the harm. See San Benito Bank & Trust Co. v. Travels, 31 S.W.3d

312, 321 (Tex. App. – Corpus Christi 2000, no pet). Intermediate courts of appeal

should be hesitant to create new common law duties that have no existence in

established law, and should not create such duties when they involve “gaps” in

existing statutory law. See Lubbock County v. Trammel's Lubbock Bail Bonds, 80

S.W.3d 580, 585 (Tex.2002); J.P. Morgan Chase Bank, N.A., v. Texas Contract

Carpet, Inc., 302 S.W.3d 515, 535 (Tex. App. – Austin 2009, no pet)(“If there is a

gap in either of the statutes that the legislature mistakenly failed to fill, it is still the

legislature, not the courts, that must correct that mistake.”).

        In light of the above-cited authorities, the trial court was clearly correct in

ruling that there was no duty owed by the Appellees. First, even the cases cited by

Appellant do not support the alleged duty. For example, the Buchanan case makes

clear that the defendant there (just as the Lewis truck that the plaintiff was

allegedly following here):

        was merely the victim of a defective condition that already existed. It
        would be carrying the matter too far to say that one must give notice

                                              7
{03304369.DOCX / }
        of every known defect in a road naturally resulting from his normal
        and legitimate use thereof. To so hold would make the use of the
        highways too hazardous from the standpoint of public liability.

        See Buchanan v. Rose, 159 S.W.2d 390, 393-94 (Tex. 1942). Although

Appellant attempts to claim that Appellees’ repeated use of the road caused the

“defect” in the first place, the above language in Buchanan demonstrates why such

a duty cannot be established.

        Specifically, the State of Texas has established a vast and comprehensive

regulatory scheme that addresses the issues relating to vehicles (including

commercial vehicles) using Texas roads. Fees and/or taxes are collected from

drivers (whether directly or through gasoline taxes), and the State maintains

control of how much, and how, funds are spent to build or repair highways. See

Texas Transportation Code, §201.001, et. seq.; Texas Administrative Code, §4.11,

et. seq., Likewise, the State maintains complete statutory and regulatory control

over signage on right of ways, including rural roads such as the one in this case.

See Texas Administrative Code, § 21.141, et. seq., 21.401, et. seq. 2

        As noted in Buchanan, to create a “duty to warn” here “would make the use

of the highways too hazardous from the standpoint of public liability.” Having


2
  Lewis would point out that the State has also reserved to itself the power to prohibit use of a
highway or road by a vehicle that will “unduly damage” the roadway, which belies the
Appellant’s claim that there should be some kind of common law tort duty on defendants when
they supposedly unreasonably damage the road through normal use. See e.g., Texas
Transportation Code , §201.901.


                                                8
{03304369.DOCX / }
already paid to use the roadway by fees and taxes, how would any member of the

public (private or commercial) know when their use of the road would subject

them to liability -- to some unknown future driver over the same road --

concerning road conditions not only caused by them but at least partially by every

other driver on the road. On this point, it is important to note the specific refusal

of the Supreme Court to create a duty in Buchanan, where there was: (1) no doubt

that the defendant driver damaged the bridge in question; (2) he was specifically

warned by another motorist that he had caused the damage to the bridge that led to

the later injuries, and (3) he refused to provide a warning despite that notice. Here,

Appellant would have this Court create a duty when the nature of the “damage” is

not a single event that could even be traced to a particular defendant, but from

wear and tear of the roadway caused by every vehicle that uses the road, whether

Defendants in this suit or not.

        Moreover, how would any user know when the roadway went from “safe” to

“actionable” such that the supposed duty to warn came into being? It would

require all users of the road to become experts on roadways and when repairs are

necessary. Creation of this duty could have obvious far-reaching and undesirable

consequences. A private citizen (including a corporation) – having paid all of the

taxes and fees due for their vehicle under the law -- should be free to use the public

roadway without incurring tort liability to a future driver on the same road. To


                                          9
{03304369.DOCX / }
hold a private citizen liable under the circumstances suggested by Plaintiff would

“make the citizen twice a victim.” See San Benito, supra at 321.

        Even setting aside all of the above, the Court should consider the

ramifications of the Appellant’s request that a duty to warn be created. State law

prohibits private parties from placing signs on the public right of way, and any

such placement is considered as a public nuisance. See Texas Transportation Code,

§544.006(a), (e)(a person may not place, maintain or display on or in view of the

highway and unauthorized sign, that attempts to direct the movement of traffic).

Considering how the accident here allegedly occurred – a cloud of dust created by

road conditions – how exactly is a defendant under this new duty suggested by

Appellant supposed to provide the hypothetically required warning? They cannot

post a sign on or near the roadway under State law. Are they required to post it on

the back of a truck for all roads that the vehicle is going to be on, even if they are

perfectly safe? Are they supposed to make a spot decision and only put it on the

back of the truck when they come to a road that might be considered as

problematic? Based upon whose definition? Will they then be sued because the

warning sign is not sufficient for the particularized dangers on the road they are

traveling on because the danger is actually different from the one mentioned on

their warning sign? The Court can see that the Appellant’s entire claim is




                                          10
{03304369.DOCX / }
completely unworkable, and that no duty can, or should, be created under the

circumstances presented here.

        Finally, the Court should recall two final points relating to the accident itself

that militate against creation of a new duty. First, although this is ostensibly a duty to

warn case, there is no such duty under law when the danger is something that is

“open and obvious.” Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378

(Tex. 1963). 3 So, even if there was some kind of duty to warn, Appellees would

not have had to warn the decedent either that he was traveling on a rough road or

that a dust cloud can obscure vision and lead to an accident, as such matters are

both open and obvious to anyone on the road and well within the common

experience of drivers. See e.g., Ball v Martin, 277 S.W.2d 182, 183-84 (Tex Civ.

App. -- Austin 1955, no pet)(defendant held responsible in accident for entering

dust cloud and striking plaintiff’s vehicle); Shell Oil Co v. Slade, 133 F 2d 518,

520(5th Cir. 1943)(proximate cause of accident not fog on road created by Shell

plant but on driver who entered the fog without exercising due care).



3
  The law in Texas is clear that there is no duty to warn of obvious conditions, and the Texas
Supreme Court has applied this principle repeatedly in a variety of contexts over a period of
years. See, e.g., Kroger Co. v. Elwood, 197 S.W.3d 793, 794-795 (Tex. 2006) (an employer is
not an insurer of its employees' safety and it owes no duty to warn of hazards that are commonly
known or already appreciated by the employee); Wilhelm v. Flores, 195 S.W.3d 96, 98 (Tex.
2006) (premises occupier had no duty to warn independent contractor's about being stung, since
that danger was obvious, citing Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004));
Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex.1995) (holding that the law of products
liability does not require a manufacturer or distributor to warn of obvious risks).

                                              11
{03304369.DOCX / }
         Second, the mere creation of a condition that makes an injury possible is not

sufficient to breach any duty under Texas law. See Doe v. Boys Club of Greater

Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). There can be no showing by the

Appellant that any of the Appellees did anything other than (at most, and assuming

everything in Appellant’s favor) create a worn condition on the roadway. That the

decedent thereafter voluntarily drove into a dust cloud which supposedly led to his

loss of control cannot, as a matter of law, lead to a finding of proximate cause on

any of the Appellees. On this point, it should be recalled that there is – and will be

-- no evidence as to exactly why the decedent’s vehicle went off the road. In

short, the trial court could not have erred in finding that there was no basis for this

suit either in law or in fact, and the dismissal was proper.

                                   CONCLUSION

         The creation of a duty under the circumstances presented here would be

completely unworkable, particularly given the State’s omnipresent control over the

public roadways. The trial court got it right in dismissing this case under Rule

91a. This is exactly the type of case that the Rule was adopted for in the first

place.




                                           12
{03304369.DOCX / }
                                       Prayer

        For all the reasons set forth above, Lewis Energy Group, LP and Lewis Petro

Properties, Inc. respectfully request that the Court affirm the trial court’s ruling in

all things, and for such other and further relief to which they may be entitled.



                                               Respectfully Submitted,


                                               _/s/ James M. Parker, Jr. ________
                                               James M. “Jamie” Parker, Jr.
                                               State Bar Number 15488710
                                               David L. Ortega 00791377
                                               State Bar Number
                                               NAMAN HOWELL SMITH & LEE, PLLC
                                               Union Square II
                                               10001 Reunion Place, Suite 600
                                               San Antonio, Texas 78216
                                               (210) 731-6364
                                               Fax (210) 785-2964
                                               Email: jparker@namanhowell.com

                                               ATTORNEYS FOR APPELLEES
                                               LEWIS ENERGY GROUP, LP
                                               AND LEWIS PETRO
                                               PROPERTIES, INC.




                                          13
{03304369.DOCX / }
                         CERTIFICATE OF SERVICE


      This is to certify that a true and correct copy of the foregoing document has
been sent on the 29th day of April 2015, to the following, as shown below:

Jeffrey Lee Dorrell
H. Mark Burck
Daniel Dutko
Hanzen Laporte, LLP
11767 Katy Freeway, Suite 850
Houston, Texas 77079
Fax (713) 524-2580
Appellant’s Counsel

Christopher Lowrance
ROYSTON RAYZOR VICKERY & WILLIAMS
802 N. Carancahau, Suite 1300
Corpus Christi, Texas 78401
Fax (361) 884-7261
Virtex Holdings, LLP and Virtex Operating Co., Inc.

Jose G. Garcia
Francisco R. Villareal
GARCIA & VILLAREAL
4311 N. McColl Road
McAllen, Texas 78504
Fax (956) 630-3631
XTO Energy, Inc.

William A. Abernethy
DONNELL ABERNETHY & KIESCHNICK
555 N. Carancahua, Suite 1770
Corpus Christi, Texas 78401
Fax (361) 880-5618
Rosetta Resources Operating, LP




                                         14
{03304369.DOCX / }
E. Michael Rodriguez
ATLAS HALL & RODRIGUEZ
50 W. Morrison Road, Suite A
Brownsville, Texas 78520
Fax (956) 574-9337
Enterprise Products Holdings, LLC, and
Enterprise Products Company

Isaac J. Huron
DAVIS CEDILLO & MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78213
Fax (210) 882-1151
Legend Natural Gas III, LP, and
Legend Natural Gas, LLC


                                        /s/ James M. Parker, Jr.
                                    JAMES M. “JAMIE” PARKER, JR



                     CERTIFICATE OF COMPLIANCE

       The undersigned certifies that this brief complies with the type-face and
length requirements of amended rule 9.4 of the Texas Rules of Appellate
Procedure. Exclusive of exempted portions stated in amended rule 9.4(9)(1), the
brief contains 3,508 words, as calculated by Microsoft Word, the program used to
prepare this document.

                                    /s/ James M. Parker, Jr.
                                    JAMES M. PARKER, JR




                                       15
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