                                                                               ACCEPTED
                                                                            03-14-00819-cv
                                                                                   5692786
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                     6/16/2015 11:49:17 AM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK
                     CAUSE NO. 03-14-00819-CV
__________________________________________________________________
                                                          FILED IN
                                                   3rd COURT OF APPEALS
                IN THE COURT OF APPEALS FOR THE         AUSTIN, TEXAS
                THIRD COURT OF APPEALS DISTRICT6/16/2015 11:49:17 AM
                         AUSTIN DIVISION               JEFFREY D. KYLE
                                                            Clerk
__________________________________________________________________

                             Judy Weirich

                                  v.

                  IESI Corp. and Southside Wrecker, Inc.
__________________________________________________________________

          APPELLEE SOUTHSIDE WRECKER, INC.’S BRIEF
__________________________________________________________________

                                THE PETRAS LAW FIRM PLLC
                                State Bar No. 15850510
                                George J. Petras IV
                                1504 San Antonio Street
                                Austin, Texas 78701
                                (512) 334-9583 Telephone
                                (512) 334-9709 Facsimile
                                gpetras@petraslawfirm.com

                                ATTORNEY FOR APPELLEE
                                SOUTHSIDE WRECKER, INC.




             APPELLEE REQUESTS ORAL ARGUMENT




                                  1
                     REQUEST FOR ORAL ARGUMENT
      Pursuant to Rule 39, TEX. R. APP. P., Appellee respectfully requests oral

argument in this case.




                                      2
                   IDENTITY OF PARTIES AND COUNSEL
       The following is a list of all parties to this appeal and the names and addresses
of those parties’ counsel.
APPELLANT/PLAINTIFF                                   COUNSEL FOR PLAINTIFF
Judy Weirich                                          Zachary P. Hudler
                                                      Zachary P. Hudler, P.C.
                                                      P.O. Box 1728
                                                      Johnson City, Texas 78636
                                                      (830) 868-7651 Telephone
                                                      (830) 868-7636 Facsimile
                                                      Zachary@hudlerlaw.com

APPELLEE/DEFFENDANT                                   COUNSEL FOR APPELLEE

Southside Wrecker, Inc.                               George J. Petras IV
                                                      The Petras Law Firm PLLC
                                                      1504 San Antonio Street
                                                      Austin, Texas 78701
                                                      (512) 334-9583 Telephone
                                                      (512) 334-9709 Facsimile
                                                      gpetras@petraslawfirm.com


IESI Corporation                                      Vaughn Waters
                                                      Thornton, Biechlin, Segrato,
                                                      Reynolds & Guerra, L.C.
                                                      Fifth Floor
                                                      One International Centre
                                                      100 N.E. Loop 410
                                                      San Antonio, Texas 78216
                                                      (210) 342-5555 Telephone
                                                      (210) 525-0666 Facsimile
                                                      vwaters@thorntonfirm.com




                                           3
                        TABLE OF CONTENTS
                                                                Page
REQUEST FOR ORAL ARGUMENT                                         2
IDENTITY OF PARTIES AND COUNSEL                                   3
TABLE OF CONTENTS                                                 4
TABLE OF AUTHORITIES                                              5
STATEMENT OF THE CASE                                             6
ISSUES PRESENTED                                                 6-7
COUNTER-STATEMENT OF FACTS                                      10-11
SUMMARY OF THE ARGUMENT                                         11-12
ARGUMENT                                                        13-21
    A.   The Plaintiff’s Fourth Amended Petition added no
         additional cause(s) of actions for the trial court’s
         consideration.                                         13-16

    B.   The Weirich Affidavit was based on hearsay
         conclusory statements of opinion as to causation,
         without either personal knowledge or competence
         to testify.                                            16-19

    C.   The trial court considered and rejected Plaintiff’s
         purported new causes of action when it granted the
         summary judgment motions.                              19-20

    D.   The statutory citations now provided in the Brief of
         Appellant still fail to provide any court with
         competent summary judgment evidence on
         causation long after discovery has ended.              20-21

CONCLUSION AND PRAYER                                             22
CERTIFICATE OF COMPLIANCE                                         23
CERTIFICATE OF SERVICE                                            24
                                      4
                            TABLE OF AUTHORITIES
CASES                                                             Page
Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex. 1982)         13
Madison v. Williamson, 241 S.W.3d 145, 155 (Tex. App. – Houston
[1st Dist.] 2007, pet. denied)                                      19

Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982)        13
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)          11-12
Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995), citing
Dallas Ry. & Terminal Co. v. Bailey, 250 S.W.2d 279, 385
(Tex. 1952)                                                       13-14

Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145
(Tex. App. – Houston [14th Dist.] 2000, pet. denied)                19

Yarbrough v. Berner, 467 S.W.2d 188, 192 (Tex. 1971)                14



STATUTES
Rule 39, TEX. R. APP. P.                                             2
TEX. R. APP. P. 38.1(d)                                              5
TEX. R. CIV. P. 166a(f)                                             14
TEX. R. CIV. P. 166(a)(i)                                           19
TEX. R. EVID. 602                                                   15
TEX. R. EVID. 802                                                   15
TEX. R. EVID. 701                                                   16
TEX. R. EVID. 702                                                   16
TEX. R. EVID. 901                                                   15



                                        5
                           STATEMENT OF THE CASE
       The Appellee agrees with Appellant’s statement of the case in terms of her

recitation of the identity of the trial court and “trial court’s actions,” but objects to

that portion entitled “Nature of the Case,” for it discusses the facts in contravention

of TEX. R. APP. P. 38.1(d).

                                ISSUES PRESENTED

       Reply to Issue 1: This Court does have standing to consider this appeal

because the Order of the trial court granting Southside’s No-Evidence Motion for

Summary Judgment was final. Plaintiff’s Fourth Amended Petition was untimely

where it attempted to assert new causes of action well beyond the expiration of the

Level 2 discovery deadline, and were nonetheless addressed in their entirety in

Defendant Southside’s Reply to Defendants’ No-Evidence Motions for Summary

Judgment and for Severance (CR 140).

       Reply to Issue 2: Issue 2, concerning the hearsay nature and lack of capacity

to testify to expert opinions as a lay person, resulting in the striking of the Plaintiff’s

affidavit constituting her only summary judgment evidence as to causation, was fully

addressed in Defendant Southside Wrecker, Inc.’s Objections to Plaintiff’s

Summary Judgment Evidence, CR 149. The trial court properly struck and excluded

Plaintiff Judy Weirich’s affidavit in response to Defendants’ No-Evidence Motions

for Summary Judgment.
                                            6
     Reply to Issue 3: The trial court correctly ruled in both striking the

Plaintiff’s summary judgment evidence and granting Defendants’ No-Evidence

Motions for Summary Judgment.




                                    7
                           CAUSE NO. 03-14-00819-CV
__________________________________________________________________

                IN THE COURT OF APPEALS FOR THE
                THIRD COURT OF APPEALS DISTRICT
                         AUSTIN DIVISION
__________________________________________________________________

                                  Judy Weirich

                                       v.

                  IESI Corp. and Southside Wrecker, Inc.
__________________________________________________________________

         APPELLEE SOUTHSIDE WRECKER, INC.’S BRIEF
__________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, Appellee Southside Wrecker, Inc. (“Southside”), and files

this, its Brief of Appellee in response to the Brief of Appellant Judy Weirich

(“Weirich”) in support of the appeal from the trial court’s orders granting No-

Evidence Motions for Summary Judgment in favor of IESI Corporation (“IESI”) and

Southside, and in support thereof Appellee Southside would respectfully show unto

the Court the following:




                                       8
                  COUNTER-STATEMENT OF THE FACTS

      The Plaintiff claims by way of suit that on January 9, 2012 she was travelling

on Texas Highway 290 through Johnson City, Texas and her vehicle was struck by

a wheel that had detached from an IESI garbage truck while being towed by

Southside. The Plaintiff sues for personal injury and property damage. CR 127.

The Plaintiff, by her own admission, has no personal knowledge whatsoever as to

how the tire that struck her vehicle became dislodged from its source and no

information from any other source of any kind as how the tire that struck her vehicle

became dislodged from its source. CR 155.

      Following the expiration of the Plaintiff’s chosen level 2 discovery deadline

of September 9, 2013, CR 95, reiterated three times following the Plaintiff’s filing

of her Original Petition on August 2, 2012 (CR 4) in Plaintiff’s First Amended

Original Petition filed on September 12, 2013 (CR 26), Plaintiff’s Second Amended

Original Petition filed on October 22, 2013 (CR 34) and Plaintiff’s Third Amended

Original Petition filed on November 25, 2013 (CR 47), Defendants Southside and

IESI filed No-Evidence Motions for Summary Judgment on August 21, 2014 (CR

94) and August 22, 2014 (CR 107), respectively. Only one week before the court’s

October 24, 2014 hearing on Defendants’ No-Evidence Motions for Summary

Judgment did the Plaintiff file her Fourth Amended Original Petition on October 17,

2014 (CR 127) and requested a level 3 discovery control plan with a docket control

                                         9
order. Through the date of the filing of the Plaintiff’s Fourth Amended Original

Petition, the only discovery that had been conducted in the case was a service of

written discovery by the Defendants on the Plaintiff and the Defendants’ deposition

of the Plaintiff. At no time prior had the Plaintiff served any written discovery

requests on either Defendant, nor had she made any request for any deposition of

any witness associated with IESI or Southside. CR 96.

      Following the hearing on October 24, 2014, the court signed orders granting

IESI’s Motion to Strike the Plaintiff’s Summary Judgment Evidence (CR 176) and

Southside’s Objection to Plaintiff’s Summary Judgment Evidence (CR 181) and

orders granting IESI’s No-Evidence Motion for Summary Judgment (CR 179) and

Southside’s No-Evidence Motion for Summary Judgment (CR 183). The Plaintiff

appealed from the grant of these No-Evidence Motions for Summary Judgment.




                                        10
                       SUMMARY OF THE ARGUMENT

      The trial court correctly sustained Southside’s Objection to Plaintiff’s

Summary Judgment Evidence and IESI’s Motion to Strike Plaintiff’s Affidavit

because anything contained in the Weirich Affidavit as to causation of the accident

made the basis of the lawsuit constituted either hearsay due to the Plaintiff’s lack of

personal knowledge and/or improperly presented expert testimony via opinion

testimony of a lay witness who lacks competence to provide any opinion as to

causation beyond her admitted lack of personal knowledge. The court then properly

granted Southside’s and IESI’s No-Evidence Motions for Summary Judgment in the

absence of any competent summary judgment evidence as to the cause of the

accident made the basis of the Plaintiff’s lawsuit. The court ruled within its

discretion to determine that the case was ripe for consideration of a no-evidence

motion for summary judgment as more than adequate time for discovery had passed

and the Plaintiff’s Fourth Amended Original Petition added no new true cause of

action against the Defendants to prevent the court from granting the No-Evidence

Motions for Summary Judgment at the time it did. The first citation to any statute

allegedly establishing a standard of care the violation of which would constitute

negligence per se is contained in the Brief of Appellant. The Plaintiff’s injection of

the term res ipsa liquitor in the Plaintiff’s Fourth Amended Original Petition remains

to date devoid of any evidence of negligence, for at least through October 17, 2014,


                                          11
more than a year after the level 2 discovery deadline, the Plaintiff made no effort to

discover anything from the Defendants as to the cause of the incident made the basis

of this lawsuit.

      Therefore, the trial court ruled correctly on all matters made the subject of the

Plaintiff’s appeal.




                                         12
                                   ARGUMENT

A.    The Plaintiff’s Fourth Amended Petition added no additional cause(s) of
      actions for the trial court’s consideration.

      The Plaintiff complains by way appeal that it was improper for the trial court

to grant Southside’s and IESI’s No-Evidence Motions for Summary Judgment and

thereby dismiss in its entirety the Plaintiff’s lawsuit because the Plaintiff one week

prior to the hearing, on October 17, 2014, filed Plaintiff’s Fourth Amended Original

Petition and Request for Production (CR 127). As more than adequately covered in

Defendant Southside’s Reply to Plaintiff’s Response to Defendants’ No-Evidence

Motions for Summary Judgment and for Severance (CR 140), all the Plaintiff did by

way of Fourth Amended Petition was to add one sentence to her negligence cause of

action in paragraph 10, saying “In the alternative, Defendants are liable under the

legal principles of negligence per se and res ipsa loquitor.” (CR 129). At the time

of the trial court’s determination of the motions made the subject of this appeal, the

Plaintiff’s Fourth Amended Original Petition added no additional cause(s) of action

for the trial court’s consideration, whether the Plaintiff purports that the mere

injection of the words “negligence per se” and “res ipsa loquitor” constitute

“additional theories of recovery.” As was presented to the trial court, the elements

of a cause of action for negligence per se require the identification by the Plaintiff

of a statute establishing the standard of care owed by a defendant for violation of

which would constitute negligence. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546
                                         13
(Tex. 1985). The Nixon case sets forth four elements of a cause of action for

negligence per se:

      1.    The plaintiff belongs to the class of persons the statute was designed to
            protect, and her injury is of the type the statute was designed to prevent.

      2.    The statute is one for which tort liability may be imposed when
            violated.

      3.    The defendant violated the statute without excuse.

      4.    The defendant’s act or omission proximately caused the plaintiff’s
            injury.

Nixon at 549.

      Separate from failing to identify any statute, ordinance or administrative

regulation establishing a standard of care, just like with respect to her claims of

ordinary negligence, the Plaintiff presented the court with no evidence of the

violation by either Defendant of any statute, with or without any evidence

whatsoever as to the cause of the accident made the basis of the lawsuit. Therefore,

the injection of the term “negligence per se” in the Plaintiff’s Fourth Amended

Original Petition simply did not add any “additional theory of recovery” not already

addressed by the Defendants sufficient to render the granting of the Defendants’ No-

Evidence Motions for Summary Judgment inappropriate by the trial court.

      The same is true with respect to the Plaintiff’s inclusion in her Fourth

Amended Original Petition of the term “res ipsa loquitor.” “Res ipsa loquitor” is

simply a rule of evidence by which negligence may be inferred by the jury; it is not
                                         14
a separate cause of action for negligence. Jones v. Tarrant Util. Co., 638 S.W.2d

862, 865 (Tex. 1982). As previously pointed out to the trial court (CR 144), the

elements for a res ipsa loquitor claim are as follows:

      1.     The doctrine is applicable only when two factors are present:

             i.    The character of the accident is such that it would not
                   ordinarily occur in the absence of negligence; and

             ii.   The instrumentality causing the injury is shown to have
                   been under the management and control of the defendant.

Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982). The Plaintiff

presented no evidence to the trial court, even if her own affidavit were admissible

competent summary judgment evidence, to prove that “the character of the accident

is such that it would not ordinarily occur in the absence of negligence.” Id. Not only

do the Plaintiff’s alternate theories concerning Defendant IESI’s alleged negligent

maintenance of its vehicle and Defendant Southside’s alleged negligence in

inspecting in towing the vehicle take the case out of the realm of res ipsa loquitor,

the Plaintiff has in no way negated the simple possibility that the accident was just

that – an accident – that occurred due to the negligence of nobody. In Defendant

Southside’s First Amended Original Answer to Plaintiff’s Third Amended Original

Petition, Southside pleaded the affirmative defense of unavoidable accident. (CR

88). “An unavoidable accident is an event not proximately caused by the negligence

of any party to it.” Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995), citing


                                         15
Dallas Ry. & Terminal Co. v. Bailey, 250 S.W.2d 279, 385 (Tex. 1952). The

Reinhart court explains that the “purpose of the instruction is to ensure that the jury

will understand that they do not necessarily have to find that one or the other parties

to the suit was the blame for the occurrence complained of.” Id., quoting Yarbrough

v. Berner, 467 S.W.2d 188, 192 (Tex. 1971). Regardless of whether simply using

the words res ipsa loquitor in an amended petition constitutes an “additional theory

of recovery,” the denial at the time of the motion hearing by each Defendant that it

was negligent, and the absence of any competent evidence provided by the Plaintiff

of negligence negates any possibility that the Plaintiff had properly presented a

negligence claim utilizing res ipsa loquitor as a rule of evidence, as nothing was

before the court, including negation of the possibility of a simple unexpected and

unforeseeable mechanical failure, as the cause of the accident.

B.    The Weirich Affidavit was based on hearsay conclusory statements of opinion
      as to causation, without either personal knowledge or competence to testify.

      Southside does not contend that Weirich as an individual was not competent

to provide sworn testimony in the form of an affidavit. Weirich’s appellate brief

correctly points out, however, pursuant to TEX. R. CIV. P. 166a(f) that with respect

to form of affidavit, “Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in evidence, and shall

show affirmatively that the affiant is competent to testify to the matters stated

therein.” The Plaintiff’s summary judgment evidence, which at the time of the
                                          16
hearing consisted solely of Weirich’s affidavit, was properly excluded by the trial

court for several reasons. As set forth in Defendant Southside’s Objection to

Plaintiff’s Summary Judgment Evidence (CR 150), other than what she experienced

at the time of the motor vehicle accident made the subject of the lawsuit, the balance

of Weirich’s affidavit was hearsay in violation of TEX. R. EVID. 802 because she

lacked personal knowledge in violation of TEX. R. EVID. 602 as to the content of

any investigation done by anyone, including her reference to the Johnson City Police

Department Report made following the happening of the accident. Rather than

authenticating the police report pursuant to TEX. R. EVID. 901, Weirich simply

engaged in hearsay testimony constituting inappropriate summary judgment

evidence because it would be inadmissible in evidence at a conventional trial on the

merits. TEX. R. CIV. P. 166a(f).

      In addition, as previously pointed out, Weirich has no personal knowledge of

how the tire that struck her vehicle either became dislodged from its source or any

information from any other source of any kind as to how the tire that struck her

vehicle became dislodged from its source. (CR 155). Therefore, for her to express

any opinion, fact or assumption about the cause of the accident is by Weirich’s own

admission beyond her personal knowledge and therefore renders her not competent

to tender an affidavit on the issue of causation.




                                          17
       Finally, as also pointed out in Defendant Southside’s Objections to Plaintiff’s

Summary Judgment Evidence, Weirich neither identified herself as an expert nor

offered any evidence as to her qualification or competency as an expert, thereby

negating her testimony as admissible pursuant to TEX. R. EVID. 702. (CR 157).

As clearly a “lay witness,” in order for Weirich’s opinion testimony to be considered

admissible in evidence and therefore a proper summary judgment evidence, Weirich

would need to have met the following tests as TEX. R. EVID. 701 read at the time

of the trial court’s decision in this case:

       “If the witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences is limited to those opinions or inferences
which are

       (a)    rationally based on the perception of the witness and
       (b)    helpful to a clear understanding of the witness’ testimony or
              determination of fact of issue.”

Given her admission that she has no idea how the tire came off of the IESI garbage

truck, there is nothing within Weirich’s perception that would allow her opinion

testimony pursuant to TEX. R. EVID. 701.

       Only that portion of paragraph 2 of the Weirich affidavit, that portion within

in her personal knowledge as to what she experienced at the time of the accident,

was competent summary judgment evidence. However, as confirmed by Weirich’s

deposition testimony, nothing experienced by Weirich at the time of the accident or

learned by Weirich through the date the trial court granted the Defendants’ Motions


                                              18
for Summary Judgment justify consideration of the balance of the Weirich affidavit

as competent summary judgment evidence because those opinions are neither based

on the perception of Weirich nor are helpful to a clear understanding of her testimony

for a determination of the cause of the tire coming off of the IESI truck.

C.    The trial court considered and rejected Plaintiff’s purported new causes of
      action when it granted the summary judgment motions.

      Assuming arguendo, which is expressly denied, that the Plaintiff’s inclusion

of a sentence with the terms “negligence per se” and “res ipsa loquitor” in her Fourth

Amended Original Petition created new causes of action not the subject of or covered

by the Defendants’ respective No-Evidence Motions for Summary Judgment already

on file with the court, upon review of Defendant Southside’s Reply to Plaintiff’s

Response to Defendants’ No-Evidence Motions for Summary Judgment and for

Severance (CR 140), as discussed above, the trial court fully considered the viability

of these claims within that pleading. (CR 143). Southside did not simply argue that

Weirich’s purported “additional theories of recovery” were both late and

inadequately pleaded, Southside also addressed both negligence per se and res ipsa

loquitor on their respective merits, thereby affording the trial court the opportunity

to have rejected these claims as well in the absence of competent summary judgment

evidence in response to Defendants’ No-Evidence Motions for Summary Judgment.

Therefore, even if this Court were to determine that Weirich successfully amended

her lawsuit one week before the summary judgment hearing, over a year after the
                                         19
discovery deadline, to create new causes of action not the subject of the pending No-

Evidence Motions for Summary Judgment, Southside addressed those “additional

theories of recovery,” thereby providing the trial court with the proper legal basis to

grant the Defendants’ No-Evidence Motions for Summary Judgment.

D.    The statutory citations now provided in the Brief of Appellant still fail to
      provide any court with competent summary judgment evidence on causation
      long after discovery has ended.

      The Plaintiff filed her lawsuit on August 2, 2012 (CR 4). The level 2

discovery deadline period ended on September 9, 2013 (CR 141). The Plaintiff filed

her Fourth Amended Original Petition on October 17, 2014 (CR 127). The Plaintiff

filed her Brief of Appellant originally on April 9, 2015. Notwithstanding assertion

of statutory citations in the Brief of the Appellant for the first time supporting the

alleged establishment of duty, and Weirich’s separate claim of gross negligence on

the part of the Defendants by for the first time in her Brief of Appellant setting forth

conclusory standards of care the sources for which are nowhere identified, the fact

remains that nowhere in the record to date does there exist anything, of a competent

summary judgment or admissible at trial character, constituting evidence of

causation. It simply does not exist. Given the fact that the trial court heard

Defendants’ No-Evidence Motions for Summary Judgment more than a year after

the end of the level 2 discovery period, and over two months after the filing of the

motions (CR 94 and 107, RR 1), the trial court was well within its discretion to


                                          20
determine that adequate time had been provided for discovery prior to deciding the

No-Evidence Motions for Summary Judgment pursuant to TEX. R. CIV. P.

166(a)(i). The review of the trial court’s determination that an adequate time for

discovery passed in granting a no-evidence summary judgment motion is done under

an abuse of discretion standard. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140,

145 (Tex. App. – Houston [14th Dist.] 2000, pet. denied). In Defendant Southside’s

Reply to Plaintiff’s Response to Defendants’ No-Evidence Motions for Summary

Judgment and for Severance, Appellee has applied the facts of this case to the factors

set forth in Madison v. Williamson, 241 S.W.3d 145, 155 (Tex. App. – Houston [1st

Dist.] 2007, pet. denied) to more than adequately demonstrate for the trial court that

it was well within its discretion to determine that sufficient time for discovery had

been afforded the plaintiff prior to granting the Defendants’ No-Evidence Motions

for Summary Judgment. (CR 141-142). Accordingly, the trial court was well within

its discretion and did properly grant the Defendants’ No-Evidence Motions for

Summary Judgment.




                                         21
                         CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellee Southside Wrecker,

Inc. respectfully requests that this Court overrule Appellant’s issues and affirm the

trial court’s judgment granting the Defendants’ No-Evidence Motions for Summary

Judgment, and for all relief, at law and at equity, to which it may be justly and

equitably entitled.

                                       Respectfully submitted,

                                       THE PETRAS LAW FIRM PLLC



                                       By:      /s/ George J. Petras IV
                                              George J. Petras IV
                                              1504 San Antonio Street
                                              Austin, Texas 78701
                                              (512) 334-9583 Telephone
                                              (512) 334-9709 Facsimile
                                              State Bar No. 15850510
                                              gpetras@petraslawfirm.com

                                               ATTORNEY FOR APPELLEE
                                               SOUTHSIDE WRECKER, INC.




                                         22
                     CERTIFICATE OF COMPLIANCE
      I hereby certify pursuant to TEX. R. APP. P. 9.4(i)(3) that this document was

generated by a computer using Microsoft Word 2013, which indicates that the word

count of this document is 3930.




                                        23
                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing
Appellee Southside Wrecker, Inc.’s Brief of Appellee was delivered to the
attorneys of record via electronically pursuant to TEX. R. APP. P. 9.15(b)(1), on this
16th day of June, 2015:

VIA E-FILE
Zachary P. Hudler
Zachary P. Hudler, P.C.
P.O. Box 1728
Johnson City, Texas 78636
zachary@hudlerlaw.com

VIA E-FILE
Vaughn Waters
Thornton, Biechlin, Segrato, Reynolds & Guerra, L.C.
Fifth Floor
One International Centre
100 N.E. Loop 410
San Antonio, Texas 78216
vwaters@thorntonfirm.com

                                            /s/ George J. Petras IV
                                       George J. Petras IV




                                         24
