                                                                                         ACCEPTED
                                                                                     03-15-00295-CV
                                                                                             6815982
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                                9/7/2015 11:40:19 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK


                       Cause No. 03-15-00295-CV
                                                               FILED IN
                   IN THE COURT OF APPEALS     3rd COURT OF APPEALS
                                                   AUSTIN, TEXAS
           FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
                                                         9/8/2015 11:40:19 PM
                                                           JEFFREY D. KYLE
                            Gerald Kostecka,                     Clerk
                               Appellant

                                    vs
          Smoky Mo's Franchise, LLC d/b/a Smokey Mo's BBQ,
                              Appellee

On appeal from the 26th Judicial District Court of Williamson County, Texas

                         BRIEF OF APPELLANT


                                  Stuart Whitlow
                                  LAW OFFICES OF STUART WHITLOW
                                  1104 S. Mays Street, Suite 116
                                  Round Rock, Texas 78664
                                  (737) 346-1839
                                  (512) 255-5938 (fax)
                                  stuartwhitlowlaw@yahoo.com
                                  ATTORNEY FOR APPELLANT


ORAL ARGUMENT REQUESTED
NAMES OF ALL PARTIES TO FINAL JUDGMENT

PLAINTIFF/APPELLANT:

Gerald Kostecka

Represented at trial and on appeal by:

Stuart Whitlow
LAW OFFICES OF STUART WHITLOW
1104 S. Mays Street, Suite 116
Round Rock, Texas 78664
(737)346-1839
(512) 255-5938 (fax)
stuartwhitlowlaw@yahoo.com


DEFENDANT/APPELLEE:

Smokey Mo's Franchise, LLC d/b/a Smokey Mo's BBQ

Represented at trial and on appeal by:

Robert A. House
Clark & Trevino
1701 Directors Blvd., Suite 920
Austin, Texas 78744
                                     TABLE OF CONTENTS

                                                                                                     Page

INDEX OF AUTHORITIES ........................................................... vi, vii

STATEMENT OF THE CASE ........................................................................ 1

ISSUE PRESENTED ON APPEAL....... ... . .. .. .. . .. .. ... . .... .. .. .. .... . . .... ... .. . 2

        Did the trial court err in granting Smokey Mo's Franchise, LLC d/b/a
        Smokey Mo's BBQ's no-evidence motion for summary judgment
        inasmuch as Appellant raised a material issue of fact with respect to
        each of the elements of Appellant's premises liability claim challenged
        by Appellee?


STATEMENT OF FACTS. .. ... ...... ... ...... .                   . ................................ 2

SUMMARY OF ARGUMENT ....................................................................... 4

ARGUMENT ................................................................................................. 5

        A.      The trial court erred in granting Appellee's no-evidence motion for
                summary judgment inasmuch as Appellant raised a material issue
                of fact respect to all of the elements of Appellant's' premises
                liability claim challenged by Appellee.

CONCLUSION AND PRAYER FOR RELIEF ..
. . . . . . . . . . .9

CERTIFICATE OF SERVICE ...................................................................... 11

APPENDIX ................................................................................................ 12
                           INDEX OF AUTHORITIES

                                      CASES
                                                                              Page

Adam Dante Corp. v. Sharpe, 483 S.W.2d 452,454 (Tex.1972) ............ 6, 7

Carlisle v. J. Weingarten, Inc., 152 S.W.2d 1073, 1074 (Tex. 1941) ......... 6, 8

Del Lago Partners v. Smith, 307 S.W.3d 762, 767 (Tex. 2010) ................. 6

Ford Motor Company v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) ......... 4

Howe v. Kroger Co., 598 S.W.2d 929, 930-931 (Tex.App.- Dallas 1980, no
writ.) ......... 7

In re Mohawk Rubber Company, 982 S.W.2d 494, 498 (Tex. App.
Texarkana 1998, orig. proceeding) ...... 4

Lehrer v. Zwernemann, 14 S.W.3d 775, 777 (Tex.App.- Houston [1st Dist.]
2000 pet. denied) ..... 5

Nixon v. Mr. Property Management Company, 690 S.W.2d 546, 548-549 (Tex.
1985) ... 5

Randall v. Dallas Power & Light Company, 752 S.W.2d 4,5 (Tex. 1988 (per
curiam) ...... 5

Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975) ......... 6,7

State v. Williams, 940 S.W.2d 583 (Tex. 1996) ................................. 8

Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009) (per
curiam) ...... 5

Trico Techs v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) ................... 9
                    STATUTES, RULES AND REGULATIONS

Texas                          Rule                          of                         Evidence
801 (e )(2)(0) ...................................................................... 7




                   DOC
                       IN THE COURT OF APPEALS
               FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

                                 Gerald Kostecka,
                                    Appellant

                                        vs
             Smokey Mo's Franchise, LLC, d/b/a Smokey Mo's BBQ,
                                  Appellee

    On appeal from the 26th Judicial District Court of Williamson County, Texas

                            BRIEF OF APPELLANTS


TO THE HONORABLE COURT OF APPEALS:

         Appellant, Gerald Kostecka, submits this brief in support of his appeal

and request for reversal of the trial court's order granting Appellee's no-

evidence motion for summary judgment. Appellant asks that this cause be set

for submission on oral argument.

                          STATEMENT OF THE CASE

        This is an appeal from an order granting Appellee Smokey Mo's

Franchise, LLC d/b/a Smokey Mo's BBQ's no-evidence motion for summary

that Appellant take nothing on his premises liability claims against Smokey

Mo's Franchise, LLC d/b/a Smokey Mo's BBQ (hereinafter Appellee).

Appellant brought a premises liability claim against Appellee at the trial court.


c                 DOC
    Appellee filed a no-evidence motion for summary judgment which alleged that

    Appellant had no evidence for elements of his premises liability claim. The trial

    court granted Appellee's no-evidence motion for summary judgment. Appellant

    timely perfected his appeal to this Court.

                         ISSUES PRESENTED ON APPEAL

          Did the trial court err in granting Appellee's no-evidence motion for

summary judgment inasmuch as Appellant raised a genuine issue of material

fact with respect to all of the elements of Appellant's premises liability claim

challenged by Appellee?

                              STATEMENT OF FACTS

         With respect to the incident which is the basis of this case, on October

12, 2010 Appellant and his wife went to Appellee Smokey Mo's 880

restaurant for dinner. See Plaintiff Gerald Kostecka's Response to Defendant's

Motion for Summary Judgment (hereinafter "Response"), Supplemental

Clerk's Record, Volume 1, P. 7. During the course of the meal, Appellant

reached for the salt shaker on the table. See Response, Supplemental Clerk's

Record, Volume 1, P. 7. When he did, the chair shot out from under Appellant

and Appellant fell to the floor landing on his left knee. Response,

Supplemental Clerk's Record, Volume 1, P. 7. A Smokey Mo's employee

named Aaron told Appellant right after the fall that Appellee knew that the
c
nature of the bottom of the chair legs and the paint used on the floor created a

dangerous situation for its customers in terms of a chair moving out from

under customers like this particular chair did in Appellant's case. Response,

Supplemental Clerk's Record, Volume 1, P. 7. After that, Appellant spoke with

Matthew of Appellee Smokey Mo's BBQ and Matthew said that he had been

sold the wrong paint for the restaurant floor and that it created an unsafe

condition for the customers and even for the workers in kitchen. Response,

Supplemental Clerk's Record, Volume 1, P. 7. Matthew further said that the

kitchen was so dangerous and slippery that they had to sand texture the floor

and that this was destroying the mops. Response, Supplemental Clerk's

Record, Vol 1, P. 7. Despite this knowledge, Appellee did not warn Appellant

about this dangerous condition prior to his fall. Response, Supplemental

Clerk's Record, Volume 1, P. 7. Appellee failed to exercise ordinary care in

allowing the situation with respect to the chairs and floor in its restaurant to

continue in spite of its knowledge of the danger this situation posed to

customers of Appellee. Response, Supplemental Clerk's Record, Volume 1, P.

7. Appellee also failed to exercise reasonable care in warning Appellant about

this dangerous condition. Response, Supplemental Clerk's Record, Volume 1,

P. 7. As a result of the fall, Appellant sustained substantial injuries to his body

(in particular his left leg and knee) and felt severe pain and suffering
                 DOC
Response, Supplemental Clerk's Record, Volume 1, P. 7. As a result of the

fall, Appellant also has experienced substantial physical impairment and

mental anguish. Response, Supplemental Clerk's Record, Volume 1, P. 7.

Such pain and suffering, as well as the physical impairment resulting from the

injuries and mental anguish, continue until this day. Response, Supplemental

Clerk's Record, Volume 1, P. 7.

                         SUMMARY OF ARGUMENT

        Appellant hereby incorporates the factual assertions set forth in the

Statement of Facts set forth above. Appellee contended at the trial court that

Appellants' claims should be dismissed because Appellant has produced no

evidence that raised a fact issue with respect to any of the elements of his

premises liability claim. The non movant to a no-evidence motion for summary

judgment must respond to the motion by raising a genuine issue of material

fact with respect to each challenged element. Ford Motor Company v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). This will defeat the no-evidence

motion for summary judgment. /d. The non movant raises a genuine issue of

material fact with respect to each challenged element by bringing forth more

than a scintilla of evidence.   Ridgway, 135 S.W.3d at 600. The nonmovant

may use both direct and circumstantial evidence to produce more than a

scintilla of evidence. Ridgway, 135 S.W.3d at 600-601. If the non-movant's

                                      4
summary judgment proof provides a basis for conflicting inferences, a fact

issue will arise. Randall v. Dallas Power & Light Company, 752 S.W.2d 4, 5

(Tex. 1988) (per curiam). Evidence favorable to the non-movant will be taken

as true, every reasonable inference will be indulged in favor of the non movant,

and any doubts will be resolved in the nonmovant's favor. Nixon v. Mr.

Property Management Company, 690 S.W.2d 546, 548-549 (Tex. 1985);

Lehrer v. Zwernemann, 14 S.W.3d 775, 777 (Tex.App.-Houston [1st Dist.]

2000 pet. denied). In deciding whether there is a disputed fact issue, the court

considers all the evidence in the light most favorable to the non movant. Timpte

Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (per curiam). To

defeat a no-evidence motion for summary judgment, the nonmovant is not

required to marshal its proof. In re Mohawk Rubber Company, 982 S.W.2d

494,498 (Tex. App. Texarkana 1998, orig. proceeding). Marshaling evidence

means organizing all of the evidence in the order that it will be presented at

trial. Id. The non movant's response only needs to point to evidence that raises

a fact issue on the elements which are challenged. /d. In other words, the

nonmovant must only point to facts which raise more than a scintilla of

evidence on the challenged elements. /d.

                                    ARGUMENT

     A.     The trial court erred in granting Appellee's no-evidence motion for
                DOC
             summary judgment inasmuch as Appellant raised a genuine issue

             of material fact with respect to each of the elements of Appellant's

             premises liability claim challenged by Appellee.

      The elements of a cause of action for premises liability brought by an

invitee such as Appellant are ( 1) appellant was an invitee, (2) the appellee was

a possessor of the premises, (3) a condition on the premises posed an

unreasonable risk of harm, (4) the appellee knew or reasonably should have

known of the danger, (5) the appellee breached its duty of ordinary care by (a)

failing to adequately warn the appellant of the condition or (b) failing to make

the condition safe (6) the appellee's breach proximately caused the appellant's

injury. Del Lago Partners v. Smith, 307 S.W.3d 762, 767 (Tex. 201 0).

Appellant has shown through his affidavit that he was a customer in Appellee's

restaurant. This raises a fact issue with respect to whether Appellant was an

invitee of Appellee for purposes of Appellant's premises liability claim. Adam

Dante Corp. v. Sharpe, 483 S.W.2d 452,454 (Tex. 1972). Appellant stated in

his affidavit that he and his wife went to Appellee's restaurant, which provides

more than a scintilla of evidence and raises a fact issue with respect to

whether Appellee was the possessor of the premises for the purposes of

premises liability. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.

1975); Carlisle v.   Weingarten,       , 152 S.W.2d 1073, 1074 (Tex. 1941);
See Howe v. Kroger Co., 598 S.W.2d 929,930-931 (Tex.App.- Dallas1980,

no writ.) Appellant also identified in his affidavit two conversations in which

Appellee's people stated that they were aware of the dangerous condition

which caused Appellant to fall, what the nature of the dangerous condition was

and what Appellee had tried to do in its kitchen to keep its own employees

from falling and injuring themselves. Appellant's description of these

conversations in his affidavit are not hearsay but rather are admissions by a

party/opponent. Tex. R. Evid. 801(e)(2)(D)) This summary judgment proof

provides more than a scintilla of evidence and raises a fact issue with respect

to whether the condition at the restaurant posed an unreasonable risk of harm

and that the harm resulting from the condition was foreseeable. Rosas v.

Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 1975). Had there been any

need for expert testimony (which there was not), these admissions would also

remove the need for that. Clearly, these conversations also provide more than

a scintilla of evidence and thus raise fact issues with respect to whether

Appellee had actual or constructive knowledge that the condition posed an

unreasonable risk of harm. Sharpe, 483 S.W.2d at 454. (Constructive

knowledge is what a person or entity may not actually know but objectively

should know or has reason to know- See Black's Law Dictionary 950, 9th ed.,

2009). Appellee had a duty to exercise ordinary care to keep the premises in
 reasonably safe condition for its invitees. Carlisle v. J. Weingarten, Inc., 152

 S.W.2d 1073, 1074 (Tex. 1941 ). Appellant has brought forth more than a

 scintilla of evidence and thus raised material issues of fact with respect to

whether Appellee breached that duty by failing to exercise ordinary care to

 reduce or eliminate the risk involving the floor and chairs to Appellant and

those similarly situated. State v. Williams, 940 S.W.2d 583 (Tex. 1996).

Further, Appellant has raised fact issues with respect to whether Appellee

breached the duty of ordinary care by failing to warn Appellant about the

dangerous condition created by the paint on the floor and the restaurant chairs

despite the fact that Appellee was aware of these dangers and risks created

by the condition of the chairs and the floor. /d. Appellant has also brought forth

more than a scintilla of evidence and raised a fact issue with respect to

whether the negligent failure to exercise ordinary care (breach of duty) by

Appellant with respect to the dangerous condition created by the chairs and

floor were a direct and proximate cause of the injuries, harm and damages to

Appellant.

             Before the District Court, Appellee sought to characterize the Affidavit of

Gerald Kostecka in support of Plaintiff's Response to Defendant's Motion for

Summary Judgment was very complicated. Actually, the affidavit is very

simple. It states forth what happened at the time of the incident which is the
C IKOSTECKA BRIEF APPELLANT 090415.DOC
                                              8
basis of this case and includes a conversation with one of Appellee's

employees shortly after the incident where the employee admitted that

Appellant fell as a result of a dangerous condition concerning which Appellee

was aware. Appellant's affidavit also includes a discussion that he had a few

days after the incident occurred with another person at Smokey Mo's who also

admitted that Appellant fell as a result of a dangerous condition with respect to

which Appellee was aware. In his affidavit, Appellant also discussed the harm

that he sustained as a result of his fall at the restaurant. The testimony in his

affidavit is positive, direct, credible, clear and free from contradiction. Even if

this was a traditional motion for summary judgment by a defendant and that

defendant was presenting his or her own "interested party" affidavit (very

similar to Apppellant's affidavit in terms of the attributes set forth above in the

preceding sentence) in support of its traditional motion for summary judgment,

the defendant's affidavit would support a traditional motion for summary

judgment if the facts in it were not properly controverted by the plaintiff. Trico

Techs v. Montiel, 949 S.W.2d 308, 310 (Tex, 1997).

                CONCLUSION AND PRAYER FOR RELIEF

      As Appellant Gerald Kostecka has demonstrated, the trial court erred in

granting Appellee Smokey Mo's Franchise, LLC d/b/a Smokey Mo's BBQ's no-

evidence motion for summary judgment as to Appellant's premises liability
claim. Appellant properly raised a material issue of fact with respect to each of

the elements of the premises liability claim brought by Appellant. Accordingly,

the summary judgment issued by the trial court should be reversed and the

cause should be remanded for trial.

      WHEREFORE, Appellant Gerald Kostecka asks this Court to rule for

Appellant with respect to the issues he presented for appeal, to reverse the

trial court's granting of Appellee Smokey Mo's Franchise, LLC d/b/a Smokey

Mo's BBQ's motion for no-evidence summary judgment and to remand the

cause to the trial court for further proceedings. Appellant further respectfully

requests that this Court assess costs of this appeal against Appellee, Tex. R.

App. P. 82, and grant Appellant such other and further relief to which he may

be entitled.

                                     Respectfully submitted,

                                     LAW OFFICES OF STUART WHITLOW
                                     1104 S. Mays Street, Suite 116
                                     Round Rock, Texas 78664
                                     (737)346-1837
                                     (512) 255-5938 (fax)
                                     stuartwhitlowlaw@yahoo.com


                                    By:      /s/ Stuart Whitlow_ _ _ __
                                    Stuart Whitlow
                                    State Bar No. 21378050
                                    ATTORNEY FOR APPELLANT
                                                CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing
 document has been forwarded to the following counsel of record listed below
 on this 4th day of September, 2015.


              Robert A. House
              Clark & Trevino
              1701 Directors Blvd, Suite 920
              Austin, Texas 78744

                                                          _ _____;/s/ Stuart Whitlow_ __
                                                          Stuart Whitlow


                                           CERTIFICATE OF PAGE NUMBER COMPLIANCE

      I hereby certify that I have counted the words in the brief and that they
total1955.

                                                          ------Is/Stuart Whitlow- - - - -
                                                          Stuart Whitlow




C \KOSTECKA BRIEF APPELLANT 0904 i 5.DOC
                             APPENDIX

Document

Plaintiff Gerald Kosteck's Response to Defendant's Motion for Summary
Judgment




                                  2
                                                                              1-iled: 12/9/2014 1:09:29 PM
                                                                              Lisa David, District Clerk
                                                                              Williamson County, Texas
                                                                              Ellie Saucedo

                                                    t (.. ~ 1\ll-C..;Ho
                                      CAUSE NO •..W 115'-SaD

 GERALD KOSTECKA,                                       §      IN THE DISTRICT COURT
 Plaintiff                                              §
                                                       §
 v.                                                    §       WILLIAMSON COUNTY,
                                                               TEXAS
 SMOKEY MO'S FRANCIDSE, LLC D/B/A                      §
 SMOKEY MO'S BBQ,                                      §
                                                       §
                                                       §
                                                       §
                                                       §
 Defendant                                             §       26th JUDICIAL DISTRICT


                        PLAINTIFF GERALD KOSTECKA'S RESPONSE TO
                        DEFENDANT'S MOTION FOR SUMMARY JUDGMENT


        COMES NOW, Plaintiff Gerald Kostecka and files this his Response to Defendant's No-

Evidence Motion for Summary Judgment, and in support thereof states as follows:


                                                       I.

        Defendant has filed a No-Evidence Motion for Summary Judgment in this case. Plaintiff

can raise fact issues with respect to each of the elements of its causes of action.

                                                       II.

       With respect to the incident which is the basis of this case, on October 12, 2010 Plaintiff

and his wife went to Defendant Smokey Me's BBQ restaurant for dinner. See Affidavit of

Gerald Kostecka attached hereto as Exhibit "A" and fully incorporated herein by reference.

During the course of the meal, Plaintiff reached for the salt shaker on the table. See Exhibit "A."

When he did, the chair shot out from under Plaintiff and Plaintiff fell to the floor landing on his

left.knee. See Exhibit "A." A Smokey Mo employee named Aaron told Plaintiff right after the

fall that Defendant knew that the nature of the bottom of the chair legs and the paint used on the


                                                               Envelope# 3425618
 floor created a dangerous situation for its customers in terms of a chair moving out from under

 customers like this particular chair did in Plaintiff's case. See Exhibit "A." After that, Plaintiff

 spoke with Matthew at Defendant Smokey Mo's BBQ and he said that he had been sold the

 wrong paint for the restaurant floor and-that it created-an unsafe condition for the customers and

 even for the workers in kitchen. See Exhibit "A." Matthew further said that the kitchen was so

 dangerous and slippery that they had to sand texture the floor and that this was destroying the

 mops. See Exhibit "A." Despite this knowledge, Defendant did not warn Plaintiff about this

dangerous condition prior to my falL See Exhibit "A." Defendant failed to exercise ordinary care

in allowing the situation with respect to the chairs and floor in its restaurant to continue in spite

of its knowledge of the danger this situation posed to customers of Defendant. See Exhibit "A."

Defendant also failed to exercise reasonable care in warning Plaintiff about this dangerous

condition. See Exhibit "A." As a result of the fall, Plaintiff sustained substantial injuries to his

body (in particular his left leg and knee) and felt severe pain and suffering. See Exhibit "A" As a

result of the fall, Plaintiff also has experienced substantial physical impairment and mental

anguish. Such pain and suffering, as well as the physical impairment resulting from the injuries

and mental anguish continue until this day. Exhibit "A."

                                                III.

       Plaintiff has shown that he was a customer in Defendant's restaurant. As a result,

Defendant had a duty to exercise reasonable care to avoid a foreseeable risk of injury to Plaintiff

and those similarly situated invitees. Defendant breached that duty by failing to exercise

reasonable care to reduce or eliminate the risk involving the floor and chairs to Plaintiff and

those similarly situated. Further, Defendant failed to warn Plaintiff about the dangerous

condition created      the paint on the          and the restaurant chairs despite         fact
Defendant was aware of this dangers and risks created by the condition of the chairs and the

floor. The negligent, careless and/or reckless acts and omissions of Defendant with respect to the

dangerous condition created by the chairs and floor were a direct and proximate cause of the

injuries, harm and damages to Plaintiff.

        WHEREFORE, PREMISES CONSIDERED, Plaintiff Gerald Kostecka respectfully

submits this Response to Defendant's No-Evidence Motion for Summary Judgment and requests

thatthe Court deny Defendant's No-Evidence Motion for Summary Judgment and that the Court

grant Plaintiff such other relief to which Plaintiff is entitled.


                                                Respectfully submitted,

                                                LAW OFFICES OF STUART WHITLOW
                                                Stuart Whitlow
                                                1104 S. Mays, Suite 116
                                                Round Rock , Texas 78664
                                                (512) 218-9292
                                                (512) 218-9235 FAX

                                                By: _ _ _ _~/sf_ _ _ _ _ _ _ _ __
                                                      Stuart Whitlow
                                                      SBN: 21378050
                                                      Email:stuartwhitlowlaw @yahoo.com
                                                      ATTORNEY FOR PLAINTIFF
                                                      GERALD KOSTECKA

                                                IZZO & SEMLER, PLLC
                                                1104 S. Mays, Suite 116
                                                Round Rock, Texas 78664
                                                (512) 218-9292
                                                (512) 218-9235 FAX

                                                By:_ _ _ ___,/s/_ _ _ _ _ _ _ _ __
                                                     John Thomas Izzo
                                                     SBN: 24007426
                                                     Email:dahlia@roundrocklaw.com
                                                     ATTORNEYS FOR PLAINTIFF
                                                     GERALD KOSTECKA
                                   CERTIFICATE OF SERVICE

       I hereby certify that I have served opposing counsel, Mr. Steven B. Loomis of Clark,
Price & Trevino, Southpark One, Suite 920, 1701 Directors Boulevard, Austin, Texas 78744 in
accordance with the Texas Rules of Civil Procedure on this the 9th day of December, 2014.


                                                       Stuart Whitlow
                                                                                               ~   .............,_   ·.'· ·:;'<




                                                    1J._-1 f 17- C;;l lP
                                                                                    ::-.~:_·A '---~- :__ _
                                      CAUSE NO.--H-117-C26-

 GERALD KOSTEKA,                                        §       IN THE DISTRICT COURT
 Plaintiff                                             §
                                                       §
 v.                                                    §        WILLIAMSON COUNTY,
                                                                TEXAS
 SMOKEY MO'S FRANCIUSE, LLC D/B/A                      §
 SMOKEY MO'S BBQ,                                      §
                                                       §
                                                       §
                                                       §
                                                       §
 Defendant                                             §        26th JUDICIAL DISTRICT


                                AFFIDAVIT OF GERALD KOSTECKA


        Before me, the undersigned notary, appeared a person whose identity is known to me as
 Gerald Kostecka. After I administered the oath to him, upon his oath he swore as follows:

       "My name is Gerald Kostecka and I am competent to testify to the facts set forth below.
I am the Plaintiff in the above styled and numbered cause. I am over 21 years of age and have
personal knowledge of the facts set forth herein. The facts stated herein are true and correct.

          "With respect to the incident which is the basis of this case, on October 12, 2010 my wife
 and I went to Defendant Smokey Mo's BBQ for dinner. During the course of the meal, I reached
 for the salt shaker on the table. When I did the chair shot out from under me and I fell to the floor
jamming my left knee. A Smokey Mo employee named Aaron told me right after the fall that
 Defendant knew that the nature of the bottom of the chair legs and the paint used on the floor
 created a dangerous situation for its customers in terms of a chair moving out from under
 customers like this particular chair did in my case. After that, I spoke with Matthew at Defendant
Smokey Mo's BBQ and he said that he had been sold the wrong paint for the restaurant floor and
 that it created an unsafe condition for the customers and even for the workers in kitchen. He said
that the kitchen was so dangerous that they had to sand texture the floor and that this was
destroying the mops. Despite this knowledge, Smokey Mo's did not warn me about this
dangerous condition prior to my fall. Smokey Mo's failed to exercise ordinary care in allowing
the situation with respect to the chairs and floor in its restaurant to continue in spite of its
knowledge of the danger this situation posed to customers of Smokey Mo's. Smokey Mo also
failed to exercise reasonable care in warning me about this dangerous condition. As a result of
the fall, I sustained substantial injuries to my body (in particular my left leg and knee) and felt
severe pain and suffering. As a result of the fall, I also have experienced substantial physical
impairment and mental anguish. Such pain and suffering, as well as the physical impairment
resulting from the injuries and mental anguish continues until this day.



                                                            Envelope# 3425618
~Mtsaye~                                      /2
               -.?./~~~
                                                                   --~---.




Gerald   ostecka                    ·

   ORN TO AND SUBSCRIBED before me on this         1)   day of December, 2014.
                    {jr
Notary Public In and For the State of Texas

My Commission Expires:          7~ 3-dol5


   ®
                DAHLIA VILLALOBOS
               Notary PubUc, State of Texas
           ~
                 My Commission Expires
                      07·03·2015
                                                                                 Lisa David
                                                                                  DISTRICT CLERK

                                                              P 0. Box 24, Georgetown, Texas 78627

                                                                   5 2 943.1212   Fax 512 943.1222




THE STATE OF TEXAS           §

                             §                                            12-1

COUNTY OF WILLIAMSON         §




              I, LISA DAVID, Clerk of the District Courts of Williamson County, Texas, do hereby


      that     documents contained in      Clerk's Record to which this certification is attached

are true and correct copies of the documents specified by Texas Rule of Appellate Procedure


34.5(a} and all other documents timely requested by a party to this proceeding under Texas


                         re 34.5



              GIVEN UNDER MY HAND AND SEAL at my office in Williamson County, Texas, on


   the 18th day of August,



                                                   USA DAVID, Clerk

                                                   Williamson County District Courts
