                                                                          ACCEPTED
                                                                       01-15-00191-cv
                                                           FIRST COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                                8/17/2015 10:19:08 PM
                                                                CHRISTOPHER PRINE
                                                                               CLERK

             CASE NO. 01-15-00191-CV

                                                    FILED IN
                                             1st COURT OF APPEALS
  IN THE UNITED STATES FIRST COURT OF       APPEALS
                                                 HOUSTON, TEXAS
                                             8/17/2015 10:19:08 PM
                                             CHRISTOPHER A. PRINE
                                                      Clerk
              KENDRICK DONAHOE
                    Plaintiff - Appellant
                      V.
                 DANNY JONES
                    Defendant - Appellee


ON APPEAL FROM THE 268TH JUDICIAL DISTRICT COURT
           FORT BEND COUNTY, TEXAS


              BRIEF OF APPELLANT


                            SARAH S. DOEZEMA
                            TBX#24063259
                            3607 Old Spanish Trail, Suite E
                            Houston, Texas 77021
                            713.492.2460 (Tel)
                            713.904.2434 (Fax)
                            Sarah@Doezemalaw.com

                            ATTORNEY FOR APPELLANT
                            KENDRICK DONAHOE




                        1
                  CERTIFICATE OF INTERESTED PERSONS

Case No. 01-15-00191-CV; Kendrick Donahoe v. Danny Jones

      The undersigned counsel of record certifies that the following listed
persons and entities have an interest in the outcome of this case. These
representations are made in order that the judges of this Court may evaluate
possible disqualification or recusal.

Appellant:
Kendrick Donahoe

Appellant’s Counsel:
SARAH S. DOEZEMA
3607 Old Spanish Trail, Suite E
Houston, Texas 77021


Appellee:
Danny Jones

Appellee’s Counsel:
Clara Toman
David Black & Associates
1221 Lama, Suite 900
Houston, Texas 77010

                                         /S/ Sarah S. Doezema

                                          SARAH S. DOEZEMA




                                     2
                                         TABLE OF CONTENTS

Certificate of Interested Persons ................................................................................ 2

Table of Contents ....................................................................................................... 3

Index of Authorities ................................................................................................... 4

Statement Regarding Oral Argument ........................................................................ 5

Statement of Jurisdiction............................................................................................ 5

Statement of Issues..................................................................................................... 6

Statement of the Case................................................................................................. 7

Statement of Facts ................................................................................................ 7,8,9

Summary of Argument ............................................................................................ 10

Conclusion and Prayer ............................................................................................. 15

Certificate of Service ............................................................................................... 16

Certificate of Compliance ........................................................................................ 16




                                                            3
                        INDEX OF AUTHORITIES

Case
Page(s)

John Masek Corp. v. Davis
      848 S.W.2d 170, 173 (Tex. App.—Houston [1st Dist.] 1992, writ denied).15
Gallas v. Car Biz, Inc.
      914 S.W.2d 592, 593 (Tex. App.—Dallas 1995, writ denied)………….....15

Fort Bend Cnty. Drainage Dist. v. Sbrusch
     818 S.W.2d 392, 394 (Tex. 1991)…………………………………………..12

Freudiger v. Keller
    104 S.W.3d 294 (Tex. App. 2003)………………………………………....13

TRT Dev. Co.-KC v. Meyers
    15 S.W.3d 281, 285 (Tex. App.—Corpus Christi 2000, no pet.)………….15

Tiller v. McLure
     121 S.W.3d 709, 713 (Tex. 2003)……………………………….………...15

Wal-Mart Stores, Inc. v. Miller
    102 S.W.3d 706, 709 (Tex. 2003)…………………………………………15

Statutes, Rules and Regulations

      28 U.S.C. §129…………………………………………………………….5

      Tex. Transp. Code § 545.351………………………………………….. 5,13

      Tex. R. Civ. P. 301…………………………………………………….12, 15




                                      4
                    IN THE FIRST COURT OF APPEALS
                        HOUSTON TEXAS DIVISION

KENDRICK DONAHOE,                               §
                                                §
            Appellant.                          §
                                                §
v.                                              §    Cause No. 01-15-00191-CV
                                                §
DANNY JONES,                                    §
                                                §
           Appellee.                            §


              STATEMENT REGARDING ORAL ARGUMENT

      Kendrick Donahoe (“Donahoe”) requests oral argument in this appeal. Oral

argument may be helpful to the Court because this appeal involves a matter of first

impression in the First Court of Appeals.

                       STATEMENT OF JURISDICTION

      1.    Donahoe originally filed this case in the 268th Judicial District Court of

Fort Bend County, Texas (D.C. Doc. 1-2). Danny Jones is a citizen of Texas and

Donahoe is a citizen of Texas. Therefore, jurisdiction is proper.

      2.    This Court has appellate jurisdiction under 28 U.S.C. §1291.

      3.    The district court entered a Final Judgment, dated February 13, 2015.

Donahoe timely filed a notice of appeal on February 27, 2015.



                                            5
                   STATEMENT OF ISSUES

                         ISSUE ONE

     THE TRIAL COURT ERRED BY DENYING DONAHOE’S MOTION
FOR DIRECTED VERDICT ON THE ISSUE OF LIABILITY, JONES HAD NO
DEFENSES.
                         ISSUE TWO
    THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING
PLANITIFFS JURY INSTRUCTION REQUEST OF “THE VIOLATION OF A
TRAFFIC LAW IS NEGLIGENCE IN ITSELF.”

                        ISSUE THREE

     THE TRIAL COURT ERRED IN DENYING THE PLAINTIFFS MOTION
FOR JUDGMENT NOTWITHSTANDING THE JURY VERDICT WHEN THE
JURY VERDICT WAS CONTRARY TO THE CURRENT LAW AND THE
FACTS PRESENTED IN DURING TRIAL.




                              6
                          STATEMENT OF THE CASE

      This is an appeal from suit that ended in a Jury Verdict against Appellant

Donahoe’s in a suit for Negligence against respondent which was originally filed in

the 268th Judicial District Court.

                             STATEMENT OF FACTS

      1.     In the Original Petition which was originally filed in State District

Court, Donahue pled the facts which are stated below.

      2.     This action arose as a result of a motor vehicle accident that occurred

on May 31, 2011, at 2234 Texas Parkway Stafford, Ft. Bend County, Texas.

Plaintiff slowed down in preparation to turn right into the Tabs Direct parking lot

on 2234 Texas Parkway safely.

      3.     Jones failed to control speed and struck Donahoe from the rear.

Jones operated his vehicle with conscious indifference to other vehicles and

pedestrians by simultaneously operating his vehicle and operating his mobile

telephone. (Tex. Transp. Code § 545.351.)

      4.     Jones filed an answer with two defenses unavoidable accident and

Sudden Emergency. During a trial on the merits Jones testified that he did not see

Donahoe’s vehicle, thus striking Donahoe in the rear. He further stated that he

thought the accident was his fault and Mr. Donahoe’s fault. Jones never denied

                                          7
fault.

         5.    As a result of this crash, Plaintiff sustained injuries and damages.

         6.   All alleged facts were proven during the jury trial WITHOUT proof

of any defense, justification or excuse.

                            PROCEDURAL HISTORY

         1.   Donahoe filed the present action on April 18, 2013 (D.C. Doc. 1). The

action was filed in the 268th Judicial District, Fort Bend County, Texas under Case

No. 13-DCV-205778.

         2.   Jones filed his Answer on May 20, 2013 (D.C. Doc. 2) asserting Sudden

Emergency defense and an Unavoidable accident defense.

         3.   The 268th District Court filed a Notice of Jury Trial on January 22,

2014.

         4.   Jury trial commenced on January 27, 2015.

         5.   A Directed Verdict was granted on the Sudden Emergency Defense.

The facts of the case id not support an unavoidable accident defense. Since there was

no allegation of a cause of the collision other than the negligence of the parties.

         6.   Jones was found not liable by jury verdict on January 28, 2015.

         7.   Donahoe filed a Motion for Judgment Notwithstanding the Verdict on

February 9, 2015 (D.C. Doc. 62).

                                           8
       8.    Donahoe filed a Motion for New Trial on February 9, 2015. (D.C. Doc.

64).

       9.    The Trial Court denied Donahoe’s Motion for Judgment Notwithanding

the Verdict on February 13, 2015 (D.C. Doc. 63).

       10.   The Trial Court denied Donahoe’s Motion for New Trial on February

13, 2015 (D.C. Doc. 67).

       11.   Donahoe filed a Notice of Appeal on February 27, 2015 (D.C. Doc. 69).




                                        9
                  SUMMARY OF ARGUMENT

                         ISSUE ONE

     THE TRIAL COURT ERRED BY DENYING DONAHOE’S MOTION
FOR DIRECTED VERDICT ON THE ISSUE OF LIABILITY, JONES HAD NO
DEFENSES.
                         ISSUE TWO
    THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING
PLANITIFFS JURY INSTRUCTION REQUEST OF “THE VIOLATION OF A
TRAFFIC LAW IS NEGLIGENCE IN ITSELF.”

                        ISSUE THREE

     THE TRIAL COURT ERRED IN DENYING THE PLAINTIFFS MOTION
FOR JUDGMENT NOTWITHSTANDING THE JURY VERDICT WHEN THE
JURY VERDICT WAS CONTRARY TO THE CURRENT LAW AND THE
FACTS PRESENTED IN DURING TRIAL.




                             10
                         ARGUMENT AND AUTHORITY


      The Jury found contrary to the Law and entered a Zero Liability Verdict for

Jones. Prior to the Jury Verdict a Directed Verdict was granted in regards to the

Sudden Emergency Defense, there was NO evidence presented that the accident was

unavoidable. The Defendant admitted that he was partially at fault and that he just

didn’t see Donahoe immediately prior to rear-ending his vehicle. Jones was cited

for failure to control speed, Jones testified that he plead no contest to the charge of

Failing to control speed. There was no evidence that Jones had a reason not to see

Donahoe outside of failing to control his speed or just simply not paying attention to

the road. Road conditions were fairly busy and Donahoe was turning into a parking

lot. There was nothing obstructing Jones vision. The Jury verdict finding zero

liability is in direct conflict with the law and the facts presented during a trial on the

merits. Jones struck client in the rear and admitted in his sworn testimony that he

was at least partially at fault without any valid defense, Jones should have been found

liable at Law since no viable defense was presented.




                                           11
                                    ISSUE ONE


    THE TRIAL COURT ERRED AS A MATTER OF LAW IN ORDERING
THAT JONES WAS THE PREVAILING PARTY AND NOT LAIBLE FOR
DAMAGES TO JONES.

       1.     As a matter of law Jones was negligent. He failed to control his

speed striking into Jones vehicle without excuse or defense.

       2.     In Jones own sworn testimony that he admitted that did not see

Donahoe’s vehicle which means he was not paying attention to the road and failed

to control his speed striking Jones and causing him damage.

       3.     A directed verdict is granted for the defenses Jones previously

asserted. Jones also admitted in his sworn testimony that he was partially at fault.

He was 100% at fault. But in the very least the evidence does not support a jury

verdict of zero liability.

       4.     Jones should have been ordered to pay damages to Donahoe.

       5.     A court may disregard all the jury findings and grant a motion for

judgment notwithstanding the verdict if a directed verdict would have been proper.

Tex. R. Civ. P. 301; Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392,

394 (Tex. 1991). THE TRIAL COURT ERRED AS A MATTER OF LAW

BY NOT GRANTING DIRECTED VERDICT.


                                          12
                                     ISSUE TWO


    THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING
PLANITIFFS JURY INSTRUCTION REQUEST OF “THE VIOLATION OF A
TRAFFIC LAW IS NEGLIGENCE IN ITSELF.”

   1. Although the Trial court has broad latitude in determining necessary

proper jury instructions; Court of Appeals will reverse only if, in light of pleadings,

evidence, and entire jury charge, error amounted to such denial of complaining

party's rights as was reasonably calculated to cause, and probably did cause,

rendition of improper judgment. Freudiger v. Keller, 104 S.W.3d 294 (Tex. App.

2003).

   2. The Trial Court Judge erred thereby denying an instruction “the violation of

a traffic law is negligence in itself in light of pleadings, evidence, and entire jury

charge, error amounted to such denial of complaining party's rights as was

reasonably calculated to cause, and probably did cause, rendition of improper

judgment. This is evident here, because Jones failed to control speed. (Tex.

Transp. Code § 545.351.) which is a violation of the traffic law as previously stated

no other valid defenses were allowed as a matter of law and the jury leftwithout a

proper instruction rendered a judgment contrary to the law. Therefore, the

decision should be reversed and remanded.



                                           13
                                  ISSUE THREE

     THE TRIAL COURT ERRED IN DENYING THE PLAINTIFFS MOTION
FOR JUDGMENT NOTWITHSTANDING THE JURY VERDICT WHEN THE
JURY VERDICT WAS CONTRARY TO THE CURRENT LAW AND THE
FACTS PRESENTED IN DURING TRIAL.

      1. A court may disregard all the jury findings and grant a motion for

judgment notwithstanding the verdict if a directed verdict would have been proper.

See Tex. R. Civ. P. 301; Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d

392, 394 (Tex. 1991). A court may disregard the jury’s answer to a question if

there is no evidence to support it. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.

2003); Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). A court

may disregard the jury’s answer to a question if the evidence establishes a fact to

the contrary as a matter of law. Gallas v. Car Biz, Inc., 914 S.W.2d 592, 593 (Tex.

App.—Dallas 1995, writ denied); John Masek Corp. v. Davis, 848 S.W.2d 170,

173 (Tex. App.—Houston [1st Dist.] 1992, writ denied); see TRT Dev. Co.-KC v.

Meyers, 15 S.W.3d 281, 285 (Tex. App.—Corpus Christi 2000, no pet.).

      2. For reasons previously stated in issue one and two, Jones presented no

defenses thus as a matter of law he was liable. The jury verdict should have been

disregarded.




                                         14
                         CONCLUSION AND PRAYER

      In accordance with the above and foregoing argument and authority and the

undisputed facts in this case, Donahoe respectfully requests that this Court reverse

the trial court's order deeming Jones the prevailing party and adjudging Donahoe to

be entitled to damages, costs and disbursements against Jones in this action. To the

extent the judgment awards Donahoe costs and disbursements from Jones, and only

to that extent, Donahoe respectfully requests that this Court remand this action back

to the trial court with instructions to award costs and disbursements to Donahoe as

the prevailing party, pursuant to statute and include the same in the judgment.



                                              Respectfully submitted,

                                              /s/ Sarah S. Doezema
                                              __________________________
                                              By: SARAH S. DOEZEMA
                                              TBN: 24063259
                                              3607 Old Spanish Trail, Suite E
                                              Houston, TX 77021
                                              (713) 492.2460 (Telephone)
                                              (713) 904.2434 (Fax)
                                              Sarah@Doezemalaw.com

                                              ATTORNEY FOR APPELLANT
                                              KENDRICK DONAHOE




                                         15
                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument was
sent to opposing counsel and all parties of interest via e-service on August 17, 2015.



                                         /S/ Sarah S. Doezema
                                       _____________________
                                       SARAH S. DOEZEMA



         CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
           LIMITATION, TYPEFACE REQUIREMENTS, AND
                   TYPE STYLE REQUIREMENTS

1.    This brief complies with the type-volume limitations of Fed. R. App. P.
      32(a)(7)(B) because this brief contains 2,180 words, excluding the parts of the
      brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2.    This brief complies with the type-face requirements of Fed. R. App. P.
      32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
      this brief has been prepared in proportionally spaced typeface using Microsoft
      Word in 14 point Times New Roman font.



                                         /S/ Sarah S. Doezema
                                       ________________________________
                                       Sarah S. Doezema
                                       Attorney for Appellant


Dated:       August 17, 2015



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