                                                                           ACCEPTED
                                                                        03-14-00819-cv
                                                                               5696714
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                  6/16/2015 2:20:43 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                    CAUSE NO. 03-14-00819-CV

                                                     FILED IN
                                              3rd COURT OF APPEALS
IN THE   COURT OF APPEALS FOR THE THIRD COURT AUSTIN,      TEXAS
                                                  OF APPEALS
              DISTRICT OF TEXAS, AUSTIN, TEXAS6/16/2015 2:20:43 PM
                                                JEFFREY D. KYLE
                                                      Clerk


                         JUDY WEIRICH,
                            Appellant

                               VS.

     IESI CORPORATION AND SOUTHSIDE WRECKER, INC.,
                        Appellees

              ON APPEAL FROM THE 33RD JUDICIAL
          DISTRICT COURT OF BLANCO COUNTY, TEXAS
                     CAUSE NO. CV07387


             BRIEF OF APPELLEE IESI CORPORATION


                       THORNTON, BIECHLIN, SEGRATO,
                       REYNOLDS & GUERRA, L.C.
                       Vaughan E. Waters
                       Email: vwaters@thorntonfirm.com
                       State Bar No. 20916700
                       Michael J. Clark
                       Email: mclark@thorntonfirm.com
                       State Bar No. 04293300
                       100 N.E. Loop 410, Suite 500
                       San Antonio, Texas 78216
                       Telephone: 210/342/5555
                       Fax: 210/525-0666
                       ATTORNEYS FOR APPELLEE IESI
                       CORPORATION
ORAL ARGUMENT REQUESTED
                           NAMES OF THE PARTIES

      Pursuant to and in compliance with Rule 38, Tex. R. App. P., the parties to this
appeal are:


JUDY WEIRICH,
Appellant

COUNSEL:                                      ZACHARY P. HUDLER, PC
                                              Mr. Zachary P. Hudler
                                              State Bar No. 24032318
                                              100 E. Pecan St., Suite One
                                              Johnson City, TX 78636
                                              Telephone: 830/868-7651
                                              Fax: 830/868-7636
                                              zachary@hudlerlaw.com


IESI CORPORATION,
Appellee

COUNSEL:                                      THORNTON, BIECHLIN,
                                              SEGRATO, REYNOLDS &
                                              GUERRA, L.C.
                                              Mr. Vaughan E. Waters
                                              State Bar No. 20916700
                                              vwaters@thorntonfirm.com
                                              Michael J. Clark
                                              State Bar No. 04293300
                                              mclark@thorntonfirm.com
                                              100 N.E. Loop 410, Suite 500
                                              San Antonio, Texas 78216
                                              Telephone: 210/342-5555
                                              Fax: 210/525-0666




                                          i
SOUTHSIDE WRECKER,
INC.,
Appellee

COUNSEL:                  THE PETRAS LAW FIRM PLLC
                          Mr. George J. Petras, IV
                          State Bar No. 15850510
                          1504 San Antonio St.
                          Austin, TX 78701
                          Telephone: 512/334-9583
                          Fax: 512/334-9709
                          gpetras@petraslawfirm.com

TRIAL COURT JUDGE:        The Honorable J. Allan Garrett
                          424th Judicial District Court
                          Blanco County, Texas




                     ii
                   REQUEST FOR ORAL ARGUMENT

     Pursuant to Rule 39, Tex. R. App. P., Appellee respectfully requests oral
argument in this case.




                                      iii
                                   TABLE OF CONTENTS




                                                                                                  Page

NAMES OF THE PARTIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (i)

REQUEST FOR ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iii)

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iv)

LIST OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (vi)

I.      STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.     ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

                (1)     ISSUE NO. 1:THIS HONORABLE COURT HAS
                        JURISDICTION OVER THIS APPEAL
                        (RESPONSIVE TO APPELLANT’S ISSUE NO.
                        1).

                (2)     ISSUE NO. 2:THIS HONORABLE COURT DID
                        NOT ERR IN GRANTING SUMMARY
                        JUDGMENT, INASMUCH AS THE MOTION
                        EMBRACED ALL CLAIMS AND CAUSES OF
                        ACTION, APPELLANT’S PURPORTED
                        SUMMARY JUDGMENT EVIDENCE WAS
                        PROPERLY STRICKEN BY ORDER OF THE
                        TRIAL COURT, AND APPELLANT FAILED TO
                        RAISE A DISPUTED ISSUE OF MATERIAL
                        FACT (RESPONSIVE TO APPELLANT’S
                        ISSUES NO. 2 AND 3).

III.    STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


                                                    iv
IV.      SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

V.       ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19




                                                          v
                                      LIST OF AUTHORITIES

CASES                                                                                                      PAGE

Borden, Inc. v. Price, 939 S.W. 2d 247, 250
(Tex. App.-Amarillo 1997, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Carter v. William Sommerville & Son, Inc.,
584 S.W. 2d 274, 278 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Haddock v. Arnspiger,
793 S.W.2d 948, 950 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Nguyen v. Woodley,
273 S.W.3d 891 (Tex. App.-Houston [14th Dist.] 2008, no pet.). . . . . . . . . . . . . . 9

RT Realty, Ltd. v. Texas Utilities Electric Company,
181 S.W.3d 905, 915-916 (Tex. App.-Dallas 2006, no pet). . . . . . . . . . . . . . . . . 16

Saenz v. J. D. Rodriguez Produce and Trucking Co.,
2000 WL 33225303 (Tex. App.-San Antonio 2000,
no pet.) (not designated for publication).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Wortham v. Dow Chemical Company,
179 S.W.3rd 189, 202-203 (Tex. App.-Houston [14th Dist.], 2005, no pet.). . . . 16

Zavala v. Trujillo,
883 S.W.2d 242, 245 (Tex.App.-El Paso 1994, writ denied). . . . . . . . . . . . . . . . 11

                 STATUTES, RULES, AND OTHER AUTHORITIES

Tex. Civ. Prac. & Rem. Code §41.001(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. R. App. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex R. Civ. P., Rule 190.3 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4



                                                         vi
Tex. R. App. P. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Tex. R. Civ. P 166a(i) ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                         vii
                          CAUSE NO. 03-14-00819-CV


IN THE COURT OF APPEALS FOR THE THIRD COURT OF APPEALS
            DISTRICT OF TEXAS, AUSTIN, TEXAS


                                JUDY WEIRICH,
                                   Appellant

                                        VS.

       IESI CORPORATION AND SOUTHSIDE WRECKER, INC.,
                          Appellees

                ON APPEAL FROM THE 33RD JUDICIAL
            DISTRICT COURT OF BLANCO COUNTY, TEXAS
                       CAUSE NO. CV07387


                BRIEF OF APPELLEE IESI CORPORATION


TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS OF
THE STATE OF TEXAS, AUSTIN, TEXAS:

      NOW COMES IESI CORPORATION (“IESI”), Appellee, and files this its

Brief of Appellee, pursuant to and in accordance with Rule 38.2, Tex. R. App. P.; and

in support thereof would respectfully show this Honorable Court as follows:




                                         1
                                          I.

                         STATEMENT OF THE CASE
      This is an appeal from a summary judgment in a “road hazard” case.
Plaintiff/Appellant JUDY WEIRICH (“WEIRICH”) alleges that she suffered both
property damage to her automobile and bodily injury when a wheel came off a truck
owned by IESI and struck her vehicle; the IESI truck was not in operation at the time,
but was being towed by a wrecker owned by Co-Defendant/Co-Appellee
SOUTHSIDE WRECKER, INC. (“SOUTHSIDE WRECKER”). The 424th Judicial
District Court of Blanco County, Texas, the Honorable J. Allan Garrett presiding,
entered a no-evidence summary judgment for IESI on November 12, 2014 and for
SOUTHSIDE WRECKER on December 8, 2014. C.R., at 179-180, 183-185.
                                          II.
                              ISSUES PRESENTED

      ISSUE NO. 1: THIS HONORABLE COURT HAS JURISDICTION
      OVER THIS APPEAL (RESPONSIVE TO APPELLANT’S ISSUE
      NO. 1).

      ISSUE NO. 2: THIS HONORABLE COURT DID NOT ERR IN
      GRANTING SUMMARY JUDGMENT, INASMUCH AS THE
      MOTION EMBRACED ALL CLAIMS AND CAUSES OF ACTION,
      APPELLANT’S PURPORTED SUMMARY JUDGMENT EVIDENCE
      WAS PROPERLY STRICKEN BY ORDER OF THE TRIAL
      COURT, AND APPELLANT FAILED TO RAISE A DISPUTED
      ISSUE OF MATERIAL FACT (RESPONSIVE TO APPELLANT’S
      ISSUES NO. 2 AND 3).




                                          2
                                          III.

                            STATEMENT OF FACTS
      Plaintiff/Appellant WEIRICH filed her original petition in this cause on August
2, 2012, in which she alleged that on or about January 9, 2012 she was traveling
through Johnson City, Texas on State Highway 290 near Town Creek when her vehicle
was struck by a wheel that had detached from an IESI garbage truck being towed
through town by SOUTHSIDE WRECKER. The impact, she alleged, totaled the
2002 Mazda which she was driving and further caused “severe personal injuries.”
C.R., at 4-5.
      WEIRICH alleged that IESI failed to use ordinary care and prudence in properly
maintaining its garbage truck “to assure that it was safe to travel on the highway”, and
that SOUTHSIDE WRECKER likewise failed to “properly inspect and assure that the
IESI garbage truck that it was towing was safe on the highway”; the breach of these
duties, she alleges, proximately caused her injuries.        She further alleged that
“SOUTHSIDE WRECKER was in the sole custody and control of the garbage truck
at the time of the incident made the basis of this lawsuit.” Id., at 5.
      Over the course of the next year and a half WEIRICH twice amended her
petition, adding claims for gross negligence and exemplary damages against both IESI
and SOUTHSIDE WRECKER. C.R., at 34-37, 47-51. She took no depositions,
however, in support of any component of recovery. On July 14, 2014 IESI filed its
second amended answer. C.R., at 84-87.
      On August 22, 2014 IESI filed its no-evidence motion for summary judgment
and for severance, one day after SOUTHSIDE WRECKER’s filing of a similar
motion. C.R., at 94-106, 107-126.


                                           3
      IESI moved for summary judgment on the basis of no evidence (1) that it owed
a legal duty to WEIRICH under the undisputed facts, (2) that it breached any duty
owed to WEIRICH, or (3) that any act or omission of IESI was the proximate cause
of the accident made the basis of WEIRICH’s suit; it further moved for summary
judgment as to the claims of gross negligence accordingly, as well as on grounds that
WEIRICH had no “clear and convincing” evidence that any act or omission of IESI
amounted to gross negligence as defined under Texas law. C.R., at 111.
      IESI pointed out that WEIRICH filed suit on August 2, 2012 (more than two
years earlier), under Level 2 of Rule 190.3, Tex, R. Civ. P., pursuant to which—as
established under Rule 190.3(b)(1) and the affidavit of Michael J. Clark, trial counsel
of record for IESI—the discovery period ended more than eleven months earlier, on
or about September 7, 2013. “Therefore, ‘adequate time for discovery’ has passed
and [IESI] may present this no-evidence motion for summary judgment to the court.”
C.R., at 112, 120.
      On October 17, 2014—one week prior to the hearing on Appellees’ respective
summary judgment motions—WEIRICH filed her response to those motions, as well
as her Fourth Amended Original Petition. C.R., at 127-131, 132-139. Her amended
petition was essentially identical to the most recent version of same, except that she
added the following to her list of claims for various categories of damages (¶10): “In
the alternative, Defendants are liable under the legal principles of negligence per se and
res ipsa loquitur.” C.R., at 129. In her response to the motions WEIRICH freely
conceded that only her own deposition had been taken during the twenty-six months
the case had been pending, but urged that there had not been an adequate time for
discovery. C.R., at 132. (Note: WEIRICH has since abandoned this argument; she
makes no complaint in her Appellant’s Brief of there not having been an adequate time

                                            4
for discovery.) In this response WEIRICH set forth several arguments as to why she
felt summary judgment would be improper, but the fact that she had just amended her
petition to add the foregoing allegation relating to negligence per se and res ipsa
loquitur was not among these arguments. C.R., at 132-136.
       WEIRICH’s response included her own affidavit. She described in this
affidavit the circumstances of the accident, which she said occurred on or about
January 9, 2012 as she approached the intersection of Highway 90 and Main Street in
Johnson City, Texas; her car was struck by the IESI garbage truck wheel/tire while she
was near the traffic light at that intersection. She also stated in this affidavit as follows:
“To date, no one who investigated the accident, including the Johnson City Police
Department, has indicated that the cause of the wheel coming off was anything other
than IESI failing to maintain its garbage truck and Southside failing to ensure that it
safely transported the garbage truck.” She stated that “[h]ad IESI properly maintained
and inspected its garbage truck to ensure that all of its wheels were adequately
attached, the accident would not have occurred.” C.R., at 138.
       Further included in WEIRICH’s affidavit were the following two paragraphs:
       ...

       4.     I am a reasonable person of reasonable intelligence. I am 61 years
              old. I have driven and maintained automobiles since I became
              licensed to drive at the age of 16 years. While the Defendants
              apparently do not realize or know, or at least claim to this Court
              that they do not realize or know, there is an extreme degree of risk
              in failing to provide the minimum maintenance to ensure that the
              wheels on an automobile are properly attached to the automobile
              as it travels on the Texas roads and Texas highways. There also
              involves an extreme degree of risk in failing to take the minimum
              steps to ensure that a vehicle you tow is safe to tow on the roads
              and highways. Minimally, one who tows a vehicle should make
              sure that the wheels are properly attached. This extreme degree of


                                              5
                risk is exacerbated when the motor vehicle is a large trash truck as
                the ones we generally see picking up trash from residences.
      5.        IESI, as a trash disposal company, and Southside Wrecker as a
                towing company indeed have actual and subjective awareness of
                the extreme risk involved as discussed above but proceeded with
                conscious indifference to the rights, welfare, and safety of others,
                including but not limited to me.

      ...

C.R., at 139.
      Both IESI and SOUTHSIDE WRECKER filed objections and motions to strike
the summary judgment evidence of WEIRICH. IESI pointed out that the above
referenced statements were conclusory and were not based on the personal knowledge
of WEIRICH, or of any expertise in any way demonstrated by her. C.R., at 159-164.
SOUTHSIDE WRECKER moved to strike WEIRICH’s affidavit on similar grounds,
and further pointed out, as indicated in IESI’s summary judgment motion, that the
discovery period had ended more than a year prior to the date (October 17, 2014) on
which WEIRICH filed her response to the summary judgment motions and on which,
for the first time, she claimed insufficient time for discovery. C.R., at 140-146.
      By order dated November 12, 2014 the trial court sustained IESI’s objections
to the above-quoted portions of the WEIRICH affidavit and granted its motion to
strike accordingly. In particular, the court sustained the objection to, and ordered
stricken: the statement of WEIRICH that “no one who investigated the accident,
including the Johnson City Police Department, has indicated that the cause of the
wheel coming off was anything other than IESI failing to maintain its garbage truck and
Southside failing to ensure that it safely transported the garbage truck”; the statement
that “[h]ad IESI properly maintained and inspected its garbage truck to ensure that all
of its wheels were adequately attached, the accident would not have occurred”; and

                                              6
the entirety of the above quoted paragraphs 4 and 5 of the affidavit (relating to gross
negligence/exemplary damages). C.R., at 176-178. By its further order of that same
date, the trial court granted IESI’s no-evidence summary judgment motion in its
entirety, ordering the judgment severed from the remainder of the case and made “final
for all purposes, having disposed of all claims by and between [IESI] and all parties.
This is an appealable final judgment.” C.R., at 179-180.

      This appeal ensues.

                                          IV.
                       SUMMARY OF THE ARGUMENT
      Having invoked this Honorable Court’s jurisdiction by filing a notice of appeal,
WEIRICH now argues in her brief, for the first time, that the Court lacks “standing”
to decide the appeal inasmuch as “the purported judgments do not dispose of all
claims”—and alternatively that her affidavit, the only evidence attached to her response
by which she attempts to raise a fact issue, succeeds in doing so because no one has
ever told her that IESI is not at fault for the accident giving rise to her claims.
      Though one scarcely knows where to begin, the reality is that except for the
introductory sentences in which WEIRICH explains where she was and what she was
doing when her car made contact with the loose wheel, there is not a single statement
contained in her affidavit that is not a wishful speculation or an unfounded conclusion.
The trial court correctly granted IESI’s no-evidence summary judgment motion—there
being no actual evidence to oppose it—and the trial court’s judgment should be in all
respects affirmed.




                                           7
                                          V.

                       ARGUMENT AND AUTHORITIES

                ISSUE NO. 1 RESTATED: THIS HONORABLE COURT
                HAS JURISDICTION OVER THIS APPEAL
                (RESPONSIVE TO APPELLANT’S ISSUE NO. 1).

      WEIRICH urges that because she filed her Fourth Amended Original Petition

seven days prior to the hearing on the summary judgment motions, and that that

pleading raised “additional theories of recovery” (i.e., negligence per se and res ipsa

loquitur) not addressed in the summary judgment motions, this Honorable Court lacks

“standing” to hear the case and thus it should be remanded to the trial court.

Appellant’s Brief, at 5-6.

      WEIRICH seems to conflate, and confuse, the scope of the summary judgment

motions with the jurisdiction of the trial court to render final judgment thereon. (How

and why WEIRICH considers this to relate to her notion of “standing” is not clear.)

      The trial court’s judgment stated clearly and succinctly that IESI’s summary

judgment motion was granted, and that WEIRICH take nothing by way of her suit

against IESI. The trial court further decreed that that judgment be severed from the

remainder of the case such that it “is final for all purposes, having disposed of all

claims by and between [IESI] and all parties. This is an appealable final judgment.”

C.R., at 179.


                                          8
      The Fourteenth Court of Appeals stated the point succinctly and well in the case

of Nguyen v. Woodley, 273 S.W.3d 891 (Tex. App.-Houston [14th Dist.] 2008, no

pet.) as follows:

      As a general rule, an appeal may be taken only from a final judgment.
      Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A
      judgment issued without a conventional trial is final only if it either
      actually disposes of all claims and parties before the court, or it states
      with unmistakable clarity that it is a final judgment. See id. at 200. In the
      case at bar, the December 10, 2007 “Final Summary Judgment” is a final,
      appealable judgment [that] expressly disposes of all claims and all parties,
      stating with unmistakable clarity that it is a final judgment, i.e., it expressly
      states that it disposes of all parties and claims and is final and appealable.

Nguyen, at 896. That is precisely what we have here: a judgment in a severed action

which expressly and unequivocally disposes of all claims by and between WEIRICH

and IESI, and which states “with unmistakable clarity” that it is a final and appealable

judgment.

      That being the case, this Honorable Court clearly has jurisdiction to review this

final judgment on appeal. It remains only for this Court to determine whether the trial

court acted correctly in rendering it.

             ISSUE NO. 2 RESTATED: THIS HONORABLE COURT
             DID NOT ERR IN GRANTING SUMMARY
             JUDGMENT, INASMUCH AS THE MOTION
             EMBRACED ALL CLAIMS AND CAUSES OF
             ACTION, APPELLANT’S PURPORTED SUMMARY
             JUDGMENT EVIDENCE WAS PROPERLY STRICKEN
             BY ORDER OF THE TRIAL COURT, AND
             APPELLANT FAILED TO RAISE A DISPUTED ISSUE

                                             9
             O F MATERIAL FACT (RESPON SIVE                           TO
             APPELLANT’S ISSUES NO. 2 AND 3).

      A.     Plaintiffs’ Fourth Amended Original Petition adds no new claims or
             causes of action.

      WEIRICH suggests - in addition to her “standing” argument - that summary

judgment was improper in that Appellees’ respective summary judgment motions did

not address her newly pled allegations relating to negligence per se and res ipsa

loquitur (as set forth supra). Appellant’s Brief, at 6. This argument is meritless.

      After an adequate time for discovery, a party may move for summary judgment

      on the ground that there is no evidence of one or more essential elements
      of a claim or defense on which an adverse party would have the burden
      of proof at trial. The motion must state the elements as to which there is
      no evidence. The court must grant the motion unless the respondent
      produces summary judgment evidence raising a genuine issue of material
      fact.

Rule 166a(i), Tex. R. Civ. P.

      Again, IESI moved for summary judgment under Rule 166a(i), as to all

negligence claims against it by WEIRICH, “ because [WEIRICH] has no evidence that

IESI owed a legal duty to Plaintiff under the facts of this case, IESI breached any duty

owed to Plaintiff, or that IESI’s conduct or omissions were the proximate cause of

the accident in question” (C.R., at 113) (emphasis added)—and moved for summary

judgment as well on the gross negligence claims because, in addition, WEIRICH “has

no ‘clear and convincing’ evidence that IESI’s conduct arises to the level of ‘gross

                                          10
negligence’ as defined in Tex. Civ. Prac. & Rem. Code §41.001(11).” C.R., at 111,

113.

         “Negligence per se” is not a cause of action separate and independent from a

common law negligence action. Zavala v. Trujillo, 883 S.W.2d 242, 245 (Tex.

App.-El Paso 1994, writ denied). It is, rather, a tort concept whereby a legislatively

imposed standard of conduct is adopted by the civil courts as defining the conduct

of a reasonably prudent person. Carter v. William Sommerville & Son, Inc., 584

SW2d 274, 278 (Tex. 1979); Borden, Inc. v. Price, 939 SW2d 247, 250 (Tex. App.-

Amarillo 1997, writ denied). See also, Saenz v. J. D. Rodriguez Produce and

Trucking Co., 2000 WL 33225303 (Tex. App.-San Antonio 2000, no pet.) (not

designated for publication), at *2-*3.

         So it is, too, with res ipsa loquitur, which is simply a rule of evidence by which

negligence may be inferred by the jury, and not a separate cause of action from

negligence. Haddock v. Arnspiger, 793 SW2d 948, 950 (Tex. 1990); Saenz, supra,

at *3.

         Indeed, Saenz is particularly instructive. In that case the appellant argued that

the appellee “failed to amend his motion for summary judgment after Saenz amended

his original petition to include . . . additional claims of negligence and negligence per




                                             11
se, res ipsa loquitur, negligent entrustment and malice . . .” Saenz, at *2 (emphasis

added) The San Antonio Court of Appeals took a dim view of this argument:

             Rodriguez’s motion specifically challenged the element of
             proximate causation as to each of Saenz’s negligent claims.
             Rodriguez was not required to amend his motion in
             response to the amended petition because the added
             negligence claims and the negligent entrustment claim
             contained the same element of proximate causation that
             was previously challenged. Therefore, Saenz was required
             to introduce evidence of proximate causation as to each of
             his negligence claims, including the negligent entrustment
             claim, in order to avoid summary judgment.

             Saenz’s reliance on his first amended pleadings instead of
             bringing forward the requisite evidence on proximate
             causation was an attempt to avoid the effect of the no-
             evidence summary judgment rule [citing Lampasas v.
             Spring Center, Inc. 988 SW2d 248, 436 (Tex. App.-
             Houston [14th Dist.] 1999, no pet.)]. Based on the facts
             before us, the amended petition merely reiterates the same
             essential elements of negligence (duty, breach and
             causation) in another fashion, and the motion for summary
             judgment adequately covered these new variations. See id.
             at 437. Accordingly, we overrule issues one and two.

Id. (emphasis added).

      WEIRICH, in her amended pleading, effectively added no new claim or cause

of action; at most she attached new theories of liability to the common law

negligence/gross negligence claims she had already pled. It was still incumbent upon

her to produce competent and admissible summary judgment evidence in support of



                                         12
the challenged elements of her claim—and, as further discussed infra, she failed utterly

to do so.

      It should further be noted that, with respect to the res ipsa loquitur allegation,

WEIRICH herself acknowledges freely that the elements of this theory of recovery are

that (1) the injury would not have occurred in the absence of negligence, and (2) the

injury-causing instrumentality was under the sole possession and control of the

Defendant. Appellant’s Brief, at 6. WEIRICH specifically and expressly avers—both

in her Fourth Amended Original Petition and in her Appellant’s Brief—that

SOUTHSIDE WRECKER was in the sole custody and control of the IESI truck at

the time of the incident made the basis of this action. C.R., at 127, 128 (“Southside

Wrecker was in the sole custody and control of the garbage truck at the time of the

incident made the basis of this lawsuit”); Appellant’s Brief, at 6 (“[T]he IESI garbage

truck was under the sole possession and control of Southside Wrecker at the time of

the incident”). These judicial admissions confirm, as a matter of law, that WEIRICH

would be precluded from relying on the doctrine of res ipsa loquitur as against IESI

in any event.

      B.     WEIRICH’s purported summary judgment evidence was properly
             stricken by the trial court, and no other evidence raised a material fact
             issue.




                                          13
      WEIRICH points out in her brief, correctly, that “affidavits are routinely

recognized as competent summary judgment evidence”. Appellant’s Brief, at 7.

Indeed so—provided, of course, the affidavits comply with the requirements of Rule

166a and particularly of Rule 166a(f) (“Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify to the

matters stated... .”) And therein lies the rub: WEIRICH, in her brief, does not even

attempt to explain how she had knowledge of the key portions of her affidavit.

      For example: “Had IESI properly maintained and inspected its garbage truck to

insure that all of its wheels were adequately attached, the accident would not have

occurred.” C.R., at 138. WEIRICH, of course, cannot and does not demonstrate

how she is qualified to make that statement. Did the wheel come off because the truck

had been “improperly” maintained and inspected in the past? Did it come off because

it was damaged in the earlier accident that caused SOUTHSIDE WRECKER to be

retained in the first place to tow the truck through Johnson City? Did it come off

because, unbeknownst to IESI, the bolts that had been used to fasten it were defective

as received from the manufacturer? Or—the truck having been properly inspected and

maintained, no damage to the wheel having occurred in the earlier accident, and the

bolts being good and serviceable parts—did it come off because it was sabotaged by


                                         14
a person or persons unknown between the time the truck was disabled and the time the

truck was secured for towing by SOUTHSIDE WRECKER? WEIRICH does not

know the answers to these questions because, during the more than two years the case

had been pending before the summary judgment motions were heard, she never

bothered to conduct any discovery to attempt to answer them.

      WEIRICH does not claim to be, and is not in fact, a qualified expert in the

repair and maintenance of large trucks, or specifically as to large truck wheels and

tires. Whether and to what extent any act or omission of IESI caused or contributed

to cause the accident is a matter of pure speculation on this record. The wholly

unsupported (and wholly speculative) conclusion of WEIRICH, to the effect that the

wheel came loose because IESI failed to maintain or inspect it, is not competent

summary judgment evidence under Rule 166a(f); any suggestion that the trial court

erred or abused its discretion in striking that statement is not only meritless but

specious.

      Even less valid than that stricken statement is the one which immediately

precedes it in WEIRICH’s affidavit: “To date, no one who investigated the accident,

including the Johnson City Police Department, has indicated that the cause of the

wheel coming off was anything other than IESI failing to maintain its garbage truck and

Southside Wrecker failing to insure that it safely transported the garbage truck.” C.R.,



                                          15
at 138. It would have been every bit as truthful—and every bit as relevant—for

WEIRICH to have stated that no one has ever told her that the cause of the accident

was anything other than the wheel having been loosened by gremlins. WEIRICH’s

statement is nothing more than her legal position as to the cause of the accident as

stated in her pleadings; it is not evidence, or anything resembling evidence, of either

breach of duty or causation. WEIRICH simply failed to sustain her burden of raising

a genuine issue of material fact under Rule 166a(i).1

       It is axiomatic, of course, that where there is no evidence to raise a fact issue

as to a claim of negligence, a claim of gross negligence is invalid as a matter of law.

See, e.g., RT Realty, Ltd. v. Texas Utilities Electric Company, 181 S.W.3d 905,

915-916 (Tex. App.-Dallas 2006, no pet); Wortham v. Dow Chemical Company,

179 S.W.3rd 189, 202-203 (Tex. App.-Houston [14th Dist.], 2005, no pet.). So it is

here with WEIRICH’s gross negligence claim. Moreover, the trial court acted

correctly and within its discretion in striking WEIRICH’s “gross negligence”

paragraphs, those being paragraphs 4 and 5 of her affidavit, for the reasons already

discussed. Once again, WEIRICH has failed to show herself an expert—or to provide



       1
         For purposes of this appeal we need not discuss the hypothetical situation of whether an
accident report of the Johnson City Police Department would have been competent and admissible
summary judgment evidence, since WEIRICH did not submit such a report, or any other investigative
report, as part of her summary judgment response.



                                             16
 any foundation or basis whatsoever for her purported knowledge—with respect to

 what “actual and subjective awareness” IESI had regarding the “extreme risk” of

 towing a vehicle whose wheel might or might not have been recently inspected (she

 doesn’t know), might or might not have been recently maintained (she isn’t sure),

 might or might not have been damaged (she’d have to speculate), and might or might

 not have been tampered with anonymously (one of the “unknown unknowns”). For

 WEIRICH even to describe such statements as are contained in paragraphs 4 and 5

 of her affidavit—or, indeed, in any of the stricken portions of her affidavit—as

 “summary judgment evidence” borders on sanctionable.

                                    CONCLUSION

      In view of the foregoing, the trial court acted correctly in striking WEIRICH’S

“summary judgment evidence” and in granting a no-evidence summary judgment in favor

of IESI (and, for that matter, in granting summary judgment for SOUTHSIDE

WRECKER as well). That judgment in favor of IESI is correct and complete as

entered, and IESI respectfully submits that it should be in all respects affirmed.

                                       PRAYER

       WHEREFORE, PREMISES CONSIDERED, IESI respectfully prays that the

judgment of the trial court in its favor dated November 12, 2014, be in all respects

affirmed; and for such other and further relief, at law or in equity, to which IESI might

show itself justly entitled.

                                           17
                                      Respectfully submitted,

                                      THORNTON, BIECHLIN, SEGRATO,
                                       REYNOLDS & GUERRA, L.C.
                                      100 N.E. Loop 410, Suite 500
                                      San Antonio, TX 78216
                                      Telephone: 210/342-5555
                                      Telecopier: 210/525-0666


                                      By:    /s/ Vaughan E. Waters
                                              Vaughan E. Waters
                                             State Bar No. 20916700
                                             ATTORNEYS FOR APPELLEE IESI
                                             CORPORATION

                     CERTIFICATE OF COMPLIANCE

     Pursuant to Rule 9, Tex. R. App. P., the undersigned certifies that:

A.   Brief of Appellee contains 4,068 words.

B.   Brief of Appellee has been prepared in proportionally spaced typeface using
     Word Perfect in Times New Roman 14 point.



                                        /s/ Vaughan E. Waters
                                           Vaughan E. Waters




                                        18
                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of Appellee’s Brief has been
forwarded to the following this 16th day of June, 2015.

      Mr. Zachary P. Hudler                 VIA FACSIMILE TO 830/868-7636
      Zachary P. Hudler, PC
      P.O. Box 1728
      Johnson City, TX 78636
      Attorneys for Appellant

      Mr. George J. Petras                  VIA FACSIMILE TO 512/334-9709
      The Petras Law Firm
      1504 San Antonio St.
      Austin, TX 78701
      Attorneys for Southside Wrecker, Inc.

                                   /s/ Vaughan E. Waters
                                    Vaughan E. Waters




                                       19
APPENDIX 1
6/16/2015                                                      Saenz v. J.D. Rodriguez Produce & Trucking Co. - WestlawNext
  ,A




   Saenz v. J.D. Rodriguez Produce & Trucking Co.
   Court of Appeals of Texas, San Altonlo, December 2B, 2000 Not Reported In S.W.Sd   2000 WL 33226303 (ApplOX. 6 pages)       SELECTED TOPICS

                                                          2000WL33225303                                                       Appeal and Error
                                          Only the Westlaw citation is currently available.                                      Review
                                                                                                                                   De Novo Trial Court Grant of Summaiy
                      NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TX R RAP RULE 47.7,                                            Judgment
                    UNPUBLISHED OPINIONS HAVE NO PRECEDENTIAL VALUE BUT MAY BE CITED
                                    WITH THE NOTATION "(not designated for publication)."                                      Secondary Sourcas

                                                                                                                               § 18;15.Necesslty to respond
                                               Court of Appeals of Texas, SanAntonio.
                                                                                                                               3 McDonaU & Cartson Tex. Civ. Prac. § 18:16
                                                                                                                               (2d.ed.)
                                                  Emeterio SAENZ, Appellant,
                                                                                                                              ...Tradtttonally, Texas has adhered to the
                                                                    V.                                                        notion that summary Judgment should not
                                                                                                                              come by way of default, even If the
                   J.D. RODRIGUEZ PRODUCE AND TRUCKING COMPANY and John D.                                                    nonmovant does not file a response. Rather, a
                                                                                                                              summary judgment Is based on the propri..,
                                                      Rodriguez, Appellees.
                                                                                                                              CIVIL PROCEDURE AND DISCOVERY
                                                                                                                              UPDATE
                                              No. 04-99-00867-CV. Dec. 29, 2000,
                                                                                                                              38 ThsAdvoc, (Texas) 1
                 From the 224th Judicial District Court, Bexar County, Texas, Trial Court No. 98-CI-09011;                    ...C1-STABLE OF CONTENTS I.
                                                                                                                              INTRODUCTION. 1 II. CIVIL PROCEDURE
                 David A. Berchelmann, dr., Judge Presiding.                                                                  UPDATE, 1 A. ATTORNEY IN CHARGE. 1 B.
                                                                                                                              CITATION. 1 C. CONTINUANCE. 3 D.
                 RICKHOFF, L6PEZ and DUNCAN, JJ.                                                                              DEFAULT JUDGMENT. 4 E. DISMISSAL. 5
                                                                                                                              F. FINAL JUDGMENT. 5 G. JUROR C...

                 Opinion                                                                                                      SUMMARY JUDGMENTS IN TEXAS:
                                                                                                                              STATE AND FEDERAL PRACTICE
                 L6PEZ.
                                                                                                                              52 Hous. L. Rev. 773
                                                                                                                              ...Introduction. 777 Part 1: State Summary
                 *f Emeterio Saenz appeals the trial court's summary judgment granted In favor of J.D.                        Judgment Practice. 7791. Procedure. 779
                 Rodriguez Produce and Trucking Company and John D. Rodriguez ("Rodriguez"). Saenz                            A. Motton for Summary Judgment. 779 1.
                                                                                                                              General Requirements and Uses. 780 Z.
                 sued Rodriguez alleging negligence, res ipsa loquitur, negligent entrustment, and malice                     Traditional Motion for Summary Ju...
                 (gross negligence). On appeal, Saenz complains that the trial court erred in granting the
                                                                                                                              See More Secondary Sources
                 summary judgment. We affirm the Judgment of the trial court.
                                                                                                                              Briefs
                                              Factual and Procedural Background
                                                                                                                              Brief of Appe lisa Joa McKay
                 On February 13,1997, Saenz was driving a tractor-trailer owned by Rodriguez from
                 Colorado with a load of potatoes. Joe Colunga was a co-driver with Saenz. Saenz was                          2011 WL 1688722
                                                                                                                              Robert GREEN and Marilyn Green,
                 not an employee of Rodriguez, but worked as an independent contractor for J.D.                               Appellants, V. Joe MCKAY, Appdtee.
                 Rodriguez Produce and Trucking, a sole proprietorship owned by Rodriguez. Saenz                              Court of Appeals ofTexas, Dallas,
                                                                                                                              March 18,2011
                 stopped the tractor-trailer on the improved shouMer of a downhill section of Interstate
                                                                                                                              ...One of the Defendant's counsel In this
                 Highway 10 ("IH-10") jyst north of Boerne, Texas. At the time Saenz stopped the truck,                       matter, Mtehete Sheets, Is married to State
                 Colunga was asleep in the cab of the truck. After Saenz stepped down from the truck, It                      Representath/e Kenneth Sheets. The
                                                                                                                              daughter-ln-law of Justice Douglas S. Lang Is
                 started to roll. Saenz attempted to get back Into the truck cab, but slipped off the running                 a member of RepresentaUve Sheets's s...
                 board, Saenz fell to the pavement and the rear wheels of the tractor ran over his legs.
                                                                                                                              Appellants' Brief
                 EMS treated Saenz at the scene and transported him to University Hospital. After he was                                                               2
                 discharged from the hospital, Saenz developed an infection in his left leg. As a result, his                 2013 WL 5973844
                                                                                                                              KAT/ VENTURE, LTD. and Katy
                 leg was ultimately amputated. Saenz also broke his right leg, and inflicted severe injuries                  Management, L.L.C,, Appellants, v.
                                                                                                                              CREMONA BISTRO CORP., Appellee.
                 to his right foot, left shoulder, left arm and body in general.
                                                                                                                              Court of Appeals of Texas, Dallas.
                                                                                                                              July 05,2013
                 On June 17,1998, Saenz filed his lawsuit against Rodriguez alleging negligence,                               ...FN2. Katy presents a uniflsd statement of
                 negligence per se in violation of the Federal Motor Carrier Safety Regulations                               the case and of facts, because the case was
                                                                                                                              disposed on summary Judgment and the
                 ("FMCSR"), and malice (gross negligence), On July 27,1999, Rodriguez filed a no-                             underlying facts were primarily developed
                evidence motion for summary judgment. On August 16,1999, Sgenz filed a first                                  through affldavNs and documents tha...

                amended original petition alleging additional negligence and negligence per se claims,
                                                                                                                              Brief of Appollae
                res ipsa loquitur, and that Rodriguez negligently entrusted the truck to Colunga. On
                                                                                                                              2013 WL 6973845
                August 31, 1999, the trial court granted Rodrlguez's no-evidence motion as to the entire                      KAT/VENTURE, LTD. and Katy
                case. On November 12, 1999, the trial court denied Saenz's amended motion to set                              Management, L.L.C., Appellants, v.
                                                                                                                              CREMONA BISTRO CORP., Appellee.
                aside the no-evidence summary judgment order and request for leave to open summary                            Court of Appeals of Texas, Dallas.
                judgment evidence for reconsideration; or alternatively, a motion for new trial. On appeal,                   August 02,2013
                                                                                                                              ...FN1. The Katy Entities combined the
                Saenz complains that the trial court erred in granting a no-evidence summary judgment
                                                                                                                              Statement of Ihg Case and Statement of Facts
                in Rodriguez's favor because Rodriguez's conclusory motion did not address each claim                         In their brief into one section and, accordingly,
                                                                                                                              in responding to same herein Appelee
                in his petition and there was more than a sclntilla of evidence to support each and every
                                                                                                                              Cremona similarly combines those...
                claim.
                                                                                                                              See More Briefs
                                                        Standard of Review
                                                                                                                              Trial Court Documents
                We review a summary Judgment de novo. See Ganzales v. American Postal Workers
                                                                                                                              LONGHORN LANDSCAPESER

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              Union, AFL CIO, 948 S.W.2d 794, 797 (Tex.App.-San Antonio 1997, writ denied). A np-                 INC., V. CHRISTIAN DEAL.

              evidence summary judgment is essentially a pretrlal directed verdict, and we apply the              2001 Wl. 35836992
                                                                                                                  LON13HORN LANDSCAPE SERVICES, INC.,
              same legal sufficiency standard in rQviewing a no-evidence summary judgment as we
                                                                                                                  V, CHRISTIW DEAL.
              apply in reviewing a directed verdict. See Moore v. K Mart Corp., 981 S.W.2d 266, 269               District Court pf Texas, Harris County
                                                                                                                  May 08,2001
              (Tex.App.-San Antonio 1998, no pet,). We review the evidence in the light most favorable
                                                                                                                  ...Plainflff, Longhorn Landscape Servtees,
              to the respondent against whom the no-evidence summary judgment was rendered,                       Inc., files this Response to Defendant's Motion
              disregarding all contrary evidence and inferences. See Merreil Daw Pharmaceuticals, Inc.            For Partial Summary Judgment and in
                                                                                                                  response would show: The Defendant files hla
              v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Moore, 981 S.W.2d at269.Ano-evidence                     Motion bas9d upon Texas Business...
              summary judgment Is improperly granted if the respondent brings forth more than a
                                                                                                                  Estate Of W. A, WHITMIRE, Dec'
              scintllla of probatlve evidence to raise a genuine Issue of material fact. SeeTEX.R.CIV.P.
              186a(i); see ateo Havner, 953 S.W,2d at 711; Moore, 981 S.W.Zd at 269,Less than a                   2006WL4858Z45
                                                                                                                  Estate of W. A. WHITMIRE, Deceast -.
              scintilla of evidence exists when the evidence is so weak as to do no more than create a            District Court of Texas, McMulsn County
              mere surmise or suspicion of a fact. See Gomez v. Tri City Community Hosp., Ltd., 4                 August 10,2005

              S.W.Sd 281, 283 (Tex.App.-San Antonio 1999, no pet.); Moore, 981 S.W.Zd at 269,More                 ...BE IT REMEMBERED that on this day came
                                                                                                                  on before this Court for consideration of
              than a scintilla of evidence exists when the evidence rises to a level that would enable            Bessfe MaeWhNmlre's ("Proponenr of the
              reasonable and fair-minded people to differ In their conclusions. See Gomez, 4 S.W.3d at            January 9,2001 Will) Motion for Summary
                                                                                                                  Judgment under Rule 166a(i) ofTexas ...
              283; Moore, 981 S.W.2d at 269.
                                                                                                                  Cynthia TATUM, Indh/idually, ar
              *2 When reviewing a summary judgment granted on general grounds, this court                         Behalf of All Others Similarly S
                                                                                                                  Plaintiff, v. JMC HOMES, INC. a
              considers whether any theories asserted by the summary judgment movant will support                 Mortgage Company, Ltd., Defor,—,.—.
              the summary judgment. See S(ate Farm Fire & Cas, Co. v. S,S., 858 S.W.Zd 374, 380
                                                                                                                  2001 WL 35926755
              (Tex.1993). When a trial court's order granting summary Judgment does not specify the               Cynthia TATUM, IndlvMyaly, and on Behalf of
                                                                                                                  All Others Similarly Situated, Plaintiff, v. JMC
              ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal             HOMES, INC. and JMC Mortgage Company,
              If any of the theories advanced are meritorious, See id.                                            Ltd., Defendants.
                                                                                                                  Dlstrtet Court of Texas, Harris County
                                                                                                                  April 30,2001
                                                      Discussion
                                                                                                                  ...Plaintiff Cynthia Tatum, Individually and on
              In his first and second issues, Saenz complains that the trial court erred in granting              Behalf of AI Others Similarly Situatod, files this
              summary Judgment because the trial court granted Judgment on claims not addressed in                response to Defendant JMC Homes, Inc.'s
                                                                                                                  ("JMC") "no-euidence" motfon for partial
              the summary judgment motion. Specifically, Saenz argues that Rodriguez failed to                    summary judgment, and s...
              amend his motion for summary judgment after Saenz amended his original petition to
                                                                                                                  See More Trial Court Documents
              Include additional negligence claims. Saenz's first amended original petition alleged
              additional claims of negligence and negligence per se,1 res ipsa loquitur, negligent
              entrustment, and malice. In his motion for summary judgment, Rodriguez addressed
              Saenz's malice claim, some ofSaenz's negligence and negligence per se claims,2 and
              failed to address Saenz's negligent entrustment claim. Accordingly, Saenz contends that
              summary judgment should be reversed on each specific negligence and negligent
              entrustment claim that Rodrlguez failed to address in his motion.

              A no-evidence motion for summary judgment must specify the elements of the plaintiffs
              plaim as to which there is no evidence. SeeTEX.R.GIV.P. 166a(i); Lampasas v. Spring
              Center, Inc., 988 S.W.2d 42,8, 436 (Tex.App.-Houston [14 th Dlst.] 1999, no pet.). This, In
              turn, shifts the burden on the nonmovant to come forward with some evidence of the
              essential element or elements challenged In the motion. See Lampdsas, 988 S.W,2d at
              436.If the nonmovant does not, then the trial court must grant the no-evidence motion for
              summary Judgment covering all the claims or defenses composed of the element or
              elements that were specifically challenged. SeeTEX.R.CIV.P. 166a(i); Lampasas, 988
              S.W.2dat436.

              Rodrlguez's motion specifically challenged the element of proximate causation as to each
              of Saenz's negligent claims. Rodriguez was not required to amend his motion in
              response to the amended petition because the added negligence claims and the
              negligent entrustment claim contained the same element of proximate causation that was
              previously challenged. Therefore, Saenzwas required to introduce evidence of proximate
              causation as to each of his negligence claims, including the negligent entrustment claim,
              In order to avoid summary judgment.

              Saenz's reliance on his first amended pleadings Instead of bringing forward the requisite
              evidence on proximate causation was an attempt to avoid the effect of the no-evidence
              summary judgment rule. See Lampasas, 988 S,W.2d at 436.Based on the facts before
              us, the amended petition merely reiterates the same essential elements of negligence
              (duty, breach and causation) In another fashion, and the motion for summary judgment
              adequately covered these new variations. See id. at 437 Accordingly, we overrule Issues
              one and two.


              *3 In his third issue, Saenz complains that the trial court erred in granting summary
             judgment because there was more than a scintilla of evidence to support each and every
              claim that he asserted. In response, Rodrlguez contends that Saenz failed to produce


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               competent summary Judgment evidence on proximate cause, an essential element of his
               recovery.


               The elements for negligence include: (1) a legal duty owed by one person to another; (2)
               a breach of that duty; and (3) damages proximately resulting from that breach. See
               Greater Houston Transp. Co. v. Ph/llips, 801 S,W,2d 523, 525 (Tex.1990). Although
               Rodriguez addressed negligence per se separately In his motion for summary judgment,
               negligence per se is not a cause of action separate and independent from a common law
              negligence action. See Zavala v. Trujillo, 883 S.W.2d 242, 245 (Tex.App.-EI Paso 1994,
              writ denied). Negllgenpe per se is a tort concept whereby a legislatively Imposed
              standard of conduct is adopted by the civil courts as defining the conduct of a reasonably
              prudent person. See Carter v. William Sommerville and Son, Inc., 584 S.W.2d 274, 278
              (Tex.1979); Borders, Inc. v. Price, 939 S.W.2d 247, 250 (TexApp.-Amarillo 1997, writ
              denied). The unexcijsed violation of a statute constitutes negligence as a matter of law if
              such statute was designed to prevent injury to the class of persons to which the injured
              party belongs. See Mwghon v. Wolf, 576 S.W.2d 603, 604 (Tex.1978); Ward v.
               Northeast Texas Farmers Co-op. Elevator, 909 S.W.2d 143,147 (Tex.App.-Texarkana
               1995, writ denied). The trial court merely has the fact finder decide If the tortfeasor
              committed the act proscribed by the statute and if the act proxlmatety caused injury. See
               Borden, 939 S.W,2(1 at 250.

              Res ipsa loquitur, meaning "the thing speaks for Itself," is used only in certain limited
              cases where the circumstances surrounding the accident constitute sufficient
              circumstantial evidence of the defendant's negligence to support such a finding. See
              Haddock v. Amspiger, 793 S.W.Zd 948, 9SO (Tex.1990); Schorlemerv, Reyes, 974
              S.W.2d 141, 145 (Tex.App.-San Antonio 1998, pet. denied). Specifically, res ipsa loquitur
              applies only when two factors are present: (1) the character of the accident is such that it
              would not ordinarily occur in the absence of negligence; and (2) the instrumentality
              causing the injury Is shown to have been under the management and control of the
              defendant. See Haddock, 793 S.W.2d at 950; Schorlemer, 974 S.W,2d at
              145.Furthermore, the likelihood of other causes does not have to be completely ruled
              out, but their likelihood must be "so reduced that the jury can reasonably find by a
              preponderance of the evidence that the negligence, if any, lies at the defendant's
              door."See Schorlemer, 974 S.W.2d at 145.Accordingty, res Ipsa loquitur is simply a rule
              of evidence by which negligence may be Inferred by the jury; it is not a separate cause of
              action from negligence. See Haddock, 793 S.W.Zd at 950.

              *4 The elements of negligent entrustment are: (1) entrustment of a vehicle by the owner;
              (2) to an unlicensed, Incompetent, or reckless driver; (3) that the owner knew or should
              have known to be unlicensed, incompetent, or reckless; (4) that the driver was negligent
              on Ihe occasion in question; and (5) that the driver's negligence proxlmately caused the
              accident. See Frito Lay, Inc. v.. Queen, 873 S,W.2d 85, 86 (TexApp.-San Antonio 1994,
              writ denied). Implicit In this criteria is that the driver to whom the vehicle was entrusted
              was the same driver who proxlmately caused the accident. See id.

              Malice or gross negligence includes two elements: (1) viewed objectively from the actor's
              standpoint, the act or omission must involve an extreme degree of risk, considering the
              probability and the magnitude of the potential harm to others, and (2) the actor must
              have actual, SMbjective awareness of the risk involved, but nevertheless proceed In
              conscious indifference to the rights, safety, or welfare of others, SeeTEX.CIV.PRAC. &
              REM .CODE ANN . § 41,001 (7)(B) C^ernon 1997); Mobll Oil Corp. v. Ellender, 968 S,W.2d
              917, 921 (Tex.1998). Evidence of simple negligence is not enough to prove either the
              objective or subjective elements of gross negligence. See Eilender, 968 S.W.2d at 921.

              In the instant case, Saenz argues that his summary judgment proof brings forth more
              than a scintilla of probative evidence to raise a genuine issue of material fact. Saenz's
              summary judgment proof consists of the following; (1) Saenz's affidavit and non-
              stenographlc deposition; (2) Rodriguez's responses and objections to Saenz's first set of
              interrogatorles, requests for production and requests for admissions; (3) an Insurance
              endorsement; and (4) Rodriguez's oral/video deposition testimony,

              Initially, Saenz offered his affidavit and his non-stenographlc deposition as summary
              judgment proof. In his affidavit, Saenz contended that Rodriguez owned a for-hire
              trucking company that would deliver and pick up goods both inside and outside the
              United States. Saenz drove routes for Rodrlguez. In the mldd Ie of February 1997,
              Rodriguez asked Saenz if he would pick up goods from the valley, picK up Joe Colunga
              and, together, go to the state of Colorado, deliver goods, and take back a shipment of


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               goods to San Antonio, Texas. Saenz claimed that Rodriguez never wanted to pay for
               permits and Saenz understood that he and Colunga were only supposed to drive
               evenings to avoid weigh stations and permit checks. Furthermore, Saenz asserted that at
               one time Colunga was a capable driver, but by the time he began working for Rodriguez,
               Colunga was a substance abuser and had difficulty making the routes on his own.
               Colunga had some physical difficulties that might have been associated with drug abuse.
               Rodrlguez rarely assigned Colunga his own long routes, and Instead would make another
               driver travel with Colunga. Saenz asserted that the truck he and Colunga drove had
               already been In service a number of years t?efore Rodriguez purchased it. The truck did
               not have a working gas gauge, and the only way to determine how much fuel was in the
               tank was by guesswork or by opening the tank and shining a flashlight or inserting a
               dipstick. Saenz contended that Rodriguez told him that he was going to sell the truck
               Immediately after they completed their haul In February 1997. Saenz understood that
               Rodriguez did not want him to turn the truck in with a full tank of fuel, but Insteaci, wanted
               him to bring the truck in almost empty so Rodriguez couW "save a few bucks."

               *5 In addition, Saenz described the accident and explained that he stopped the truck
               thirty miles or so outside of San Antonio on IH-10 West. Saenz put on the brakes for both
               the tractor and trailer. Saenz got out of the truck to check the amount of gasoline In the
               tank because he was not sure he had enough left to get him to San Antonio. Saenz
               exited the truck and checked all the tires and the level of fuel. Saenz claimed he needed
               to use the restroom so he urlnated next to the truck, in between the passenger area and
              the trailer. Suddenly, the truck started to roll forward. Saenz yelled to Colunga and tried
              to jump up onto the running board of the passenger side so he could get Colynga's
               attention or stop the truck himself. Saenz missed the running board and landed on his
               back. Two outside tires ran over Saenz's legs causing permanent crippling to one leg and
               an eventual amputatipn of the other, Saenz stated that he was outside the truck and did
               not know exactly why the truck rolled forward. Colunga later died in 1998.

              Saenz's deposition testimony appears to be contradictory. Saenz claimed, on one hand,
              that the brakes on the truck were "okay," and that he did not complain to Rodriguez
              about any safety features on the truck. Later in the deposition, Saenz testified that he told
              Rodriguez that the brakes on the truck were "no good."

              Secondly, Saenz offered Rodriguez's discovery responses and admissions as summary
              Judgment proof, Rodriguez's discovery responses and admissions reflected that he had
              not been Involved in prior incidents that were similar to this case. Rodriguez claimed that
              the truck in question was Inspected annually for its safety sticker and routine
              maintenance was performed approximately every 10,000 miles. Not only were tires
              Inspected before every trip, but drivers were expected to report any tire or other
              problems which occurred during a trip and make arrangements for repairs as needed. In
              addition, Rodriguez purchased the truck In 1995 and then sold it in 1997. Rodriguez
              stated that his policy regarding the operational speeds of his vehicles was that contract
              drivers were expected to obey traffic laws and were responsible for any tickets received
              during a trip. Contract drivers were compensated by receiving a commission based on a
              percentage of the load paid. Moreover, Rodriguez failed to produce: (1) documentation
              of insurance policies or indemniftoation agreements; (2) documents regarding the truck
              for five years prior to the incident, including any maintenance records, repair records,
              repair bills, invoices, work orders, maintenance checks, condition checklists, complaints,
              or receipts; (3) log books (4) records of personnel matters, including driving history, drug
              tests, supervisor evaluations, Incident or accident reports, and truck records and
              Department of Transportation records; (5) and a report on the accident from Saenz.

              Next, Saenz offered an insurance endorsement as summary judgment proof. The
              endorsement, however, indicated a surcharge for non-recelpt of a mechanical Inspection
              dated July 25,1996. The document bears the notation "null and void" and does not
              appear to be linked in any way to the truck in question.

              *6 Finally, Saenz offered Rodriguez's video deposition testimony as summary judgment
              proof. In his deposition, Rodriguez testified J.D, Rodrlguez Produce & Trucking Company
              was a sole proprietorship that had been in operation for thirty years as a trucking
              business, and that he owned the truck that was Involved in the accident. Rodrlguez
              claimed that he cjid not have the truck's maintenance records and did not keep copies of
              the driver's log books. Rodriguez acknowledged that the federal regulations which
              applied to tractor trailers In February 1997 also applied to his oompany. Rodrigyez never
              conducted yearly reviews of driving records with state agencies nor did he have a system
              of training drivers on his rigs,

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              According to Rodriguez, Saenzwas an independent contractor who, in turn,
               independently hired Colunga to go with him on trips. Colunga was operating Rodriguez's
               trucks with Roclriguez's express permission. Rodrignez never gave Colynga a driving
               test. Rodriguez knew Colunga had a valid commercial driver's license, but did not
               remember ever seeing it. Rodriguez never checked with the Department of Public Safety
               to determine if Colunga ever had his driver's lipense suspended or revoked, Rodrlguez
               knew that Colunga was rumored to have taken drugs. Rodriguez had no formal company
               drug policy nor did he send drivers to take drug tests. However, Rodriguez had asked
               (Irivers If they had been using drugs.

               Rodrlguez further testified that Saenz had been driving for him for more than five years
               and was his best driver. According to Rodriguez, Saenz did not have a valid commercial
               driver's license and that was why Saenz took Colunga on trips because Colunga had a
              driver's license. Rodriguez claimed that under normal conditions, when a driver stopped
              on the side of the road to check the truck's tires, the driver would put on the brakes by
               pulling out two buttons, which was the emergency brake. In this case, Saenz told
               Rodrlguez that he did not pull the emergency brake buttons, but instead pulled the trailer
               brake handle located under the steering wheel. A trailer brake handle is not normally
              used for parking, but instead, used for driving conditions, like ice or snow or driving down
              hill on a mountain pass. Rpdriguez claimed that trucks wouM not move if the emergency
              brake was pulled. Rodrlguez also understood that Colunga was asleep in the cab at the
              time ofSaenz's accident.

               In addition, Rodriguez claimed that the first time he found out that the fuel gauge was not
              working on the truck was when he found out about the accident. Rodriguez asserted that
              he had never encouraged his drivers to drive at night instead of In the daytime. Saenz
              used to like to drive at night because he did not have a driver's license.

              Saenz asserts that his affidavit evidence shows a reasonable Inference that either
              Colunga released the brake or the brakes failed. Saenz argues that there is more than a
              scintilla of evidence to show that Rodriguez failed to property malntgln and inspect his
              trucks because Rodriguez lacked maintenance records. In addition, Saenz contends that
              the evidence shows that Rodriguez violated several of the provisions of the Federal
              Motor Carrier Safety Regulations and that such violations are negligence per se.Saenz
              argues that Rodriguez was negligent In hiring, training, supervising, and testing his
              drivers. Furthermore, Saenz asserts that his affidavit raises genuine issues of material
              fact regarding malice or gross negligence because It offers more than a scintilla of
              evidence of conscious or knowing disregard for the rights, welfare and safety of others.

              *7 Despite Saenz's arguments, after reviewing all of Saenz's summary judgment
              evidence, we find that there is no evidence that Rodriguez proximately caused this
              accident. Saenz's argument that his summary judgment evidence raised a reasonable
              Inference that either the brakes failed or Colunga released the brakes is merely suspicion
              and speculation. Saenz's summary Judgment evidence fails to offer even a scintllla of
              evidence that acts or omissions of Rodriguez proxlmately caused the trailer to roll or
              proximately caused Saenz to slip when he tried to jump back in the tractor cab. There is
              no connection between Rodriguez's lack of maintenance records and the truck rolling.

              In addition, even if the alleged violations of the Federal Motor Carrier Safety Regulations
              are true, this does not defeat the no-evidence summary judgment. Since proximate
              cause is an essential element of negligence per se, Saenz must show by competent
              evidence that the violations of (he statute proxtmately caused the truck to roll. See
              Borden, 939 S.W.Zd at 2SO; Yap v. ANR Freight Systems, Inc., 789 S.W,2d 424, 427
              (Tex.App.-Houston [1st Dist,] 1990, no writ). Even ifRodriguez's deposition testimony
              contained admissions of violations of any regulations, Saenz failed to connect the
              violations with the truck Saenz was driving or point out any evidence In this record that
              establishes howthe violations are proof that some act or omission of Rodriguez
              proximately caused the truck to roll. Saenz failed lo make any plausible connection
              between Colunga's problems, the lack of documents and the alleged violations and
              conduct of Rodrlguez upon which to conclude there was even a scintilla of evidence that
              Rodrigyez proximately caused the accident.

              Finally, there Is no evidence to support Saenz's malice claim for exemplary damages.
              Because Saenz failed to produce even a scintilla of evidence that Rodriguez proximately
              caused the accident on his negligence claims, there Is not enough evidence to prove
              either the objective pr subjective elements of gross negligence. See Ellender, 968 S.W,2d
              at 921 .Specifically, there is no evidence of any act or omission by Rodriguez which


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               showed he had actual subjective awareness of the rlski but proceeded with conscious
               indifference to the rights, safety, or welfare of others, including Saenz. See id.

               Accordingly, Saenz failed to meet his burden to produce summary judgment evidence
               that amounts to more than a surmise or suspicion. Since Sgenz suggests only suspicion
               and speculation as a basis for his conclusion that Rodriguez proximate)/ caused the
               accident, the trial court correctly found that Saenz presented less than a scintilla of
               evidence. Because the trial court properly granted summary judgment on each of
               Saenz's causes of action, we overrule this issue.


               Having overruled each of Saenz's issues on appeal, we affirm the Judgment of the trial
               court.



                 Footnotes

                              In his first amended original petition, Saenz alleged that Rodrlguezwas
                              negligent in the following ways; 1) falling to keep a proper lookout as a
                              person of ordinary care would have kept under a similar circumstance; 2)
                              failing to inspect and repair or alter brakes; 3) failure to inspect or repair
                              broken gas gauges; 4) ordering Saenz to return the truck with a nearly-
                              empty fuel tank because Rodrlguez was planning on selling the truck upon
                              Saenz's completion of the assignment; 5) forcing Saenz to drive at night; 6)
                              refusing to pay for proper federal permits; 7) failing to keep maintenance
                              records; 8) failing to test Colunga for substance abuse; 9) requesting that
                              Colunga accompany Saenz on this route; 10) negligently hiring and
                              retaining Colunga; 11) failing to check Colunga's physical health; 12) failing
                             to check Colunga's driving record; 13) falling to conduct an appropriate
                              background or reference check on Colunga before and during his work for
                              Rodriguez; 14) negligently supervising Colunga; 15) negligently testing or
                             failing to test Colunga's competence and qualifications to operate a tractor-
                             trailer: 16) negligently permitting Colunga, a person that Rodrlguez knew or,
                             In the exercise of due care, should have known, was unfit, incompetent,
                             reckless and/or impaired to operate a tractor-trailer; 17) failing to Inspect
                             the truck; 18) failing to keep the driving mechanisms of the truck free from
                             Interference; 19) failing to make such application of the brakes as a person
                             using ordinary care would have made under the same or similar
                             circumstance; 20) failing to exercise due care to avoid colliding with Saenz,
                             who was a pedestrian upon the roadway; and 21) failing to maintain the
                             vehicle in proper working condition. Saenz alleges that each of the acts
                             and/or omissions, singularly or In combination with others, constitute
                             negligence and negligence per se which proximatety caused Saenz's
                             injuries.

                             Rodriguez only addressed the following negligence claims In his motion for
                             summary judgment: 1) failing to keep a proper lookout; 2) failing to maintain
                             control over the vehicle prior to the collision; 3) operating the vehicle in
                             willful and wanton disregard for the safety of persons; 4) failing to keep
                             driving mechanisms of Rodriguez Trucking vehicle free from interference;
                             5) falling to make such application of the brakes as a person using ordinary
                             care; 6) failing to exercise due care to avoid colliding with plaintiff who was
                             a pedestrian; 7) falling to give warnings to plaintiff by sounding the horn
                             when necessary; and 8) failing to maintain the vehicle In proper working
                             condition.



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