                                                                                 ACCEPTED
                                                                            13-15-00329-CV
                                                            THIRTEENTH COURT OF APPEALS
                                                                   CORPUS CHRISTI, TEXAS
                                                                        9/7/2015 4:58:15 PM
                                                                           Dorian E. Ramirez
                                                                                      CLERK

                             13-15-00329-CV

                                                 RECEIVED IN
                                           13th COURT OF APPEALS
                     IN THE COURT OF APPEALS
                                        CORPUS CHRISTI/EDINBURG, TEXAS
             FOR   THE THIRTEENTH DISTRICT OF   TEXAS
                                            9/8/2015 8:00:00 AM
                                             DORIAN E. RAMIREZ
                                                    Clerk

                       STEVEN WALTERS
                              V.
                   ALLWAYS AUTO GROUP, LTD.
           D/B/A ATASCOSA CHRYSLER DODGE JEEP RAM


              BRIEF OF APPELLANT STEVEN WALTERS


                            September 7, 2015

THE LAW OFFICES OF THOMAS J. HENRY
521 Starr St.
Corpus Christi, Texas 78401
Telephone: (361) 985-0600
Facsimile: (361) 985-0601
Thomas J. Henry
State Bar No. 09484210
Russell W. Endsley
State Bar No. 24026825
Matthew S. Hull
State Bar No. 24055702
Service Email: rendsley-svc@thomasjhenrylaw.com




                    ORAL ARGUMENT REQUESTED
             IDENTITY OF PARTIES AND COUNSEL

Appellant:                       Counsel for Appellant:

Steven Walters                   THE LAW OFFICES OF
                                 THOMAS J. HENRY
                                 Thomas J. Henry
                                 State Bar No. 09484210
                                 Russell W. Endsley
                                 State Bar No. 24026825
                                 521 Starr St.
                                 Corpus Christi, Texas 78401
                                 Telephone: (361) 985-0600
                                 Facsimile: (361) 985-0601



Appellee:                        Counsel for Appellee:

Allways Auto Group, Ltd.         DAVIS, CEDILLO, &
d/b/a Atascosa Chrysler          MENDOZA, INC.
Dodge Jeep Ram                   Ronald E. Mendoza
                                 State Bar No.: 13937700
                                 755 E. Mulberry Ave., Suite 500
                                 San Antonio, Texas 78212
                                 Telephone: (210) 822-6666
                                 Telecopier: (210) 822-1151




                            ii
                                         TABLE OF CONTENTS

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

INDEX OF AUTHORITIES. .................................................................................. v

STATEMENT OF THE CASE. ............................................................................ vii

STATEMENT REGARDING ORAL ARGUMENT. ....................................... viii

ISSUES PRESENTED. ........................................................................................... ix

     I. Did the trial court err in granting Appellee’s Traditional Motion for
        Summary Judgment? ..................................................................................... ix

     II. Is there a genuine issue of material fact as to whether Appellee is liable
          for Mr. Walters’ injuries as a matter of law as a result of entrusting a
          motor vehicle to an unlicensed individual which Appellee knew or
          should have known to be unlicensed? .......................................................... ix

     III. Is there a genuine issue of material fact as to whether Appellee entrusted
          its vehicle to an incompetent driver that Appellee knew or should have
          known to be incompetent? ............................................................................ ix

     IV. Is there a genuine issue of material fact as to whether Appellee entrusted
         its vehicle to reckless driver that Appellee knew or should have known
         to be reckless? ............................................................................................... ix

     V. Was Heyden’s negligence a proximate cause of the collision and Mr.
        Walters’ resulting injuries?........................................................................... ix

     VI. Has Appellant brought forth facts and evidence in support of all
         elements of his causes of action against Appellee, thereby precluding
         summary judgment? ..................................................................................... ix

STATEMENT OF FACTS ...................................................................................... 1

SUMMARY OF ARGUMENT ............................................................................... 3

ARGUMENT ............................................................................................................ 5
                                                           iii
     I. DE NOVO REVIEW IS THE PROPER STANDARD FOR THIS HONORABLE
        COURT OF APPEALS. ...................................................................................... 5

           A. The Court of Appeals may exercise its own judgment and re-
              determine each issue of fact and law ...................................................... 5

           B. The Court of Appeals may consider the facts and evidence without any
              deference to the trial court ...................................................................... 5

     II. THE PROPER SCOPE OF REVIEW IS ALL SUMMARY JUDGMENT EVIDENCE,
         TAKEN AS TRUE IN FAVOR OF APPELLANT, WITH EVERY REASONABLE
         INFERENCE INDULGED AND ALL DOUBTS RESOLVED IN FAVOR OF
         APPELLANT. ................................................................................................... 6

     III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
          FAVOR OF APPELLEE. ................................................................................. 7

           A. Appellee is liable to Appellant as a matter of law by entrusting its
              vehicle to an unlicensed individual ........................................................ 7

           B. Heyden’s negligent operation of the vehicle entrusted by Appellee
              was the foreseeable, direct cause of Appellant’s injuries.................... 11

           C. The causation standard long established by the Supreme Court of
              Texas and found in the Texas Pattern Jury Charge in negligent
              entrustment cases forecloses Appellee’s causation arguments .......... 14

           D. Appellant has brought forth ample facts and evidence in support
              of Appellant’s claims............................................................................. 18

CONCLUSION AND PRAYER ........................................................................... 19

CERTIFICATE OF SERVICE ............................................................................ 21

APPENDIX ............................................................................................................. 22




                                                           iv
                                   INDEX OF AUTHORITIES

Cases

Arias v. Aguilar
   515 S.W.2d 313 (Tex.App.—Corpus Christi 1974, no writ)...................... 7, 8, 15

Castillo v. Mizpah Residential Care
  2014 WL 2159255 (Tex.App.—Corpus Christi May 22, 2014, no pet. h.) ......... 5

Dallas Cnty. Mental Health & Mental Retardation v. Bossley
  968 S.W.2d 339 (Tex. 1998) ............................................................................... 16

Green v. Texas Electrical Wholesalers, Inc.
  651 S.W.2d 4 (Tex.App.—Houston [1st] 1982, writ dism’d) ............................ 15

Gulbenkian v. Penn
  151 Tex. 412, 252 S.W.2d 929 (Tex. 1952) ......................................................... 6

Hennessy v. Estate of Perez
  725 S.W.2d 507 (Tex.App.—Houston [1st Dist.] 1987, no writ) ........................ 6

IHC Cedars Treatment Centers of DeSoto, Texas, Inc. v. Mason
  143 S.W.2d 794 (Tex. 2004) ............................................................................... 17

In re Labatt Food Service, L.P.
   279 S.W.3d 640 (Tex. 2009) ................................................................................. 5

McGraw Materials, Ltd. v. County of Jasper, Texas
  2014 WL 2163264 (Tex.App.—Corpus Christi May 7, 2015, no pet. h.) ........... 5

Mundy v. Pirie-Slaughter Motor Co.
  206 S.W.2d 587 (Tex. 1947)....................................................................... 7, 8, 15

Neely v. Wilson
  418 S.W.3d 52 (Tex. 2013) ................................................................................... 6

Pena v. Bellows
  1998 WL 35277432 (Tex.App.—Corpus Christi Dec. 30, 1988 no pet. h.) . 15-16


                                                       v
Phan Son Van v. Pena
  990 S.W.2d 751 (Tex. 1999) ............................................................................... 17

Provident Life & Acc. Ins. Co. v. Knott
  128 S.W.3d 211 (Tex. 2003) ................................................................................. 5

Quick v. City of Austin
  7 S.W.3d 109 (Tex. 1999) ..................................................................................... 5

Revisore v. West
  450 S.W.2d 361 (Tex.Civ.App.—Houston [14th Dist.] 1970, no writ) .............. 11

Roskey v. Texas Health Facilities Comm’n
  639 S.W.2d 302 (Tex. 1982) ................................................................................. 6

Snellenberger v. Rodriguez
   760 S.W.2d 237 (Tex. 1988) ................................................................................. 6

State Farm Fire & Cas. Co. v. S.S.
   858 S.W.2d 374 (Tex. 1993) ............................................................................... 18

Union Pump Co. v. Allbritton
  898 S.W.2d 773 (Tex. 1995) ............................................................................... 17

Other

Texas Pattern Jury Charges, PJC 10.12 ..................................................................... 8




                                                       vi
                         STATEMENT OF THE CASE

      Appellant Steven Walters (herein “Mr. Walters” or “Appellant”) brought

suit in the 36th Judicial District Court, Live Oak County, Texas against William

John Heyden (“Heyden”) and Allways Auto Group, Ltd. (“Appellee”) as a result of

injuries sustained in a motor vehicle collision. (CR 14). The vehicle driven by Mr.

Walters was struck by a Dodge Ram 1500 operated by Heyden on September 10,

2012 in Three Rivers, Live Oak County, Texas. (CR 161, 162). Appellant alleged

negligent entrustment and gross negligence against Appellee. (CR 19-20).

      Appellee filed its Traditional Motion for Summary Judgment on January 26,

2015. (CR 59). Summary judgment was granted in favor of Appellee, and an

order severing Mr. Walters’ causes of action against Appellee was signed on

August 5, 2015. Mr. Walters filed his Notice of Appeal on July 15, 2015.




                                        vii
             STATEMENT REGARDING ORAL ARGUMENT

      At issue in this case is whether genuine issues of material fact exist to

preclude the granting of summary judgment in favor of Appellee. Oral argument

will be helpful to the Court so that it may question counsel and allow counsel to

emphasize and clarify the issues. Appellant Steven Walters therefore requests oral

argument.




                                       viii
                               ISSUES PRESENTED

     I.        Did the trial court err in granting Appellee’s Traditional Motion for

Summary Judgment?

    II.        Is there a genuine issue of material fact as to whether Appellee is

liable for Mr. Walters’ injuries as a matter of law, as a result of entrusting its motor

vehicle to an unlicensed individual which Appellee knew or should have known to

be unlicensed?

   III.        Is there a genuine issue of material fact as to whether Appellee

entrusted its vehicle to an incompetent driver that Appellee knew or should have

known to be incompetent?

   IV.         Is there a genuine issue of material fact as to whether Appellee

entrusted its vehicle to reckless driver that Appellee knew or should have known to

be reckless?

    V.         Was Heyden’s negligence a proximate cause of the collision and

Appellant’s resulting injuries?

   VI.         Has Appellant brought forth facts and evidence in support of all

elements of his causes of action against Appellee, thereby precluding summary

judgment?




                                           ix
                             STATEMENT OF FACTS

      On September 10, 2012, Appellant Steven Walters lawfully operated his

vehicle while traveling westbound on SH 72 in Three Rivers, Live Oak County,

Texas and was struck by the 2012 Dodge Ram 1500 operated by Heyden, when

Heyden, traveling eastbound, crossed into Mr. Walters’ lane. (CR 161, 162). The

2012 Dodge Ram 1500 was owned by Appellee (Atascosa Dodge Dealership).

(CR 161, 162). Heyden was arrested and charged with Intoxication Assault and

DWI (3rd). (CR 161, 162).

      On August 21, 2012, Heyden purchased a 2008 Dodge Caliber as a result of

his Ford Taurus being declared a total loss after Heyden had a collision while

driving under the influence of alcohol. (CR 143). At the time Heyden purchased

the 2008 Dodge Caliber from Appellee, Heyden furnished a photocopy of his old

Illinois driver’s license.   (CR 143).    Heyden testified that Appellee made a

photocopy of the photocopy Heyden presented. (CR 150). Heyden also testified

that he told the individual at Appellee’s dealership that he surrendered his Illinois

driver’s license and did not have a valid Texas driver’s license. (CR 156).

      The vehicle Heyden purchased from Appellee developed mechanical

problems, and Appellee furnished use of its 2012 Dodge Ram 1500 to Heyden.

(CR 143). Heyden signed a loaner vehicle agreement with Appellee on August 23,

2012. (CR 152). Heyden testified that he never was required by Appellee to show

                                          1
an actual, physical driver’s license and was furnished the 2012 Dodge Ram 1500

while he was unlicensed. (CR 144). Heyden further testified that he consumed six

beers while waiting for Appellee’s tow truck to bring him to Appellee’s dealership

to pick up the 2012 Dodge Ram 1500 loaner vehicle and testified that he was

heavily impaired at the time he was given the keys, believed he was legally

intoxicated, and confirmed he would have failed a breathalyzer. (CR 154, 158). In

addition, Heyden confirmed every day he drove Appellee’s vehicle he did so while

intoxicated. (CR 154).




                                        2
                       SUMMARY OF THE ARGUMENT

      The summary judgment granted by the trial court should be reversed,

because the evidence and testimony brought forth by Appellant Mr. Walters

created genuine issues of material fact, and Appellee cannot establish it was

entitled to summary judgment as a matter of law. Mr. Walters brought forth ample

facts and evidence to establish all elements of his causes of action against

Appellee, and thus the trial court erred in granting Appellee’s motion for summary

judgment as to any of Mr. Walters’ claims.

      This Honorable Court of Appeals may review de novo the facts and evidence

before the trial court and make a ruling without any deference to the trial court’s

findings. The proper scope of review is all summary judgment evidence, taken as

true in favor of Mr. Walters, with every reasonable inference indulged and all

doubts resolved in favor of Mr. Walters.

      Under the theory of negligent entrustment, Appellee was negligent per se in

entrusting its motor vehicle to an unlicensed driver, and the facts and evidence

support a finding of same, or at very least create a genuine issue of material fact to

preclude summary judgment. The facts and evidence further show that, at the time

of entrustment, Heyden was an unlicensed, incompetent, and reckless driver, which

Appellee knew or should have known was unlicensed, incompetent, and reckless.




                                           3
      The causation standard set forth by the Supreme Court of Texas in negligent

entrustment cases, found in the Texas Pattern Jury Charges, forecloses Appellee’s

causation arguments.




                                       4
                                     ARGUMENT

I.   DE NOVO REVIEW IS THE PROPER STANDARD FOR THIS HONORABLE COURT
     OF APPEALS.

       Summary judgment review is de novo. See Provident Life & Acc. Ins. Co. v.

 Knott, 128 S.W.3d 211, 215 (Tex. 2003). Appellant respectfully requests this

 Honorable Court of Appeals to review the facts, evidence, and law, reverse the trial

 court’s granting of Appellee’s Traditional Motion for Summary Judgment, and

 remand this case for a new trial.

       A.     The Court of Appeals may exercise its own judgment and re-
              determine each issue of fact and law.

       This Honorable Court may exercise its own judgment and re-determine each

 issue of fact and law. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999);

 see also McGraw Materials, Ltd. v. County of Jasper, Texas, 2014 WL 2163264 at

 *3 (Tex.App.—Corpus Christi May 7, 2015, no pet. h.)(mem. op., not designated

 for publication).

       B.     The Court of Appeals may consider the facts and evidence without
              any deference to the trial court.

       This Honorable Court may consider the facts and evidence without giving

 any deference to the trial court. See Quick at 116; see also In re Labatt Food

 Service, L.P., 279 S.W.3d 640, 643 (Tex. 2009); Castillo v. Mizpah Residential

 Care, 2014 WL 2159255 at *6 (Tex.App.—Corpus Christi May 22, 2014, no pet.

 h.)(mem. op., not designated for publication).

                                          5
II.      THE PROPER SCOPE OF REVIEW IS ALL SUMMARY JUDGMENT EVIDENCE,
         TAKEN AS TRUE IN FAVOR OF APPELLANT, WITH EVERY REASONABLE
         INFERENCE INDULGED AND ALL DOUBTS RESOLVED IN FAVOR OF
         APPELLANT.

         The proper scope of review is all summary judgment evidence, taken as true

in favor of Appellant, with every reasonable inference indulged and all doubts

resolved in favor of Appellant. Summary judgment is not intended to deprive

litigants of their right to a full hearing on the merits of any real issue of fact. See

Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (Tex. 1952). In the

context of cases in which a determination of negligence is required to reach a

decision, disposition by summary judgment is the exception and not the rule.

Snellenberger v. Rodriguez, 760 S.W.2d 237, 239 (Tex. 1988)(quoting Hennessy v.

Estate of Perez, 725 S.W.2d 507, 509 (Tex.App.—Houston [1st Dist.] 1987, no

writ).

         The burden of proof is on the movant and all doubts as to the existence of

genuine issues of material facts must be resolved against the movant and evidence

viewed in the light most favorable to the person opposing summary judgment.

Snellenberger at 239; see also Roskey v. Texas Health Facilities Comm’n, 639

S.W.2d 302, 302 (Tex. 1982). The nonmovant is to be given the benefit of every

reasonable inference which properly can be drawn in favor of his position. See

Neely v. Wilson, 418 S.W.3d 52, 76 (Tex. 2013).



                                          6
         Appellant respectfully asks this Honorable Court of Appeals to review all

facts and summary judgment evidence in his favor and reverse the trial court’s

granting of summary judgment in favor of Appellee.

III.   THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR
       OF APPELLEE.

       The trial court erred in granting Appellee’s Traditional Motion for Summary

Judgment, because Appellant, Mr. Walters, brought forth ample facts and evidence

to establish all elements of his causes of action, and Appellee cannot establish it

was entitled to summary judgment as a matter of law. The evidence and testimony

brought forth by Mr. Walters at very least created genuine issues of material fact to

preclude summary judgment.

       A.     Appellee is liable to Appellant as a matter of law by entrusting its
              vehicle to an unlicensed individual.

       Under the theory of negligent entrustment, because Appellee entrusted its

vehicle to an unlicensed driver whose negligence caused Mr. Walters’ damages,

Appellee is liable to Mr. Walters as a matter of law. The entrustment of a motor

vehicle to a person who does not have a valid driver’s license is negligence per se.

See Arias v. Aguilar, 515 S.W.2d 313, 316 (Tex.App.—Corpus Christi 1974, no

writ); see also Mundy v. Pirie-Slaughter Motor Co., 206 S.W.2d 587, 590 (Tex.

1947).




                                         7
      Mr. Walters brought forth facts and evidence establishing all elements of

negligent entrustment:   (1) entrustment of a vehicle by the owner (2) to an

unlicensed, incompetent, or reckless driver (3) that the owner knew or should have

known to be unlicensed, incompetent, or reckless, and (4) the driver’s negligence

on the occasion in question (5) proximately caused the accident. See id.; see also

STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES, PJC 10.12.

      There is no question that the facts and evidence establish the first element of

negligent entrustment, and Appellee does not deny it entrusted its vehicle to

Heyden. (CR 48, 152). Mr. Walters brought forth facts and evidence confirming

the second and third elements of negligent entrustment, the fact that Heyden was

an unlicensed driver and the fact Appellee knew he was unlicensed, attaching

Heyden’s deposition testimony confirming same:

      Q:    Okay. Now when you went to buy the Dodge Caliber from my
            client, Atascosa Dodge, the license – photocopy of the license
            presented was – was not a valid license, correct?

      A:    Correct.

                                        ***

      Q:    You were an unlicensed driver when Atascosa Dodge
            provided you the loaner vehicle, correct?

            You can answer, sir.

      A:    Correct.

                                        ***
                                         8
Q:   And then when you bought the car, they asked you for a
     driver’s license, correct, and you showed them a photocopy?

A:   Correct.

Q:   And you gave them a photocopy or they photocopied the
     photocopy?

A:   They photocopied the photocopy.

                                ***

Q:   He knew – I say he, I mean the Atascosa Dodge employee,
     knew that when you provided a Xerox copy of Illinois
     License [sic] that you had already surrendered that to the
     Texas Department of Public Safety, correct?

A:   Correct.

Q:   He knew this license was surrendered and invalid when you
     provided to him [sic] at the dealership, correct?

A:   Correct.

Q:   All right. And they still gave you a car?

A:   Yes.

Q:   And they still gave you a loaner vehicle, despite knowing
     that you provided an invalid, surrendered driver’s license –

A:   Yes.

                                ***

Q:   And they knew that when they gave you the loaner vehicle,
     that the Illinois license on file was invalid and surrendered,
     correct?

A:   Yes.
                                 9
      Q:       All right. So Atascosa Dodge provided a loaner vehicle to a
               drunk and unlicensed driver; true?

      A:       True.1

      (CR 144, 150, 153, 156, 158).

      Although to maintain his negligent entrustment claim, Mr. Walters’ showing

that Heyden was an unlicensed driver was sufficient, Mr. Walters also brought

forth evidence that Heyden was an incompetent and reckless driver through

Heyden’s testimony:

      Q:       Okay. And can you and I both agree that at the time Atascosa
               Dodge provided you the loaner vehicle, you were also a
               reckless driver?

      A:       Yes.

      Q:       Can you and I both agree that because of your addiction at that
               time, that you were also an incompetent driver at the time you
               received the loaner vehicle?

      A:       I was an irresponsible driver, yes.

(CR at 144).

      B.       Heyden’s negligent operation of the vehicle entrusted by Appellee
               was the foreseeable, direct cause of Appellant’s injuries.

      Furthermore, Heyden’s negligent operation of the vehicle entrusted by

Appellee was the foreseeable, direct cause of Appellant’s injuries. Heyden was an
1
      William John Heyden’s deposition transcript in its entirety is part of the Court Record.
      However, for the convenience of this Honorable Court of Appeals, Appellant attaches as
      Appendix B excerpts from the deposition transcript of William John Heyden’s
      aforementioned testimony; see transcript at 33:19-23, 59:15-21, 69:16-20, 83:15-84:6,
      and 91:22-92:4.
                                             10
unlicensed driver at the time of entrustment, because his driver’s license was taken

away from him for failure to submit to a breathalyzer test when he was arrested for

DWI. (CR 147). Appellee could have discovered the reason for Heyden’s being

unlicensed but instead chose to ignore the fact Heyden only had a paper photocopy

of an out-of-state driver’s license. Irrespective of Heyden being unlicensed, the

facts and evidence establish Appellee ignored Heyden’s intoxication at the time

Appellee entrusted Heyden with its vehicle.

      Mr. Walters brought forth as further evidence the affidavit of Carmen

Daecher, a fleet safety expert who confirmed that Appellee had duty and obligation

to ensure it did not allow dangerous and reckless drivers to operate vehicles which

it owned. (CR 132).

      An entrustment may be deemed negligent where an entrustee is physically or

mentally incapacitated, intoxicated or for any reason lacking in judgment or

perception; in such instances knowledge of the entrustor of the incompetency or

recklessness of the driver is apparent. See Revisore v. West, 450 S.W.2d 361, 364

(Tex.Civ.App.—Houston [14th Dist.] 1970, no writ).          In this case, although

Appellee argues it did not know of Heyden’s condition at the time of entrustment,

the facts, evidence, and common sense at very least create a genuine issue of

material fact as to Appellee’s knowledge:

      Q:    So actually when you were driving the Caliber and it broke
            down, you were already intoxicated, right?
                                        11
A:   No. When it was – when I pulled into the gas station, as I was
     waiting for the wrecker, I think I got a – yeah, I got six-pack
     of alcohol – beer.

Q:   Okay.

A:   And I was drinking in the parking lot.

Q:   And did you finish that off before you go back to the
     dealership?

A:   Yes.

Q:   All right. So you actually go to the dealership and they
     handed you the keys to that truck, you had already drank
     six beers; is that fair?

A:   Yeah.

Q:   All right.

A:   I forgot all about that. Yes.

Q:   And you were legally intoxicated at the time of that loaner
     put in your possession; true?

A:   I – yeah. I believe I was.

                                  ***

Q:   I’m sorry to do this again, just real quick. I just want to make
     sure I’m clear on two things: A, you were drunk when
     Atascosa Dodge gave you the loaner vehicle, correct?

A:   I don’t know if I – I – I was heavily impaired.

Q:   You were heavily impaired and you would’ve failed – you
     would’ve failed a breathalyzer, correct?


                                     12
      A:      I would’ve failed a breathalyzer, yes.

      Q:      You were legally drunk at the time that Atascosa Dodge
              provided you a loaner vehicle; true?

      A:      Legally drunk, yes.

      Q:      There’s no doubt in your mind, right?

      A:      No doubt in my mind.

      Q:      You were impaired?

      A:      That I was – I was impaired.

      Q:      You should not have been driving then, correct?

      A:      Shouldn’t have been driving.

      Q:      You were a danger on the roadway at the time that they
              gave the truck, correct?

      A:      Yes.

      Q:      And that was clear at the time that the keys were given to
              you, correct?

      A:      Correct.

(CR 154, 158).

      Despite Appellee’s contention that it did not know or could not have known

of Heyden’s condition at the time of entrustment, such a contention cannot be

credibly maintained given Heyden’s testimony that he was heavily impaired and

had already had six beers when Appellee’s tow truck brought him to the

dealership.
                                         13
      Heyden’s heavy impairment from intoxication at the time of entrustment

made the risk that Heyden would harm someone as a result of driving while

intoxicated unquestionably foreseeable – stated a different way, the risk that

caused the entrustment to be negligent caused the collision at issue. At very least,

Heyden’s testimony brought forth by Appellant establishes a genuine material fact

regarding Appellee’s knowledge at the time of entrustment, thus precluding

summary judgment.

      C.    The causation standard long established by the Supreme Court of
            Texas and found in the Texas Pattern Jury Charge in negligent
            entrustment cases forecloses Appellee’s causation arguments.

      The causation standard long established by the Supreme Court of Texas and

found in the Texas Pattern Jury Charge in negligent entrustment cases forecloses

the entirety of Appellee’s causation arguments.        The Texas Supreme Court

established the causation standard in negligent entrustment cases as follows:

      If, after the automobile is knowingly entrusted to an incompetent,
      reckless, or unlicensed driver, and such driver’s negligence
      proximately causes damages to a third person, the causal connection is
      shown between the negligence of the owner in entrusting the
      automobile to him and the damage to the third person.

See Arias v. Aguilar, 515 S.W.2d 313, 316 (Tex.App.—Corpus Christi 1974, no

writ); see also Mundy v. Pirie-Slaughter Motor Co., 206 S.W.2d 587, 590 (Tex.

1947). The causal connection between the negligence of Appellee in entrusting its




                                         14
vehicle to Heyden and the damages to Mr. Walters is established by the facts and

evidence in this case.

      It is beyond any credible dispute that Heyden’s negligence in operating a

motor vehicle was the sole proximate cause of the collision that resulted in Mr.

Walters’ injuries; Mr. Walters brought forth this evidence, established by Heyden’s

testimony:

      Q:      That’s fine. Do you agree that my client did absolutely
              nothing wrong to cause this wreck?

      A:      He didn’t deserve any of this, no.

      Q:      Do you agree that if you had not been provided a loaner
              vehicle by Atascosa Dodge, that this wreck never would
              have happened?

      A:      I totally agree.

(CR 145).

      The controlling event is the time of the entrustment, not the time of the

accident.    See Green v. Texas Electrical Wholesalers, Inc., 651 S.W.2d 4, 7

(Tex.App.—Houston [1st] 1982, writ dism’d)(finding that trial court incorrectly

submitted controlling time as time of accident, when controlling event was the

entrustment of the vehicle to the driver the day before the accident); see also Pena

v. Bellows, 1998 WL 35277432 at *5 (Tex.App.—Corpus Christi Dec. 30, 1988 no

pet. h.)(mem. op., not designated for publication). Appellee’s reliance on what it

contends is a temporal gap between Mr. Walters’ injuries and Heyden’s negligence
                                        15
is meritless in light of the causation standard long established by the Supreme

Court of Texas and runs contrary to the evidence – Heyden was intoxicated and

heavily impaired at the time of entrustment, and remained intoxicated up until the

time of the collision made the basis of Mr. Walters’ lawsuit:

         Q:     Got you. How many times did you drive that Atascosa
                Dodge truck drunk during the time period that you had the
                vehicle?

         A:     Many times.

         Q:     Every day?

         A:     On – almost every day, if not every day.

(CR 154).

         With regard to causation, the cases discussed by Appellee are not negligent

entrustment cases like this case and are vastly distinguishable in that none involve

the direct connection and foreseeability of result involved in this case.       For

example, Appellee discusses a case in which a mentally ill patient escaped through

unlocked doors of a hospital and committed suicide; see Dallas Cnty. Mental

Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 340 (Tex. 1998)(escape

through unlocked doors was part of a sequence of events that ended in mentally ill

patient’s suicide). Appellee also discusses a case involving a person who slipped

on fire retardant foam used to extinguish a fire caused by a faulty pump two hours

prior.        See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.


                                          16
1995)(circumstances surrounding employee’s injuries were too remotely connected

with defendant’s pump). Another case discusses a claim that the plaintiff’s injuries

were caused a driver released too early from a mental institution; see IHC Cedars

Treatment Centers of DeSoto, Texas, Inc. v. Mason, 143 S.W.2d 794, 799 (Tex.

2004) (no evidence the mental state of the driver caused the plaintiff’s injury).

      Yet another case discussed by Appellee involves a shop owner who sold

alcohol to minors before the minors committed murder; see Phan Son Van v. Pena,

990 S.W.2d 751, 755 (Tex. 1999)(criminal conduct and harm inflicted were

extraordinary in nature and not of the type of generally contemplated by the duty

not to furnish alcoholic beverages to minors). Thus, none of the aforementioned

cases Appellee relies upon are availing.

      Furthermore, Appellee’s attempt to use Heyden’s testimony regarding

suicide to transform Heyden’ negligence into an intentional act, to create a new,

independent, and/or superseding cause, fails in light the evidence in the Court

Record:

      Q:     You did not intend to hit my client’s vehicle, correct?

      A:     Absolutely not.

      Q:     You did not intend to harm my client, correct?

      A:     Correct.

      Q:     This accident was not intentional, correct?


                                           17
      A:     No. It was not intentional.

(CR 155).

      In addition, Appellee’s attempt to transform Heyden’s negligence into a

intentional act fails under Texas law. “An insured intends to injure or harm

another if he intends the consequences of his act or reasonably believes they are

substantially certain to follow.” State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d

374, 378 (Tex. 1993). The evidence is clear that Mr. Heyden did not intend the

consequences of his act or believed harm to another was substantially certain to

follow. (CR 155). At very least, Heyden’s testimony creates a genuine issue of

material fact to preclude summary judgment.

      D.     Appellant has brought forth ample facts and evidence to establish all
             elements of Appellant’s claims.

      Appellant, Mr. Walters, has brought forth ample facts and evidence to

establish all elements of his negligent entrustment and gross negligence claims. In

support of his negligent entrustment and gross negligence claims, Mr. Walters

incorporates by reference the preceding paragraphs and all aforementioned facts

and evidence as though fully set forth herein.

      The facts and evidence establish Appellee’s entrustment to Heyden, an

unlicensed, incompetent, and reckless driver was negligent as well as grossly

negligent. The facts and evidence further establish Appellee’s knowledge of the

substantial risk of harm to others and nevertheless proceeding with conscious
                                         18
indifference to the safety and welfare of other motorists, like Mr. Walters,

considering the probability and magnitude of the harm. Fleet safety expert Carmen

Daecher sums up the reasons summary judgment should have been denied:

      Atascosa should have known that lending vehicles to persons is
      entirely different than selling vehicles to persons. They had an
      obligation to ensure that they did not allow dangerous and reckless
      drivers to operate vehicles which they owned. They failed to take
      even the most reasonable precaution in ensuring that Mr. Heyden had
      a physical license. They also showed ignorance in not asking why he
      did not have a Texas license given the length of time he lived in
      Texas. If they would have taken minimally reasonable precautions,
      they would not have allowed Mr. Heyden to drive one of their
      vehicles.

      The facts of the accident report support that William Heyden acted
      recklessly in operating the Dodge Ram 1500 which resulted in the
      accident which injured Mr. Walters. But Atascosa could have
      prevented this accident from occurring if they were not callously
      indifferent to the safety of the general public and did not act recklessly
      in providing Mr. Heyden with one of their vehicles to operate freely.
      If they would have taken reasonably minimum precautions, it would
      have been obvious and evident that Mr. Heyden was not fit to drive.
      They provided an instrument of danger to Mr. Heyden by allowing
      him to drive one of their vehicles.

      (CR 184,185).

                         CONCLUSION AND PRAYER

      Mr. Walters brought forth ample facts and evidence to establish all elements

of his causes of action against Appellee, and thus the trial court erred in granting

Appellee’s motion for summary judgment as to any of Mr. Walters’ claims. The

summary judgment granted by the trial court should be reversed, because the


                                         19
evidence and testimony brought forth by Appellant Mr. Walters at very least

created genuine issues of material fact, precluding summary judgment, and

Appellee cannot establish it was entitled to summary judgment as a matter of law.

Accordingly, Mr. Walters prays that the judgment of the trial court be reversed and

that this Court of Appeals remand this case for a new trial.

                                       RESPECTFULLY SUBMITTED,
                                       THE LAW OFFICES OF THOMAS J. HENRY
                                       521 STARR STREET
                                       CORPUS CHRISTI, TEXAS 78401
                                       361/ 985-0600 – PHONE
                                       361/ 985-0601 – FACSIMILE

                                    BY: /s/Russell W. Endsley
                                      THOMAS J. HENRY
                                      STATE BAR NO. 09484210
                                      RUSSELL W. ENDSLEY
                                      STATE BAR NO. 24026824
                                      MATTHEW S. HULL
                                      STATE BAR NO. 24055702




                                         20
                        CERTIFICATE OF SERVICE
      This will certify that a true and correct copy of the foregoing was duly
served in accordance with the Texas Rules of Civil Procedure on this the 7th day
of September, 2015.

VIA E-SERVICE and/or FACSIMILE
Ronald E. Mendoza
DAVIS, CEDILLO, & MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Ave.
San Antonio, Texas 78212
(210) 822-6666
(210) 822-1151 (Fax)            /s/Russell W. Endsley
                                Russell W. Endsley




                                      21
APPENDIX
                                      APPENDIX

Excerpts from the deposition transcript of William John Heyden ........................... A
A
                                                                                                                      1


                                                            CAUSE NO. L-13-0087-CV-A

                                STEVEN WALTERS                          ) (     IN THE DISTRICT COURT
                                PLAINTIFF                               ) (
                                                                        ) (
                                vs.                                     ) (     36TH JUDICIAL DISTRICT
                                                                        ) (
                                WILLIAM JOHN HEYDEN,                    ) (
                                AND ALLWAYS AUTO GROUP,                 )   (
                                LTD.                                    )   (
                                D/B/A ATASCOSA DODGE                    )   (
                                DEALERSHIP D/B/A ALLWAYS                )   (
                                ATASCOSA CHRYSLER DODGE                 )   (
                                JEEP YAMAHA,                            )   (
                                DEFENDANTS                              ) (     LIVE OAK COUNTY, TEXAS



                                                     ORAL AND VIDEOTAPED DEPOSITION OF

                                                               WILLIAM JOHN HEYDEN

                                                                 OCTOBER 9, 2014




                                              ORAL AND VIDEOTAPED DEPOSITION OF WILLIAM JOHN

                                HEYDEN, produced as a witness at the instance of the

                                PLAINTIFF, and duly sworn, was taken in the

                                above-styled and numbered cause on the 9th of October,

                                2014, from 12:55 P.M. to 2:32 P.M., before JOHN W.

                                FELLOWS, CSR in and for the State of Texas, reported

                                by machine shorthand, at the DEPARTMENT OF CRIMINAL

                                JUSTICE, Lopez Facility, 1203 El Cibolo Road,

                                Edinburg, Hidalgo County, Texas, pursuant to the Texas

                                Rules of Civil Procedure and the provisions stated on

                                the record or attached hereto.

                                                                                     ORIGINAL
                                                             BRYANT & STINGLEY, INC.
                          Harl in gen          ( 95 6)     4 2 8-07 55         McAllen ( 95 6)           618-2 366
Electronically signed by John Fellows (301-250-933-7791)                                44cc31aa-eb79-4ff1-816b-ea1 bb5dce146
                                                                                                                       33


            01:24      1        off -- they went by the document that they already

            01:24      2        had.

            01:24      3                Q.          Right.     But they never actually, physically

            01:24      4        saw a driver's license that you provided them,

            01:24      5        correct?

            01:24      6                A.          Correct.

            01:24      7                Q.         All right.         And when they actually provided

            01:25      8        a loaner vehicle, they never asked you to provide them

            01:25      9        an actual, physical driver's license, correct?

            01:25    10                 A.          Correct.     As a matter of fact,         I -- I

            01:25    11         believe on the phone, they said that they will have a

            01:25    12         loaner truck ready and available for me right when I

            01:25    13         get there.

            01:25    14                 Q.          Okay.     And so is it fair to tell this jury

            01:25    15         that Atascosa Dodge provided you a loaner vehicle, an

            01:25    16         unlicensed driver?

            01:25    17                                     MR. MENDOZA:     Objection,     form.

            01:25    18                 A.          Yes.

            01:25    19                 Q.          You were an unlicensed driver when Atascosa

            01:25   20          Dodge provided you the loaner vehicle, correct?

            01:25   21                                      MR. MENDOZA:     Objection,     form.

            01:25   22                  Q.          You can answer, sir.

            01:25   23                  A.          Yes.

            01:25   24                  Q.          Okay.     And can you and I both agree that at

            01:25   25          the time that Atascosa Dodge provided you the loaner



                                                            BRYANT & STINGLEY, INC.
                           Harlingen           (956)       428-0755              McAllen        (956)       618-2366
Electronically signed by John Fellows (301-250-933-7791)                                  44cc31 aa-eb79-4ff1-816b-ea1 bb5dce146
                                                                                                                59

            01:50     1         Texas license at that time, although your card had

            01:51     2         been taken from you?

            01:51     3                 A.         Correct.

            01:51     4                 Q.         Okay.      So since you didn't have your Texas

            01:51     5         driver's license card,              you had made photocopies of

            01:51      6        Illinois license, you presented that to Allways Dodge

            01:51     7         to show them you had a valid driver's license,

            01:51     8         correct?

            01:51      9                A.          It's not why I had a photocopy.       I just had

            01:51   10          a photocopy just because I wanted some kind of

            01:51   11          identification on me.

            01:51   12                  Q.         Okay.      So you made a photocopy of the

            01:51   13          Illinois driver's license for identification purposes?

            01:51   14                  A.         Right.

            01:51   15                  Q.         And then when you bought the car, they asked

            01:51   16          you for a driver's license, correct, and you showed

            01:51   17          them a photocopy?

            01:51    18                 A.         Correct.

            01:51   19                  Q.         And you gave them a photocopy or they

            01:51   20          photocopied the photocopy?

            01:51   21                  A.          They photocopied the photocopy.

            01:51   22                  Q.         Okay.     And you told them it was a good

            01:51   23          license, correct?

            01:51   24                  A.         Correct.

            01:51   25                  Q.         All right.     And you told them you had



                                                            BRYANT & STINGLEY, INC.
                           Harlingen (956)                 428-0755           McAllen (956)         618-2366
Electronically signed by John Fellows (301-250-933-7791)                           44cc31 aa-eb79-4ff1-816b-ea1bb5dce146
                                                                                                                69


            02:08      1                A.          Yes.

            02:08     2                 Q.          And what did they tell you?

            02:08      3                A.          I don't remember what they told me, but it

            02:08      4        wasn't ready yet.

            02:08     5                 Q.          Okay.     Did they tell you that there was a

            02:08      6        part that was needed to repair your Dodge Caliber and

            02:08     7         it was on back order?

            02:08      8                A.          That sounds really familiar,    yes.

            02:08      9                Q.          Okay.     And it needed to get that part to

            02:08   10          repair your Dodge Caliber?

            02:08    11                 A.          Yes.

            02:08   12                  Q.          Okay.     And that in the meantime, you could

            02:08   13          stay with the loaner truck?

            02:08    14                 A.          Yes.     That sounds -- that sounds very

            02:08   15          accurate.

            02:08   16                  Q.          Okay.     Now, when you went to buy the

            02:08   17          Dodge Caliber from my client, Atascosa Dodge,                     the

            02:09   18          license -- photocopy of the license presented

            02:09   19          was           was not a valid license, correct?

            02:09   20                  A.          Correct.

            02:09   21                  Q.          The insurance was valid,    correct?

            02:09   22                  A.          Correct.

            02:09    23                 Q.          And you did sign a loaner agreement, which

            02:09    24         was part of what they wanted you to do when you got

            02:09   25          the loaner truck?



                                                            BRYANT & STINGLEY, INC.
                           Harlingen (956)                 428-0755           McAllen    (956)       618-2366
Electronically signed by John Fellows (301-250-933-7791)                           44cc31 aa-eb79-4ff1-816b-ea1 bb5dce146
                                                                                                                  83

            02:24      1                Q.          Sure.     I understand.   You were not truthful

            02:24      2        to them?

            02:24      3                A.          The truth was,     that my license got -- the

            02:24      4        Texas license gotten taken away from me because of a

            02:24      5        DWI.

            02:24      6                Q.          I want to make sure I'm clear.         You actually

            02:24      7        told the individual at Atascosa Dodge who sold you the

            02:24      8        car, that you surrendered your Illinois license to the

            02:24      9        Texas Department of Public Safety, correct?

            02:24   10                  A.          Correct.

            02:24   11                  Q.          You told him that,     right?

            02:24   12                  A.          Correct.    Yes.

            02:24   13                  Q.          You did not lie about that fact,         correct?

            02:24   14                  A.          I did not lie about that fact.

            02:24   15                  Q.          He knew -- I say he,      I mean the Atascosa

            02:25   16          Dodge employee,              knew that when you provided a Xerox

            02:25   17          copy of Illinois license, that you had already

            02:25   18          surrendered that to the Texas Department of Public

            02:25   19          Safety, correct?

            02:25   20                  A.          Correct.

            02:25   21                  Q.          He knew this license was surrendered and

            02:25   22          invalid when you provided to him at the dealership,

            02:25   23          correct?

            02:25   24                  A.          Correct.

            02:25   25                  Q.         All right.     And they still gave you a car?



                                                            BRYANT & STINGLEY, INC.
                           Harlingen           (956)       428-0755           McAllen      (956)       618-2366
Electronically signed by John Fellows (301-250-933-7791)                             44cc31 aa-eb79-4ff1-816b-ea1 bb5dce146
                                                                                                                  84

            02:25      1                A.          Yes.
            02:25      2                                    MR. MENDOZA:   Objection, form.
            02:25      3                Q.          And they still gave you a loaner vehicle
            02:25      4        despite knowing that you provided an invalid,
            02:25      5        surrendered driver's license --

            02:25      6                A.          Yes.
            02:25      7                Q.          -- that was not effective at the time,
            02:25      8        correct?

            02:25      9                A.          Correct.

            02:25    10                 Q.          All right.     Now -- thank you, sir.          That's
            02:25    11         all I have.

            02:25    12                                        FURTHER EXAMINATION

            02:25    13         BY MR. MENDOZA:

            02:25    14                 Q.          I have a few questions for you, Mr. Heyden,

            02:25   15          okay, in the same area that Mr. -- Mr. Endsley was

            02:25    16         asking you about.               You had to plead and beg Atascosa

            02:25   17          Dodge to sell you that car after you told them that

            02:25    18         your Illinois license had been surrendered, correct?
            02:26   19                  A.          Yes.

            02:26   20                  Q.          Right?

            02:26   21                  A.          Yes.

            02:26   22                  Q.          You told me, and you told all of us here

            02:26   23          today, you told the jury, that you were lying quite a
            02:26   24          bit back during this time period; is that right?

            02:26   25                  A.          Yes.



                                                            BRYANT & STINGLEY, INC.
                           Harlingen (956)                 428-0755           McAllen      (956)      618-2366
Electronically signed by John Fellows (301-250-933-7791)                             44cc31 aa-eb79-4ff1-816b-ea1bb5dce146
                                                                                                                 91


            02:30     1                 A.          Shouldn't have been driving.

            02:31     2                 Q.          You were a danger on the roadway at the time

            02:31     3         that they gave the truck, correct?

            02:31     4                 A.          Yes.

            02:31     5                 Q.         And that was clear at the time that the keys

            02:31      6        were given to you, correct?

            02:31     7                 A.         Correct.

            02:31     8                 Q.         All right.      The next thing I want to make

            02:31      9        sure we're crystal clear on, you told Atascosa Dodge

            02:31   10          that this license, Exhibit No. 3, was invalid and

            02:31   11          surrendered to State of Texas when you bought that

            02:31   12          2008 Caliber, correct?

            02:31   13                                      MR. MENDOZA:   Objection, form.

            02:31   14                  A.          Correct.

            02:31   15                                      MR. ENDSLEY:   What's your objection?

            02:31   16                                      MR. MENDOZA:   Asked and answered two or

            02:31   17          three times.

            02:31   18                                      MR. ENDSLEY:   Okay.   I'm not worried

            02:31   19          about that objection.

            02:31   20                  Q.          Now

            02:31   21                                      MR. MENDOZA:   Objection, side bar.

            02:31   22                  Q.         And they knew that when they gave you the

            02:31   23          loaner vehicle, that the Illinois license on file was

            02:31   24          invalid and surrendered, correct?

            02:31   25                  A.          Yes.



                                                            BRYANT & STINGLEY, INC.
                           Harlingen (956)                 428-0755           McAllen (956)           618-2366
Electronically signed by John Fellows (301-250-933-7791)                             44cc31aa-eb79-4ff1-816b-ea1bb5dce146
                                                                                                                      92


            02:31     1                 Q.         All right.      So Atascosa Dodge provided a

            02:31     2         loaner vehicle to a drunk and unlicensed driver; true?

            02:31     3                                     MR. MENDOZA:     Objection,     form.

            02:31     4                 A.          True.

            02:31     5                 Q.          Thank you, sir.        That's all I have.

            02:31      6                                    MR. MENDOZA:     I have no questions.

            02:31     7                                     MR. ENDSLEY:     You done?

            02:31     8                                     MR. HANNA:     I'm done.

            02:32      9                                    THE VIDEOGRAPHER:     Off the record.

                    10                              (Deposition concluded).

                    11

                    12

                    13

                    14

                    15

                    16

                    17

                    18

                    19

                    20

                    21

                    22

                    23

                    24

                    25



                                                            BRYANT & STINGLEY, INC.
                           Harlingen           (956)       428-0755           McAllen (956)                618-2366
Electronically signed by John Fellows (301-250-933-7791)                                  44cc31 aa-eb79-4ff1-816b-ea1bb5dce146
                                                                                                                   95


                                                            CAUSE NO. L-13-0087-CV-A
                                STEVEN WALTERS                         ) (     IN THE DISTRICT COURT
                                PLAINTIFF                              ) (
                                                                       ) (
                                VS.                                    ) (     36TH JUDICIAL DISTRICT
                                                                       ) (
                                WILLIAM JOHN HEYDEN,                   )   (
                                AND ALLWAYS AUTO GROUP,                )   (
                                LTD.                                   )   (
                                D/B/A ATASCOSA DODGE                   )   (
                                DEALERSHIP D/B/A ALLWAYS               )   (
                                ATASCOSA CHRYSLER DODGE                )   (
                                JEEP YAMAHA,                           )   (
                                DEFENDANTS                             )   (   LIVE OAK COUNTY, TEXAS


                                                    REPORTER'S CERTIFICATION
                                          VIDEOTAPED DEPOSITION OF WILLIAM JOHN HEYDEN
                                                         OCTOBER 9, 2014


                                      I, JOHN W. FELLOWS, Certified Shorthand Reporter
                                in and for the State of Texas, hereby certify to the
                                following:
                                      That the witness, WILLIAM JOHN HEYDEN, was duly
                                sworn by the officer and that the transcript of the
                                oral deposition is a true record of the testimony
                                given by the witness;

                                      fhat the deposition transcript was submitted on
                                Or:Aokl-tr  .;L-3   , 2014 to MR. KEVIN P. HANNA,
                                attorney for WILLIAM JOHN HEYD~~ for examination,
                                signature and return to me by /\)QVfM..b-.fL= /d.f lOllf
                                      That the amount of time used by each party at
                                the deposition is as follows:

                                            Mr. Russell Endsley - 0 Hours: 51 Minutes
                                            Mr. Kevin P. Hanna - 0 Hours: 00 Minutes
                                            Mr. Ronald E. Mendoza - 0 Hours: 37 Minutes

                                      That pursuant to information given to the
                                deposition officer at the time said testimony was
                                taken, the following includes counsel for all parties
                                of record:



                                                            BRYANT & STINGLEY, INC.
                          Harlingen (956)                  428-0755           McAllen        (956)      618-2366
Electronically signed by John Fellows (301-250-933-7791)                               44cc31aa-eb79-4ff1-816b-ea1 bb5dce146
                                                                                                                     96


                                COUNSEL FOR THE PLAINTIFFS:
                                MR. RUSSELL ENDSLEY
                                MR. MATTHEW HULL
                                Law Offices of Thomas J. Henry
                                521 Starr Street
                                Corpus Christi, Texas 78401
                                COUNSEL FOR THE DEFENDANT WILLIAM JOHN HEYDEN:
                                MR. KEVIN P. HANNA
                                Upton, Mickits & Heymann, L.L.P.
                                Frost Bank Plaza
                                802 N. Carancahua, Suite 450
                                Corpus Christi, Texas 78401
                                COUNSEL FOR THE DEFENDANTS ALLWAYS AUTO GROUP, LTD.,
                                D/B/A/ ATASCOSA DODGE DEALERSHIP D/B/A ALLWAYS
                                ATASCOSA CHRYSLER DODGE JEEP YAMAHA:
                                MR. RONALD E. MENDOZA
                                Law Offices of Davis, Cedillo & Mendoza Incorporated
                                Mccombs Plaza, Suite 500
                                755 E. Mulberry Avenue
                                San Antonio, Texas 78212
                                      I further certify that I am neither counsel for,
                                related to, nor employed by any of the parties or
                                attorneys in the action in which this proceeding was
                                taken, and further that I am not financially or
                                otherwise interested in the outcome of the action.
                                      Further certification requirements pursuant to
                                Rule 203 of TRCP will be certified to after they have
                                occurred.
                                                                                {\-rl
                                           I Certified to by me this       a~           day
                                  f)          (o
                                       C,,""t D .e,y    , 2 0 14 .


                                                            JOHN   . FELLOWS, Texas CSR #3335
                                                            Expiration Date: 12/31/14
                                                            Bryant & Stingley, Inc., CRN No.: 512
                                                            1305 East Nolana, Suite D
                                                            McAllen, Texas 78504
                                                             (956) 618-2366




                                                            BRYANT & STINGLEY, INC.
                          Harlingen            ( 95 6)     4 2 8-07 55        McAllen         ( 95 6)     618-23 66
Electronically signed by John Fellows (301-250-933-7791)                                44cc31 aa-eb79-4ff1-816b-ea1 bb5dce146
                                                                                                                  97


                                                            CAUSE NO. L-13-0087-CV-A
                                STEVEN WALTERS                         ) (   IN THE DISTRICT COURT
                                PLAINTIFF                              ) (
                                                                       ) (
                                vs.                                    ) (   36TH JUDICIAL DISTRICT
                                                                       ) (
                                WILLIAM JOHN HEYDEN,                   ) (
                                AND ALLWAYS AUTO GROUP,                ) (
                                LTD.                                   ) (
                                D/B/A ATASCOSA DODGE                   ) (
                                DEALERSHIP D/B/A ALLWAYS               ) (
                                ATASCOSA CHRYSLER DODGE                ) (
                                JEEP YAMAHA,                           ) (
                                DEFENDANTS                             ) (   LIVE OAK COUNTY, TEXAS
                                              FURTHER CERTIFICATION UNDER RULE 203 TRCP
                                              TO THE ORAL AND VIDEOTAPED DEPOSITION OF
                                                         WILLIAM JOHN HEYDEN
                                                        TAKEN OCTOBER 9, 2014

                                      I, JOHN W. FELLOWS, certify that the original
                                Changes and Signature Page of WILLIAM JOHN HEYDEN:


                                                     was received by the Deposition Officer on

                                                     was not received by the Deposition Officer;


                                      That, if returned, the attached Changes and
                                Signature Page contains any changes and the reasons
                                therefor;


                                      If returned, the original Changes and Signature
                                Page was delivered to MR. RUSSELL ENDSLEY, Custodial
                                Attorney;


                                      That $           is the deposition officer's
                                charges to the PLAINTIFF for preparing the original
                                deposition transcript and any copies of exhibits;


                                      That the deposition was delivered in accordance
                                with Rule 203.3, and that a copy of this certificate
                                was served to all parties shown herein on
                                                  and filed with the Clerk.



                                                            BRYANT & STINGLEY, INC.
                          Harlingen (956)                  428-0755           McAllen      (956)       618-2366
Electronically signed by John Fellows (301-250-933-7791)                             44cc31 aa-eb79-4ff1-816b-ea1 bb5dce146
                                                                                                                 98


                                            Certified to by me this                day of
                                ~~~~~~~~~-
                                                       ' 2014.



                                                            JOHN W. FELLOWS, Texas CSR #3335
                                                            Expiration Date:  12/31/14
                                                            Bryant & Stingley, Inc., CRN No.: 512
                                                            1305 East Nolana, Suite D
                                                            McAllen, Texas 78504
                                                             (956) 618-2366




                                                            BRYANT & STINGLEY, INC.
                          Harlingen (956)                  428-0755           McAllen    (956)       618-2366
Electronically signed by John Fellows (301-250-933-7791)                           44cc31 aa-eb79-4ff1-816b-ea1 bb5dce146
