                                                                                                                                ACCEPTED
                                                                                                                            01-15-00836-CV
                                                                                                                 FIRST COURT OF APPEALS
                                                                                                                         HOUSTON, TEXAS
                                                                                                                     10/20/2015 10:34:55 AM
                                                                                                                      CHRISTOPHER PRINE
 Appellate Docket Number: ___________________________________________
                            01-15-00836-CV                                                                                           CLERK
 Appellate Case Style:


                                                                                                    FILED IN
                                                                                             1st COURT OF APPEALS
                                                                                                 HOUSTON, TEXAS
                                                                                            10/20/2015 10:34:55 AM
                                DOCKETING STATEMENT (CIVIL)
                                                                                             CHRISTOPHER A. PRINE
                                     First             Court of Appeals                              Clerk
                    [to be filed in the court of appeals upon perfection of appeal
                                            under TRAP 32]
 I.        Parties (TRAP 32.1(a), (e)):

 Appellant(s):                                             Appellee(s):
   Estate of Joseph Hernandez,          The Kroger Co., Kroger Texas, L.P.,
   deceased                             Kroger Limited Partnership I, Kroger
   Mary Hernandez, Individually and As Limited Partnership II, Kroger 509
   Personal Representative of the       Operator, Inc., Kroger 017 Operator, Inc.
   Estate of Joseph Hernandez, Deceased Kroger Management-NMTC Dallas I, LLC,
   and Sons Carlos Cruz Hernandez and   Kroger Management-NMTC Houston I, LLC
   Jose Cruz Hernandez                  Kroger Dedicated Logistics Co., The Kroger
 (See note at bottom of page)          (See note at bottom of page)
                                        Foundation, Kroger Associates, Inc.

 Attorney (lead appellate counsel):                        Attorney (lead appellate counsel, if known; if not, then trial
  Newton B. Schwartz, Sr.(Lead)                            counsel):
                                                            Brock Akers (Local)
      Benton Musslewhite, Sr.
                                                            James Reuss (primary)



 Address (lead counsel):                                   Address (lead appellate counsel, if known; if not, then trial
   1911 Southwest Fwy                                      counsel):
      Houston, Texas 77098                                  3401 Allen Pkwy, Suite 101
                                                            Houston, Texas 77019
                                                            280 North High St., Suite 1300
                                                            Columbus, OH 43215



 Telephone:     (713) 630-0708                             Telephone:        (713) 877-2500
 (include area code)                                       (include area code) (614) 365-4100

 Telecopy:      (713) 630-0789                             Telecopy: (713) 583-8662
 (include area code)                                       (include area code) (614) 365-9145

 SBN (lead counsel):    17869000                           SBN (lead counsel): 00953250

 If not represented by counsel, provide appellant’s/appellee’s address, telephone number, and telecopy number.
 On Attachment 1, or a separate attachment if needed, list the same information stated above for any additional parties
 to the trial court’s judgment.

                                                    FORM 2
HOU05:76682.1
 II.       Perfection Of Appeal And Jurisdiction (TRAP 32.1(b), (c), (g), (j)):

 Date order or judgment signed:                          Date notice of appeal filed in trial court:
   September 4,2015                                         September 30, 2015

 (Attach a signed copy, if possible)                     (Attach file-stamped copy; if mailed to the
                                                         trial court clerk, also give the date of mailing)

 What type of judgment? (e.g., jury trial, bench trial, Interlocutory appeal of appealable order:
 summary judgment, directed verdict, other (specify))    Yes        No x
   Defendants' Summary Judgment granted
                                                        (Please specify statutory or other basis on which
   September 4, 2015
                                                        interlocutory order is appealable) (See TRAP 28)




 If money judgment, what was the amount?

 Actual damages:                                         Accelerated appeal (See TRAP 28):
                                                          Yes       No  x


 Punitive (or similar) damages:
                                                         (Please specify statutory or other basis on which appeal
                                                         is accelerated)

 Attorneys’ fees (trial):



 Attorneys’ fees (appellate):

         $0

 Other (specify):                                        Appeal that receives precedence, preference, or priority
                                                         under statute or rule?
                                                          Yes        No x

                                                         (Please specify statutory or other basis for such status)




HOU05:76682.1
                                                      −2−
 Appeal from final judgment? Yes           No 
                                               x            Will you challenge this Court’s jurisdiction? If yes,
                                                            explain.
 Does judgment dispose of all parties and issues:
  Yes x    No 

 Does judgment have a Mother Hubbard clause?
 (E.g.: “All relief not expressly granted is denied”):
  Yes  x     No 

 Does judgment have language that one or more parties
 “take nothing”?
  Yes  x     No 

 Other basis for finality?




 III.      Actions Extending Time To Perfect Appeal (TRAP 32.1(d)):

                                                  Filed
                    Action                                                                        Date Filed
                                              Check as appropriate

 Motion for New Trial                         No                 Yes x              September 22, 2015

 Motion to Modify Judgment                    No x               Yes 

 Request for Findings of Fact and
                                              No                 Yes 
                                                                      x                September 21, 2015
 Conclusions of Law

 Motion to Reinstate                             x
                                              No                 Yes 

 Motion under TRCP 306a                       No x               Yes 

 Other (specify):                             No X               Yes 

 IV.       Indigency Of Party (TRAP 32.1(k)): (Attach file-stamped copy of affidavit)

                                                  Filed
                    Event                                                                  Date                N/A
                                              Check as appropriate

 Affidavit filed                              No x               Yes 

 Contest filed                                   x
                                              No                 Yes 

 Date ruling on contest due:

 Ruling on contest:
 Sustained         Overruled 

 V.        Bankruptcy (TRAP 8):

 Will the appeal be stayed by bankruptcy?       No               Date bankruptcy filed?      N/A

 Name of bankruptcy court:                               Bankruptcy Case No.:

 Style of bankruptcy case:




HOU05:76682.1
                                                         −3−
 VI.          Trial Court And Record (TRAP 32.1(c), (h), (i)):

 Court:                                   County:                                  Trial Court Docket Number
  149th                                                                            (Cause No.):
                                            Brazoria                                 74064


 Trial Judge (who tried or disposed of case):                 Court Clerk (district clerk):
  Terry Holder                                                 Rhonda Barchak
 Telephone Number:(979) 864-1318                              Telephone Number: (979) 864-1316
 (include area code)                                          (include area code)

 Telecopy Number: N/A                     Telecopy Number: N/A
 (include area code)                      (include area code)
 Address: Brazoria County Civil CourthouseAddress: Rhonda Barchak, District Clerk
            111 East Locust St., Rm. 214A           Brazoria County Civil Courthouse
                Angleton, Texas 77515                                   111 East Locust St., Suite 500
                                                                        Angleton, Texas 77515-4678



 Clerk’s Record                   Sworn copy for              Will request                    Was requested on:
                                  accelerated appeal
                                                              (Note: No request required       October 6, 2015
 Yes      
          x                       Yes                        under TRAP 34.5(a), (b))

                                  (See TRAP 28.3)

 Court Reporter or Court Recorder:                         Court Reporter or Court Recorder:
 Robin Rios, Court Reporter


 Telephone Number: (979) 864-1483                          Telephone Number:
 (include area code)                                       (include area code)

 Telecopy Number: N/A                                      Telecopy Number: N/A
 (include area code)                                       (include area code)

 Address: 111 East Locust St.    Address:
         Room 214A, Angleton, TX 77515

 (Attach additional sheet if necessary for additional court reporters/recorders)

 Length of trial (approximate):                               State arrangements made for payment of court
                                                              reporter/recorder: Paid in full per attached
                                                                                   payment and receipt

 Reporter’s or Recorder’s Record             None             Will request       Was requested on: October 13, 2015
                                 x
 (check if electronic recording )




HOU05:76682.1
                                                           −4−
 VII.  Nature Of The Case (TRAP 32.1(f)) (Subject matter or type of case: E.g., personal injury, breach of
       contract, workers’ compensation, or temporary injunction) (see list below):
 Wrongful death--CPRC § 71.001; Public policy of Texas Personal Injury and
 Survival and death action product liability and negligent food safety
 violations per CPRC §71.021; and four violations of Federal "Food, Drug and
 Cosmetic Act per 21 U.S.C. 2101-2110 and § 346a; and noticed violations for adulterated
 or misbranded foods per 21 U.S.C. 352 and 373.
 Administrative/agency _____                Malpractice
                                              Legal _____
 Banking _____                                Medical _____
                                              Other _____
           x
 Business _____                                                    Motor Vehicle _____

 Condemnation _____                                                Municipal _____
                  x
 Consumer/DTPA _____                                               Oil & Gas _____

 Construction _____                                                Personal Injury _____
                                                                                     x
             x
 Contract _____                                                    Premises Liability _____

 Employment/Labor _____                                            Probate _____

 Family _____                                                      Products Liability _____
                                                                                        x

     Custody _____                                                 Real Property _____

     Property Division _____                                       Securities _____

     Termination _____                                             Tax _____

     Other _____                                                                                  x
                                                                   U.C.C./Tex. Bus. & Com. Code _____
         x
 Fraud _____                                                       Venue _____

 Insurance _____                                                   Workers’ compensation _____

 Juvenile _____                                                    Other (specify): _____

 Landlord/Tenant _____



 VIII.     Supersedeas Bond                   None 
                                                   x               Will file         Was filed on:
           (TRAP 32.1(1)):

 IX.       Extraordinary Relief: Will you request extraordinary relief (e.g., temporary or ancillary relief) from this
           Court? Yes  No x If yes, briefly state the basis for your request.




HOU05:76682.1
                                                         −5−
 X.        Pro Bono Pilot Program: The Third Court of Appeals, in conjunction with the State Bar of Texas
 Appellate Section Pro Bono Committee, is conducting a Pro Bono Pilot Program to place a limited number of
 civil appeals with appellate counsel who will represent the appellant in the appeal before this Court. The Pro
 Bono Committee will screen and select the civil cases for inclusion in the Program based upon a number of
 discretionary criteria, including the financial means of the appellant. If a case is selected by the Committee and
 can be matched with appellate counsel, that counsel will take over the representation of the appellant without
 charging legal fees. More information regarding this program can be found in the Third Court of Appeals Pro
 Bono Pilot Program Pamphlet available in paper form at the Clerk’s Office or on the Internet at http://www.tex-
 app.org. If your case is selected, and we match your case with one of our volunteer lawyers, you will receive a
 letter from the Committee within thirty (30) to forty-five (45) days of submitting this Docketing Statement.
 NOTE: There is no guarantee that, if you submit this case for possible inclusion in the Pro Bono Pilot
 Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to
 represent you. Accordingly, you should not forego seeking other counsel to represent you in this
 proceeding. By signing your name below, you are authorizing the Pro Bono Committee to transmit
 publicly available facts and information about your case, including parties and background, through
 selected Internet sites and a Listserv to its pool of volunteer appellate attorneys.



 1.       Do you want this case to be considered for inclusion in the Pro Bono Pilot Program?

                        Yes                 No 
                                                x

 If you answered “Yes” to Question X.1, then please answer the following questions.

 2.      Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer
 questions the committee may have regarding the appeal? Please note that any such conversations would be
 maintained as confidential by the Pro Bono Committee and the information used solely for the purposes of
 considering the case for inclusion in the Pro Bono Pilot Program.

                        Yes                 No x



 3.       If you have not previously filed an affidavit of indigency and attached a file-stamped copy of that
 affidavit, does your income exceed 175% of the U.S. Department of Health and Human Services Federal Poverty
 Guidelines? These guidelines can be found in the Third Court of Appeals Pro Bono Pilot Program Pamphlet as
 well as on the Internet at http://aspe.hhs.gov/poverty/06poverty.shtml.

                        Yes                 No x




 4.      Are you willing to disclose your financial circumstances to the Pro Bono Committee? If so, please attach
 an Affidavit of Indigency completed and executed by the appellant. Forms may be found in the Clerk’s Office or
 on the Internet at http://www.tex-app.org. Your participation in the Pro Bono Pilot Program may be conditioned
 upon your execution of an affidavit under oath as to your financial circumstances.

                        Yes                    x
                                             No 




HOU05:76682.1
                                                        −6−
 5.       Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard
 of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a
 separate attachment, if necessary). See attached Exhibit FF.




 XI.       Related Matters: List any pending or past related appeals or original proceedings (e.g., mandamus,
           injunction, habeas corpus) before this or any other Texas appellate court by court, docket number, and
           style.
                        N/A



 XII.      Any other information requested by the court (see attachments, if any).     N/A

 XIII.     Signature:




   /s/ Newton B. Schwartz, Sr.
 __________________________________________________                        Date: _________________________
                                                                                  October 20, 2015
 Signature of counsel
 (or pro se party)                                                         State Bar No.:___________________
                                                                                           17869000
               Newton B. Schwartz, Sr.
 Printed Name: _____________________________________




HOU05:76682.1
                                                         −7−
 XIV.      Certificate of Service: The undersigned counsel certifies that this docketing statement has been served
           on the following lead counsel for all parties to the trial court’s order or judgment as follows on
            October 20
           ______________________,     19____.
                                        xx 2015


       Via U.S. Regular mail, electronic transmittal and facsimile transmission
       on:
       James Reuss                               VIA FAX: (614) 365-9145
       Carpenter, Lipps & Leland, LLP
       280 North High Street, Suite 1300
       Columbus, Ohio 43215
       Email:reuss@carpenterlipps.com
       Telephone: (614) 365-4100
       Brock C. Akers                            VIA FAX: (713) 583-8662
       The Akers Firm
       3401 Allen Parkway, Suite 101
       Houston Texas 77019
       Telephone: (713) 877-2500
       Email: bca@akersfirm.com
       ATTORNEY FOR DEFENDANTS/APPELLEES




                                                                  /s/ Newton B. Schwartz, Sr.
                                                                 ________________________________________
                                                                 Signature

 (TRAP 9.5(e) requirements stated below; use additional sheets, if necessary)

 Note:     Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the
           person who made the service and must state:

           (1)     the date and manner of service;
           (2)     the name and address of each person served; and
           (3)     if the person served is a party’s attorney, the name of the party represented by that attorney.




HOU05:76682.1
                                                         −8−
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                                                                                                       William E.8urns, M.D.
                                                                                                          Family Practice
                                                                                                      201 Oak Dr. South #101,
                                                                                                     LAKE JACKSON, TX 77566
                                                                                                              (979) 2974507
                                                                                                        FAX (979) 480-9074




12/12/2012



To Whom It May Concern:

    Mr. Joe Hernandez is my patient who recently had a positive test for Listeria. He was

'eferred to a gastroenterologist, Dr. Sweatt for treatment If I can be of any further assistance to

(OU    please feel free to contact my office staff.

Sincerely,




      ~-~~
Villiam E.Bums, M.D.




                                            c..
   1. Violation of the public policy of Texas prohibiting the sale of unsafe, adulterated, and/or
       misbranded food for human consumption, since 194 by Texas Supreme court cases,
       Jacob Decker & Sons, Inc. v. Capps, 139 Tex. 609; 164 S.W.2d 828 1942 Tex. LEXIS
       275; 142 A.L.R. 1479 (1942) and Griggs Canning Co. v. Josey, 139 Tex, 623, 164 S.W.
       2d 825, 840 (Tex. 1942).
   2. DTPA per § 17.50(a)(2) and
   3. Personal Injury and (b) Wrongful death doctrine—CPRC § 71.001, et seq; and
       (c) Survival Act per CPRC §71.021, et seq; and
   4. Negligence and Negligence Per Se for statutory violations of Federal "Food, Drug and
       Cosmetic Act” per 21 U.S.C. § 301-357 and §341-350 (1-1), Annual Report for
       Congress; and (b) requiring actual in-store notices of Listeria, including failure to warn of
       Listeria and (c) failed to post country of origin where grown or imported from, outside
       the United States for 21 U.S.C. §350(f)(g) and (h) of Listeria and sale of adulterated or
       misbranded foods unsafe for human consumption.
   5. Failed to grant Appellants’ timely Motions to conduct additional discovery after Kroger
       defendants’ failing to timely answer and denying Appellants’ Requests for Production of
       documents per TRCP 196 for months without good cause, delaying Appellants’ review of
       and discovery from grower of melons and failing to disclose Jenson Farms and/or
       Frontera Produce, Ltd., as growers and suppliers to Kroger and/or of known Listeria in
       melons as of date of sale September 3, 2011.
Per Reporters’ Record and Clerk’s Record:
Appellant timely responded, controverted and objected to Kroger Defendants’ Traditional and
No-Evidence Motions for Summary Judgment. See Transcript of Reporter’s Record of
September 1, 2015 hearing, requested, paid for and acknowledged by Court Reporter Robin Rios
on October 13, 2015 (attached) and by Exhibits: Exhibit AA—purchase of known Listeria laden
Melons from Kroger defendants—September 3, 2011
Exhibit BB—Mary Hernandez’s deposition testimony regarding—its purchase, original
refrigeration and eaten and ingested solely by Joseph Hernandez, deceased. Exhibit CC—
Treating doctor’s diagnosis of Listeria in Melon, causally related to his sickness, injuries, and
illness by Dr. William Burns, M.D. and his controverting Affidavit (Exhibit DD) filed timely,
one week prior to September 1, 2015 hearing. Exhibit EE—See Texas above declared Texas
public policy since 1942 to date surviving enactment of (1) Chapter CPRC § 82.003-82.008—
Strict Product Liability governing such food for consumption such per Jacob Decker & Sons,
Inc. v. Capps, 139 Tex. 609; 164 S.W.2d 828 1942 Tex. LEXIS 275; 142 A.L.R. 1479 (1942)
and Griggs Canning Co. v. Josey, 139 Tex, 623, 164 S.W. 2d 825, 840 (Tex. 1942), declared the
Public Policy of Texas to date present that the seller of food (Kroger) for public consumption as
here is strictly liable without fault or negligence and/or this Public Policy is not affected by later
enactment of CPRC Chapter 82 for illnesses and injuries and death resulting, including that a
melon or cantelope is not a designed or manufactured product within CPRC Chapter 82.
