                                                                               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].




                                      2
                          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.


                                        3
                    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.




                                           4
                               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


                                         5
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


                                         6
      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,


                                         7
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.


                                          9
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.




                                 13
