                                                                                          ACCEPTED
                                                                                      06-15-00009-CV
                                                                           SIXTH COURT OF APPEALS
                                                                                 TEXARKANA, TEXAS
                                                                                12/7/2015 12:06:42 PM
                                                                                     DEBBIE AUTREY
                                                                                               CLERK


                        NO. 06-15-00009-CV
                   IN THE COURT OF APPEALS FOR THE                FILED IN
                                                           6th COURT OF APPEALS
                       SIXTH DISTRICT OF TEXAS               TEXARKANA, TEXAS
                            AT TEXARKANA                   12/7/2015 12:06:42 PM
DENNIS RAYNER and                                               DEBBIE AUTREY
                                                                    Clerk
JOE TEX XPRESS, INC.                                           APPELLANTS

V.

KRISTA DILLON                                                        APPELLEE



           Appeal from the District Court of Hopkins County, Texas
                            62nd Judicial District
                      Honorable Will Biard Presiding



                         BRIEF OF APPELLEE

John R. Mercy                          Brent Goudarzi
Texas State Bar No. 13947200           Texas State Bar No. 00798218
MERCY p CARTER p TIDWELL, L.L.P.       Email: brent@goudarzi-young.com
1724 Galleria Oaks Drive               Marty L. Young
Texarkana, TX 75503                    Texas State Bar No. 24010502
Telephone: (903) 794-9419              Email: myoung@goudarzi-young.com
Facsimile: (903) 794-1268              Geoffrey Hoover
E-mail: jmercy@texarkanalawyers.com    Texas State Bar No. 24074437
                                       Email: ghoover@goudarzi-young.com
                                       GOUDARZI & YOUNG
                                       P.O. Box 910
                                       Gilmer, TX 75644
                                       Telephone: (903) 843-2544
                                       Facsimile: (903) 843-2026

                       ATTORNEYS FOR APPELLEE

Oral Argument Requested
                               IDENTITY OF PARTIES AND COUNSEL

         Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellee

lists below the names and addresses of all parties to the trial court’s final judgment

together with their counsel in the trial court. This list is provided so that the justices

of this Court may evaluate possible disqualification and recusal, and so that the Clerk

of the Court of Appeals may notify all parties of this Court’s final judgment.

Dennis Rayner and
Joe Tex Xpress, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellants

Bryan P. Reese
Jennifer M. Lee
FEE, SMITH, SHARP & VITULLO, L.L.P.
Three Galleria Tower
13155 Noel Road, Suite 1000
Dallas, TX 75240.. . . . . . . . . . . . . . . . . Trial and Appellate Counsel for Appellants

Samuel V. Houston, III
HOUSTON DUNN, PLLC
4040 Broadway, Suite 440
San Antonio, TX 78209.. . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellants

Krista Dillon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellee

Brent Goudarzi
Marty Young
Geoffrey Hoover
GOUDARZI & YOUNG
P.O. Box 910
Gilmer, TX 75644. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellee

John C. Ginn
SMITH MCDOWELL GINN
P.O. Box 493
Sulphur Springs, TX 75483.. . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellee

                                                          i
John R. Mercy
MERCY p CARTER p TIDWELL, L.L.P.
1724 Galleria Oaks Drive
Texarkana, TX 75503. . . . . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellee




                                              ii
                                         TABLE OF CONTENTS
                                                                                                               Page

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Response to Issue Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

         Gross Negligence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

         Objective and Subjective Elements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

         Evidentiary Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

         Objectively Joe Tex Knew of the Extreme Risk. . . . . . . . . . . . . . . . . . . . . . 11

         Objectively Rayner Knew of the Extreme Risk. . . . . . . . . . . . . . . . . . . . . . 13

         Evidence Supports Objective Prong for Gross Negligence. . . . . . . . . . . . . 14

         Joe Tex Proceeds with Conscious Indifference. . . . . . . . . . . . . . . . . . . . . . 14

         Rayner Proceeds with Conscious Indifference. . . . . . . . . . . . . . . . . . . . . . . 15

         Evidence Supports the Subjective Prong for Gross Negligence.. . . . . . . . . 16


                                                               iii
         Defendants Had No Credibility.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

         Lack of Evidentiary Support for Defendants’ Argument. . . . . . . . . . . . . . . 17

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Appendix:
        A - Accident Report Drawing (P. Ex. 17 p. 6)

        B - Hours of Service: Record of Duty Status Falsification List
            (P. Ex. 3 [emphasis added])

        C - Joe Tex July 12, 2010 Violation Report (P. Ex. 18 [emphasis added])

        D - 4.30.10 Joe Tex letter (P. Ex. 26 [emphasis added])

        E     - 7.1.10 Joe Tex letter (P. Ex. 24 [emphasis added])

        F     - Joe Tex letter (P. Ex. 27 [emphasis added])




                                                                   iv
                               INDEX OF AUTHORITIES

Cases:                                                                                          Page


Boerjan v. Rodrigues,
436 S.W.3d 307 (Tex. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17

Columbia Medical Center of Las Colinas, Inc. v. Hogue,
271 S.W.3d 238 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Dalworth Trucking Co. V. Bulen,
924 S.W.2d 724 (Tex. App. – Texarkana 1996, no writ). . . . . . . . . . . . . . . 16

In Re H.R.M.,
209 S.W.3d 105 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 17

In Re J.O.A.,
283 S.W.3d 336 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

State v. Addington,
588 S.W.2d 569 (Tex. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State v. K.E.W.,
315 S.W.3d 16 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Transportation Ins. Co. V. Moriel,
879 S.W.2d 10 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U-Haul International, Inc. v. Waldrip,
380 S.W.3d 118 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

USA Truck, Inc. v. West,
189 S.W.3d 904, 907 (Tex. App. – Texarkana 2006, no writ). . . . . . . . 10, 17




                                                  v
Statutes:

TEX. CIV. PRAC. & REM. CODE ANN.
  § 41.001(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
  § 41.001(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
  § 41.003(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10



Code of Federal Regulations:

   49 CFR 395. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
   49 CFR 395.3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                      vi
                                     NO. 06-15-00009-CV
                             IN THE COURT OF APPEALS FOR THE
                                 SIXTH DISTRICT OF TEXAS
                                      AT TEXARKANA
      DENNIS RAYNER and
      JOE TEX XPRESS, INC.                                                        APPELLANTS

      V.

      KRISTA DILLON                                                                      APPELLEE


                                        BRIEF OF APPELLEE

      TO THE HONORABLE COURT OF APPEALS:

              COMES NOW Appellee, KRISTA DILLON, and files this her brief in

      response to Appellants’ brief, and would show unto the Court the following.


                                     STATEMENT OF THE CASE

      Nature of the case:             This is a truck wreck case.1                   .

      Trial court:                    Honorable Will Biard, 62nd Judicial District, Hopkins
                                      County

      Parties:                        Plaintiffs:    Dennis Rayner
                                                     Joe Tex Xpress, Inc.

                                      Defendant: Krista Dillon


       1
          Appellant, Dennis Rayner, will be referred to as “Rayner”, Appellant, Joe Tex Xpress, Inc,
will be referred to as “Joe Tex”, Rayner and Joe Tex will be referred to collectively as “Defendants”,
and Appellee, Krista Dillon, will be referred to as “Dillon.” The Clerk’s Record will be cited as
(CR _); the Reporter’s Record will be cited as (_ RR _); and exhibits will be cited as (P. Ex. _).

                                                     1
Trial:                The case was tried for seven days to a jury.

Verdict:              The jury found Rayner and Joe Tex liable and
                      awarded $1,110,629.76 in actual damages. (CR
                      3011-13). The jury also found Rayner and Joe Tex
                      grossly negligent, awarding $2,000.00 in exemplary
                      damages against Rayner and $3,000,000.00 in
                      exemplary damages against Joe Tex. (CR 3014-15,
                      3022-23). The trial court reduced the exemplary
                      damages against Joe Tex to $1,679,295.52 and
                      entered judgment. (CR 3032).

Post-Trial Motions:   Defendants filed a motion for new trial which was
                      overruled by operation of law. This appeal ensued.




                                  2
            RESPONSE TO ISSUE PRESENTED


                  Responsive Issue

Where the evidence included acknowledgment that:
•     maintaining accurate log books was required
      under federal law,
•     the purpose of log books was to prevent fatigued
      drivers from driving 18-wheelers,
•     the Department of Transportation had found Joe
      Tex in violation of the law,
•     Rayner was the second most cited driver for Joe
      Tex,
•     Joe Tex paid a significant fine for making false
      reports of duty status on log books
•     Rayner was missing ten log books during the
      month before the accident,
•     Rayner’s log books for the day before and the
      day of the accident were falsified,
•     The jury heard evidence that Joe Tex and Rayner
      were not credible; and
•     Rayner ran Dillon off the road because he didn’t
      see her.
There was clear and convincing evidence to support the
jury’s finding of gross negligence against Rayner and
Joe Tex.




                          3
                              STATEMENT OF FACTS

      Joe Tex claimed that Rayner was one of “the best hands he ever had.” (2 RR

300). At the trial Rayner admitted that he received a four-year sentence for leaving

the scene of a hit-and-run accident, “sucked at logs”, falsified his log books, had been

found to have falsified his log books repeatedly, falsified his log books on the day

before and the day of the accident, had been sloppy with log books for years and

didn’t ever get disciplined. (5 RR 218, 225, 235, 245, 278, 294, 299, 331). Despite

this Joe Setina, president and owner of Joe Tex, would still let Rayner drive a Joe Tex

truck even today. (2 RR 276).

      On July 23, 2010, Rayner hit Dillon’s Chevy Malibu from behind and ran her

off Interstate 30. (P. Ex. 17, Appendix A). He claimed that he never saw her until

after her car was hurdling through the median. (5 RR 284-285). Rayner claimed that

Dillon was in his blind spot even though she was in front of him. (5RR 284-285).

At trial Rayner and Joe Tex accepted full responsibility for the accident. (2 RR 248;

5 RR 202). The jury agreed that it was Rayner’s fault. (CR 3006).

      The trucking industry is heavily regulated under the Federal Motor Carrier

Safety Act. (See 49 CFR 395). Because driving an 18-wheeler while fatigued is

extremely dangerous, the Federal Motor Carrier Safety Administration has

promulgated specific regulations that restrict the number of driving/working hours.

(49 CFR 395.3; 5 RR 204). These regulations require drivers to keep log books
                                           4
detailing the hours that they work, are driving, on duty, sleeping, and off duty. (49

CFR 395). The purpose of these regulations is to protect the public from the known

extreme danger of fatigued drivers. (2 RR 79). Joe Tex knew all this. (2 RR 256; 3

RR 27-28).

      But Joe Tex had a systemic problem in violating federal regulations designed

to prevent fatigue. In April 2010, just three months before this accident, Joe Tex was

audited by the Department of Transportation. (P. Ex. 3 and Appendix B). The DOT

audit of a random thirty-day period showed that Joe Tex had 48 violations, of which

34 were critical violations. (2 RR 91; 3 RR 57). Rayner was the second worst

offender during the DOT audit time frame. (2 RR 156, 300). In that thirty-day period

Rayner had 9 violations. (P. Ex. 3, 29; Appendix B). As a result of the DOT audit

Joe Tex had its rating reduced from satisfactory to conditional, and was fined

$17,000.00. (2 RR 143, 150, 261, 275; 7 RR 134).

      Rayner admitted that he did not keep proper log books and that it was known

by Joe Tex. (5 RR 223, 239-240, 278). He further testified that no action was ever

taken against him because of his log book violations. (5 RR 223, 239-240). He

continued to not properly maintain log books right through the accident. (5 RR 294).

During the month prior to the accident he had 12 missing log books, had inaccurate

log books on the day before and the day of the accident and admitted to pre-filling out

his log books before beginning to work even on the day of the accident. (5 RR 235,

                                          5
294-295). (P. Ex. 18, Appendix C). Rayner and Joe Tex admitted that accurate log

books were critical in determining whether a driver was fatigued. (2 RR 79, 233, 256;

5 RR 12, 31, 206). But Rayner admitted that because of the inaccuracies in his log

books that if his log books were wrong on the day before that the jury could not tell

that he was not fatigued. (5 RR 251). He did admit that the times on his log books

for the day of the accident were “screwed up again”. (5 RR) 294).

      Based on the above evidence the jury found both Rayner and Joe Tex grossly

negligent.




                                          6
          STATEMENT REGARDING ORAL ARGUMENT

The Court should grant oral argument for the following reasons:

a)    Oral argument would give the Court a more complete

      understanding of the facts presented in this appeal. Tex. R. App.

      P. 39.1(c).

b)    Oral argument would significantly aid the Court in deciding the

      case. Tex. R. App. P. 39.1(d).




                                  7
                         SUMMARY OF THE ARGUMENT

      After having been cited and fined by the DOT for 48 violations in a thirty-day

period three months before this accident, Joe Tex made no attempt to correct the log

book falsifications.

      Joe Tex knew of the risks of falsifying log books and that it would lead to

fatigued drivers. Joe Tex knew that the risk would lead to catastrophic injuries. But

Joe Tex did not appear to care.

      Joe Tex didn’t fire drivers that falsified log books. Joe Tex didn’t discipline

drivers that falsified log books. Joe Tex didn’t follow its own policies regarding

preventing falsifying log books.

      As a result on July 23, 2010, Krista Dillon was run over by a Joe Tex driver.

A Joe Tex driver who continually falsified log books. A Joe Tex driver who falsified

his log books the day before the accident. A Joe Tex driver who falsified his log

book on the day of the accident. A Joe Tex driver who claimed to not see Dillon in

front of him until he had run her off the road.

      This evidence complete with the total lack of credibility of Rayner and Joe Tex

support the jury’s finding of gross negligence.




                                          8
                         ARGUMENT AND AUTHORITIES


             “It’s my call. It’s my company. I can kind of do what I
             want.” – Joe Setina (3 RR 27)

      With just such a cavalier attitude, Setina, as president of Joe Tex, put drivers

on the road. Joe Tex knew it was catastrophically dangerous to have fatigued drivers

on the road. Despite this, Joe Tex did not require its drivers to maintain proper log

books nor train them to do so. Joe Tex did not enforce its own policies regarding log

books. Joe Tex did not discipline drivers for failure to properly fill out log books.

Joe Tex did not check to see if drivers’ log books accurately reflected whether they

were fatigued or not. Joe Tex lied to the DOT about having hired a safety manager.

Joe Tex lied to the DOT regarding having taken disciplinary action against the “worst

offending drivers.” It is against this background that Rayner and Joe Tex now attempt

to argue there was not evidence of gross negligence.

Gross Negligence

      Gross negligence must be proved by a clear and convincing evidence. Clear

and convincing evidence is that measure or degree of proof that will produce in the

mind of the trier of fact a firm belief or conviction as to the truth of the allegation

sought to be established. TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(2). While the

proof must be of a heavier weight than merely the greater weight of the credible



                                          9
evidence, there is no requirement that the evidence must be unequivocal or

undisputed. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).

Objective and Subjective Elements

      Exemplary damages may be awarded if the proof shows that the harm suffered

resulted from gross negligence. TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(a)(3).

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 20 (Tex. 1994). USA Truck, Inc.

v. West, 189 S.W.3d 904, 907 (Tex. App. – Texarkana 2006, no writ). “Gross

negligence” means an act or omission: (A) which when viewed objectively from the

standpoint of the actor at the time of its occurrence involves an extreme degree of

risk, considering the probability and magnitude of the harm to others; and (B) of

which the actor had actual subjective awareness of the risk involved but nevertheless

proceeds with conscious indifference to the rights, safety, or welfare of others. TEX.

CIV. PRAC. & REM. CODE ANN. § 41.001(11). Under the objective element, an

extreme risk is “not a remote possibility of injury or even a high probability of minor

harm, but rather the likelihood of serious injury to the plaintiff.” Boerjan v.

Rodrigues, 436 S.W.3d 307, 311 (Tex. 2014). Under the subjective element “actual

awareness means the defendant knew about the peril, but its acts or omissions

demonstrated that it did not care.” Id. Circumstantial evidence may suffice to prove

either element. Id.



                                          10
Evidentiary Review

      In evaluating the legal sufficiency of the evidence, this Court must determine

whether the evidence is such that a fact finder could reasonably form a firm belief or

conviction that its finding was true. State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).

Columbia Medical Center of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex.

2008). This Court must review the evidence in the light more favorable to the jury’s

finding of gross negligence. U-Haul International, Inc. v. Waldrip, 380 S.W.3d 118,

138 (Tex. 2012). This Court must resolve any disputed facts in favor of the finding

if a reasonable fact finder could have done so. K.E.W., 315 S.W.3d at 20. This

Court must disregard evidence contrary to the finding unless a reasonable fact finder

could not. Id. The jury, not the appellate court, is the sole judge of the credibility and

demeanor of the witnesses. In Re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

      In forming a factual sufficiency review this Court must determine whether on

the entire record a fact finder could reasonably form a firm conviction or belief that

its finding was true. In Re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). This Court

though may still not substitute its judgment for that of the jury. Id.

Objectively Joe Tex Knew of the Extreme Risk

      Joe Setina, the president of Joe Tex, admitted that an improperly driven 18-

wheeler can cause serious damage to people. (2 RR 256). He admitted that he knew

fatigue was a big problem that could cause catastrophic injuries. (2 RR 256). He

                                           11
further admitted that the way to keep up with drivers’ fatigue was by monitoring the

log books. (2 RR 256). He further testified that he recognized the problem with

drivers being tired and causing accidents. (3 RR 66). He also admitted that he knew

that falsifying the log books was a “bad thing.” (2 RR 259). He further admitted that

he knew Joe Tex drivers were falsifying log books before the accident. (2 RR 298).

He further admitted that before the accident Rayner was the second worst driver at

falsifying log books. (2 RR 300). He also testified that because Rayner was falsifying

log books it was possible that on the date of the accident he was also “cooking the

books.” (2 RR 330). He further testified that fatigued drivers could catastrophically

injure people. (3 RR 29).

       Angie Dunavant was the CFO and safety supervisor of Joe Tex.2 (2 RR 62).

She admitted that she knew the purpose of log books was to keep tired drivers off the

road because bad things could happen. (2 RR 79). She also testified that if Joe Tex

did not take action against drivers that falsified log books it sent a message that Joe

Tex “just didn’t care.” (2 RR 80). She knew prior to the accident that she had drivers

that were falsifying the log books. (2 RR 86). She also knew prior to the accident

that Rayner had been found to have falsified his log books. (2 RR 86-87). She

admitted that Joe Tex made more money off Rayner than other drivers. (2 RR 168).


       2
         Dunavant’s only qualification to be CFO of a trucking company was that she was a former
dental hygienist and Setina’s mother-in-law. (2 RR 71, 254).

                                              12
She also testified that people could get seriously hurt if log books were not properly

kept. (2 RR 186). She also admitted that no disciplinary action was taken against

Rayner. (2 RR 231).

       Craig Skidmore, the dispatcher which Joe Tex claimed was its safety manager,

testified that log books were important. (5 RR 11-12).3 Skidmore testified that the

purpose of log books was to keep tired drivers from operating vehicles. (5 RR 33).

He admitted that Joe Tex got paid more if it didn’t follow the law. (5 RR 214). He

testified that he knew that fatigued drivers were a problem and would not be surprised

if thirty to forty percent of accidents were caused by fatigue. (5 RR 15). He admitted

that fatigue plays a part in most accidents. (5 RR 160). He testified that he would not

say fatigue played a part in this accident because it would be bad for everyone. (5 RR

103-104).

Objectively Rayner Knew of the Extreme Risk

       Rayner testified that he knew that 18-wheelers could cause catastrophic

injuries. (5 RR 205). He testified that it was important to keep up with the log books

to prevent tired drivers. (5 RR 206). He also testified that if someone were not

keeping his log books properly he would continue to violate those rules unless


       3
           Both Setina and Dunavant sent letters to the Department of Transportation claiming that
Joe Tex had hired Craig Skidmore as safety manager. (P. Ex. 24, 26, Appendices D and E [emphasis
added]). Skidmore admitted that he was hired merely as a dispatcher. (5 RR 11-12). Skidmore
testified that it was “not right to represent him as the safety manager when he was not.” (5 RR 92).

                                                13
someone put a stop to it. (5 RR 209). He testified that on the day of the accident his

log books were “screwed up again.” (5 RR 294).

Evidence Supports Objective Prong for Gross Negligence

      This evidence shows that when viewed from Rayner’s and Joe Tex’s standpoint

at the time of the wreck, fatigued driving involved an extreme degree of risk and

could cause potentially catastrophic harm to others. This clearly met the objective

element for gross negligence. It further showed that Rayner and Joe Tex had actual

subjective awareness of the risk involved.

Joe Tex Proceeds with Conscious Indifference

      Despite being aware of the risks involved in having falsified log books and

allowing drivers to drive with them, Joe Tex refused to change. Setina testified that

despite having been fined thousands of dollars by the Department of Transportation

he never even bothered to look at what the violations were. (2 RR 263). He admitted

that Rayner was never written up for his violations. (2 RR 269). He testified that

despite all the violations by Rayner he would still allow him to drive a Joe Tex truck

even today and that there was no time he would have prevented him from doing so.

(2 RR 276-77). He chose to ignore the fact that Rayner had fourteen (14) violations

for missing log books for the month before the accident. (2 RR 280). Despite Joe

Tex’s policy to document disciplinary actions, there was no documentation that

Rayner had ever been disciplined. (2 RR 269). After the DOT audit found significant

                                         14
violations in log books he still refused to get rid of any of the bad offenders. (2 RR

322).

        Angie Dunavant testified that she knew Rayner was the second worst

perpetrator in the DOT audit. (2 RR 156). Rayner was cited for nine (9) violations

in the DOT audit before the accident. (2 RR 87). Despite knowing about the

falsification of log books, and that Rayner was the second worst offender, and that

she should take action against offending drivers for falsifying log books, she did not

terminate Rayner. (2 RR 156, 167). She had no documentation that she had ever

discussed the log book violations with Rayner. (2 RR 231). Instead, she told the DOT

that she was going to lay off the drivers responsible for the violations found in the

DOT audit. (2 RR 167; P. Ex. 27, Appendix F). No one was laid off. (2 RR 167).

Rayner Proceeds with Conscious Indifference

        Rayner at least admitted that he knew that someone who was falsifying his log

books would probably continue to do so unless someone put a stop to it. (5 RR 209;

247). He testified that “I suck at logs.” (5 RR 218). He had been sloppy with his log

books for years. (5 RR 287). But Joe Tex never bothered to correct the problem. (5

RR 223).

        Skidmore, the purported safety manager, even testified that Rayner was good

with his log books. (5 RR 22-23). This despite the DOT audit that clearly showed

that Rayner falsified his log books. (P. Ex. 3). One violation showed that Rayner

                                          15
claimed in his DOT log book that he was off all day in Corpus Christi but in fact

drove 832 miles for 13 hours and 59 minutes to Moriarty, New Mexico. (2 RR 268;

P. Ex. 3, Appendix B p. 2 [emphasis added]). Rayner testified that in the thirty days

prior to the accident he had twelve (12) missing log books. (5 RR 235; P. Ex. 18,

Appendix C [emphasis added]). He was speeding twice. (5 RR 235). He did not get

disciplined for that. (5 RR 239-240). He testified that if his log books were falsified

on the day before the accident you could not tell if he was fatigued. (5 RR 251). He

then testified that his log books at that time were “screwed up again.” (5 RR 294).

Evidence Supports the Subjective Prong for Gross Negligence

      Despite an actual awareness of the risks, it is clear from Joe Tex’s actions that,

as Ms. Dunavant said, Joe Tex “just didn’t care.” (2 RR 80). Starting with an owner

that thinks he gets to run the company the way he wants, through falsified log books

on the day of the wreck, the jury could reasonably believe Joe Tex did not care. This

clearly meets the subjective element required to prove gross negligence. The jury

could have reasonably found that Rayner and Joe Tex’s cumulative and continuing

safety violations caused Rayner to be fatigued at the time of the accident that caused

him not to see Dillon’s car in front of him. See Dalworth Trucking Co. V. Bulen, 924

S.W.2d 728, 734 (Tex. App. – Texarkana 1996, no writ).




                                          16
Defendants Had No Credibility

      The jury is the one who judges the credibility of the witnesses. In Re J.O.A.,

283 S.W.3d at 346; In Re H.R.M., 209 S.W.2d at 108. It is clear that they reasonably

did not believe that Joe Tex had a system in place to determine whether or not the

drivers were fatigued. See USA Truck, Inc., 189 S.W.3d at 907. This along with the

evidence the fact that Rayner did not see Dillon, and Rayner’s admission that he

could possibly have been fatigued if his books were falsified, the jury could

reasonably believe he was fatigued at the time of the accident because of Joe Tex’s

actions.

Lack of Evidentiary Support for Defendants’ Argument

      Despite the overwhelming evidence of gross negligence set forth above, Rayner

and Joe Tex continue to argue that there was no “direct evidence” of fatigue. This

clearly ignores the fact that there is overwhelming circumstantial evidence of fatigue.

“Circumstantial evidence can be used to prove gross negligence.” Boerjan, 436

S.W.3d at 311. Even Rayner admitted that if his log books were wrong the day before

the accident there was no way he could tell the jury he was not fatigued on the day

of the accident. (5 RR 251).

      Despite this Defendants argue that to find that Rayner was fatigued the jury

would have to infer that he intentionally falsified his log books. The jury did not

have to infer that he falsified his log books because Rayner admitted that he had done

                                          17
so on numerous occasions, including the day before the accident and the day of the

accident. (5 RR 225, 235, 294). Rayner also admitted on the day of the accident that

he had improperly filled out his log book before he even left that morning. (5 RR

294).

        The jury does not even have to make an inference, it simply must believe

Rayner that he falsified his log books. From that, and his admission that there was

no way to tell the jury he was not fatigued, the jury could infer from the accident that

he was fatigued. He did not see Dillon prior to the accident. (5 RR 284-285). Rayner

hit her from behind. (P. Ex. 17, Appendix A). Rayner didn’t even know he’d hit her

until he saw her in the median. (5 RR 284-285). Skidmore testified that fatigue

played a role in most accidents. (5 RR 16). These facts, coupled with the utter lack

of credibility of the Joe Tex witness, would lead a reasonable jury to but one

conclusion: Rayner was fatigued at the time of the accident.

        Even still Defendants argue that the jury could not reach that conclusion

because of four uncontroverted facts that affirmatively demonstrated that “fatigue had

nothing to do with the accident.” (Appellants’ brief p. 19). This conclusion is only

based upon Defendants’ belief in the credibility of their own witnesses.

Unfortunately, for Defendants, the jury is the one who determines whether the

evidence is credible or not.    Joe Tex and Rayner’s credibility was very much in



                                          18
question.4 The evidence showed that Joe Tex through its CFO and president were

willing to lie to the Department of Transportation, and Rayner was continually

falsifying his log books in violation of federal requirements. (P. Ex. 23, 24; P. Ex. 18,

Appendix C). Therefore the jury had no basis to believe anything they testified to.

       Despite this lack of credibility Defendants argue that it was undisputed that the

responding officer did not identify fatigue as a cause of the accident. (Appellant’s

Brief p. 19). While there is no note on the accident report Rayner testified that he did

not really even talk to the officer at the accident scene. (5 RR 255). Therefore, one

would not expect the officer to identify fatigue as a cause of the accident if he didn’t

really speak to Rayner.

       Defendants also argue that the testimony of dispatcher Craig Skidmore (who

Joe Tex represented to be their safety manager) that Rayner was not fatigued and did

not appear tired was uncontroverted. (Appellants’ Brief p. 19). Skidmore testified

that he would not say that fatigue was a factor in the accident because it was bad for

everyone. (5 RR 103-104).




       4
          Setina was not credible. He initially lied to the jury that he was a casual fisherman not a
professional with no sponsors like Berkley. (2 RR 253-257; 3 RR 30-34). He was forced to admit
that was false when confronted with photos of him in his Berkley-sponsored shirt winning
$25,000.00 in a professional tournament. (P. Ex. 35). He also admitted winning over $209,000 as
a professional fisherman. (3 RR 34). He also admitted lying to the Department of Transportation
that Joe Tex had hired a safety manager to try to get his safety rating changed when it had not. (2
RR 283; P. Ex. 24, 26 [emphasis added]).

                                                 19
      Defendants also argue that because Rayner’s log book only shows that he was

driving three or four hours on the day of the accident he could not have been

fatigued. (Appellants’ Brief p. 19). Rayner’s own testimony was that if his log books

were falsified the day before the accident there was no way that he could tell the jury

that he was not fatigued. (5 RR 251).

      Finally, Defendants argue that because Rayner denied he was fatigued the jury

was required to agree with him. For the reasons set forth above Rayner was not a

credible witness that the jury was required to believe.

      The jury is the sole judge of the credibility of the witnesses, did not have to

accept the testimony that Defendants now attempt to rely on, particularly in light of

the fact that it was controverted, and there was little if any credibility attributable to

Joe Tex and Rayner.

                                     CONCLUSION

      The evidence clearly supports the required elements for the jury to find gross

negligence. The Defendants were not credible. The evidence was that Defendants

knew of the extreme risk of falsifying log books which allowed fatigued drivers to

cause catastrophic injuries, but simply did not care. Didn’t care enough to get rid of

the worst offenders. Didn’t care enough to even retrain the offending drivers.

Therefore the jury’s verdict should be affirmed.



                                           20
                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellee, KRISTA DILLON,

prays that this Court affirm the trial court’s judgment; and for such other and further

relief to which she may show herself to be entitled.

                                        Respectfully submitted,

                                          /s/ John R. Mercy
                                        John R. Mercy
                                        Texas State Bar No. 13947200
                                        MERCY p CARTER p TIDWELL, L.L.P.
                                        1724 Galleria Oaks Drive
                                        Texarkana, TX 75503
                                        Telephone: (903) 794-9419
                                        Facsimile: (903) 794-1268
                                        E-mail: jmercy@texarkanalawyers.com


                                        Brent Goudarzi
                                        Texas State Bar No. 00798218
                                        Email: brent@goudarzi-young.com
                                        Marty L. Young
                                        Texas State Bar No. 24010502
                                        Email: myoung@goudarzi-young.com
                                        Geoffrey Hoover
                                        Texas State Bar No. 24074437
                                        Email: ghoover@goudarzi-young.com
                                        GOUDARZI & YOUNG
                                        P.O. Box 910
                                        Gilmer, TX 75644
                                        Telephone: (903) 843-2544
                                        Facsimile: (903) 843-2026

                                        ATTORNEYS FOR APPELLEE



                                          21
                           CERTIFICATE OF SERVICE

      I hereby certify that on December 7, 2015 a true and correct copy of the
foregoing Brief of Appellee was served on all counsel of record by the Electronic
Service Provider, as follows:

      Mr. Samuel V. Houston, III
      HOUSTON DUNN, PLLC
      4040 Broadway, Suite 440
      San Antonio, TX 78209
      Email: sam@hdappeals.com

      Mr. Bryan P. Reese
      Email: breese@feesmith.com
      Ms. Jennifer M. Lee
      Email: jlee@feesmith.com
      FEE, SMITH, SHARP & VITULLO, L.L.P.
      Three Galleria Tower
      13155 Noel Road, Suite 1000
      Dallas, TX 75240

                                        /s/ John R. Mercy
                                      John R. Mercy



                         CERTIFICATE OF COMPLIANCE

      Pursuant to Tex. R. App. P. 9.4, I hereby certify that the foregoing Brief of
Appellee contains 4070 words. This is a computer-generated document created in
WordPerfect using 14-point typeface. In making this certificate I am relying on the
word count provided by the software used to prepare the document.


                                        /s/ John R. Mercy
                                      John R. Mercy




                                        22
                       NO. 06-15-00009-CV
                  IN THE COURT OF APPEALS FOR THE
                      SIXTH DISTRICT OF TEXAS
                           AT TEXARKANA
DENNIS RAYNER and
JOE TEX XPRESS, INC.                                             APPELLANTS

V.

KRISTA DILLON                                                      APPELLEE


               __________________________________________

                           APPENDIX INDEX
              ______________________________________________



     A   - Accident Report Drawing (P. Ex. 17 p. 6)

     B   - Hours of Service: Record of Duty Status Falsification List
           (P. Ex. 3 (emphasis added])

     C   - Joe Tex July 12, 2010 Violation Report (P. Ex. 18 [emphasis added]

     D   - 4.30.10 Joe Tex letter (P. Ex. 26 [emphasis added])

     E   - 7.1.10 Joe Tex letter (P. Ex. 24 [emphasis added])

     F   - Joe Tex letter (P. Ex. 27 [emphasis added])
