                                                                                              ACCEPTED
                                                                                         05-14-00682-CV
                                                                               FIFTH COURT OF APPEALS
                                                                                        DALLAS, TEXAS
                                                                                    2/18/2015 4:03:30 PM
                                                                                              LISA MATZ
                                                                                                  CLERK




                                                                                             5th Court of Appeals
                                                                                              FILED: 02/19/2015
                                                                                                Lisa Matz, Clerk
                                                                                                   8:34:51
                               Case No. 05-14-00682-CV


                           IN THE COURT OF APPEALS FOR         RECEIVED IN
                                                          5th COURT OF APPEALS
                                                              DALLAS, TEXAS
                                                          2/18/2015 4:03:30 PM
                       THE FIFTH JUDICIAL DISTRICT OF TEXAS
                                                                LISA MATZ
                                                                  Clerk
                                 I'N DALLAS, TEXAS



                                 RUBEN MONREAL,
                                      Appellant,

                                         Vs.


           BRUCE ALAN DOTSY D/B/A DOTSY TRUCKING SERVICE,
                              Appellee.


              FROM DALLAS COUNTY COURT AT LAW NUMBER 4



                                APPELLANT'S BRIEF


                                        Filed by Appellant R{JBEN MONREAL
                                        Appellant's counsel:
                                        LAW OFFICES OF DOMINGO A. GARCIA, p.c.
                                         Domingo A. Garcia
                                        State Bar No. 07631950
                                        Albert Villegas
                                        State Bar No. 20585450
                                        600 Bank of America Twr. - Oak Cliff
                                        400 S. Zang Blvd.
                                        Dallas, Texas 75208
                                        Telephone: (214) 941-8300
                                        Facsimile: (214) 943-7536
                                        Email: avillegas@dgley.com

                       APPELLANT REQ{?JESTS ORAL ARG{?JMENT
Appellant's Brief/bn                                                           Page 1
                       IDENTITY OF THE PARTIES AND COUNSEL


        Appellant was the Plaintiff in the trial court, and his counsel in the trial court

were, successively, Domingo A. Garcia, David L. Sanchez, and Jessica A. Gonzalez

of the Law Offices of Domingo A. Garcia, p.c., 400 S. Zang Blvd., Ste. 600, Dallas,

Texas 75208.


        Appellee was one of the three Defendants in Appellant' s original lawsuit in the

trial court and then the sole Defendant in the severed cause. Appellee's counsel in

the trial court was Scott Smith of Smith, Smith & Smith, L.L.P., 3939 U.S. Highway

80 East, Ste. 486, Mesquite, Texas 75150-3373.

        The trial court was the County Court at Law Number 4 of of Dallas County,

Texas, and the cause number was originally cc-11-08 763-c, which was consolidated

into Cause No. cc-11 -06020-d and then severed into Cause No. cc-14-02331 -d. The


Judge in the trial court was The Honorable Ken Tapscott.




Appellant's Brief/bn                                                               Page 2
                                          TABLE OF CONTENTS


IDENTITY OF THE PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . 2


TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . s


STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13


ISSUESPRESEISJTED ............................................. 15


STATEMENTOFTHEFACTS ..................................... 16


SUMMARYOFTHEARGUMENT .................................. 18


ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


         I. The trial court abused its discretion when it granted
               Appellee's objection to other Defendants' interrogatory
               answers filed by Appellant in opposition to Appellee's
                  summary judgment motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

         II. The trial court committed reversible error when it granted
                Appellee' s summary judgment motion . . . . . . . . . . . . . . . . . . . . . . . . . 24

                  A. The trial court committed reversible error when it
                           failed to find that Appellant produced more than a
                           scintilla of competent evidence that Appellee's
                           negligent conduct proximately caused Appellant's


                  B. The trial court committed reversible error when it
                           failed to find that Appellee failed to conclusively
                           prove that his conduct did not proximately cause
                           Appellant's injuries . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 46

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Appellant's Brief/bn                                                                                            Page 3
CERTIFICATE OF COMPLIANCE       59


CERTIFICATE OF SERVICE          60


APPENDIX                        61




Appellant's Brief/bn        Page 4
                                        INDEX OF AUTHORITIES


CASES


Aguirre v. Vasquez, 225 S.W.3d 744 (Tex. App. - Houston
         [l4'hDist.] 2007)........................... . . ....... ........31, 32

Alamo Lumber Co. v. Pena, 972 S.W.2d 800 (Tex. App. -
     Corpus Christi 1998) . ... . ........... . . .. . ......... . . . . . ..... ....44

AlliedSignal, Inc. v. Moran, 231 S.W.3d 16 (Tex. App. -
       Corpus Christi 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53, 54

Atchison v. Texas & P. Ry. Co., 186 S.W.2d 228 (Tex. 1945) . . . . . . . . . . . . . . . . . 33

Barlow v. Thornhill, 537 S.W.2d 412 (Mo. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Beall v. Ditmore, 867 S.W.2d 791 (Tex. App. - El Paso 1993) . . . . . . . . . . . . . . . . 54

Bel-Ton Elec. Serv., Inc. v. Pickle, 877 S.W.2d 789 (Tex. App. -


Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991 ) . . . . . . . . . . . . . . . . . 21

Benavente v. Granger, 312 S.W.3d 745 (Tex. App. - Houston
        [ls' Dist.] 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Biaggi v. Patrizio Restaurant Inc., 149 S.W.3d 300 (Tex. App. -
        Dallas 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25, 29, 46-50

Biggers v. Continental Bus Sys., Inc., 303 S.W.2d 359 (Tex.


Blankenship v. Mirick, 984 S.W.2d 77 1 (Tex. App. - Waco 1999) . . . . . . . . . . . . . 43

Block v. Mora, 314 S.W.3d 440 (Tex. App. - Amarillo 2009) . . . . . . . . . . . . . . . . . 31



Appellant's Brief/bn                                                                                                Page s
Brookshire Bros., Inc. v. Lewis, 911 S.W.2d 791 (Tex. App. -


Brookshire Grocery Co. v. Goss, 208 S.W.3d 793 (Tex. 2008) . . . . . . . . . . . . . . . . 33

Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995) . . . . . . . . . . . . . . . 28

Byrd v. Delasancha, 195 S.W.3d 834 (Tex. App. - Dallas
        2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34, 36,37, 39, 50

Caldwell v. Curioni, 125 S.W.3d 784 (Tex. App. - Dallas 2004) . . . . . . . . . . . . . . . 32

Carney v. Roberts Investment Co., Inc., 83 7 S.W.2d 206 (Tex.
        App.-Tyler 1992)......... ..... . . . . . ... ....... ........ .........30

Centeq Realty v. Siegler, 899 S.W.2d 195 (Tex. 1995) . . . . . . . . . . . . . . . . . . . 45, 46

City of Center v. Roberts, 469 S.W.2d 27 (Tex. Civ. App. -


City of Gladewater v. Pike, 727 S.W.2d 514 (Tex. 1987) . . . . . . . . . . . . . . . . . . . . 31

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 679


Clodfelter v. Martin, 562 S.W.2d 491 (Tex. Civ. App. -
        CorpusChristi 1977).. ............. . . . ... . . . ............ . . . .....29

Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591
     (Tex. App. - Houston (1st Dist.] 2002) . . . . . . . . . . . . . . . . . . . . . 38, 43, 50, 51

Coleman v. Equitable Real Estate Investment Mgmt, Inc.,
     971 S.W.2d 611 (Tex. App. - Dallas 1998)... ... . ....... .. . ..... ..... 32

Cooper v. Smith & Nephew, Inc., 259 F.3 d 194 (4'h Cir. 2001 ) . . . . . . . . . . . . . 50, 51

Delgadov. Burns, 656 S.W.2d428 (Tex. 1983) . . . . ........ ... ........ ..... 57


Appellant's Brief/bn                                                                                           Page 6
De la Vega v. Taco Cabana, Inc., 974 S.W.2d 152 (Tex.
          App. - SanAntonio 1998) . ............... . ... ...... . ..... . ...... 18

Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472 (Tex. 1995) . . . . . 33, 44

EI Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987) . . . . . . . . . . . . . . . . . . . . . . . 33

F.F.P. Operating Partners, L.P. v. Duenez, 23 7 S.W.3d 680 (Tex. 2007) . . . . . . . . 49

Fid. & Guar. Ins. Underwriters, Inc. v. La Rochelle, 587 S.W.2d 493
       (Tex. App.-Dallas 1979)......................... . .... ......... .47

Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494 (Tex. 2010) . . . . . . . . . . . . . . . . . 18

Gen. Mills Rest. Inc. v. Tex. Wings, Inc., 12 S.W.3d 827 (Tex. App. -
     Dallas 2000, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 75 7 (Tex. 2003) . . . . . . . . . . . 54

Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36

Hair v. Church & Dwight Co., Inc., 2004 Tex. App. LEXIS 6451 (Tex.
         App. - Dallas) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25, 28

Hamilton v. Wilson, 249 S.W.3d 425 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Haney Elec. Co. v. Hurst, 624 S.W.2d 602 (Tex. App. - Dallas 1981 ) . . . . . . . . . . . 29

Hatcher v. Mewbourn, 457 S.W.2d 151 (Tex. Civ. App. - Texarkana


Herrmann v. Goff Custom Homes, L.P., 2013 Tex. App. LEXIS 10717
     (Tex. App. - Dallas) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

IHS Cedars Treatment Ctr. of DeSoto v. Mason, 143 S.W.3d 794 (Tex.


In re Am. Homestar of Lancaster, Inc., 50 S.W.3 d 480 (Tex 2001 ) . . . . . . . . . . . . . 21
Appellant's Brief/bn                                                                                              Page 7
 In re C.R., 263 S.W.3d 368 (Tex. App. - Dallas 2008) . . . . . . . . . . . . . . . . . . . . . . . 22

In re Liu, 290 S.W.3d 515 (Tex. App. - Texarkana 2009) . . . . . . . . . . . . . . . . . 50, 52

In the Int. of A.P.M., 2012 Tex. App. LEXIS 45 86 (Tex. App. - Dallas) . . . . . . . . . 22

Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex. 1983) . . . . . . . . . . . . . . . . . . . . . 52

Landers v. E. Tex. Salt Water Disposal Co., 248 S.W.2d 731 (Tex. 1952) . . . . 50, 52

Lear Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex. 1991).... . . . .. . . . .... . . 31, 32

Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001 ) . . . . . . . . . . . . . . . 33

Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 31, 44

Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703 (Tex. 1970) . . . . . . . . . . . 51

Lewis & Lambert Metal Contractors, Inc. v. Jackson, 914 S.W.2d 584
      (Tex. App.-Dallas 1994)....... .... . . ............ . . . .. . ........ . 30

Loera v. Fuentes, 408 S.W.3d 46 (Tex. App. - El Paso 2013) . . . . . . . . . . . . . . 22, 23

Longoria v. Graham, 44 S.W.3d 671 (Tex. App. - Houston [14' Dist.]


Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854 (Tex. App. -


Loram Maint. of Way, Inc. v. Ianni, 141 S.W.3d 722 (Tex. App. - El Paso


Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . 33

McCraw v. Maris, 828 S.W.2d 756 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 23 8 (Tex. 2008) . . . . . . . . . . 30

Appellant's Brief/bn                                                                           Page 8
Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.


Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984) . . . . . . . . . . . . . 28, 34

Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525 (Tex. 2000) . . . . . . . . . . . . . . . 21

Nissan Motor Co., Ltd. v. Armstrong, 145 S.W.3d 131 (Tex. 2004) . . . . . . . . . . . . 22

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) . . . . . . . . . . . 23, 46, 47

Orkin Exterminating Co., Inc. v. Davis, 620 S.W.2d 734 (Tex.
      App.-Dallas 1981)... ...... ......... . ... . . . . ......... .28, 37, 38, 41

P.A.M. Transport, Inc. v. Stevens Transport, Inc., 2013 Tex. App.
     LEXIS 9617 (Tex. App. - Dallas) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Patino v. Complete Tire, Inc., 158 S.W.3d 655 (Tex. App. - Dallas


Petras v. Criswell, 248 S.W.3d 47 l (Tex. App. - Dallas 2008) . . . . . . . . . . . . . . . . 24

Phan SonVanv. Pena, 990 S.W.2d 751 (Tex. 1999) . . .. . ..... . ... . ..... . ... 24

Pony Express Courier Corp. v. Morris, 921 S.W.2d 817 (Tex. App. -
     SanAntonio 1996) . ... . .......... . ... . ... . . . .............. . ... . . 18

Pounds v. Jurgens, 296 S.W.3d 100 (Tex. App. - Houston [l4'h Dist.]


Praytor v. Ford Motor Co., 97 S.W.3d 23 7 (Tex. App. - Houston
         [l4'hDist.] 2002).. . ... . . . .. . .... . ... . . .... . . ..........28, 50, 51, 52

Risinger v. Shuemaker, 160 S.W.3d 84 (Tex. App. - Tyler 2004) . . . . . . . . . . . . . . 32

R. M. Dudley Constr. Co., Inc. v. Dawson, 258 S.W.3d 694 (Tex.
      App. - Waco 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21


Appellant's Brief/bn                                                                                         Page 9
Rudolph v. ABC Pest Control, Inc., 763 S.W.2d 930 (Tex. App. -
         SanAntonio 1989)...... ... . . ...... . . ....... . ............... .32, 33

Segovia v. Skyline Place Dallas, LLC, 2013 Tex. App. LEXIS 9685
         (Tex. App. - Dallas) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Smith v. Christley, 755 S.W.2d 525 (Tex. App. - Houston [l4'h Dist.]


Smithv. Sewell, 858 S.W.2d350 (Tex. 1993).. . ... . ... . . . . ......... . . . 48, 49

Smith v. Sw. Bell Teleph. Co., 101 S.W.3d 698 (Tex. App. - Fort
         Worth 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43

Stewart v. Sanmina-SCI Corp., 156 S.W.3d 198 (Tex. App. - Dallas


Strakosv. Gehring, 360 S.W.2d 787 (Tex. 1962)... ..................... . ..33

Stone v. Sulak, 994 S.W.2d 348 (Tex. App. - Austin 1999) . . . . . . . . . . . . . . . . . . 32

Strong v. Strong, 350 S.W.3d 759 (Tex. App. - Dallas 2011) . . . . . . . . . . . . . . . . . 22

Sutton v. Helwig, 2013 Tex. App. LEXIS ?4045 (Tex. App. - Fort


Tex. Dep't of Public Safety v. Boswell, 2007 Tex. App. LEXIS 7152
      (Tex. App. - Corpus Christi) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Tex. Dep't of Transp. v. Banda, 2010 Tex. App. LEXIS 10316 (Tex.
      App.-Austin20lO)....... ............ .. . .. . . ..........35, 36, 41, 42

Tex. Hwy. Dep't v. Broussard, 615 S.W.2d 326 (Tex. App. - Fort
      Worth 1981). . . .. . .... . . ........... . .. . .. . . .............. . . .26, 27

Thompson v. Kawasaki Motors Corp., U.S.A., 824 S.W.2d 212 (Tex.
        App.-Dallas 1991)......... ..... . ........... . ... . . . .... . .20, 21, 22


Appellant's Brief/bn                                                                                               Page 10
TicorTitle Ins. Co. v. Lacy, 803 S.W.2d 265 (Tex. 1991) . . ..... ....... 20, 21, 22

Trail Enterprises, Inc. v. City of Houston, 957 S.W.2d 625 (Tex. App. -
        Houston [l4?hDist.] 1997)... . ............. . . ..... . ...... . . . . . .... 57

Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . 33

Venetoulias v. O'Brien, 909 S.W.2d 236 (Tex. App. - Houston [14'


Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004) . . . . . . . . . . . . 49

Walgreen-Tex. Co. v. Shivers, 154 S.W.2d 625 (Tex. 1941) . . ... . .. ... ... .. . . 30

Walter v. Box, 2007 Tex. App. LEXIS 3191 (Tex. App. - Beaumont) . . . . . . . . . . 47

Waltrip v. Bilbon Corp., 38 S.W.3d 873 (Tex. App. - Beaumont 2001) . . . . . . . . . 43

Weidner v. Sanchez, 14 S.W.3d 353 (Tex. App. - Houston [l4'h Dist.]


Westberryv. Gislaved Gummi AB, 178 F.3d 257 (4'h Cir. 1999) . . . . .. . . .. . . 50, 51

Williford v. Masten, 521 S.W.2d 878 (Tex. Civ. App. - Amarillo 1975) . . . . . . . . . 29

Wyckoff v. Geo. C. Fuller Contracting Co., 357 S.W.3d 157 (Tex.
        App. - Dallas 2011) . .. . . .... . . ................. ....... . . .. . . .... 18


PUBLICATIONS AND TREATISES


Raupp, THE M{JLTIPLICATION OF INDIVISIBLE INJ{JRY, 90 Tex.
     L. Rev. 259 (Nov., 2011 ed.) . ..... . . . ... . . .. ......... ... ....... 54, 55

RESTATEMENT (SECOND) OF TORTS §431 cmt. a(1965) . . . . . . . . . . . . . 31

TEX. CIV. PRAC. & REM. CODE ANN. §33.OO1 . . . . . . . . . . . . . . . . . . . . . . 48, 55


Appellant's Brief/bn                                                                         Pagell
TEX. CIV. PRAC. & REM. CODE ANN. §33.003 . . . . . . . . . . . . . . . . . . . 29, 48, 49

TEX. CIV. PRAC. & REM. CODE ANN. §33.O03(a) . . . . . . . . . . . . . . . . . . . . . . . 48

TEX. CIV. PRAC. & R?EM. CODE ANN. §33 .003(a)(4) . . . . . . . . . . . . . . . . . . . . . 44

TEX. CIV. PRAC. & REM. CODE ANN. §33.O03(b) . . . . . . . . . . . . . . . . . . . . 44, 48

TEX. REV. CIV. STAT. ANN. art. 670ld, §61 . . ...... . . ........ . . . ... ... . 27


RULES AND STATUTES


TEX. R. APP. PROC. 25.1(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

TEX. R. APP. PROC. 44. l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22


TEX. R. APP. PROC. 44.1(a)(1).. . ...... ...... . . . . .... . ... ............ . 57

TEX. R. APP. PROC. 43.2(c)...... ........ . ....... .................... 57

TEX. R. APP. PROC. 43 .2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

TEX.R.APP.PROC.43.3.............................................57


TEX. R. CIV. PROC. 166a(c).. ....... . . . . ..... . ........ . . . ..... .23, 46, 56

TEX. R. CIV. PROC. 166a(i) ..... . .................. ........... ... .45, 46

TEX. R. CIV. PROC. 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54


TEX. R. EVID. 803(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38




Appellant's Brief/bn                                                                                           Page 12
TO THE HONORABLE JUSTICES OF THIS COURT OF APPEALS:


        COMES NOW Appellant R{JBEN MONREAL, who files this his Brief and

respectfully shows the following:

                           STATEMENT OF THE CASE


        On February 17, 2010, Appellant was driving northbound in the center lane of

Stemmons Freeway in Dallas, Texas and had to bring his car to a stop because the car

in front of him driven by Labertano Martinez came to a stop. C.R. at 12 & 187-95.

Pickup trucks driven, respectively, by John Byron Wolfe, Jr. and Juan Jaquez were

behind Appellant' s vehicle in that lane of northbound Stemmons Freeway, as was the

tractor-trailer driven by Appellee. Id. at 187-97. Appellant's car was either rear-

ended and pushed into the rear of Mr. Martinez's car and then rear-ended a second

time; Appellant merely felt two impacts from Mr. Jaquez's pickup after Appellee

collided into the rear of Mr. Wolfe's pickup, causing a chain collision; or Mr.

Jaquez' s pickup was rear-ended twice in that chain collision and pushed into the rear

of Appellant's car two different times. Id. at 34, 78, 101, & 104 at p. 79. Appellant

filed negligence claims and causes of action against Appellee, Mr. Jaquez, and Mr.

Wolfe. Id. at 11-18. Appellee then filed a summary judgment, and Appellant

responded to it. Id. at 33-126. The trial court then struck the interrogatory answers

of Mr. Wolfe and Mr. Jaquez fi led by Appellant in opposition to Appellee' s summary


Appellant's Brief/bn                                                             Page 13
judgment motion, granted Appellee's motion, and severed Appellant's claims and

causes of action against Appellee into Cause No. Cc-14-02331 -d. Id. at 8-10 & 205 ;

App. l-2 & 4. This appeal involves whether the trial court abused its discretion when

it struck those inter?ogatory answers and granted Appellee's summary judgment

motion. C.R. at 202-05.




Appellant's Brief/bn                                                           Page 14
                                      ISSUES PRESENTED


I.      The trial court abused its discretion when it granted Appellee's
        objection to other Defenaant's interrogatory answers filed by
        Appellant in opposition to Appellee' s summary judgment motion . . . . . . . . 19

II. The trial court committed reversible error when it granted
       Appellee5 s summary judgment motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

        A. The trial court committed reversible error when it failed
                to find that Appellant produced more than a scintilla of
                competent evidence that Appellee's negligent conduct
                proximately caused Appellant' s injuries. . . . . . . . . . . . . . . . . . . . . . . . 24

        B. The trial court committed reversible error when it failed
                to find that Appellee failed to conclusively prove that
                his conduct did not proximately cause Appellant's injuries . . . . . . . . . 28




Appellant's Brief/bn                                                                              Pagel5
                           STATEMENT OF THE FACTS


        On February 17, 2010, Appellant was driving northbound in the center lane of

Stemmons Freeway in Dallas, Texas and had to bring his car to a stop because the car

in front of him driven by Labertano Martinez came to a stop. C.R. at 12 & 187-95.

Pickup trucks driven, respectively, by John Byron Wolfe, Jr. and Juan Jaquez were

behind Appellant' s vehicle in that lane of northbound Stemmons Freeway, as was the

tractor-trailer driven by Appellee. Id. at 187-97. Appellant's car was either rear-

ended and pushed into the rear of Mr. Martinez's car and then rear-ended a second

time; Appellant merely felt two impacts from Mr. Jaquez's pickup after Appellee

collided into the rear of Mr. Wolfe's pickup, causing a chain collision; or Mr.

Jaquez' s pickup was rear-ended twice in that chain collision and pushed into the rear

of Appellant's car two different times. Id. at 34, 78, 101, & 104 at p. 79. When the

ambulance arrived at the scene, Appellant' s lower right leg ?was bleeding;? his ?left

lmee was hurting;? and his ?car . . . was'5 undrivable. Id. at 102 at pp. 46-48. Shortly

after that collision, the ?pain in" his ?knee started up more,? and he started having

?pain . . . [i]n? his "back and . . . neck and shoulders.? Id. at 56. His treating

physician testified that, ?based upon a reasonable medical probability;? Appellant

sustained a "Iateral meniscus tear? in his left knee for which he needs an


?arthroscopy? as ?reasonable and necessary . . . treatment of the injuries? he sustained

Appellant's Brief/bn                                                              Page 16
in, and which were caused by, that February 17, 2010 chain collision. Id. at 119 &

 122-23.


         Appellant filed negligence claims and causes of action against Appellee, Mr.

Jaquez, and Mr. Wolfe. Id. at 11-18. Appellee then filed a summary judgment motion

challenging that the causation element of Appellant's claims and causes of action

against him on both traditional and no-evidence grounds. Id. at 3 3-41 . Appellant then

filed his summary judgment response, which attached Mr. Jaquez' s and Mr. Wolfe' s

interrogatory answers to prove that neither of them was rear-ended nor rear-ended the

vehicle in front of him until Appellee rear-ended Mr. Jaquez's pickup. Id. at 75, 78,

80, & 83-89. The trial court then struck Mr. Wolfe's and Mr. Jaquez' s interrogatory

answers ?from the surnrnary judgment record,? granted Appellee ' s summary judgment

motion, denied Appellant's motion for reconsideration, and severed Appellant's

claims and causes of action against Appellee into Cause No. cc-14-023 31 -d. Id. at 8-

10 & 202-07; App. 1-4. Appellant filed his notice of appeal on May 29, 2014. C.R.

at4-s.


         Thi s appeal involves whether the trial court abused its discretion when it struck

those interrogatory answers and granted Appellee ' s summary judgment motion. C .R.

at205.




Appellant's Brief/bn                                                                 Pagel7
                         SUMMARY OF THE ARGUMENT


        The trial court abused its discretion when it struck Mr. Jaquez's and Mr.

Wolfe's interrogatory answers from the summary judgment record and committed

reversible error when it granted Appellee' s motion and dismissed all claims asserted

by Appellant against Appellee. C.R. at 202-05; App. 1-2.


                        ARGUMENT AND AUTHORITIES


        ?'Texas courts generally employ the abuse of discretion standard . . . when a

matter involving both factual determinations and legal conclusions is decided by the

trial court.?' De la Vega v. Taco Cabana, Irtc., 974 S.W.2d 152, 154 (Tex. App. - San

Antonio 1998, pet. dism'd), quoting Pony Express Courier Corp. v. Morris, 921

S.W.2d 817, 820 (Tex. App. - San Antonio 1996, no writ)(per curia?)(citations

omitted). That is certainly true with regard to Appellee ' s summary judgment motion,

which the trial court granted, and Appellee's objections to evidence attached to

Appellant's response in opposition to that motion, two of which the trial court

sustained. C.R. at 33-41, 75-89, 128-32, & 202-05,, App. l-2.

        However, this Court of Appeals holds, ?We review a summary judgment de

novo.? Wyckoff v. Geo. C. Fuller Contracting Co. , 357 S.W.3d 157, 162 (Tex. App. -

Dallas 2011, no pet.), citing Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508

(Tex. 2010), cert. denied, Fernandez v. Frost Nall Bank, 131 S. Ct. 1017 (2011).
Appellant's Brief/bn                                                            Page 18
I. The trial court abused its discretion when it granted Appellee's obiection to
      other Defendants' interrogatory answers filed by Appellant in opposition to
      Appellee's summary iudzment motion.

        Defendant Robert Edison' s Interrogatory No. 18 asks Mr. Jaquez to ?generally

describe how the incident occurred,? and Mr. Jaquez answered, ?I was going home

from work. I was stopped completely and then rear-ended which forced me into the

car in front of me." C.R. at 83-84. Interrogatory No. 21 asks Mr. Jaquez "[w]hat

action" he took "to avoid the incident,? to which he replied, ?None. I was stopped

when I was rear-ended by the vehicle traveling behind me.'5 Id. at 84-85. When he

was then asked in Interrogatory No. 19 ?[w]hich, if any, vehicles? his ?vehicle? made

?physical contact with at the time of the incident,? Mr. Jaquez stated, ?My vehicle

was rear-ended by the vehicle being driven by John Wolfe, which caused me to rear-

end the vehicle being driven by? Appellant. Id. at 84. Mr. Jaquez verified all of his

interrogatory answers under oath. Id. at 86.

        In response to Mr. Edison' s Interrogatory Nos. 18-19, Mr. Wolfe stated, ?I was

traveling in the center lane, behind three other vehicles on IH 3 5E and Commerce in

Dallas, Dallas County, Texas. Traffic was heavy and congested. The vehicle

operated by? Appellee ?was unable to bring his flatbed and vehicle to a stop. As a

result,'5 Appellee ?made contact with the rear of my vehicle causing a chain reaction.

I was at home and was headed to work when the accident occurred. Also, see the


Appellant's Brief/bn                                                             Page 19
police report . . .? Id. at 87-89.

        In his response to Appellee's motion, Appellant cited to Mr. Wolfe's

interrogatory answer to prove that Appellee ' s failure ?to bring his flatbed and vehicle

to a stop? resulted in his tractor-trailer rig rear-ending Mr. Wolfe's pickup and

?causing the chain? collision. Id. at 78, 80, & 89. Appellant also cited to Mr.

Jaquez's interrogatory answers to prove that he had ?completely . . . stopped? his

pickup behind Appellant's car when his pickup "was rear-ended by? Mr. Wolfe's

pickup and ?forced . . . into the? rear of Appellant's ?car . . .? Id. at 78, 80, & 84-85.

        In his Objections and Motion to Strike Appellant's Summary Judgment

Evidence, Appellee argued that Mr. Jaquez' s and Mr. Wolfe' s interrogatory answers

may only be used against them and not against Appellee. Id. at 128-30.

        Appellant responded to Appellee's Objections and Motion to Strike Mr.

Wolfe's and Mr. Jaquez's interrogatory answers by explaining that they should be

overruled because the Texas Supreme Court holds, ?'A party must be able to rely on

the interrogatories or answers of other parties in the same suit. Otherwise a

multiparty case would require redundant interrogatories with identical questions and

answers.?' Ticor Title Ins. Co. v. Lacy, 803 S.W.2d 265, 266 (Tex. 1991)(,oer

curiam), quoting Smith v. Christley, 755 S.W.2d 525, 530 (Tex. App. - Houston [l4'h

Dist.] 1988, writ denied); C.R. at 176 & 180. This Court of Appeals even recognized


Appellant's Brief/bn                                                                Page 20
that holding in a 1991 decision. Thompson v. Kawasaki Motors Corp., US.A., 824

S.W.2d 212, 217 (Tex. App. - Dallas 1991), rev'd on other grounds, Kawasaki

Motors Corp., US.A. v. Thompson, 872 S.W.2d 221 (Tex. 1994), citing Ticor Title

Ins. Co. v. Lacy, 803 S.W.2d at 266 and Smith v. Christley, 755 S.W.2d at 530.

        This Court of Appeals reviews ?a party's objections to summary judgment

evidence? and the trial court's evidentiary decisions ?under an abuse of discretion

standard.? Segovia v. Skyline Place Dallas, LLC, 2013 Tex. App. LEXIS 9685, s

(Tex. App. - Dallas, no pet.)(memo. opin.), citingNat'l Liab. & Fire Ins. Co. v. Allen,

15 S.W.3d 525, 527-28 (Tex. 2000). Texas appellate courts hold, ?A trial court

abuses its discretion when it acts arbitrarily and unreasonably, without reference to

guiding rules or principles, or when it misapplies the law to the established facts of

the case." R. M Dudley Constr. Co., Inc. v. Dawson, 258 S.W.3d 694, 706 (Tex. App.

- Waco 2008, pet. filed), citing BeaumontBank, N.A. v. Buller, 806 S.W.2d 223, 226

(Tex. 1991). The Supreme Court explains, "A trial court has no discretion to

determine what the law is or in applying the law to the facts and, consequently, the

trial court' s failure to analyze or apply the law correctly is an abuse of discretion.? In

re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex 2001).

        Based upon the holdings in the Supreme Court's Lacy and Christley opinions

and this Court of Appeals' Thompson opinion, this Court of Appeals should find that


Appellant's Brief/bn                                                                 Page21
the trial court abused its discretion when it sustained Appellee's objections to Mr.

Jaquez' s and Mr. Wolfe' s interrogatory answers and struck them from the summary

judgment record. Ticor Title Ins. Co. v. Lacy, 803 S.W.2d at 266, quoting Smith v.

Christley, 755 S.W.2d at 530; Thompson v. Kawasaki Motors Corp., US.A., 824

S.W.2d at 217, citing Ticor Title Ins. Co. v. Lacy, 803 S.W.2d at 266 and Smith v.

Christley, 755 S.W.2d at 530; C.R. at 203; App. 1.

         This Court of Appeals should also find that the trial court's ?er?oneous?

striking of this ?evidence? from Appellant's response to Appellee' s motion was not

?harmless? because . . . it? was not ?merely cumulative.? Strong v. Strong, 350

S.W.3d 759, 764 (Tex. App. - Dallas 2011, no pet.), citing Nissan Motor Co., Ltd. v.

Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) and}n re C. R. , 263 S.W.3d 368, 370-71

(Tex. App. - Dallas 2008, no pet.).

        In addition, this Court of Appeals holds, ?We may reverse a trial court's

judgment based on an error in the admission or exclusion of evidence only if we

conclude that the trial court made an er?or of law that probably caused the rendition

of an improper judgment.? In the Int. ofA.P.M , 2012 Tex. App. LEXIS 45 86, 4 (Tex.

App. - Dallas, memo. opin., no pet.), citing TEX. R. APP. PROC. 44. 1 and Lopez v.

La Madeleine of Tex., Inc., 200 S.W.3d 854, 863 (Tex. App. - Dallas 2006, no pet.).

Texas appellate courts explain that ?' it is not necessary for the complaining party to

Appellant's Brief/bn                                                             Page 22
prove that ?but for? the exclusion of evidence, a different judgment would necessarily

have resulted,?' and ?[t]he complaining party must only show 'that the exclusion of

evidence probably resulted in the rendition of an improper judgment.?' Loera v.

Fuentes, 408 S.W.3d 46, 53 (Tex. App. - El Paso 2013, pet. filed), quotingMcCraw

v. Maris, 828 S.W.2d 756, 758 (Tex. 1992).

        The trial court's failure to overrule Appellee's objection to Mr. Wolfe's and

Mr. Jaquez's interrogatory answers "probably caused the rendition of an improper'5

granting of Appellee ' s "summary judgment" motion because that evidence which was

stricken from the summary judgment record demonstrates that Appellee could not

meet his ?burden? in his traditional motion to conclusively prove ?as a matter of law

. . . that no genuine issue of material fact exists? regarding his failure to control the

speed of the tractor-trailer rig which he was driving and colliding it into the rear of

Mr. Wolfe ' s pickup and whether his conduct was the only reason Appellant' s car got

rear-ended twice in the s-vehicle chain collision on February 17, 2010 and the only

reason Appellant sustained any injuries in that collision. Id.; C.R. at 83-89; Biaggi v.

Patrizio Restaurantlnc., 149 S.W.3d 300, 303 (Tex. App. - Dallas 2004, pet. denied),

citing TEX. R. CIV. PROC. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548 (Tex. 1985). In other words, ?[t]o establish that it is entitled to summary

judgment on causation,? Appellee had to ?conclusively negate proximate cause,? and


Appellant's Brief/bn                                                               Page 23
Mr. Jaquez's and Mr. Wolfe's interrogatory answers clearly prevent that. Biaggi v.

Patrizio Restaurant Inc., 149 S.W.3d at 303, citing Phan Son Van v. Pena, 990

S.W.2d 751, 754 (Tex. 1999); C.R. at 83-89.

        This Court of Appeals, accordingly, should find that Appellant ?met? his

?burden . . . to put forth . . . argument with respect to how the trial court' s ruling? and

on Appellee ' s objections to Appellant' s evidence in opposition to Appellee ' s motion

"probably resulted in an improper judgment on? Appellee's "summary judgment?

motions and that Appellant thereby established ?reversible error in connection with

the trial court's? ruling on Appellee's ?objections? to the Exhibits A and B attached

to Appellant' s summary judgment response. Petras v. Criswell, 248 S.W.3 d 4 71, 477-

78 (Tex. App. - Dallas 2008, no pet.); App. 1.

II. ThetrialcourtcommittedreversibleerrorwhenitgrantedAppellee'ssurnmary
      iudgment motion.

        A. The trial court committed reversible error when it failed to find that
                Appellant produced more than a scintilla of competent evidence that
                Appellee' s negligent conduct proximately caused Appellant's iniuries.

                Since Appellee's "no-evidence motion for summary judgment asserts

there is no evidence of one . . . essential element of a claim on which? Appellant

"would have the burden of proof at trial,? Appellant merely ?must present evidence

that raises a genuine issue of material fact on? that ?challenged? element. Hair v.

Church & Dwight Co., Inc., 2004 Tex. App. LEXIS 6451, 3-4 (Tex. App. - Dallas,

Appellant's Brief/bn                                                                  Page 24
no pet.)(memo. opin.), citing Gen. Mills Rest. Inc. v. Tex. Wings, Inc., 12 S.W.3d 827,

832 (Tex. App. - Dallas 2000, no pet.). This Court of Appeals holds, ?In determining

whether? Appellant "has met? his ?burden, we review the evidence in the light most

favorable to55 Appellant ?and resolve all doubts in? his ?favor.? Hair v. Church &

Dwight Co., Inc., 2004 Tex. App. LEXIS 6451 at 4, citing Gen. Mills Rest. Inc. v.

Tex. Wings, Inc., 12 S.W.3d at 833.

        The trial court did not sustain Appellee's objection to the plain photocopy of

the crash report attached to Appellant' s summary judgment response as Exhibit C or

Appellee ' s objection to the two pages of Appellant' s medical records attached to the

affidavit from the custodian of records for Injury Institute of Texas contained in

Appellant's Exhibit E. C.R. at 90-97, 109-12, 128-31, & 202-03; App. 1. From the

Order on those Objections and Motion to Strike, it is reasonable to infer that the trial

court overruled those two objections of Appellee and granted Appellant leave to file

a sworn copy of that crash report in place of the plain copy contained in his Exhibit

C. C.R. at 180, 182- & 202-03 ; App. 1. Without an Order striking the sworn copy of

that crash report and/or Appellant's Exhibit E, that evidence remained part of the

summary judgment record when the trial court granted Appellee's motion. C.R. at

204-05; App. 2.

        By not filing a notice of appeal regarding the trial court' s failure to sustain his


Appellant's Brief/bn                                                                  Page 25
objections to Appellant's Exhibits C and E, it is too late for Appellee to argue that

this Court of Appeals should find that the sworn copy of that crash report or

Appellant's Exhibit E are incompetent summary judgment evidence, as Appellee

thereby cannot ?seek greater relief than that afforded in the? trial court' s " judgment.?

Pounds v. Jurgens, 296 S .W.3 d 100, 110 n. 14 (Tex. App. - Houston [1 4th Dist.] 2009,

pet. denied), citing TEX. R. APP. PROC. 25.1(c).

        The Report Narrative in the crash report states that Mr. Martinez, Appellant,

Mr. Jaquez, and Mr. Wolfe were all stopped in their vehicles in the northbound,

center lane of Interstate 35 East "due to traffic congestion,? when the tractor-trailer

rig being driven by Appellee "failed to stop in time hitting the back of' Mr. Wolfe's

pickup, ?pushing? Mr. Wolfe's pickup ?into? Mr. Jaquez's pickup, down the chain

and ending with Appellant' s car being pushed ?into? Mr. Martinez' s car. C .R. at 195.

That crash report lists no ?Contributing? or ?May Have? contributed factor to that

collision for any of those drivers, except for Appellee. Id. at 188-93. The code

number ?44" listed on page l of 4 is, according to the attached Code Sheet, for

?Followed Too Closely.? Id. at 193 & 197.

        Texas appellate courts hold, ?By the common law,? it ?is the duty of anyone

operating a vehicle upon the public highway to maintain such a clear distance behind

the preceding vehicle traveling in the same direction so that should the necessity arise


Appellant's Brief/bn                                                                Page 26
he will be able to slow down or even stop without colliding with the preceding

vehicle and that it not be necessary to veer to either the right or left. When such an

event has occurred and there is inability to stop in this manner, the operator is guilty

of negligence both at common law and under the? applicable ?statute[, which is now

in the Texas Transportation Code . . . Following too closely may be 'excusable

negligence, ' but it is negligence nevertheless, . . ." Tex. Hwy. Dep 't v. Broussard, 615

S.W.2d 326, 329 (Tex. App. - Fort Worth 1981, writ ref' d n.r.e.), citing TEX. REV.

CIV. STAT. ANN. art. 670ld, §61(1977).

        Appellee's Interrogatory No. 3 contained in the Exhibit A attached to his

summary judgment motion asked Appellant to "state specifically and completely the

manner in which? Appellant "alleges? that Appellee ?was responsible for or caused

any such damages or injuries to? Appellant, who responded that Appellee ?failed to
                                                                                        l




control his speed, failed to pay proper attention, and followed too closely? and then

added that Appellee failed ?to keep such a look out as a person or ordinary prudence

would have kept under the circumstances;? failed ?to apply the brakes to the vehicle

in order to avoid the? collision; failed ((to maintain an assured clear distance between

his vehicle and the vehicles involved in the collision, considering the speed of the

vehicles, traffic, and the conditions of the highway;? and failed ?to identify, predict,

decide and execute evasive maneuvers appropriately in order to avoid? the collision.


Appellant's Brief/bn                                                                Page27
C.R. at 42-46.


        Texas appellate courts hold, ?To establish causation, a plaintiff must prove the

defendant's conduct caused? or contributed to ?an event and that eyent caused the


plaintiff to suffer compensable damages.? Praytor v. Ford Motor Co. , 9 7 S.W.3 d 23 7,

241 (Tex. App. - Houston [1 4'h Dist.] 2002, no pet.), citing Burroughs Wellcome Co.

v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). Texas appellate courts add, "The causal

link between the event sued upon and the plaintiff's injuries must be shown by

competent evidence.? Praytor v. Ford Motor Co., 97 S.W.3d at 241, citing Morgan

v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). This Court of Appeals

hold, ?Lay testimony can be sufficient to raise a fact question on proximate cause if

general experience and common sense will allow a lay person to fairly determine

causation.? Hair v. Church & Dwight Co., Inc., 2004 Tex. App. LEXIS 6451 at s,

citing Praytor v. Ford Motor Co., 97 S .W.3 d at 241. This Court of Appeals adds that

?the evidence presented must show a reasonable probability that? Appellant's

?injuries were caused by the collision in question55 and that "[t]he question is whether

from? only lay ?testimony a jury could conclude that his injuries were caused with

reasonable probability by the [collision]. The answer to this question depends upon

the nature of his injuries.? Orkin Exterminating Co., Inc. v. Davis, 620 S.W.2d 734,

736 (Tex. App. - Dallas 1981, writ ref d n.r.e.).


Appellant's Brief/bn                                                              Page 28
        During his deposition, Appellant confirmed that ?Mr. Jaquez was driving the

Dodge pickup directly behind? his car and that Mr. Jaquez ?came to a stop behind?

his car <'without hitting? it. C.R. at 104 at p. 79. Appellant then testified that ?Mr.

Jaquez was hit again and pushed a second time into? his car. Id. This Court of

Appeals also holds, ?To resolve conflicts and inconsistencies in the testimony of a

witness or between witnesses is in the province of the jury;'5 therefore, ?the jury may

accept a part of the testimony of any witness without accepting it all.? Haney Elec.

Co. v. Hurst, 624 S.W.2d 602, 609 (Tex. App. - Dallas 1981, writ granted w/out any

subsequent opin.), citing Biggers v. Continental Bus Sys., Inc., 303 S.W.2d 359, 365

(Tex. 1957); Clodfelter v. Martin, 562 S.W.2d 491, 493 (Tex. Civ. App. - Corpus

Christi ?977, no writ); Williford v. Masten, 521 S.W.2d 878, 890 (Tex. Civ. App. -

Amarillo 1975, writ ref'd n.r.e.); and City of Center v. Roberts, 469 S.W.2d 27, 30

(Tex. Civ. App. - Tyler 1971, writ ref'd n.r.e.). See also C.R. at 179.

        In Biaggi, this Court of Appeals noted, ccJ{ the negligence of both parties

proximately caused the injuries, then the parties' relative share of responsibility

would have to be determined.? Biaggi v. Patrizio Rest. Inc., 149 S.W.3 d at 3 03, citing

TEX. CIV. PRAC. & REM. CODE ANN. §33.O03(Vernon Supp. 2004).

Accordingly, if this Court of Appeals finds that the jury could reasonably believe that

both Mr. Wolfe and Appellee contributed to the injuries which Appellant sustained


Appellant's Brief/bn                                                              Page 29
in the collision, this Court of Appeals should conclude that the trial court erred when

it granted Appellee's summary judgment motion and reverse and remand for a new

trial.


         Accordingly, Appellee owed Appellant at least the duties to drive that tractor-

trailer with ?reasonable care? and "to keep a proper lookout,? which ?encompasses

the duty to observe, in a careful and intelligent manner, traffic and the general

situation in the vicinity, including speed and proximity of other vehicles as well as

rules of the road and common experience.? Med. Ctr. ofLas Colinas, Inc. v. Hogue,

271 S.W.3d 238, 253 (Tex. 2008); Carney v. Roberts Investment Co., Inc., 837

S.W.2d 206, 210 (Tex. App. - Tyler 1992, writ denied), citing Hatcher v. Mewbourn,

457 S.W.2d 151, 152 (Tex. Civ. App. - Texarkana 1970, writ ref'd n.r.e.).

         This Court of Appeals holds, ?Negligence is that conduct which creates an

unreasonable risk of harm to others.? Lewis & Lambert Metal Contractors, Inc. v.

Jackson, 914 S.W.2d 584, 590 (Tex. App. - Dallas 1994), vacated pursuant to

settlement, 938 S.W.2d 716 (Tex. 1997), citing Walgreen-Tex. Co. v. Shivers, 154

S.W.2d 625, 631 (Tex. 1941 ).

         Accordingly, Appellee violated his "duty . . . to exercise reasonable care" while

driving that tractor-trailer prior to and at the time of the multi-vehicle collision on

February 17, 2010. Med. Ctr. ofLas Colinas, Inc. v. Hogue, 271 S.W.3d at 253.


Appellant's Brief/bn                                                                Page 30
        Texas appellate courts hold, ?Proximate cause is comprised or two elements -

cause in fact and foreseeability" and that ?[c]ause in fact is established when the act

or omission was a substantial factor in bringing about the occurrence, and without it,

the event would not have occurred.? Block v. Mora, 314 S.W.3 d 440, 446 (Tex. App.

- Amarillo 2009, pet. dism'd), abrogated on other grounds, Thota v. Young, 366

S.W.3d 678 (Tex. 2012), citing IHS Cedars Treatment Ctr. ofDeSoto v. Mason, 143

S.W.3d 794, 799 (Tex. 2003); Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex.

1 996); and City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex. 1987). From the

foregoing evidence, this Court of Appeals should find that ?a jury? could ?reasonably

find? that Appellee ?bore a substantial portion of the responsibility for the injuries

caused by? he colliding the tractor-trailer which he was driving into Mr. Wolfe's

pickup truck and causing a chain collision into the rear of Appellant' s car. Longoria

v. Graham, 44 S.W.3d 671, 675 (Tex. App. - Houston [l4'h Dist.] 2001, no pet.),

quoting Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991), quoting

RESTATEMENT (SECOND) OF TORTS §43 1 cmt. a(1965).

        Texas appellate courts hold that, ?to establish breach of duty, the plaintiff must

show either that the defendant did something an ordinarily prudent person exercising

ordinary care would not have done under those circumstances, or that the defendant

failed to do that which an ordinarily prudent person would have done in the exercise


Appellant's Brief/bn                                                                Page31
of ordinary care.? Aguirre v. Vasquez, 225 S.W.3d 744, 757 (Tex. App. - Houston

[l4fh Dist.] 2007, no pet.), citing Caldwell v. Curioni, 125 S.W.3d 784, 793 (Tex.

App. - Dallas 2004, pet. denied). Texas appellate courts also hold, ?The resolution

of a defendant's possible breach of duty is a question of fact.? Id.

        This Court of Appeals merely adds, ?A rear-end collision may be some

evidence of negligence of the rear-ending driver, but it does not constitute conclusive

proof.? P.A.M Transport, Inc. v. Stevens Transport, Inc., 2013 Tex. App. LEXIS

9617, 4-s (Tex. App. - Dallas, no pet.)(memo. opin.), citing Benavente v. Granger,

312 S.W.3d 745, 749 (Tex. App. - Houston [lsf Dist.] 2009, no pet.); Risinger v.

Shuemaker, 160 S.W.3d 84, 90 (Tex. App. - Tyler 2004, pet. denied); and Stone v.

Sulak, 994 S.W.2d 348, 351 (Tex. App. - Austin 1999, no pet.).

        This Court of Appeals also holds that ?proximate cause is typically a question

of fact.? Coleman v. Equitable Real Estate Investment Mgmt, Inc., 971 S.W.2d 611,

617 (Tex. App. - Dallas 1998, pet. denied), citing Lear Siegler, Inc. v. Perez, 819

S.W.2d at 47 1-72 and Bel-Ton Elec. Serv., Inc. v. Pickle, 877 S.W.2d 789, 795 (Tex.

App. - Dallas 1994), reversed on other grounds, 915 S.W.2d 480 (Tex. 1996).

Consequently, this Court of Appeals additionally holds, "The question of proximate

cause is normally one for the jury.? Caldwell v. Curioni, 125 S.W.3d at 793, citing

Rudolph v. ABC Pest Control, Inc., 763 S.W.2d 930, 933 (Tex. App. - San Antonio


Appellant's Brief/bn                                                              Page 32
1989, writ denied). Texas appellate courts more clearly hold, ?The determination of

proximate cause . . . is a question for the finder of fact.? Venetoulias v. O Brien, 909

S.W.2d 23 6, 241 (Tex. App. - Houston [1 4'h Dist.] 1995, writ dism'd), citingEl Chico

Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987).

        Additionally, ?[p]roximate cause may be proven by either direct or

circumstantial evidence, . . .? Brookshire Grocery Co. v. Goss, 208 S.W.3d 793, 795

(Tex. 2008)(,oer curiam), citing Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727

(Tex. 2003); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.

1995); and Loram Maint. of Way, Inc. v. Ianni, 141 S.W.3d 722, 733 (Tex. App. - El

Paso 2004, no pet.).

        The Supreme Court even holds, "More than one act may be the proximate cause

of the same injury.? Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex.

2001), citing Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) and

Brookshire Bros., Inc. v. Lewis, 911 S.W.2d 791, 793 (Tex. App. - Tyler 1995, writ

denied). Likewise, the Supreme Court holds "all persons whose acts contributed to

the injury are liable therefor, and the negligence of one does not excuse the

negligence ofthe other.? Strakos v. Gehring, 360 S.W.2d 787, 794 (Tex. 1962), citing

Atchison v. Texas & P. Ry. Co., 186 S.W.2d 228, 231 (Tex. 1945).

        Regardless, this Court of Appeals holds, "The plaintiff is entitled to recover


Appellant's Brief/bn                                                              Page 33
damages only for those injuries caused by the event that is the basis of the lawsuit.?

Byrd v. Delasancha, 195 S.W.3d 834, 839 (Tex. App. - Dallas 2006, no pet.), citing

Morgan v. Compugraphic Corp., 675 S.W.2d at 732.

        In response to Appellee's Interrogatory No. 10, Appellant answered,

"Excluding the injuries? he is ?claiming in this lawsuit,? he ?has? not ?received . . .

an injury or unusual physical condition or ailments . . . that required medical attention

. . .? C.R. at 47-48. However, his ?collarbone? was broken "many years ago? in ?a

car accident . . . in Mexico . . . when? he was ?about 13 " years old, and he went to "a

hospital . . . because of a stomach infection . . . about 14 years ago.". Id. at 103 at p.

76 & 104 at p. 77. He was in ?a hit-and-run, . . . accident . . . in 2010,? in which he

was not ?hurt, and ?a passenger? in a collision ?in 1 996,? in which he sustained ?a bit

of a neck injury, but it resolved itself.? Id. at 103 at p. 75. Appellant testified that he

has "been involved in . . . [n]o . . . other accidents? or collisions ?[s]ince February of

2010, . . .? Id. at 104 at p. 77.

        Regarding the injuries he sustained in the collision, Appellant gave conflicting

testimony during his deposition. When he was asked about ?[t]he first? impact and

his ?car? being "knocked . . . into the car in front of' him, Appellant replied, ?I don't

know,? when asked if he was ?injured . . . [w]hen that happened, . . ." Id. at 55. He

gave the same response when asked if he was ?injured in the second impact . . . two


Appellant's Brief/bn                                                                 Page 34
or three seconds later, . . .? Id. Even though Appellant also ?[d]id" not ?tell . . . the

paramedics . . . that? he was ?hurt,? that was obviously not the truth because, after ?an

ambulance showed up? at the scene, he showed the paramedics "that'5 he ?needed

some kind of medical assistance . . . [b]ecause I had blood here on my . . . right55

lower leg, as he ?had skinned? his ((spin'5 in that collision ?and it was bleeding.? Id.

at 102 at pp. 45-46. When the paramedics then asked ?if' he ?had any other injuries

or any other hurts,? Appellant told ?them . . . [t]hat my . . . left la?iee . . . was hurting?

by pointing ?to? it. Id. at 102 at p 4 7. Appellant added that he "wasn't able to . . . tell

them . . . anymore? about his injuries ?[b]ecause I don't speak Enplish." Id.

        Appellant also testified that ?the car? which he was ?driving . . . was no good

anymore? after the collision and had to be towed from ?the scene? and that his

?brother . . . came and? drove him home. Id. at 102 at p. 48. However, he ?went

home . . . [o]nly long enough to change? his ?clothes? and then drove his ?truck? to

his ?attorney' s office,? and then ?went to the chiropractor at Injury Institute of Texas

. . . to go get checked out.? Id. at 56. He explained that he knew that ?attorney . . .

[b]ecause of television? and that he went to that ?clinic . . . [b]ecause that' s when my

pain in my lazee started up more? and because he also had ?pain . . . [i]n my back and

my neck and shoulders.? Id.

        Texas appellate courts recognize, "Lay testimony can, . . . prove athe existence


Appellant's Brief/bn                                                                    Page35
and nature of certain basic conditions,' given 'proof of a logical sequence of events,

and temporal proximity between an occurrence and the conditions' . . . In the context

of an automobile accident,? such ?lay testimony . . . can support a finding of

causation provided that such conditions

        (l ) are within the common knowledge and experience of laypersons,
        (2) did not exist before the accident,
        (3) appeared after and close in time to the accident, and
        (4) are within the common knowledge and experience of laypersons,
                caused by automobile accidents.

Tex. Dep't of Transp. v. Banda, 2010 Tex. App. LEXIS 10316, 10 (Tex. App. -

Austin 2010, pet. denied)(memo. opin.), quoting Guevara v. Ferrer, 24 7 S.W.3 d 662,

667 (Tex. 2007). As in Banda, this Court of Appeals should "conclude that?

Appellant' s ?testimony about the? collision, ?the treatment he received, and the pain

and incapacity he had immediately thereafter is legally sufficient evidence to prove

that the injuries he complained of at that time were caused by the? collision and that

Appellant' s ?testimony supports? the requisite causal nexus between the collision and

?at least part of' his ?past medical treatment, pain and suffering, and physical

impairment.? Tex. Dep't of Transp. v. Banda, 2010 Tex. App. LEXIS 10316 at 13-14,

citing Guevara v. Ferrer, 247 S.W.3d at 667. This Court of Appeals likewise holds,

?The fact that the testimony of causation comes from the injured party alone does not

prevent it from having probative force if given credit by the jury.? Byrd v.


Appellant's Brief/bn                                                            Page36
Delasancha, 195 S.W.3d at 837, citing Fid. & Guar. Ins. Undemriters, Inc. v. La

Rochelle, 587 S.W.2d 493, 496 (Tex. App. - Dallas 1979, writ dism'd).

        Appellant admitted that he did not ?tell the police officer? who came to the

scene of the collision that he was ?injured,? but that was likely ? [b] ecause? Appellant

is unable to "speak English.? C.R. at 102 at pp. 45 & 47. This is confirmed by the

fact that Appellant was only able to be deposed through an interpreter. Id. at 54, 100,

&103 at p. 73.

        The Final Summary Report from Injury Institute of Texas dated March 30,

2010 states that Appellant ?initially presented to our facility on 02/18/10 for the

purpose of evaluation and possible treatment of injuries he sustained in a motor

vehicle accident occurring on 02/ l 7/ 10. He vehicle was thrown forward and struck

another vehicle before stopping. He was unaware of the impending collision. His

body was thrown forward and backward. His bilateral knees hit on the interior of his

vehicle. His pain began later the same day and has increased in intensity.? Id. at 109-

11. That report adds that Appellant ?was evaluated by an orthopedic doctor, Dr.

James Laughlin, for a second opinion on 03/16/2010. He was assessed with the

following diagnosis: . . . Meniscal tear left knee? and a ?Left lmee injection . . . was

recommended: . . .? Id. at 112. This is "expert testimony,? which ?connected the?

collision "to the injuries found,'5 as this Court of Appeals has previously held to be


Appellant's Brief/bn                                                              Page37
necessary to find the requisite causation. Orkin Exterminating Co., Inc. v. Davis, 620

S.W.2d at 737. Texas appellate courts hold that ?it is well-settled that statements

made for purposes of medical diagnosis and treatment are deemed so reliable that

they are excepted from the hearsay rule.? Coastal Tankships, U S.A., Inc. v. Anderson,

87 S.W.3d 591, 597 (Tex. App. - Houston [ls' Dist.] 2002, pet. denied)(en banc),

citing TEX. R. EVID. 803(4).

        ?As of March 3 0'h, 201 0,? Appellant ?had recovered from? his "shoulder pain,

. . . neck pain,? and "low back pain.? C.R. at 58. However, the doctor at "the Injury

Institute . . . continued to treat? his ?left knee through October 29'h, 2012 because

Appellant ?kept having trouble with? it and ?sent me to have something done like .

. . an MRI. It's an X-ray . . . on October the 3rd, 2012, . . . by Dr. Cheatham? because

of the ?knot that was on? his ?knee.? Id. at s 7-s 8. Appellant still had ?the knot on .

. . the outside of' his "left knee and just a little bit below? the ?kneecap? on July 19,

2013, when he was deposed, and showed it to everyone present when he was

requested to do so. Id. at 52 & 59. Appellant had obviously been told that the MRI

showed that he had a torn meniscus and a ?cyst? which formed that knot, and he had

not had surgery to repair that tear or remove that cyst as of the date of his deposition

because that k?not remained obvious, but he did not ?remember ?where the tear is? in

his "1<nee . . .? Id. at 59.



Appellant's Brief/bn                                                               Page38
        In Byrd, this Court of Appeals reversed the "directed verdict on causation when

plaintiff testified that she had no injuries before the accident but had them afterward

and gave very specific testimony about her accident-related injuries, which were

documented in the medical records admitted into evidence.? Sutton v. Helwig, 2013

Tex. App. LEXIS 14045, 15-16 (Tex. App. - Fort Worth, no pet.)(per curiam memo.

opin.), citing Byrd v. Delasancha, 195 S.W.3d at 835-38.

        Appellant also testified that ?the pain from? that ?cyst? and his torn meniscus

forced him to give up all of his ?hobbies? other than his ?children? and limits his

ability to ?work around the house,? such as mowing his ?yard.? C.R. at 59 & 103 at

pp. 73-74.

        When ?the test? results from that MRI were sent ?back to Injury Institute, . . .

they sent me to . . . Dr. Dillen.? Id. at s 7-58. During his deposition, Linden Dillin,

M.D. testified that he ?saw? and ?examined? Appellant on ?February 27Ih, 2013,"

found that "he's got some tears in his l<nee,? and has "written a report and it's got a

summary of . . . the possible charges that may be incurred as a result of . . . future

treatment for? Appellant and "that, as of today, . . . I think . . . the most reasonable

prediction of . . . the cost of the first surgical procedure . . . is . . . a range of

approximately $10,000 to $20,000 to treat what? he believes ctis wrong with him, . .

.? Id. at 65, 69, 71, & 115. However, Dr. Dillen added, ?I think he's - his costs are


Appellant's Brief/bn                                                               Page 39
going to be towards the higher end because I believe he's going to need a . . .

meniscus cyst incision,? in addition to a repair of his torn meniscus by an

?arthroscopy.? Id. at 71 & 115. He added, "The meniscus cyst occurs as a result of

the meniscus tear,? as ?[1]ateral meniscus cysts almost invariably? occur ?as a rsult

of a lateral meniscus tear. And in? Appellant's ?case, I believe that that's what it

indicates? because he has ?seen these symptoms and these problems . . . [m] any times

. . . before." Id. at 119-21. Accordingly, ?based on reasonable medical probability,?

Dr. Dillen opines ?that the arthroscopy . . . would be a reasonable and necessary

procedure for the treatment of the injuries that? he has related ?back to? the collision

on ?February 1 7'h, 2010.? Id. at 123.

        Dr. Dillen also testified that, when he met with Appellant on February 27,

2013, Appellant ?indicated to me he's 36 years old and has problems with his left

knee that began at the time of a motor vehicle accident on February 1 7th, 2010. He

told me that at the time of' that collision, ?he was a seat belted driver of a car

traveling between 50 and 55 miles per hour down a highway. His vehicle was hit

from . . . the rear by a truck. He wasn't able to brace for impact. It was a five-car

pile-up that was started by the truck. His airbags deployed. His vehicle was totaled.

He did not recollect clearly how his left knee was injured during that accident. He

indicated that prior to that accident, he had never had problems with his left knee,


Appellant's Brief/bn                                                              Page 40
never had a prior injury,? or "seen a doctor or missed a day' s work because of his left

knee problems. He indicated to me that his pain did begin at the scene of the accident

and continued despite being in therapy three times a week. Frequently, since the

accident, he has also undergone a single steroid injection in his knee without long-

term benefit. His pain was located over the outer . . . lateral . . . side of his knee . . .

and was not really associated with any mechanical symptoms other than some

catching or popping, which did a couple of times a month, and that it would buckle

when walking. He told me that he had seen two other doctors. The first doctor he

saw did not think he needed anything interventionally performed. The second doctor,

Dr. Taba, believed he needed a surgical procedure on the left knee. But he told me

that Dr. Taba's practice closed during the course of his treatment, so he continued

without being operated? on. Id. at 116-17. This is the requisite ?expert testimony,

based upon reasonable medical probability,? which "connected the? collision ?to the

injuries found,;? therefore, this Court of Appeals should find that Appellant met his

burden to demonstrate causation. Orkin Exterminating Co., Inc. v. Davis, 620 S.W.2d

at737.


        In Banda, the Third District Court of Appeals explained that such expert

?testimony? can ?establish the extent or severity of the pain or impairment that?

Appellant ?would, with medical probability, continue to suffer as a result of those


Appellant's Brief/bn                                                                  Page41
injuries? which he sustained in the collision ?after his initial treatment phase is

complete. Consequently,? a " jury? would have "legally sufficient evidence on which

to base? its?damage awards as to? Appellant's "injuries.? Tex. Dep't of Transp. v.

Banda, 2010 Tex. App. LEXIS 10316 at 14.

        However, Dr. Dillen admits, ?In this case,? he cannot ?tell the jury? if

Appellant ?hurt his knee in the? first ?impact when? he was ?rear-ended and . . . his

car? was forced ?to move forward,? ?in the second impact when the front of his car

hit the vehicle in front of him,? or when he was rear-ended a second time ?two or

three seconds later, . . .? C.R. at 67-68. As a result, he "can't distinguish as to who

was responsible for the impact,? which caused Appellant' knee injury. Id. at 70.

Likewise, ?if,? different people were "driving both vehicles that were behind him,?

Dr. Dillen ?can't tell the jury in this case which individual is responsible for his knee

injury, . . . because? he does not ?know which one did it.? Id. at 68. Consequently,

Dr. Dillen "can't tell . . . the jury . . . whether? the "tears in? Appellant's ?lmee . . .

were the result of what Mr. Wolfe did as opposed to what? Appellee did;? even

though Dr. Dillen believes, based upon reasonable medical probability, that he

sustained those tears in his la?iee in the February 17, 2010 collision Id. at 69 & 119.

        As a result, this Court should find that the evidence sufficiently proves ?a

reasonable probability . . . that? the February 17, 2010 chain collision and Appellee' s


Appellant's Brief/bn                                                                 Page 42
negligent conduct at the beginning of that chain ?contributed to? Appellant's

?claimed injuries . . .? Smith v. Sw. Bell Teleph. Co., 101 S.W.3d 698, 702 (Tex. App.

- Fort Worth 2003, no pet.), citing Waltrip v. Bilbon Corp., 38 S.W.3d 873, 883 (Tex.

App. - Beaumont 2001, pet. denied).

        In a 2002 ell banc opinion, the First District Court of Appeals held, ?A jury

may decide the required causal nexus between the event sued upon and the plaintiff' s

injuries when

        (l) general experience and common sense will enable a lay person
               fairly to determine the causal nexus,
        (2) expert testimony establishes a traceable chain of causation from
               injuries back to the event, or
        (3) expert testimony shows a probable-cause nexus.

Coastal Tankships, US.A., Inc. v. Anderson, 87 S.W.3d at 603(emphasis original),

citing Weidner v. Sanchez, 14 S.W.3d 353, 370 (Tex. App. - Houston [l4'h Dist.]

2000, no pet.) and Blankenship v. Mirick, 984 S.W.2d 771, 775 (Tex. App. - Waco

1999, pet. denied). This Court should find that Appellant has provided evidence of

"the required causal nexus? which falls under each of these three categories. Id.

        In response to Appellee ' s Interrogatory No. 8, Appellant stated that, ?as a result

of the? collision ?in question;? he ?was unable to work for 4 days due to the injuries

he sustained in this? collision, ?missed 32 hours? of ?work and was earning $10.50

per hour at that time, for a total of $335.00 in lost wages.? C.R. at 47.


Appellant's Brief/bn                                                                  Page 43
        "Based on? this "record,? this Court of Appeals should "conclude there? is

?sufficient evidence to support the submission of' Appellee ?as a responsible . . .

party and to have the trier of fact determine? his ?negligence and? his ?proportionate

responsibility for the harm claimed by? Appellant. Tex. Dep't of Public Safety v.

Boswell, 2007 Tex. App. LEXIS 7152, 14 (Tex. App. - Corpus Christi, no pet.)

(memo. opin.), citing TEX. CIV. PRAC. & REM. CODE ANN. 33.003(a)(4) &

(b)(Vernon Supp. 2006).

        The evidence cited and quoted above raises a genuine and material fact

question regarding whether Appellee had a duty to exercise reasonable care while

driving the tractor-trailer to act as a reasonably prudent driver of a commercial

vehicle on February 17, 2010 would have done under the same or similar

circumstances, which he breached and thereby proximately caused Appellant's

injuries and resulting damages because ?the negligent" conduct of Appellee "was a

substantial factor in bringing about? Appellant's ?injury, without which the harm?

which he suffered ?would not have occurred? and because Appellant's injury while

stopped in his car due to traffic in front of him ?was foreseeable? or reasonably

should have been foreseeable to Appellee. Alamo Lumber Co. v. Pena, 972 S.W.2d

800, 806 (Tex. App. - Corpus Christi 1998, pet. denied), citingLeitch v. Hornsby, 93 s

S.W.2d at 118 and Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d at 477.


Appellant's Brief/bn                                                            Page 44
        Because Appellant attached ?evidence as to what actually happened and how?

he ?was injured" and thereby ?provided . . . evidence linking? the incident in question

and his "injuries to? what Appellee "did or failed to do,? this Court of Appeals should

find that Appellant met his burden ?to bring forth . . . evidence as to the element of

causation.? Patino v. Complete Tire, Inc., 158 S.W.3d 655, 661 (Tex. App. - Dallas

2002, pet. denied), citing TEX. R. CIV. PROC. 166a(i).

        Since Appellant produced ?sumrnary judgment evidence raising a genuine issue

of material fact . . . on? each of the"essential? elements "of' his negligence claims

challenged in Appellee' s no-evidence "motion,? the trial court erred when it granted

Appellee's "motion? on Plaintiff' s negligence claims and causes of action. TEX. R.

CIV. PROC. 166a(i).

        Based upon this testimony and ?evidence,? this Court of Appeals should also

find that ?reasonable and fair-minded jurors? could ?differ in their conclusions?

regarding whether Appellee' s breach of his duty to Appellant proximately caused or

contributed to Appellant's injuries sustained in the February 17, 2010 collision and

his resulting damages. Herrmann v. Goff Custom Homes, L.P., 2013 Tex. App.

LEXIS 10717, 3-4 (Tex. App. - Dallas, no pet.)(memo. opin.), citing Hamilton v.

Wilson, 249 S.W.3d 425, 426 (Tex. 2008)(per curiarn). This Court of Appeals should

additionally find that, since Appellant met his burden to "bring forth evidence


Appellant's Brief/bn                                                             Page 45
sufficient to prove the existence of a genuine issue of material fact with regard to?

this element? challenged by? Appellee in his no-evidence motion, the trial court

reversibly er?ed in granting Defendant's ?motion? on Appellant's claim or cause of

action for common law negligence or any related claim. TEX. R. CIV. PROC.

166a(i); Stewart v. Sanmina-SCI Corp., 156 S.W.3d 198, 205 (Tex. App. - Dallas

2005, no pet.), citing Centeq Realty v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

        B. The trial court committed reversible error when it failed to find that
                 Appellee failed to conclusively prove that his conduct did not
                 proximately cause Appellant's iniuries.

                 Appellant realleges all of the foregoing.

        This Court of Appeals holds that Appellee ?has the burden of showing that no

genuine issue of material fact exists? that "at least one element of the plaintiff's

theory of recovery? is disproven "and that it is entitled to judgment as a matter of

law.? Biaggi v. Patrizio Rest. Inc., 149 S.W.3d at 303, citing TEX. R. CIV. PROC.

1 66a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d at 548; and City ofHouston v.

Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). This Court of

Appeals also holds, ?In deciding whether there is disputed material fact issue

precluding summary judgment, evidence favorable to? Appellant ?will be taken a true

and every reasonable inference must be indulged in favor of' Appellant ?and any

doubts resolved in? his?favor.? Biaggi v. Patrizio Rest. Inc., 149 S.W.3d at 303,


Appellaiit's Brief/bn                                                          Page 46
citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d at 548.

          Appellant objected to Appellee's reply to Appellant5s response to Appellee's

summary judgment motion fi led in the trial court on February 26, 2014 and the new

evidence, legal authority, and argument contained in that reply, rather than in

Appellant's motion. C.R. at ?52-77. Specifically, in the Exhibit B attached to

Appellee's motion are pages 1-3, 36, 50, 63, 69, 72, and 89-92 of Appellant's

deposition. Id. at 51-63. The Exhibit A attached to Appellee's reply includes pages

35, 61 and 79 from Appellant's deposition. Id. at 163, 165, & 166. The Exhibit B

attached to Appellee's reply includes a plain photocopy of Appellant's written

statement. Id. at 171-75. The trial court, therefore, should have sustained Appellant' s

objection and stricken most of that reply, as well as that new evidence. Id. at 159.

          Additionally, in Section V of his objections to Appellee' s reply to Appellant' s

summary judgment response, Appellant explained why the trial court should not

follow the 'Ninth District Court of Appeals5 Walter opinion, upon which Appellee

greatly relies in both his motion and his reply. Id. at 179-80. In addition, Walter has

no writ history and has never even been cited in a subsequent appellate opinion.

Walter v. Box, 2007 Tex. App. LEXIS 3191 (Tex. App. - Beaumont, no pet.)(memo.

opin.).

          In addition, this Court of Appeals notes, ?The Texas Proportionate


Appellant's Brief/bn                                                                 Page 47
Responsibility Act? is located in Chapter 33 of the Texas Civil Practice & Remedies

Code. Biaggi v. Patrizio Restaurantlnc., 149 S.W.3d at 304 & n. s, citing TEX. CIV.

PRAC. & REM. CODE ANN. §3 3.001 (Vernon 199 7). That Act specifically requires

"[t]he trier of fact,? to "deterrnine the percentage of responsibility, . . . for . . . each

claimant; . . . defendant; . . . settling person; and . . . responsible third party,? provided

there is "sufficient evidence to support the submission? of each of those persons ?to

the jury . . .? TEX. CIV. PRAC. & REM. CODE ANN. §33.O03(a) & (b)(Vernon

2008). This Court of Appeals recognizes that this determination may not be made by

this Court in a summary judgment proceeding. Biaggi v. Patrizio Restaurantlnc., 149

S.W.3d at 305.


        This Court of Appeals further holds, "The plaintiff may not recover? only ?if

the factfinder determines that the plaintiff's conduct was more than fifty percent

responsible for the harm.? Biaggi v. Patrizio Restaurant Inc., 149 S.W.3d at 305,

citing TEX. CIV. PRAC. & REM. CODE ANN. §33.OO1 . In other words, ?[i]f the

negligence of ' more than one party ?proximately caused the injuries, then the parties '

relative share of responsibility would have to be determined? by the trier of fact.

Biaggi v. Patrizio Restaurant Inc., 149 S.W.3d at 3 09 n. 12, citing TEX. CIV. PRAC.

& REM. CODE ANN. §33 .003. The Supreme Court likewise holds that "the trier of

fact? is required ((Io determine the percentage of responsibility attributable to each of


Appellant's Brief/bn                                                                    Page 48
the parties involved in causing the injury.? Smith v. Sewell, 858 S.W.2d 350, 356

(Tex. 1993).

        More recently, the Supreme Court explained that the parties "found liable for

these tortious acts are subject to the general proportionate responsibility scheme? and

"are responsible for the proportion of damages they cause or contribute to cause, as

set forth in the Proportionate Responsibility Act.? F.F.P. Operating Partners, L.P.

v. Duenez, 237 S.W.3d 680, 692 (Tex. 2007), citing TEX. CIV. PRAC. & REM.

CODE ANN. §3 3 .003. In Duenez, the Supreme Court then added that ?we leave this

determination to the fact-finder imbued with 'constitutional authority to weigh

conflicting evidence.?' F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d at

693, citing Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 913-14 (Tex.

2004)(Jefferson, C.J., dissenting).

        This is substantially the same argument which Appellant made in Section II of

his objections to Appellee's reply to Appellant's summary judgment response. C.R.

atl77.


        As in Biaggi, this Court of Appeals should ?hold that? Appellee ?failed to show

that proximate causation? by his conduct ?was extinguished as a matter of law.

Instead, any claim that? Appellee's negligence contributed to? Appellant's "injuries

must be evaluated under the Texas Proportionate Responsibility Act. Accordingly,?


Appellant's Brief/bn                                                              Page 49
this Court of Appeals should ?reverse the trial court's summary judgment for?

Appellee ?and remand for proceedings consistent with this opinion.? Biaggi v.

Patrizio Restaurant Inc.. 149 S.W.3d at 310.
                          as




        Furthermore, this Court of Appeals' Byrd opinion found that the First Court of

Appeals' Anderson and the Fourteenth District Court of Appeals' Praytor opinions

?identified . . . multiple causes? of an ?injury? and still found that ?general experience

and common sense could allow a lay person to determine causation.? Byrd v.

Delasancha, 195 S.W.3 d at 839, citing Praytor v. Ford Motor Co., 97 S.W.3 d at 241

and Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d at 603 n. 23. Actually,

those opinions discussed indivisible injuries and held that a jury is competent to

resolve liable for them. In a 2009 opinion, the Sixth District Court of Appeals found

that the Supreme Court previously held, ? Where the tortious acts of two or more

wrongdoers join to produce an indivisible injury, that is, an injury which from its

nature cannot be apportioned with reasonable certainty to the individual wrongdoers

. . . the injured party may proceed to judgment . . . against all in one suit.?' In re Liu,

290 S.W.3d 515, 524 (Tex. App. - Texarkana 2009, no pet.), quoting Landers v. E.

Tex. Salt Water Disposal Co., 248 S.W.2d 731, 734 (Tex. 1952).

        In Anderson, the First Court of Appeals recognized that "many things are not

or cannot be known with absolute certainty,'5 found that ?alternative causes' . . .


Appellant's Brief/bn                                                                 Page 50
"affect the weight that the jury should give the expert's testimony and not the

admissibility of that testimony,? ' " and affirmed,? (Disputed facts may be established

by circumstantial or direct evidence. Absolute certainty is not required. Nor must the

plaintiff exclude every other possibility. All that is required before there can be a

finding of ultimate responsibility is proof of a causal connection beyond the point of

conjecture or mere possibility.?5 Coastal Tankships, US.A., Inc. v. Anderson, 87

S.W.3d at 605 n. 25, quoting Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 202 (4'h

Cir. 2001) and Westberry v. Gislaved Gummi AB, 178 F.3d 257, 265 (4'h Cir. 1999).

The First Court of Appeals found that, ?when the proof discloses that a given result

may have occur?ed by reason of more than one proximate cause, . . . the submission

of?' each tortfeasor ?'to the jury?' is proper, so long as there is sufficient causation

evidence ?and the jury?' does not have to merely ?'guess or speculate as to which is

in fact, the efficient cause, . . .?' Coastal Tankships, US.A., Inc. v. Anderson, 87

S.W.3d at 605 n. 25, quotingLenger v. Physician's Gen. Hosp., Inc. , 455 S.W.2d 703,

706 (Tex. 1970).

        Likewise, in Praytor, the Fourteenth Court of Appeals found that, in

determining the cause of "the plaintiff's injury,? the ?testimony? must ?present

reliable evidence of causation.? Praytor v. Ford Motor Co., 97 S.W.3d at 244-45,

citing Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 706 (Tex.


Appellant's Brief/bn                                                              Page51
1997).

         In Liu, the Texarkana Court of Appeals refused to conclude that ?the trial court

abused its discretion by submitting ?the multiple alleged tortfeasors . . . to the same

jury? due to ?the close temporal proximity of the moments when the defendants

allegedly injured Woods, the high degree to which these claims involve the same

facts and issues, and the interwoven proof of damages . . .? In re Liu, 290 S.W.3d at

524, quoting Landers v. E. Tex. Salt Water Disposal Co., 248 S.W.2d at 734.

         In a 1983 Supreme Court opinion, the two plaintiffs were injured when using

a paint primer when a fire started, and ?[n]one of the witnesses could identi'fy the

exact ignition source.? Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 62 (Tex. 1983).

The Supreme Court found, "'Although no witness could conclusively state that the

product was the cause, the jury could have made that determination from

circumstantial evidence. The testimony indicates that Cono/Prime X, as designed,

was a 'very flammable mixture,' which was being applied inside the tank, as

Con/Chem intended, when the fire occurred. We hold that the evidence was

sufficient to submit the issue to the jury.? Id. at 63.

        In a 2007 opinion, the Thirteenth District Court of Appeals found that the

plaintiffs "sued three defendants for causing Mr. Moran' s death. One defendant was?

the manufacturer of "the seat belt buckle in Mr. Moran' s Dodge Caravan? and another


Appellant's Brief/bn                                                               Page 52
was ?the manufacturer of the Dodge Caravan, . . . asserting claims? against both of

those defendants ?for strict products liability based on a design defect in the seat belt

buckle. The third defendant . . . was . . . the driver of the automobile that collided


with Mr. Moran's automobile,? who "the Plaintiffs . . . sued . . . for negligence,

alleging that he caused the accident in which Mr. Moran was killed . . . [Even though]

no expert could say how the seat beat buckle became inadvertently released . . . [t]he

case was tried to a jury,? which, ?[i?n a comparative responsibility question, . . . found

that Mr. Moran' s death was 99% attributable to the defective seat belt buckle and 1 %


attributable to the negligence of' the other driver. AlliedSignal, Inc. v. Moran, 231

S.W.3d 16, 21 (Tex. App. - Corpus Christi 2007), judgm't vacated w/o re.ference to

the merits due to a settlement, DaimlerChrysler Corp. v. Moran, 2008 Tex LEXIS

421 (Tex. 2008). The Corpus Christi Court of Appeals concluded ?that a reasonable

and fair-minded juror could reasonably infer causation based on the circumstances

of the? collision ?and the existence of a design defect that rendered the seat belt

buckle unreasonably susceptible to inadvertent release.? Id. at 23. The Thirteenth

Court of Appeals explained, "We believe that based on this evidence rational juror

could reasonably reach different conclusions on whether the defect was a producing

cause of Mr. Moran' s death . . . The existence of conflicting evidence does not render

the evidence supporting the jury's verdict factually insufficient . . . To the contrary,


Appellant's Brief/bn                                                                Page 53
when there is conflicting evidence, the jury's verdict is generally regarded as

conclusive.? Id. at 31, citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 75 7,

761-62 (Tex. 2003) and Beall v. Ditmore, 867 S.W.2d 791, 796 (Tex. App. - El Paso

1993, writ denied). The Corpus Christi Court of Appeals added, ?Texas Rule of Civil

Procedure 277 explains how proportionate responsibility questions are to be

submitted to the jury:? and emphasized that ?the jury must make specific findings of

culpability before apportioning loss between parties? and/or ?products.? AlliedSignal,

Inc. v. Moran, 231 S.W.3d at 37-38, citing TEX. R. CIV. PROC. 277.

        An article in the Nov 2011 edition of the Texas Law Review discussed?[a]

motorist? being ?suddenly rear-ended while stopped at an intersection" and then his

?car? being ?struck again by another vehicle. The motorist is injured in this series of

event and now seeks recourse in the legal system. . . . Negligence law requires the

plaintiff to tie the specific injuries alleged in the suit to the specific events created by

the negligent actor. That task will be very difficult in this case, however, because it

will be nearly impossible for the plaintiff to attribute some specific injuries to the first

wreck and attribute other specific injuries to the second wreck. Is the motorist simply

out of luck? The law has answered this question in the negative and has created an

exception to the rule for these situations,? which ?occurs when the plaintiff is able to

prove that he suffered 'indivisible injuries?' and "is known as the 'single indivisible


Appellant's Brief/bn                                                                  Page 54
injury rule,' . . ." Raupp, THE M{?JLTIPLICATION OF INDIVISIBLE INJURY, 90

Tex. L. Rev. 259 & n. 3 (Nov., 2011 ed.). Mr. Raupp5s article explains that "the

indivisible injury doctrine,? operates ?as an exception to the causation component of

damages? and ?rescues the plaintiff from the position of not being able to recover

simply because he happened to encounter two negligent actors instead of one.

Additionally, it prevents the tortfeasors from escaping Iiability for their negligent acts

simply because the hapless plaintiff was inj ured a second time.? Id. at 261. However,

Mr. Raupp states that ' it is important to read the indivisible injury doctrine narrowly,?

as ?[t]he key aspect of the doctrine is 'the impossibility of definitely attributing a

specific injury to each collision.?5 Id. at 279, quotirtg Barlow v. Thornhill, 537

S.W.2d 412, 419 (Mo. 1976). Mr. Raupp found that Texas has a ?currently modified

(51 %)? system of "comparative fault? and that ?the plaintiff would be permitted to

collect from both defendants because the plaintif:f" s fault percentage did not rise to

the requisite (50% or 51%) level to bar recovery.? Id. at 272-73, citing TEX. CIV.

PRAC. & REM. CODE ANN. §33.OO1(West 2008).

        Based upon all of the foregoing, this Court should find that Appellee is

incorrect when he argues on page 8 of his motion that Appellant has no evidence that

he suffered any injury as a result of the impact allegedly caused by Appellee and that,

as a result, Appellee is entitled to summary judgment as a matter of law.


Appellant's Brief/bn                                                                Page 55
        Similarly, based upon what is stated and proven in Appellee's motion, in

Appellant's response, in Appellee's reply, and in Appellant's objections and reply,

this Court should find that Appellee failed to meet his statutory burden to

conclusively prove that ?there is no genuine issue as to55 the "material fact? regarding

whether his conduct did not proximately cause Appellant' s injuries, which precludes

any "judgment as a matter of law on? that issue ?expressly set out in? Appellee's

traditional "motion . . .? TEX. R. CIV. PROC. 166a(c).


                                    CONCLUSION


        The trial court abused its discretion when it sustained Appellee' s objections to

Mr. Wolfe ' s and Mr. Jaquez' sinterrogatory answers filed in opposition to Appellee ' s

summary judgment motion and struck them from the summary judgment record. C.R.

at 83-89, 128-30, 176, 180, & 203; App. 1. This Court of Appeals should find that

the trial court' s ruling probably caused the rendition of an improper Judgment, since

those interrogatory answers make it clear that Appellee could not meet his burden in

his traditional motion to conclusively prove that his colliding the tractor-trailer rig

which he was driving into the rear of Mr. Wolfe's pickup was not the only reason

Appellant' s car got rear-ended twice in the s-vehicle chain collision on February 17,

2010 and not the only reason Appellant sustained injuries in that collision. C.R. at 83 -

89. The improper Judgment was the trial court' s Order granting Appellee ' s summary
Appellant's Brief/bn                                                                Page 56
judgment motion. Id. at 204-05; App. 2.

        Without those interrogatory answers, Appellee could not meet his burden in his

traditional motion to prove that Appellant' s negligence claims and causes of action

against him fail as a matter of law, specifically, that Appellant could not prevail in his

negligence claim because there was no material fact question that the causation

element of that claim failed.


        In addition, the trial court committed reversible error when it failed to find that

Appellant produced more than a scintilla of competent evidence proving that

Appellee's negligence conduct proximately caused or contributed to Appellant's

injuries sustained in that February 17, 2010 collision, which is the only element of

Appellant's negligence claims challenged in Appellee's no-evidence motion.

        Consequently, the trial court committed reversible error when it signed the

Order granting Appellee's summary judgment motion. Trail Enterprises, Inc. v. City

of Houston, 957 S.W.2d 625, 630 (Tex. App. - Houston [l4'h Dist.] 1997), cert.

denied, 525 U.S. 1070 (1999), citing Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.

1983) and City of Houston v. Clear Creek Basin Auth., 589 S.W.2d at 678; App. 2.

        This Court of Appeals should, therefore, ?reverse? both of those Orders,

?render the judgment that the trial should have rendered; . . . and remand the case for?

a new trial. TEX. R. APP. PROC. 43.2(c) and (d), 43.3, and 44. 1(a)(l); App. 1-2.


Appellant's Brief/bn                                                                 Page57
        WHER?EFORE, PREMISES CONSIDERED, Appellant prays that this Court

of Appeals find that the trial court abused its discretion when it sustained Appellee' s

objections to Mr. Jaquez's and Mr. Wolfe's interrogatory answers attached to

Appellant's response to Appellee's summary judgment motion and struck those

interrogatory answers from the summary judgment record, that that ruling probably

resulted in the improper granting of a summary Judgment for Appellee, and that that

Order should be reversed.


        Appellant also prays that this Court of Appeals find that the trial court

committed reversible error when it granted Appellee's summary judgment motion,

reverse that Order, and remand this case to the trial court for a new trial.

        Appellant further prays for such other and further relief to which he may be




Appellant's Brief/bn                                                              Page 58
justly entitled at law or in equity, specific or general.

                                         Respectfully submitted,

                                         LAW OF',];ICESeF
                                                        eF DOMINGO A. GARCIA, p.c.
                                                            i



                                                                   ',,


                                         By:           .;                ')
                                                Dorr>tngo A. ?ia
                                                Sta,ie Bar Noi O/263 1950
                                                Albert Villeffs
                                                State Bar No. 20585450


                                         600 Bank of America Twr. - Oak Cliff
                                         400 S. Zang Blvd.
                                         Dallas, Texas 75208
                                         Telephone: (214) 941-8300
                                         Facsimile: (214) 943-7536
                                         Email: avillegas@dgley.com

                                         ATTORNEYS FOR APPELLANT




                         CERTIFICATE OF COMPLIANCE


        I hereby certify that this brief contains 10,595 words and, therefore, complies

with Rule 9.4(i)(2)(D) of the Texas Rules of Appdrlate Procedure.




                                                Albert '7ille!is
                                                                =t)

Appellant's Brief/bn                                                             Page 59
                           CERTIFICATE OF SERVICE


        A true and correct photocopy of this document was served upon the following

parties and counsel of record on February 13, 2015 by regular U. S. mail pursuant to

TEX. R. APP. PROC. 9.5(b) and (e):

Mr. Scott Smith
Smith, Smith & Smith, L.L.P.
310 W. College St.
Terrell, Texas 75160
Attorneys for Appellee BRUCE ALAN DOTS ,
D/B/A DOTSY TRUCKI1%JG SERVICE.




                                             Albe,;rt Villegas




Appellant's Brief/bn                                                          Page 60
                                               APPENDIX


Order on Defendant Bruce Alan Dotsy d/b/a Dotsy Trucking
Service's Objections and Motion to Strike Plaintiff' s Summary
Judgment Evidence, which was signed on March 3, 2014 . . . . . . . . . . . . Appendix 1

Order on Defendant Bruce Alan Dotsy d/b/a Dotsy Trucking
Service's Motion for Summary Judgment Evidence, which was
signed on March 3, 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 2

Order Denying Plaintiff' s Motion for Reconsideration of Defendant
Bruce Alan Dotsy d/b/a Dotsy Trucking Service's Motion for
Summary Judgment, which was signed on March 27, 2014 . . . . . . . . . . Appendix 3

Order for Severance of Actions, which was signed on May 1, 2014 . . . . Appendix 4




Appellant's Brief/bn                                                                                   Page61
APPENDIX ? 1 ?
                                                                                             FILED

                                                                                             5]1412014 9224:15 AM

                                                                                            JOHN F. WARREN

                                                                                             COUNTY CLERK

                                                                                            DALLAS COUNTY

                            CAUSE NO. CC-l 1-06020-D

 LABERTA.N0 MARTINEZ, JR.                  fi      IN THE COUNTY COURT
                                           fi
 VS.                                       G
                                               S

 BRUCE. ALAN DOTSY, ROBERT                 g
 EDISON, ETS TRUCKIiNG co.,                g
 JOHN BYRON SVOL.FE JR., JUAN              G
 O[)STA O JAQUEZ, RUBEN 2=.=10NREAL        S
                                           's
 A?ND LUCINDA VELAZQUE.Z                   O
                                           G
                                           G
 JUAN JAQUEZ,                             !R
                                          ?

       Pkaintiff                          fi
                                          G
 V.                                       !J
 BRUCE A. DOTSY, n%TDJVJDUALLY,       s
and BRUCE A. DOTSY di'bia             G
DOTSY TRUCKING SER1'ICE;              g
                                           Q
                                          '8

                                          s
JOHN WOLFE,                               f
              Plaintiff                   G
                                          G
V.                                        G        AT LA,V NO. 4
                                          G
BRUCE DOTSY,                          G
              Defendant.              G
                                      fi
                                      g
RtJBEN MONREAL,                       ,S

                                      =S
              Plaintiff               G
                                      G
V.
                                      O
                                      G
BRUCE ALAN DOTSY d-'b/a DOTS          6
TRUCKING SERVICE, JOHN BYRON          G
WOLFE ]}k., -AND JUAN GUSTAVO         S

-TAQUEZ                               v
                                      §
       DEFENDANTS.                    s
                                      4
                                                       C(,-11-08020-D
                                                       COFIDER
                                                       l)IIDEFI -
                                                       47[lG93


                                                       Illilllllllllllllllllllllilllll   Page 202
 GO VERNMENT EMP.L,OYEES                          6
 INSURANCE COMPANY                                G
                                                  g
'V.                                               g
                                                  S
                                                  b
.TOHN 1X'OLFE and BRUCE DOTSY                    G             DALL,AS COUNTY, TEXAS


        ORDER ON DEFENDA.NT BRUCE ALAN DOTS'i' d/b/a DOTSY TRUCKIiNG
      SER!'ICE'S OBJECTNONS AiND MOTION TO STRIKE PLAINTIFF'S SUA'LMARY
                                    JUDGMENT EVIDENCE

         On March 3, 2014, came on to be heard Defendmit, BRUCE ALAN DOTSY d/b/a

DOTSY TRUCKING SERVICE'S Objections and Motion to Strike Plaintiff's Surnmar>a
Judgmen( Evidence. The Cour(, afler reviewing (he pleading, Defendant, BRUCE ALAN
DOTSY d/b/a DOTS TRUCKLNG SERVICE'S Objections and Motion to Strikc Plaintiff's
Summary Judgment Evidence, t}ie evidence and the argument of counsel finds Dcfendant' s
objections should be sustained and Defendant's Motion to strike should be GRANTED, 2 Pk6
        IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendant's

ob?iections to Exhibits "A", "B", 't" and ?R', which are exhibits to Plaintiff's Response to
Defendant Dotsy's Motion for Summary Judgment, are hereby sustained, and Plaintiff's Bxhibits
"A", "B", "f<' and "M'are hereby stricken from the summary judgment rccord.
        Signed this   ->-a-i?                         ,2014.
                                                                        <'17           d 'i
                                                                      4%,



                                             M
                                             JUDGE ?a             =




                                                                                           Page 203
APPENDIX ?2?
                                                                                      FILED

                                                                                      5144120l4 9224:15 AM

                                                                                      JOHN F. WARREN

                                                                                      COUNTY CLERK

                             CAUSE NO. CC-] 1-06020-D                                 DALLAS COUNTY



 LABERTANO k=fARTtNEZ, JR,                   g    tN THE COUNTY COURT
                                             h
 VS.                                         q

                                             Q
                                             !a
 BRUCE ALAN DOTSY, ROBERT                    O
 E-D!SON, ETS TRUCKING co.,                  fi
 JOHN BYRON WOLFE JR., JUAN                  G
 GUSTAVO JAQUEZ, RUBEN MONREAL               g
 AND LUCINDA VELAZQUEZ                       g
                                             G
                                         s
                                         b
JUAN JAQUEZ,                             fi
                                        v
       Piaintiff                        fi
                                         G
'S/,                                    O
BRUCE A. DOTSY, INDIVLDUALLY,           v
and BRUC.E A, DOTSY d/b/a               g
DOTSY TRUCKING SERVICE;                 fi
                                         !S
                                         G
JOHN WOLFE,                              G
              Plaintiff                  'J
                                        G
1"-                                     b         AT LAW No. 4
                                        !?
BRUCE DOTSY,                            fi
              Defendant.                G
                                        fi
                                        G
RUBEN MONREAL,                          Q
                                        b

                                        H
              Plaintiff                 G
                                        v
V.                                      g
                                        fi
BRUCE ALAN DOTSY d,=b/a DOTSY          !i
TRUCKING SERVICE, JOHN BYRON           fi
WOLFE JR., AND JUAN GUSTAVO            §
JAQUEZ                                 s
                                       G
       DEFENDANTS.                     fi
                                                        CC-11-08020-D
                                       §                C8JD
                                                        C)RDER - suMMARY JuDaMEHT
                                                        475698


                                                        l l l l lil l l l l l l l !l l l l p.,oz
 GOVERNMENT EMPLOYEBS                               G
 INSURANCE COMPANY                                 '3
                                                   '}
V.                                                 v
                                                   b
JOHN WOLFE and BRUCE DOTSY                         !,            DALLAS COUNT , TEXAS


      ORDER ON DEFENDANT BRUCE ALA.]Q.pQTSY d/b/a DOTSY TRUCK[NG
         SERVICE'S MOTION FOR SUMMA,RY JUDGPllF?,NT E'Ti7IDENCE

        On Marcli 3, 2014, came on to be heard Defendan(, BRUCE ALAN DOTSY d/b/a

DOTSY TRUCKING SERVICE'S Motion for 8ummary Judgment. The Court, affer revicwing
the pleadiiigs, Defcndant BRUCE ALAN DOTSY d/b/a DOTSY TRUCKING SERVICE'S
Motion for Summary Judgtnem, (he evidence, and the argument of counscl, finds that there is no
evidence to support any c?airn against Defendant BRUCE ALAN DOTSY dt"bla DOTSY
TRUCKTNG SERVJCE arid thercfore Defendant BRUCE ALAN DOTSY dtb/a J)OTSY

TRUCK1'NG SERVICE'S Motion for Summary Judgment should be in all things GRANTED .
       IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that all claims against
Defendant, , BRUCE ALAN DOTS d/b/a DOTSY TRUCKING SERVICE are hereby

dismissed with prejudice to the refiIing of same and with all court costs to be paid by any party
incurring same.

       =-=-=-3-= dm=4                                   ,2014.



                                                                 ?
                                             JUD
                                                                 477
                                                                 .




                                                                                            Page 205
'-d
m

g
P
(JJ
                                                                                                           FILED

                                                                                                           5/"14/2€H4 9i24:15 AM

                                                                                                           JOHN F. WARREN

                                                                                                           COuNTY CLERK
                            }



                                                                                                           DALLAS COUNTY

                                         ('Al 'SE NO. CC-l 1-o€i020-I)

LAl3ERTANO f'vlAR'lalNE;/. .fl'(.                         6       IN Trlr: C.OIJN'l-'i' COL)R-l-
                                                          S
                                                           ,i

VS.                                                       S

                                                           'i
                                                       S
I?RUCI?: .oSl .AN [iOTSY? ROBr?Rl-                        %l


LDISON. l:TS TRt.lcKlNG CO..                           S

JOI JN B 'i'RON }VOL.PlE ,1 r<-, .I U AN               S
                                                       S

GL)STAVO MQL?I':Z. RUB]EN PvlONRE,'il.                 ;<
.?!ND Llf(lNJli'i Vl51./'y;/.QU[€X                     §
                                                       k



Jt,I,AJ)-' .lf',QUEZ,                                 %

         l)luintill-                                  S
                                                      S

                                                      S

%a,

BRU(?'F.A l)OlS'i'-INL)l'lllDlt.AI-].Y-               S
an<l BR(KT A. l?)OT.S'i' d-'b'a                       S
[)Ol'SY aJ-RUC'K[N(i SER 'i'l(.'E:                    S

                                                      S
                                                      !1


.lOilN WOLF[;.                                        S
                                                       'i

                   l)]aiiitilT                         Q

                                                       'i

1',
                                                      S           A-r l.aSS%' N(,). 4

r3RUcE DOTSY,                                          'i
                                                      'S

                   l)c[cndant.


                                                      §
RUBEN M(?)NREAI,,                                     S

                                                      .,:5
                  l-)lainlilla                        S?




1.



HRtj('t ;1[.AN 00-IaS Y cl;b;a lXl'laS Y              §
aJoR( !CKIN(j S LER S' I(.'E, ,101 rN B 'i'R( )N
WOl.l?l( ,tr<,, A:4D ,IO.'iN (il!S'laAVD              S
                                                      'i

.lAQtlE/:                                             S
                                                      :5,
         J)EFENI)ANarS.                               Q
                                                      S
                                                                         CC-11 -fl802(l-D
                                                      N                  CORD
                                                                         ORDEFI - [)ENYlNa
                                                                         agogsi


                                                                         l il Ml lil l !111111111!11111   Page 206
GOVERiNMENl' EMPI-0 EES                                S
                                                       b
?NSURANCE COMt),-INY                                   !5
                                                       S
                                                       h
V.                                                     %
                                                       (S
                                                       !t
.10HN WOLFE and BRUCE DO'l?SY                          #             DAI-L-AS C(.)UNI-Y. TEX.AS



      ORI)ER DENYtN(ii':.LAtNTlj?F'S MO1'?ON FOR RKCONSII)ERA?ION OF
     DEFENDANT BRUCE ALAN l)O:'T?S,Y,,',,';' (l/b/a DOTSY TRUCKJNC SEl?S'lCE'S
                              MOTI(iN FOR SUMMARY ,mm-;MF,NT


        (.)n the 24"' day of Mai-cli 2014, came on (o be )iearcl Plainlifr S Motion ror

Recoi'r;>deratioii ot Defendant Brucc Alall l)ots}'s d/b/a Dots} l-rucking Sci-vice's !('loti0n .lo(T

Sumn'iary Judgmcm. Tlie C:o?ir? haviiig ccrnsidered sarnc iiixd the arg?iincm of-c.o?insel rinds shc

said motion sho?ild be iii all things l)HNIF.l)?

        ]T IS 1-[-IEREFORE (')RDERr3D- t{D.Jt3r)GED. iS'ND r)F':CRr;r:D lha( Plaimifl-s &lotiori

ror Recc'+nsidet-aiioii oll)eFeiidant r3r?ice ,Alaii l)ols'>'s d/b}a Dotsy l'r?icking Ser;ice'; :'izlotioii ror

Susnmai)i .ludgment is hereby dcnied.



        IT IS 80 0RDEREI)-




                    .,a?z...,, ,a,&J
        Sigiied llii:                                       2014.




                                                                         7
                                                                                             /
                                                            L


                                                   .n?;ix;b pi:tbsi?,7'




                                                                                                          Page 207
'-6
l:t
g
P
A
RUBEN MONREAL,                                  CC-14-0233'l-D                                                                              FILED
                                                                          IN THE COUNTY COURT                            5/lj4/2014 9:24:15 AM
      04}29/2014 TUE 13i21 FAX 972 698 0900 Smith, Smith, & Smith                                                  Qoo4a7a0'!l'ffix j'.-,wamffii'x
PLAINTIFF,
                                                                                                                               couiqjy CLERK
VS.                                                                       AT LAW No. 4                                       DALtAS 'COUNTY

BRUCE ALAN DOTSY D/B/A DOTSY TRUCKING SERVICE

DEFENDANT.                                                               DALLAS COkmTY, TEXAS
                   THIS CASE 15 SEVERED FROM: CAUSE NO. CC-11 -06020-D

               LABERTANO MARTINEZ, JR.                        g    IN THE COUNTY COURT
                                                              v
              VS.                                             g
                                                              b
              BRUCE ALAN DOTSY, ROBERT                        v
              EDISON, ETS TRUCKING co.,                       s
              JOHN BYRON WOLFE JR., JUAN                      fi
              GUSTAVO JAQUEZ, RUBEN MONREAL                  G
              ANT) LUCINDA VELAZ,QtJEZ                        G
                                                             #
                                                             'J
              JUAN JAQUEZ,                                  fi
                                                            '}
                        Plaintiff                           'j
                                                            ?
              V.                                          '}
              BRUCE A. DOTSY, rNDrViDUALLY,               g
              and BRUCE A. DOTSY d/b/a                    g
              DOTSY TRUCK?NG SERWCE;                      G
                                                          V
                                                          g
              JOHN WOLFH,                                 b
                               Plaintiff                  b
                                                          s
              V.                                          v        AT LAW No. 4
                                                          g
              BRUCE DOTSY,                               v
                               Defendant.                G
                                                         '}
                                                         G
             RUBEN MONREAL,                              G
                                                         '}
                               Plaintiff                G
                                                        '}
             V.                                         '}
                                                        G
             BRUCH ALAN DOTSY d/b/a DOTSY               G
             TRUCKING SERVICE, JOHN BYRON               b
             WOLFE JR., AND JUAN GUSTAVO                G
             JAQUEZ                                     G
                                                        g
                       DEFENDANTS.                      G

                                                        1                 i:C-11-08020-D
                                                                          eV
                                                                          OROER - !)EVEFIANCE
                                                                          533200


                                                                          I I I I I I I I I I I NI I I I I I I I   Page 8
04/29/2014 TUE 13i24 FAX 972 698 0900 Srnith, Stnith, & Smith                                                 Qooszoog




                                     -fi
                                        '5
         GOVERNMENT EMPLOYEES           g
         rNSURANCE COMPANY              fi
                                        b
         V.                             b
                                        g
         JOI{N WOLFE and BRUCE DOTSY    b                              DALLAS COUNTY, TEXAS

                                  ORDER ,F OR SEVERANCE OF ACTIONS

                On the 28"' day of April, 2014, came on to be considered Defendm'it Bruce Alan Dotsy

         d/b/a Dotsy Trucking Service (?Dotsy") Motioyi foy Severance in the above-entitled and

        ntunbered cause. The Coiut after considering the pleadings and argument of counsel, is of the

         opinion that the Motion sho?ild be granted.

               ' IT IS T}iEREFORE ORDERED, ADJUDOED A?ND DECREED that the cause of action

        asserted by Plaintiff Ruben Monreal against Defendant Bruce Alan Dotsy d/b/a Dotsy Trucking

        Service be, and the same is hereby, severed from this action and made the subject of a separate

        action, and it proceed as such to final judgment or other disposition in this Court under the style
                                                                                                                             i.

        of Ruben Monreal vs. Bruce Alan Dotsy d/b/a Dotsy Truckin6 Service, and bear docket number

          CC-14-02331-D           upon payment of necessary costs by Bruce Alan Dotsy d/b/a Dotsy

        Trucking Service. The Clerk is fiirther ordered to include the following documents in said

        separate acLion:

                1. Plaintiff's Original Petition filed in original Cause No. CC-1 l-0876?3-C on
                       December 22, 2011;
               2. Dcfendant Bruce Alan Dotsy's First Amended Original Ansmr and Jury Dernand
                      filed in original Cause No. CC-1 1-08763-C on March 15, 2012;
               3. Defendant Bmce Alan Dotsy d/b/a Dotsy Tmcking Service's Motion for
                       Surnmaty Judgrnent fi)ed January 3 ] , 2014;
               4. Plaintiff'sResponsetoDefendant'sMotionforSummaryJudgmentfilcdon
                       Februxy 24, 2014;
                                                                                                                         :




                                                         ':l




                                                                                                              Page 9
       04/29/2014 TUE L3:24        rAx 972 698 0900 Smith, Smith, & Sn'ath                                           G!1006/006




                          s. Defendant Bruce Alan Dotsy, d/b/a Dotsy Trucking Service's Objections and
                                 Motion to Strike PlaintiFs sumtnary Judgment Evidence filed on February 25,
                                  2014;




                                                                                                                                        i
                          6.      Defendant Bmce Alan Dotsy d/b/a Dotsy Trucking Service's Reply to Plaintiff's
                                  Response to Defendant's Motion for Sumn'iary Judgment filed on February 26,
                                  2014;
                         7.      Plaintiff's Objections to Defendanl Bnice Alan Dotsy d/b/a Dotsy Trucking
                                 Service's Rep]y to Plaintiff's Response to Defendant's Motion for Summary
                                 Judgrnent and to Defendaiit's Objections and Motion to Strike Evidence attachcd
                                 to Plaintiff's Response filed on Febmary 28, 2014;
                         8. P1aintiff'sMotionforReconsidcrationofBruceAlanDotsyd/b/aDotsyTrucking
                                Service Judgment filed on March 1, 2014;
                         9. Order on Defendant Bruce Alan Dotsy d/b/a Dotsy Trucking Service's Motion for
                                Sumrnary Judgment Evidence signed by Judge on March 3, 20?4;
                          10.    Order on Defendam Briice Alan Dotsy d/b/a Dotsy Trucking Service's Objections
                                 and Motion to Strike Plaintiff" s Summary Judgment Evidence signed by Judge on
                                 March 3, 2014;
                         11. Or<ler Denying Plaintiff's Motion for ReconsideraCion of Defendant Bmce Alan
                                 Dotsy d/b/a Dotsy Tmcking Service's Motion for Sumrnary Judgment signed by
                                 Judge on March 27, 2014;
                         12. Defendant Bmce Alan Dotsy d/b/a Dotsy Trucking Service's Motion for
                                 Severance.


                         IT IS, FURTHER, ORDERED, ADJUD(JED AND DECREED that the separate

                 judgment entered in the severeA cause, such judgment to be final and to dispose completely of a?l




                                                                                                                                    I
                 of the issues between all the parties to said suit.

                         IT IS SO ORDERED.
                                                                                                   /




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                                                                                                                              %-.



SCOTT SMITH
                                                                       t71
BAR CARD No. 18613220
                                                                       .rti'oa?7"
SMITH, SMITH, &SMlTH, L.l.P.
3939 US HIGHWAY 80 E, SUITE 486
                                                                                      T
                                                                                                C,?z -A"
                                                                                                       '#
                                                       JESSICA GONZALES
MESQUITE, TEXAS 75150-3373
                                                       STATE BAR No. 24076-I 76
(972) 698-0999
FAX (972) 698-0900                                     LAW OFFICES OF DOMINGO GARCIA, F).c.
ATTORNEY FOR DEFENDANT                                 400 S. ZANG BLVD., SUITE 600
                                                       DALIAS, TEXAS 75208.
                                                       TELEPHONE: (214) 941-8300
                                                       FACSIMILE: (214) 943-7536
                                                       ATTORNEY FOR PLAINTIFF
                                                                                                                                    i
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