                                                                                   ACCEPTED
                                                                              04-14-00899-cv
                                                                   FOURTH COURT OF APPEALS
                                                                        SAN ANTONIO, TEXAS
                                                                         3/31/2015 4:47:38 PM
                                                                                KEITH HOTTLE
                                                                                       CLERK




          04-14-00899-CV                                      FILED IN
                                                       4th COURT OF APPEALS
                             In the                     SAN ANTONIO, TEXAS
                                                       03/31/2015 4:47:38 PM

   Fourth Court of Appeals                                 KEITH E. HOTTLE
                                                                Clerk

                   SITTING AT SAN ANTONIO

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; VIRTEX OPERATING CO., INC.; ENTERPRISE PRODUCTS
 HOLDINGS, LLC; ENTERPRISE PRODUCTS COMPANY; and XTO
                     ENERGY, INC.,
                             Appellees

               Appealed From the 81st District Court
                       La Salle County, Texas
               Trial Court Cause No. 14-07-0019-CVL


 APPELLANT’S OPENING BRIEF
                                              JEFFREY L. DORRELL
                                                State Bar No. 00787386
                                          jdorrell@hanszenlaporte.com


                                       11767 Katy Freeway, Suite 850
                                               Houston, Texas 77079
                                            Telephone: 713-522-9444
                                                 FAX: 713-524-2580
                                     ATTORNEY FOR APPELLANT
       APPELLANT REQUESTS ORAL ARGUMENT                        .
               IDENTITY OF PARTIES & COUNSEL

      Appellant certifies that the following is a complete list of the parties,

the attorneys, and any other person who has any interest in the outcome of

this matter:

PARTIES                             COUNSEL

Leticia Zepeda Vasquez,             Jeffrey Lee Dorrell
   Appellant                        H. Mark Burck
                                    Daniel Dutko
                                    Hanszen Laporte, LLP
                                    11767 Katy Freeway, Suite 850
                                    Houston, Texas 77079
                                    Telephone: 713-522-9444
                                    FAX: 713-524-2580
                                    Attorney for Appellant

Legend Natural Gas III, LP,         Isaac J. Huron
and Legend Natural Gas, LLC         Davis, Cedillo & Mendoza, Inc.
   Appellees                        McCombs Plaza, Suite 500
                                    755 E. Mulberry Avenue
                                    San Antonio, Texas 78213
                                    Telephone: 210-822-6666
                                    FAX: 210-822-1151
                                    Attorney for Legend Natural Gas III, LP, and
                                    Legend Natural Gas, LLC

Lewis Energy Group, LP, and         David L. Ortega
Lewis Petro Properties, Inc.        Naman Howell Smith & Lee, PLLC
   Appellees                        1001 Reunion Place, Suite 600
                                    San Antonio, Texas 78216
                                    Telephone: 210-731-6300
                                    FAX: 210-785-2953
                                    Attorney for Lewis Energy Group, LP, and
                                    Lewis Petro Properties, Inc.




                                                                             ii
XTO Energy, Inc.                  Jose E. Garcia
  Appellee                        Garcia & Villareal
                                  4311 N. McColl Road
                                  McAllen, Texas 78504
                                  Telephone: 956-630-0081
                                  FAX: 956-630-3631
                                  Attorney for XTO Energy, Inc.

Rosetta Resources Oper., LP       William A. Abernethy
  Appellee                        Donnell, Abernethy & Kieschnick, P.C.
                                  555 N. Carancahua, Suite 1770
                                  Corpus Christi, Texas 78401
                                  Telephone: 361-888-5551
                                  FAX: 361-880-5618
                                  Attorney for Rosetta Resources Oper., LP

Virtex Operating Co., Inc., and   Christopher Lowrance
Virtex Holdings, LLP              Royston, Rayzor, Vickery & Williams, LLP
   Appellees                      802 Carancahua, Suite 1300
                                  Corpus Christi, Texas 78401
                                  Telephone: 361-884-8808
                                  FAX: 361-884-7261
                                  Attorney for Virtex Operating Co., Inc., and
                                  Virtex Holdings, LLP

Enterprise Products Holdings,     E. Michael Rodriguez
LLC, and Enterprise Products      Atlas, Hall & Rodriguez, LLP
Co.                               P.O. Box 6369 (78523-6369)
    Appellees                     50 W. Morrison Road, Suite A
                                  Brownsville, Texas 78520
                                  Telephone: 956-574-9333
                                  FAX: 956-574-9337
                                  Attorney for Enterprise Products Holdings,
                                  LLC, and Enterprise Products Co.




                                                                        iii
                TABLE OF CONTENTS
                                                      Page

IDENTITY OF PARTIES AND COUNSEL...….……………………….ii

TABLE OF CONTENTS ………………………………………………….iv

INDEX OF AUTHORITIES ………………………………………………v

STATEMENT OF THE CASE ……………………………………………2

STANDARD OF REVIEW ……...…………………………………………3

ISSUE PRESENTED FOR REVIEW ……………………………………4

STATEMENT OF FACTS.……………………………..………………….5

SUMMARY OF ARGUMENT…………………………………………….6

ARGUMENT ..…………………….…………………………………………7

Issue 1. Did defendants have a legal duty to act to prevent
         Vasquez’s death from the dangerous situation on
         Krueger Road that defendants themselves
         negligently created? ……………………………………………..7
CONCLUSION …...……………………………………………………10

PRAYER ….……………………………………………………………11

CERTIFICATE OF SERVICE ………………………………………12

CERTIFICATE OF WORD COUNT COMPLIANCE .……………14

APPENDIX ……………………………………………………………15




                                                         iv
                INDEX OF AUTHORITIES
                             CASES
                                                                Page
Abalos v. Oil Development Co. of Texas,
  544 S.W.2d 627 (Tex. 1976) …………………………………………9
Buchanan v. Rose,
  159 S.W.2d 109 (Tex. 1942) …………………………………………9
Cactus Drilling Co. v. Williams,
  525 S.W.2d 902 (Tex. Civ. App.—Amarillo 1975, writ ref’d n.r.e.)…9
Chrysler Corp. v. Dallas Power & Light Co.,
  522 S.W.2d 742 (Tex. Civ. App.—Eastland 1975, writ ref’d n.r.e.).…9
City of Austin v. Liberty Mut. Ins.,
   431 S.W.3d 817 (Tex. App.—Austin 2014, no pet.) …………………3
Courville v. Home Transportation Co.,
  497 S.W.2d 788 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e.)..9
Dailey v. Thorpe,
  445 S.W.3d 785 (Tex. App.—Houston [1st Dist.] 2014, no pet.).……3
Dallas Ry. & Terminal Co. v. Archer,
  167 S.W.2d 290 (Tex. Civ. App.—Dallas 1942, writ ref’d w.o.m.) ….9
Devoll v. Demonbreun,
  2014 Tex. App. LEXIS 13865 at *4
  (Tex. App.—San Antonio December 31, 2014, n.p.h.) ………………3
GoDaddy.com, LLC v. Toups,
  429 S.W.3d 752 (Tex. App.—Beaumont 2014, pet. denied) …………3
San Benito Bank & Trust Co. v. Travels,
  31 S.W.3d 312 (Tex. App.—Corpus Christi 2000) …………………..9
SmithKline Beecham Corp. v. Doe,
  903 S.W.2d 347 (Tex. 1995) ………………………………………8-9
Wooley v. Schaffer,
  447 S.W.3d 71 (Tex. App.—Houston [14th Dist.]
  2014, pet. filed) …………………………………………………….3, 7



                                                                   v
                  RULES
TEX. R. CIV. P. 91a .………………………………………………Passim




                                           vi
         04-14-00899-CV
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; VIRTEX OPERATING CO., INC.; ENTERPRISE PRODUCTS
 HOLDINGS, LLC; ENTERPRISE PRODUCTS COMPANY; and XTO
                     ENERGY, INC.,
                                Appellees


      APPELLANT’S OPENING BRIEF

       Appellant Leticia Zepeda Vasquez files her opening brief. Appellant

 will be referred to individually by name, or as “plaintiff,” as she was

 designated below.   Appellees Legend Natural Gas III, LP; Legend

 Natural Gas, LLC; Lewis Energy Group, LP; Lewis Petro Properties,

 Inc.; Rosetta Resources Operating, LP; Virtex Holdings, LLP; Virtex

 Operating Company, Inc.; Enterprise Products Holdings, LLC;

 Enterprise Products Company; and XTO Energy, Inc., will be referred to

 individually by name, or collectively as “defendants,” as they were

 designated below.


                                                                         1
                      STATEMENT OF THE CASE
      Nature of the case. On July 21, 2014, plaintiff sued the ten defendants

for negligence and gross negligence.      (CR 5-6.)    On October 2, 2014,

plaintiff filed her first amended original petition asserting the same claims.

(Tab C, CR 84-86.)       The various defendants generally denied, raised

affirmative defenses, and counterclaimed.      (CR 8-56.)    The defendants’

affirmative defenses and counterclaims are not at issue in this appeal.

      Course of proceedings.      No trial was held.      Defendants Legend

Natural Gas III, LP, and Legend Natural Gas, LLC, filed a motion to dismiss

plaintiff’s claims Under TEX. R. CIV. P. 91a. (CR 62.) A similar motion

was included in the body of the answer filed by defendants Lewis Energy

Group, LP, and Lewis Petro Properties. (CR 52-53.) On October 16, 2014,

the trial court held an oral hearing on defendants’ motions to dismiss.

      Trial court disposition. The trial court granted defendants’ motions to

dismiss on November 20, 2014, but failed to dispose of certain other claims.

(CR 147-48.) Plaintiff filed a premature notice of appeal. (CR 159.) On

January 5, 2015, the trial court entered a final order granting all defendants’

motions to dismiss and severing the undisposed claims. (2d SCR 7-8.) (Tab

A.) On January 29, 2015, plaintiff filed an amended notice of appeal of the

new order. (2d SCR 1.)




                                                                             2
                      STANDARD OF REVIEW
      This Court reviews the trial court’s dismissal of Vasquez’s claims

pursuant to TEX. R. CIV. P. 91a de novo. Devoll v. Demonbreun, 2014 Tex.

App. LEXIS 13865 at *4 (Tex. App.—San Antonio December 31, 2014,

n.p.h.); Wooley v. Schaffer, 447 S.W.3d 71, 75 (Tex. App.—Houston [14th

Dist.] 2014, pet. filed); Dailey v. Thorpe, 445 S.W.3d 785, 787 (Tex.

App.—Houston [1st Dist.] 2014, no pet.); City of Austin v. Liberty Mut.

Ins., 431 S.W.3d 817, 822 (Tex. App.—Austin 2014, no pet.);

GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont

2014, pet. denied).




                                                                       3
               ISSUE PRESENTED FOR REVIEW
     Issue 1:    Did defendants have a legal duty to act to prevent
Vasquez’s death from the dangerous situation on Krueger Road that
defendants themselves negligently created?




                                                                  4
                        STATEMENT OF FACTS
      On August 4, 2012, Jose Vasquez was tragically killed when his

vehicle flipped over in an accident that could have been avoided if not for

the negligence of defendants. (CR 82.) Vasquez was operating his vehicle

on Krueger Road in La Salle County, Texas, when he was blinded by a dust

cloud and drove into a ditch. (Id.) Once a safe, paved road for the public

(CR 83), Kruger Road has now become dangerously dilapidated as a result

of defendants’ negligent use of the road to operate their oil and gas wells in

the area. (CR 81-82.) The road now has potholes, crevices, bumps, and the

road has no markings to determine the proper lanes of travel. (CR 83, 85.)

      Defendants’ negligent operation of their trucks and businesses

includes sending hundreds or thousands of trucks every year—some over

legal weight limits—driving “recklessly” or at too high a rate of speed down

Krueger Road. (CR 83.) Defendants knew that their operations had created

the dangerous conditions on Krueger Road that eventually killed Jose

Vasquez. (CR 83-85.) Defendants did nothing either to repair Krueger

Road or warn others of the dangerous conditions they have negligently

created. (CR 83-85.)




                                                                             5
                   SUMMARY OF THE ARGUMENT
      The trial court was bound to take plaintiff’s factual allegations pled as

true and liberally construe them in her favor. The trial court implicitly found

that defendants owed no legal duty to Jose Vasquez when it dismissed his

widow’s claims under TEX. R. CIV. P. 91a because her claims allegedly had

“no basis in law.” However, Texas courts have long recognized at least two

species of duty when a defendant creates a dangerous condition. If the

defendant created the dangerous condition negligently, he has a duty to

repair it. If the defendant created the dangerous condition without being

negligent, he nevertheless still has a duty to warn those who may be injured

as a result. The trial court erred when it failed to recognize defendants’ duty

to repair or to warn Jose Vasquez of the unreasonably dangerous condition

their trucks had negligently created.




                                                                             6
                               ARGUMENT
                   Argument and Authorities—Issue 1

     Issue 1:    Did defendants have a legal duty to act to prevent
Vasquez’s death from the dangerous situation on Krueger Road that
defendants themselves negligently created?

      Yes. However, the trial court implicitly found that there could be no

such duty when it dismissed plaintiff’s claims pursuant to Rule 91a as

having “no basis in law.”

      Rule 91a allows a party to move to dismiss a baseless cause of action

on the grounds that it has no basis in law or fact. TEX. R. CIV. P. 91a.1. In

the case at bar, fact issues are not in dispute—the trial court’s order is

expressly limited to dismissal because the claims allegedly had “no basis in

law.” (Tab A.)

      A cause of action has no basis in law if the allegations, taken as
      true, together with inferences reasonably drawn from them, do
      not entitle the claimant to the relief sought.

TEX. R. CIV. P. 91a.1. The trial court must decide a Rule 91a motion to

dismiss based solely on the pleading of the cause of action, together with

any exhibits permitted by Rule 59. TEX. R. CIV. P. 91a.6.

      In conducting our [Rule 91a] review, … we must construe the
      pleadings liberally in favor of the plaintiff, look to the pleader’s
      intent, and accept as true the factual allegations in the
      pleadings….

Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.—Houston [14th Dist.]

2014, pet. filed) [emphasis added].


                                                                             7
      Thus, factual allegations the trial court was obliged to “take as true”

and liberally construe in favor of plaintiff included:

      (i)     It takes 1200 trucks to bring one oil or gas well into production;
              (Tab C, CR 81)

      (ii)    It takes 350 trucks a year to maintain one oil or gas well; (Tab
              C, CR 81)

      (iii)   The service life of roads in areas around oil or gas wells is
              reduced more than 30% per year due to well operations; (Tab
              C, CR 81-82)

      (iv)    Defendants knew that La Salle County could not repair Krueger
              Road as fast as defendants destroyed it; (Tab C, CR 82)

      (v)     Some of defendants’ trucks travelled at an unsafe speed; (Tab
              C, CR 83)

      (vi)    Some of defendants’ trucks travelled “recklessly;” (Tab C, CR
              84)

      (vii) Some of defendants’ trucks were overweight; (Tab C, CR 83,
            85)

      (viii) Krueger Road was once a safe, paved road for the public; (Tab
             C, CR 83)

      (ix)    Krueger Road is now in a dangerously dilapidated condition,
              with potholes, crevices, and bumps; (Tab C, CR 83, 85)

      (x)     Defendants knew they had created Krueger Road’s dangerously
              dilapidated condition; (Tab C, CR 83, 85)

      (xi)    It was foreseeable that Vasquez (or others) could be injured
              while in the lawful exercise of his right to drive on Krueger
              Road; (Tab C, CR 83) and

      (xii) Defendants did nothing either to repair Krueger Road or warn
            others of the dangerous conditions defendants had created there.
            (Tab C, CR 83)

                                                                              8
      Texas courts have long held that if a party creates a dangerous

condition, he has a duty to prevent injury to others if it is reasonably

foreseeable that others in the exercise of their lawful rights may be injured

by the dangerous condition he created. SmithKline Beecham Corp. v. Doe,

903 S.W.2d 347, 353 (Tex. 1995); Buchanan v. Rose, 159 S.W.2d 109, 110

(1942); San Benito Bank & Trust Co. v. Travels, 31 S.W.3d 312, 319 (Tex.

App.—Corpus Christi 2000).

      [I]t may be said generally, on the one hand, that if a party
      negligently creates a dangerous situation it then becomes his
      duty to do something about it to prevent injury to others if it
      reasonably appears or should appear to him that others in the
      exercise of their lawful rights may be injured thereby.

Buchanan, 159 S.W.2d at 110; see also Abalos v. Oil Development Co. of

Texas, 544 S.W.2d 627, 632-33 (Tex. 1976); Cactus Drilling Co. v.

Williams, 525 S.W.2d 902, 911 (Tex. Civ. App.—Amarillo 1975, writ ref’d

n.r.e.); Chrysler Corp. v. Dallas Power & Light Co., 522 S.W.2d 742, 744

(Tex. Civ. App.—Eastland 1975, writ ref’d n.r.e.); Courville v. Home

Transportation Co., 497 S.W.2d 788, 790-91 (Tex. Civ. App.—Beaumont

1973, writ ref’d n.r.e.); Dallas Ry. & Terminal Co. v. Archer, 167 S.W.2d

290, 293 (Tex. Civ. App.—Dallas 1942, writ ref’d w.o.m.).

      Nor does it absolve a defendant of all duty if he creates the dangerous

condition on a “public way”—even if he does so without being negligent:




                                                                           9
      We think it may also be said that if one by his own acts, although
      without negligence on his part, creates a dangerous situation in
      or along a public way and it reasonably appears that another in
      the lawful use of such way in the exercise of ordinary care for his
      own safety may be injured by the dangerous situation so created,
      the one creating the same must give warning of the danger or be
      responsible for the consequences. To illustrate: One who in the
      exercise of a lawful right, and without negligence on his part,
      makes an excavation across a street or sidewalk or on his
      premises in close proximity to a public way, or parks a vehicle in
      a road, or otherwise obstructs the road with a foreign substance,
      is bound to give warning of the danger created thereby.

Buchanan, 159 S.W.2d at 110 [citations omitted]. Although the duty may

be different—to warn others of the dangerous condition as opposed to a duty

to repair the condition—there is nevertheless still a duty.

      Defendants owed the Buchanan duties to Jose Vasquez. When they

breached their duties, defendants caused Jose Vasquez’s death.

                              CONCLUSION
      The trial court was bound to take plaintiff’s factual allegations pled as

true and liberally construe them in her favor. The trial court implicitly found

that defendants owed no legal duty to Jose Vasquez when it dismissed his

widow’s claims under TEX. R. CIV. P. 91a as having “no basis in law.”

Because Texas courts have long recognized a duty when a defendant creates

a dangerous condition, the trial court erred when it failed to recognize

defendants’ duty to repair or to warn Jose Vasquez of the unreasonably

dangerous condition defendants’ trucks had created.




                                                                            10
                                 PRAYER
       For these reasons, appellant Leticia Zepeda Vasquez prays that the

Court reverse the trial court’s dismissal of her claims and causes of action

against defendants as having “no basis in law,” and remand to the trial court

for a trial.

Respectfully submitted,



By:           /s/ Jeffrey L. Dorrell            .




Jeffrey L. Dorrell
State Bar No. 00787386
jdorrell@hanszenlaporte.com
11767 Katy Freeway, Suite 850
Houston, Texas 77079
Telephone: 713-522-9444
FAX: 713-524-2580
ATTORNEYS FOR APPELLANT LETICIA ZEPEDA VASQUEZ




                                                                          11
                        CERTIFICATE OF SERVICE

       I hereby certify that on    3-31     , 2015, a true and correct copy of the
foregoing was sent by:

              Hand delivery
              Certified mail
              Telephonic document transfer
        X     E-service in accordance with TEX. R. APP. P. 9.5(b)

in accordance with TEX. R. APP. P. 9.5(c) to the following counsel of record:

       Mr. William A. Abernethy
       Donnell, Abernethy & Kieschnick, P.C.
       555 N. Carancahua, Suite 1770
       Corpus Christi, Texas 78401
       Telephone: 361-888-5551
       FAX: 361-880-5618
       COUNSEL FOR DEFENDANT ROSETTA RESOURCES
       OPERATING, LP.
       Mr. David L. Ortega
       Naman Howell Smith & Lee, PLLC
       1001 Reunion Place, Suite 600
       San Antonio, Texas 78216
       Telephone: 210-731-6300
       FAX: 210-785-2953
       COUNSEL FOR DEFENDANTS LEWIS ENERGY GROUP, LP, and
       LEWIS PETRO PROPERTIES, INC.
       Mr. Christopher Lowrance
       Royston, Rayzor, Vickery & Williams, L.L.P.
       802 Carancahua, Suite 1300
       Corpus Christi, Texas 78401
       Telephone: 361-884-8808
       FAX: 361-884-7261
       COUNSEL FOR DEFENDANTS VIRTEX OPERATING CO., INC.,
       and VIRTEX HOLDINGS, LLP




                                                                                12
    Mr. Isaac J. Huron
    Davis, Cedillo & Mendoza, Inc.
    McCombs Plaza, Suite 500
    755 E. Mulberry Avenue
    San Antonio, Texas 78213
    Telephone: 210-822-6666
    FAX: 210-822-1151
    COUNSEL FOR DEFENDANTS LEGEND NATURAL GAS III, LP,
    and LEGEND NATURAL GAS, LLC
    Mr. E. Michael Rodriguez
    Atlas, Hall & Rodriguez, L.L.P.
    P.O. Box 6369 (78523-6369)
    50 W. Morrison Road, Suite A
    Brownsville, Texas 78520
    Telephone: 956-574-9333
    FAX: 956-574-9337
    COUNSEL FOR DEFENDANTS ENTERPRISE PRODUCTS
    HOLDINGS, LLC, and ENTERPRISE PRODUCTS CO.
    Mr. Jose E. Garcia
    Garcia & Villareal
    4311 N. McColl Road
    McAllen, Texas 78504
    Telephone: 956-630-0081
    FAX: 956-630-3631
    COUNSEL FOR DEFENDANT XTO ENERGY, INC.


       /s/ Jeffrey L. Dorrell
JEFFREY L. DORRELL




                                                     13
         CERTIFICATE OF WORD COUNT COMPLIANCE

       In compliance with TEX. R. APP. P. 9.4, relying on the word count
function in the word processing software used to produce this document, I
certify that the number of words in this document including footnotes
(excluding captions, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of
compliance, and appendix) is 1,343.


          /s/ Jeffrey L. Dorrell
JEFFREY L. DORRELL




                                                                           14
                     04-14-00899-CV
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; VIRTEX
 OPERATING CO., INC.; ENTERPRISE PRODUCTS HOLDINGS, LLC;
   ENTERPRISE PRODUCTS COMPANY; and XTO ENERGY, INC.,

                               Appellees


                    APPELLANT’S APPENDIX

                       LIST OF DOCUMENTS

1. January 5, 2015, Order Appealed From ……………………………Tab A

2. TEX. R. CIV. P. 91a. …………..……………………………………Tab B

3. Plaintiff’s First Amended Original Petition ..………………………Tab C




                                                                    15
