                                                                                 ACCEPTED
                                                                            13-15-00329-CV
                                                            THIRTEENTH COURT OF APPEALS
                                                                   CORPUS CHRISTI, TEXAS
                                                                      11/25/2015 1:47:08 PM
                                                                           Dorian E. Ramirez
                                                                                      CLERK

                             13-15-00329-CV

                                                   FILED IN
                                           13th COURT OF APPEALS
                     IN THE COURT OF APPEALS
                                        CORPUS CHRISTI/EDINBURG, TEXAS
             FOR   THE THIRTEENTH DISTRICT OF   TEXAS
                                           11/25/2015 1:47:08 PM
                                             DORIAN E. RAMIREZ
                                                    Clerk

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


          REPLY BRIEF OF APPELLANT STEVEN WALTERS


                            November 25, 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
             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 .................................................................................. iv

INTRODUCTION.................................................................................................... 1

ARGUMENT ............................................................................................................ 3

     I. APPELLEE’S ARGUMENT REGARDING SUPERSEDING CAUSE IGNORES THE
        EVIDENCE. ....................................................................................................... 3

          A. Heyden confirms there was no intentional act ....................................... 3

          B. Appellee’s conclusion that Heyden intentionally veered into oncoming
             traffic is unsupported .............................................................................. 4

     II. HEYDEN’S RECOLLECTION REGARDING SUICIDE RAISES A FACT ISSUE
         AND CANNOT SUPPORT SUMMARY JUDGMENT. ........................................... 5

           A. Heyden made no mention of suicide to the investigating officer at the
              time of the collision ................................................................................. 5

           B. Heyden never withdrew his statement to the investigating officer ....... 5

     III. APPELLEE’S ATTENUATION ARGUMENT FAILS UNDER TEXAS LAW AND
         FAILS IN LIGHT OF THE EVIDENCE. ............................................................. 6

           A. The time at which the collision occurred is immaterial ........................ 6

           B. Appellant has established the causal connection between
              Appellee’s entrustment and Appellant’s damages ................................. 7

CONCLUSION AND PRAYER ............................................................................. 9

CERTIFICATE OF COMPLIANCE WITH WORD LIMITS ........................ 10

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


                                                           iii
                                   INDEX OF AUTHORITIES

Cases

Ambrosio v. Carter’s Shooting Ctr, Inc.
  20 S.W.3d 262 (Tex.App.—Houston [14th Dist.] 2000, pet. denied) .............. 7, 8

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

Bethke v. Munoz
   2012 WL 6618160 (Tex.App.—San Antonio 2012, pet. denied)......................... 8

IHC Cedars Treatment Centers of DeSoto, Texas, Inc. v. Mason
  143 S.W.2d 794 (Tex. 2004) ................................................................................. 8

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

TXI Transportation Co. v. Hughes
  306 S.W.3d 230 (Tex. 2010) ............................................................................. 2, 7

Union Pump Co. v. Allbritton
  898 S.W.2d 773 (Tex. 1995) ................................................................................. 8


Other

Texas Pattern Jury Charges, PJC 10.12 ..................................................................... 7




                                                      iv
                               INTRODUCTION

      Appellant Steven Walters respectfully files his Reply Brief in support of his

request that this Court reverse the trial court’s granting of Appellee’s traditional

motion for summary judgment and remand for new trial. Appellant would show

that he has brought forth ample evidence to support all elements of all his claims

arising out of a collision caused by the negligent operation of a motor vehicle

entrusted by Appellee to William John Heyden (“Heyden”).

      The facts and evidence show that Appellee entrusted its vehicle to Heyden,

who was intoxicated, unlicensed, and reckless at the time of entrustment; Heyden

admits his operation of the vehicle while intoxicated, unlicensed, and reckless

proximately caused the motor vehicle collision in question. (CR 144, 145, 150,

153, 154, 156, 158).

      In response to Appellant’s Brief, Appellee takes the position that there is a

intervening or superseding cause of the collision, relying upon a statement given

by Heyden at his deposition that he intended to commit suicide on the day in

question.   Appellee further relies on Appellee’s unsupported conclusion that

Heyden intended to place his vehicle into the oncoming lane of traffic. However,

Appellee ignores Heyden’s testimony which confirms he neither committed an

intentional act nor set out to commit suicide. (CR 144, 145, 155).




                                         1
      The basic, undisputable causation evidence is before the Court – the Texas

Peace Officer’s Crash Report which confirms the collision was a result of

Heyden’s drinking and driving. (CR 162). Heyden stated he believed his blood

alcohol level at the time of the collision was, “like maybe two point something.”

(CR 145).

      Appellee further argues in its brief that the collision occurred at a point too

attenuated from the time of entrustment, wholly failing to address Appellant’s

citation to the Texas Pattern Jury Charge regarding negligent entrustment as well

as case law which disposes of Appellee’s attenuation argument.            Negligent

entrustment is considered a proximate cause of the collision, if the risk that made

the entrustment negligent caused the collision. See TXI Transportation Co. v.

Hughes, 306 S.W.3d 230, 240-41 (Tex. 2010).




                                         2
                                   ARGUMENT

      Appellant has brought forth ample evidence in support of his causes of

action against Appellee.     Appellee has failed to carry its burden to submit

sufficient evidence that establishes there is no genuine issue as to any material fact

and that it is entitled to summary judgment as a matter of law.

I.    APPELLEE’S ARGUMENT REGARDING SUPERSEDING CAUSE IGNORES THE
      EVIDENCE.

      Appellee’s argument regarding superseding cause ignores the evidence

which establishes the proximate cause of the collision was Appellee’s negligent

entrustment of its vehicle to Heyden. Appellee argues that Heyden committed an

intentional act, for the purpose of committing suicide, which superseded

Appellee’s negligence; however, Appellee ignores testimony and evidence to the

contrary found within the Court Record and Appellant’s Brief.

      A.     Heyden confirms there was no intentional act.

      Contrary to Appellee’s position, Heyden unequivocally testified that he did

not intend to cause the collision in question:

      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?

                                           3
      A:     No. It was not intentional.

(CR 155).      Accordingly, Appellee’s repeated statements regarding intentional

action on Heyden’s part are unsupportable. Heyden’s testimony creates a genuine

issue of material fact.

      B.     Appellee’s conclusion that Heyden intentionally veered into
             oncoming traffic is unsupported.

      Furthermore, Appellee’s conclusion that Heyden intentionally veered into

oncoming traffic is unsupported by the evidence and testimony. As a matter of

clarification, Appellant would respectfully state that Appellee failed to provide the

entirety of Heyden’s response when quoting Heyden as stating, “I think, basically,

[I] said F it, and I was going to jerk the wheel and go off the bridge; Heyden’s

complete response was as follows, with emphasis added :

      A:     When I noticed that I was driving on that bridge on Highway
             72, I think , basically, [I] said F it, and I was going to jerk the
             wheel and go off the bridge. I didn’t mean to hurt anybody
             else.

(CR 145).

      Heyden never testified to making a conscious decision to veer into

oncoming lanes. In fact, the investigator’s narrative found in the Texas Peace

Officer’s Crash Report indicates Heyden stated that he inadvertently entered the

oncoming lane and made an attempt to readjust his motion of travel. (CR 162).




                                           4
Both Heyden’s testimony and the evidence before the Court create genuine issues

of material fact which preclude summary judgment.

II.   HEYDEN’S RECOLLECTION REGARDING SUICIDE RAISES A FACT ISSUE
      AND CANNOT SUPPORT SUMMARY JUDGMENT.

      Heyden’s recollection regarding suicide is suspect considering the evidence,

raises a fact issue, and cannot support summary judgment.

      A.     Heyden made no mention of suicide to the investigating officer at
             the time of the collision.

      Heyden made no mention of suicide to the investigating officer at the time

of the collision or at any other time before his deposition, and any recollection of

events over two years after the collision is suspect.1 Appellant does not concede

the accuracy of Heyden’s statement regarding suicide, considering the amount of

time that passed, Heyden’s serious injuries from the collision, and his loss of

consciousness. Heyden testified that he woke up dazed in the hospital. (CR 145).

      B.     Heyden never withdrew his statement to the investigating officer at
             the time of the collision.

      In addition, Appellant respectfully would emphasize that Heyden never

withdrew his statement to the investigating officer regarding his inadvertently

entering the oncoming lane of traffic and attempt to avoid the collision. The

investigating officer’s narrative reads as follows:



1
      Heyden was deposed on October 9, 2014 regarding the collision of September 10, 2012.
                                            5
       Unit 2 driver [Heyden] stated that he was reaching for his cell phone
       that had fallen on the floor and when he reached for it he noticed that
       the steering wheel was shaking and when he looked up he noticed he
       was driving on the West bound land traveling East bound. At that
       time Unit 2 driver tried to readjust his motion of travel and was
       unsuccessful in doing so. With that said, he collided with an on
       coming [sic] vehicle on the West bound land, driver to driver side
       collision. Multiple injuries from both drivers.

(CR 162).      Additionally, Heyden stated that he could not recall all facts

surrounding the collision, including his statement to the investigating officer,

because he woke up dazed in the hospital. (CR 145).

       Whether Heyden’s account of events at the time of the collision or his

recollection over two years after the collision is more accurate is a fact issue. The

evidence along with Heyden’s testimony create a genuine issue of material fact and

cannot support summary judgment.

III.   APPELLEE’S ATTENUATION ARGUMENT FAILS UNDER TEXAS LAW AND
       FAILS IN LIGHT OF THE EVIDENCE.

       Appellee’s attenuation argument with regard to negligent entrustment fails

under Texas law and fails in light of the evidence.

       A.     The time at which the collision occurred is immaterial.

       Appellee’s attenuation argument, that the collision occurred 18 days after the

negligent entrustment, fails, because the time at which the collision occurred is

immaterial.




                                          6
      Negligent entrustment is considered a proximate cause of the collision, if the

risk that made the entrustment negligent caused the collision.             See TXI

Transportation Co. v. Hughes, 306 S.W.3d 230, 240-41 (Tex. 2010). In this case,

the risk that made Appellee’s entrustment negligent was Heyden’s intoxication,

and the cause of the collision in question was caused by Heyden’s intoxication.

      Also, Appellee’s attenuation argument fails in light of the evidence.

Heyden’s testimony confirms that his intoxication was continuous.            Heyden

confirmed he operated the vehicle while intoxicated from the time of entrustment

up until the time of the collision. (CR 154).

      B.     Appellant has established the causal connection between Appellee’s
             entrustment and Appellant’s damages.

      The causal connection is shown between the negligence of the owner in

entrusting the vehicle and the damage to the third person, once the third person has

brought forth facts and evidence to establish that the owner entrusted its vehicle to

an unlicensed, reckless, and incompetent driver, which the owner knew or should

have known to be unlicensed, reckless, or incompetent, and that the negligence of

the driver proximately caused the collision. 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); see also STATE BAR OF TEX., TEXAS

PATTERN JURY CHARGES, PJC 10.12.



                                          7
       Although Appellant has already differentiated cases cited by Appellee,

Appellant would briefly address both Ambrosio v. Carter’s Shooting Ctr., Inc. and

Bethke v. Munoz.2 As with the other cases cited by Appellee, neither Ambrosio nor

Bethke are factually similar or instructive in this case. Ambrosio does not involve

negligent entrustment of a motor vehicle; the facts involve a stolen firearm which

was later used in a carjacking/murder. See Ambrosio v. Carter’s Shooting Ctr.,

Inc., 20 S.W.3d 262, 263 (Tex.App.—Houston [14th Dist.] 2000, pet. denied).

Ambrosio involves theft, not entrustment, and it involves an intentional criminal

act which the present case does not. Id.

       Bethke is also not a negligent entrustment case like the present case; Bethke

involves independent motor vehicle accidents -- an 18-wheeler rollover which

caused a freeway traffic backup, and a collision which occurred four hours after

the rollover.     See Bethke v. Munoz, No. 04-12-00047-CV, 2012 WL 6618160

(Tex.App.—San Antonio Dec. 19, 2012, pet. denied). The claimants in Bethke

sought recovery from the 18-wheeler driver and owner for causing the traffic

backup which furnished the condition for the decedent driver to collide with the

rear of a vehicle caught in the traffic backup. Id. The causation facts in Bethke are


2
         Appellant has addressed in his brief Union Pump Co. v. Allbritton, 898 S.W.2d 773 (Tex.
1995)(employee slipped on fire retardant foam two hours after foam was used to extinguish a
fire) as well as IHC Cedars Treatment Centers of DeSoto, Texas, Inc. v. Mason, 143 S.W.2d 794,
799 (Tex. 2004) (discharged mental facility patient caused a motor vehicle collision the
following day). Neither case involves negligent entrustment of a motor vehicle, and are factually
dissimilar to the present case with regard to foreseeability.
                                               8
dramatically dissimilar to the present case and thus cannot support Appellee’s

position.

      Appellant has carried his burden in accordance with the standard set forth in

the Texas Pattern Jury Charge 10.12 and the negligent entrustment cases which

applied the standard. Appellant has brought forth facts and evidence to establish

that Appellee entrusted its vehicle to an unlicensed, reckless, and incompetent

driver, which Appellee knew or should have known to be unlicensed, reckless, and

incompetent, and has brought forth facts and evidence establishing Heyden’s

negligence caused the collision and Appellant’s damages.            Appellant has

established the causal connection to Appellee’s negligence.

      As further evidence, Appellant offers Heyden’s agreement that Appellee’s

negligence was the proximate cause of Appellant’s injuries:

      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).

                        CONCLUSION AND PRAYER

      Appellant has brought forth evidence to support all elements of his causes of

action against Appellee, including negligence, negligent entrustment, and gross

negligence. With all facts and inferences taken as true, in favor of Appellant,


                                        9
summary judgment should not have been granted. Appellee has failed to carry its

burden to submit sufficient evidence that establishes there is no genuine issue as to

any material fact or that it is entitled to summary judgment as a matter of law.

Accordingly, Appellant prays that the judgment of the trial court be reversed and

that this Court remand this case for a new trial on all Appellant’s causes of action.

                                       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


         CERTIFICATE OF COMPLIANCE WITH WORD LIMITS

      I certify that the foregoing Reply Brief of Appellant Steven Walters was
prepared with Microsoft Word, and that, according to that program’s word-count
function, the sections to which the word limits apply, as set forth in Texas Rule of
Appellate Procedure 9.4(i), contain 2,538 words.

                                       /s/Russell W. Endsley
                                       Russell W. Endsley




                                          10
                        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 25th day
of November, 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




                                       11
