United Parcel Service, Inc. and Roland Leal v. Robert Scott Rankin, Individually, Rachelle Rankin, Individually and as Next Friend for Avery Rankin, Kara Rankin, and Samuel Rankin, Minors

ACCEPTED
04-014-00494-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
2/19/2015 3:49:16 PM
KEITH HOTTLE
NO. 04-14-00494-CV CLERK

IN THE FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS

United Parcel Service, Inc. and Roland Leal,
Appellants,
v.
Robert Scott Rankin, Individually, Rachelle Rankin, Individually and As Next
Friend for Avery Rankin, a Minor, As Next Friend for Kara Rankin, a Minor
and As Next Friend for Samuel Rankin, a Minor
Appellees.
On Appeal from the 224th Judicial District Court, Bexar County, Texas
Honorable Cathy Stryker, Presiding Judge
Trial Court Cause No. 2011-CI-07922

APPELLANTS’ REPLY BRIEF
W. Randall Bassett Ricardo R. Reyna
Pro Hac Vice Pending State Bar No. 16794845
Bradley W. Pratt Audrey A. Haake
Pro Hac Vice Pending State Bar No. 08658100
King & Spalding, LLP Brock Person Guerra Reyna, P.C.
1180 Peachtree Street, N.E. 17339 Redland Road
Atlanta, GA 30309-3521 San Antonio, Texas 78247-2302
Telephone: (404) 572-4600 Telephone: (210) 979-0100
Facsimile: (404) 572-5100 Facsimile: (210) 979-7810
rbassett@kslaw.com
bpratt@kslaw.com

H. Victor Thomas
State Bar No. 19851500
Thomas Michael Gutting
State Bar No. 24067640
King & Spalding, LLP
1100 Louisiana, Suite 4000
Houston, Texas 77002
Telephone: (713) 751-3200
Facsimile: (713) 751-3290
vthomas@kslaw.com
tgutting@kslaw.com

Counsel for Appellants United Parcel Service, Inc. and Roland Leal

ORAL ARGUMENT REQUESTED
 TABLE OF CONTENTS

ARGUMENT ............................................................................................................. 6 

A.  The Interpretation and Application of the Transportation Code is
a Question of Law that Should Have Been Decided by the Trial
Court, Not the Jury. ............................................................................... 6 

B.  Defendants Did Not Invite Error or Waive their Objections to the
Negligence Per Se Questions and Instructions. .................................. 10 

C.  The Plaintiffs’ and Jury’s Interpretation of Section 541.102(2) Is
Incorrect; “Residences” Means Not Just the Dwellings, but also
the Land Being Used For Living Purposes. ........................................ 12 

D.  Even under Plaintiffs’ Interpretation of Section 541.102(2), the
Evidence Is Legally and Factually Insufficient to Support the
Jury’s Finding that the Car Was Parked Outside of a “Residence
District.” .............................................................................................. 19 

1.  The Google photograph is insufficient proof............................ 20 

2.  The Lori Carroll Affidavit is insufficient proof; in fact, its
admission was reversible error.................................................. 25 

E.  Defendants Did Not Waive their Objection to the Trial Court’s
Erroneous Submission of an Unsupported Negligence Per Se
Claim and Such Error is Reversible. ................................................... 27 

F.  The Jury’s Findings in Questions 2 and 3 (Proximate Cause) and
Question 4 (Mr. Rankin Was Only 50% Responsible) Are Not
Supported by Sufficient Evidence. ...................................................... 31 

CERTIFICATE OF COMPLIANCE .................................................................................. 35 

CERTIFICATE OF FILING AND SERVICE....................................................................... 35

APPENDIX.................................................................................................................. 36

1
 TABLE OF AUTHORITIES

Page(s)

Cases
Aaron Rents, Inc. v. Travis Cent. Appraisal Dist.,
212 S.W.3d 665 (Tex. App.—Austin 2006, no pet.) ............................................ 6

Ace Fire Underwriters Ins. Co. v. Simpkins,
380 S.W.3d 291 (Tex. App.—Fort Worth 2012, no pet.)..................................... 9

Benge v. Williams,
01-12-00578-CV, 2014 WL 6462352 (Tex. App.—Houston [1st
Dist.] Nov. 18, 2014, no. pet. h.) ........................................................................ 30

C.M. Asfahl Agency v. Tensor, Inc.,
135 S.W.3d 768 (Tex. App.—Houston [1st Dist.] 2004, no pet.) ........................ 7

CHCA Woman's Hosp., L.P. v. Lidji,
403 S.W.3d 228 (Tex. 2013) .............................................................................. 12

Ex parte City of Corpus Christi,
427 S.W.3d 400 (Tex. App.—Corpus Christi 2013, pet. denied
(Apr. 25, 2014)) .................................................................................................... 6

Crown Life Ins. Co. v. Casteel,
22 S.W.3d 378 (Tex. 2000)................................................................................. 28

In re Dep’t of Family Protective Servs.,
273 S.W.3d 637 (Tex. 2009) .............................................................................. 10

In re Expunction of S.S.A.,
319 S.W.3d 796 (Tex. App.—El Paso 2010, no pet.) ........................................ 12

Floeck v. Hoover,
52 N.M. 193, 195 P.2d 86 (1948) ...........................................................21, 23, 24

Gordon v. Cozart,
110 So. 2d 75 (Fla. 2nd DCA 1959) ................................................................... 18

Hayes v. Blake, No. 03-00-00065-CV,
2000 WL 1028206 (Tex. App.—Austin July 27, 2000, no pet.) ..................6, 7, 9

2
Heritage Hous. Dev., Inc. v. Carr,
199 S.W.3d 560 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ...................... 29

Hines v. Brandon Steel Decks, Inc.,
886 F.2d 299 (11th Cir. 1989) ............................................................................ 27

Marshall v. Mullin,
320 P.2d 258 (Or. 1958) ..................................................................................... 18

McFarland v. Boisseau,
365 S.W.3d 449 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ...................... 28

McGill v. Baumgart,
288 N.W. 799 (Wis. 1939) .................................................................................. 18

Mo. Pac. R.R. Co. v. Limmer,
180 S.W.3d 803 (Tex. App.—Houston [14th Dist.] 2005), rev’d on
other grounds, 299 S.W.3d 78 (Tex. 2009) ........................................................ 30

Mooneyhan v. Benedict,
284 S.W.2d 741 (Tex. Civ. App.—Austin 1955, writ ref’d n.r.e)...................... 22

Moughon v. Wolf,
576 S.W.2d 603 (Tex. 1978) ................................................................................ 8

Nat’l Plan Administrators, Inc. v. Nat’l Health Ins. Co.,
150 S.W.3d 718 (Tex. App.—Austin 2004), rev’d on other
grounds, 235 S.W.3d 695 (Tex. 2007).................................................................. 6

Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se.
Texas, Inc.,
975 S.W.2d 546 (Tex. 1998) .............................................................................. 23

Owens Corning v. Carter,
997 S.W.2d 560 (Tex. 1999) ............................................................11, 12, 14, 15

Ragsdale v. Progressive Voters League,
801 S.W.2d 880 (Tex. 1990) .............................................................................. 10

Romero v. KPH Consolidation, Inc.,
166 S.W.3d 212 (Tex. 2005) .............................................................................. 29

3
State v. Zeus,
56 N.J. Super. 323 (Cty. Ct. 1959) ( New Jersey) .............................................. 18

Sullivan v. Dollar Tree Stores, Inc.,
623 F.3d 770 (9th Cir. 2010) .............................................................................. 27

Texas Mut. Ins. Co. v. Morris,
287 S.W.3d 401 (Tex. App.—Houston [14th Dist.] 2009), judg-
ment rev’d, 383 S.W.3d 146 (Tex. 2012) ........................................................... 30

Thoms v. Dowdy,
112 S.E.2d 868 (Va. 1960) ................................................................................. 18

Thota v. Young,
366 S.W.3d 678 (Tex. 2012) .............................................................................. 28

Turner v. Cruz,
2010 WL 5545392 (Tex. App.—San Antonio Dec. 29, 2010, no
pet.) ..................................................................................................................... 32

Zavala v. Burlington N. Santa Fe Corp.,
355 S.W.3d 359 (Tex. App.—El Paso 2011, no pet.) ........................................ 21

Zeus Enters., Inc. v. Alphin Aircraft, Inc.,
190 F.3d 238 (4th Cir. 1999) .............................................................................. 27

Statutes
TEX. CIV. PRAC. & REM. CODE §33.001................................................................... 31

TEX. CIV. PRAC. & REM. CODE § 71.051.................................................................. 14

TEX. GOV. CODE § 311.023 (4) ................................................................................ 14

TEX. PROP. CODE § 27.001 ....................................................................................... 14

TEX. TRANSP. CODE ANN. § 541.102(3) ................................................................... 13

TEX. TRANSP. CODE § 541.102(2) .....................................................................passim

TEX. TRANSP. CODE § 545.301(a) ............................................................................ 7

4
Other Authorities
FED. R. EVID. 803 ...............................................................................................26, 27

TEX. R. CIV. P. 278 ..................................................................................................... 9

TEX. R. EVID. 401 ..................................................................................................... 25

5
 ARGUMENT

A. The Interpretation and Application of the Transportation Code is a
Question of Law that Should Have Been Decided by the Trial Court,
Not the Jury.
The trial court erred by requiring the jury to interpret and apply Tex. Transp.

Code § 541.102(2) (which the court acknowledged was “remarkably vague,”

RR 9:199), rather than interpreting the statute and applying it to the undisputed

facts.

Plaintiffs argue that the standard of review for this complaint is abuse of
discretion, not de novo. That is incorrect. The interpretation of an ordinance or

statute is a question of law, and it is error for a trial court to submit this question of

law to the jury. See Ex parte City of Corpus Christi, 427 S.W.3d 400, 405 n. 3
(Tex. App.—Corpus Christi 2013, pet. denied (Apr. 25, 2014)). A question of

legal error is reviewed de novo. Aaron Rents, Inc. v. Travis Cent. Appraisal Dist.,

212 S.W.3d 665, 669 (Tex. App.—Austin 2006, no pet.). Likewise, questions of
law contained in jury instructions are reviewed de novo. See Nat’l Plan

Administrators, Inc. v. Nat’l Health Ins. Co., 150 S.W.3d 718, 730 (Tex. App.—

Austin 2004), rev’d on other grounds, 235 S.W.3d 695 (Tex. 2007).
Appellants’ Brief cited the closely analogous decision of Hayes v. Blake,

No. 03-00-00065-CV, 2000 WL 1028206, *3-4 (Tex. App.—Austin July 27, 2000,

no pet.), which explained, “whether the ordinance applies to the subdivision

[where the incident occurred] is a question of law,” and concluded, as a matter of

law, that the ordinance did not apply because the subdivision was located in a

6
“limited purpose territory.” Plaintiffs do not address or distinguish this decision

because they cannot. Under the Hayes authority, the trial court erred in submitting

to the jury the legal question of whether 109 Ranger Creek Road [where the

incident occurred] was located in a “residence district,” as defined by section

541.102(2).

The trial court also erred in submitting the negligence per se questions and

instructions in Questions 1 and 2 because the evidence did not support them. The

standard of review for this complaint is also de novo, not abuse of discretion. See
C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 780 (Tex. App.—Houston

[1st Dist.] 2004, no pet.) (whether legally sufficient evidence supports submitting a

theory of recovery to the jury presents a question of law that is reviewed de novo).
As discussed below, whether the Court adopts Plaintiffs’ or Defendants’

interpretation of the statute, the evidence did not support submitting these

questions to the jury.

Plaintiffs argue that the submission of Question 1 to the jury is supported by

the comment to PJC 5.1, which provides that when the court is uncertain as to

whether the violation of a statute is negligence per se, it would be better to submit
both a separate question asking if the statutory conduct was committed, and a

broad form question. See Comment to PJC 5.1. This is a red herring. Neither the

trial court nor the parties had any uncertainty as to whether a violation of TEX.
TRANSP. CODE § 545.301(a) (which prohibits parking a car on the roadway

“outside” of a “residence district”) would constitute negligence per se. Rather, the

7
only uncertainty was as to the meaning of a “residence district” as defined by

section 541.102(2) (e.g., whether “residences” meant dwellings or residential lots),
which the trial court erroneously required the jury to decide.

Plaintiffs also argue that PJC 5.1 and decisions such as Moughon v. Wolf,

576 S.W.2d 603, 605 (Tex. 1978) indicate that, when violation of a statute is

disputed, it is appropriate to ask the jury whether the defendant violated the statute

which establishes a standard of care. Moughon, 576 S.W.2d at 605, gives, as an

example, a jury question that asks whether the defendant failed to keep his vehicle
within the right half of the roadway (a pure fact question). Moughon is

inapplicable because it does not indicate that it is appropriate to require the jury to

interpret and apply a statutory definition, such as “residence district”; it only

indicates that the jury may be asked a question of fact – whether the defendant

engaged in certain conduct.

Instead of requiring the jury to decide a thorny legal question, the trial court
should have: (1) interpreted “residences” as used in section 541.102(2) to mean

not just the dwellings, but also the residential improvements and land being used

for living purposes; (2) held, as a matter of law, based on the uncontested Survey

of five adjoining residential lots at 107, 109, 111, and 115 (Lots 1 and 2) of Ranger

Creek Road that residence 109 was not outside a “residence district” (RR 17 (Pls’

Ex. 26)); and (3) denied the submission of any negligence per se questions or

instructions.

8
 Plaintiffs also argue that the trial court may not take judicial notice of

whether 109 Ranger Creek was within a “residence district,” but, once again, this

is a red herring. Defendants did not ask the trial court to take judicial notice of any

fact, but rather asked that it determine the legal status of the address because that

status had been conclusively proved through the uncontroverted Survey evidence.

See Hayes, 2000 WL 1028206, at * 3-4. Only questions of fact are to be submitted

to the jury. See Tex. R. Civ. P. 278. “When facts are conclusively established,

there is no need to submit those issues to the jury.” Ace Fire Underwriters Ins. Co.
v. Simpkins, 380 S.W.3d 291, 303 (Tex. App.—Fort Worth 2012, no pet.).

Next, Plaintiffs argue that whether the car was “stopped, parked, or

standing” at the time of the incident was a disputed fact that the jury had to

determine. This argument misunderstands the issue. If the car was not stopped, it

was not in violation of the Transportation Code as a matter of law, and there is no

basis for negligence per se. If it was stopped, it is undisputed that it was stopped at

109 Ranger Creek Road. Therefore, the Court should not have submitted Question

1. It should have interpreted the statute, applied it to the undisputed fact that the

accident occurred at 109 Ranger Creek Road, and determined that address is

outside a “residence district.” (Alternatively, if there was a genuine dispute for the

jury to resolve, Plaintiffs should have asked the trial court to simply ask the jury

whether the car was stopped when the accident occurred. This would have avoided
the error of requiring the jury to construe an ambiguous statute.)

9
 Regardless, on the actual trial record, there was no genuine question of fact

for the jury to determine in this regard because there was no evidence the car was

moving when the accident occurred, and Mr. Leal’s testimony that he was parked

is clear and uncontradicted. Although Plaintiffs argue that Mr. Leal was

inconsistent as to whether, when the accident occurred, he was in the car, the key

was in the ignition, and the truck was running, Mr. Leal never strayed from his

testimony that the car was parked when Mr. Rankin collided. RR 5:67. Where, as

here, “the testimony of an interested witness is not contradicted by any other
witness, or attendant circumstances, and the same is clear, direct and positive, and

free from contradiction, inaccuracies, and circumstances tending to cast suspicion

thereon, it is taken as true, as a matter of law.” Ragsdale v. Progressive Voters
League, 801 S.W.2d 880, 882 (Tex. 1990).

B. Defendants Did Not Invite Error or Waive their Objections to the
Negligence Per Se Questions and Instructions.
The doctrine of invited error applies when a party requests that a trial court
make a specific ruling and then complains about the ruling on appeal. In re Dep’t

of Family Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009).

Plaintiffs argue that Defendants waived and invited the trial court’s error in

submitting Question 1 by stating during the charge conference, “if they want to

argue to the jury in closing that the statute should be interpreted their way they are

free to do that under the statutory definitions, and we’re free to argue our
interpretation of the statute.” Not so. The trial court clearly understood that

Defendants adamantly opposed the submission of the negligence per se claim.

10
Defendants objected to Questions 1 and 2 in the charge conference, and moved for

a directed verdict on the negligence per se claim. See II CR 105-108; II CR 145

(Objection No. 3); RR 10:46-47.

Moreover, the quoted statement is misleading. Plaintiffs take it out of

context to suggest a completely different, and inaccurate, meaning and omit the

final clause, which provides part of its context.

At the charge conference, Plaintiffs requested that the trial court submit an

additional instruction with Question 1 that defined a “residence” as a dwelling
house that Plaintiffs argued was supported by Owens Corning v. Carter, 997

S.W.2d 560 (Tex. 1999). 10 RR 14. Defendants objected to this definition,

arguing, among other things: (1) the requested definition was contrary to a correct
interpretation of section 541.102(2); (2) the definition stated in Owens Corning

was not relevant because it involved the interpretation of a different statute, and

(3) defining the term “residences” using Owens Corning was erroneous and

unnecessary because Plaintiffs were free to argue their interpretation of the statute

during closing. 10 RR 14-19. The entire quotation states, “I mean, if they want to

argue to the jury in closing that the statute should be interpreted their way, they are

free to do that under the statutory definitions, and we’re free to argue our

interpretation of the statute, but you shouldn’t – I think it would inject error in this

case if you put in the definition from a case [Owens Corning] that doesn’t -- . . . .”

10 RR 18-19 (emphasis added). None of these arguments invited the trial court to

submit Question 1; they simply persuaded the trial court not to submit a definition

11
of “residence” from Owens Corning that was unrelated to the Transportation Code,

and Defendants are not complaining on appeal about the trial court’s refusal to

submit that definition.

C. The Plaintiffs’ and Jury’s Interpretation of Section 541.102(2) Is
Incorrect; “Residences” Means Not Just the Dwellings, but also the
Land Being Used For Living Purposes.
Plaintiffs argue that, even if UPS is correct that the trial court should have

interpreted and applied section 541.102 instead of the jury, such error is harmless
because the jury correctly interpreted the statute. None of Plaintiffs’ contentions

supporting this argument has merit.

Strikingly, Plaintiffs failed to respond in any way to Defendants’ core
argument that basic principles of statutory construction require giving different

meaning to the word “residences” and the words “structures” and “dwelling

houses” because the Legislature deliberately used the former in the “residence
district” provision and the latter in the “urban district” provision within the same

statute, section 541.102. “The aim of statutory construction is to determine and

give effect to the Legislature’s intent, which is generally reflected in the statute’s
plain language. We analyze statutory language in context, considering the specific

section at issue as well as the statute as a whole.” CHCA Woman's Hosp., L.P. v.

Lidji, 403 S.W.3d 228, 231-232 (Tex. 2013) (citations omitted). Courts construing
statutes “should [] read every word, phrase, and expression in a statute as if it were

deliberately chosen, and likewise presume that words excluded from the statute are

done so purposefully.” In re Expunction of S.S.A., 319 S.W.3d 796, 798-799 (Tex.

12
App.—El Paso 2010, no pet.) (citing Gables Realty Ltd. P’ship v. Travis Central

Appraisal Dist., 81 S.W.3d 869, 873 (Tex. App.—Austin 2002, pet. denied)).

Thus, selection of different terms within the same section of the same

Transportation Code demonstrates, on the plain language of the Code itself, that

those terms mean different things and that Defendants’ interpretation is correct.

Contrast section 541.102, subsection 2 (“residence district”):

“Residence district” means the territory adjacent to and including a
highway, if at least 300 feet of the highway frontage is primarily
improved with (a) residences or (b) buildings used for business
purposes and residences.
TEX. TRANSP. CODE ANN. § 541.102(2) (emphasis added), with 541.102,

subsection 3 (“urban district”):

“Urban district” means the territory adjacent to and including a
highway, if the territory: . . . (B) is improved with structures that are
used for business, industry, or dwelling houses and located at
intervals of less than 100 feet for a distance of at least one-quarter
mile on either side of the highway.
TEX. TRANSP. CODE ANN. § 541.102(3) (emphasis added). This clear difference in

the plain language of the statute must be given effect. Had the Legislature

intended that only the “structures” or “dwelling houses” be considered in

subsection 2, it would have used those terms as it did in subsection 3. Plaintiffs

have no response to this argument except to offer an unsupported assertion that

“residences” and “dwelling houses” are “the same thing” and refer only to

dwellings. (Appellees’ Br. at 24.) That assertion asks the Court to reject well-

known and long-standing principles of statutory construction. The Legislature’s

13
use of these different terms in subsection (2) (“residences”) and subsection (3)

(“structures” and “dwelling houses”) makes no sense if these terms have exactly

the same meaning. The plain language of the statute is dispositive.

The Government Code provides that in construing a statute, a court may

consider laws on the same or similar subjects. See TEX. GOV. CODE § 311.023 (4).
Other Texas statutes use the term “residence” to refer to both the structure and the

land. For example, section 27.001(7) of the Property Code states: “Residence

means the real property and improvements . . . .” TEX. PROP. CODE § 27.001
(emphasis added). Similarly, section 11.13(j)(1) of the Tax Code defines a

“residence homestead” as “a structure . . . (together with the land, not to exceed 20

acres, and improvements used in the residential occupancy of the structure, if the
structure and the land and improvements have identical ownership) . . . .” TEX.

TAX CODE § 11.13(j)(1) (emphasis added). Plaintiffs argue that these statutes

would not make sense or accomplish their purpose if the term residence meant only
the structure. That is exactly the point. These statutes use the term “residence,”

precisely because the Legislature intended to encompass more than mere structures

or dwelling houses.

Plaintiffs incorrectly argue that Owens Corning v. Carter, 997 S.W.2d 560,

570-71 (Tex. 1999) indicates that “residences,” as used in section 541.102(2),

means “dwelling houses.” However, Owens Corning did not address whether the

term “residences” as used in section 541.102(2) encompasses only dwelling

houses. Rather, that case involved the interpretation of a different statute – section

14
71.051 of the Texas Civil Practice and Remedies Code (the Forum Non

Conveniens statute). Section 71.051(e) provides that a court may not dismiss a

claim for forum non conveniens under subsection (b) “if the plaintiff is a legal

resident of this state.” Section 71.051(h)(1) defines “legal resident” as an

individual who intends the specified political subdivision to be his “permanent

residence.” The Texas Supreme Court noted that Black’s Law Dictionary provided

that “residence” means the place where one actually lives or has his home; a

person’s dwelling place. The Court therefore concluded that a “permanent

residence,” as used in section 71.051(h)(1), “requires a home and fixed place of

habitation to which a person intends to return when away.” Id. at 571 (emphasis

added). Thus, the Court equates “residence” with a “place of habitation.” That
holding supports Defendants’ position because “place of habitation,” which means

the “place where someone lives,”1 encompasses both the house and the lot or land

that are inhabited.

Moreover, to the extent that Owens Corning approved the use of dictionaries

to interpret statutory terms, both the Cambridge Dictionary for American English

and the Oxford’s Dictionary also define “residence” as “the place where someone

lives.”2 “The place where someone lives” is a broad term that includes not just a

building, but also the lot and its residential improvements (such as fences,

driveways, landscaping, yards, play areas, houses, garages, walkways, etc.) that are

1
See http://www.merriam-webster.com/dictionary/habitation
2
See http://dictionary.cambridge.org/us/dictionary/american-english/residence and
http://www.oxforddictionaries.com/us/definition/american_english/residence.

15
used for living purposes. When mail is delivered to a residence, it is not said to be

undelivered until a person removes it from their mailbox and physically passes the

threshold of their dwelling house.

Plaintiffs also argue that Defendants’ interpretation of section 541.102(2)

would not provide fair notice to motorists that they are within a residence district.

The opposite is true. Residential lots with improvements (like mailboxes, fences,

driveways, and yards) that have more than 150 feet of highway frontage can easily

be identified by motorists. This is certainly true here, as the Court can see from

examining the photograph of Ranger Creek Road on page 13 of Appellants’ Brief.

A delivery driver or other motorist would have no trouble safely looking ahead and

recognizing the mailboxes, driveways, gates, and residences along the roadway for
far greater than 300 feet. (See Defs’ Ex. 99E.)

By contrast, the Plaintiffs’ interpretation is impractical and makes it virtually

impossible for motorists to recognize and obey the law under real-world
conditions. Drivers cannot be expected to accurately (much less safely) calculate,

while driving on the roadway, the footage of the structures set back from the road

and potentially obscured by trees or shrubbery, and then determine whether their

sum is greater or less than 150 feet within a 300 foot section. The Legislature

could not have intended commercial drivers to perform this difficult calculation in

determining whether it is legal for them to park when making deliveries or

collecting garbage.

16
 Plaintiffs also argue that under UPS’s interpretation of section 541.102, “if

there were two houses on the entire 350,000 acre 666 Ranch in King County,

Texas, it would qualify as a residence district.” That argument ignores a key

aspect of Defendants’ interpretation, namely, that “residence” includes the

dwelling and the improved land near the dwelling that is actually being used for

residential purposes. The statute must be read in its entirety, and the rest of the

residence district definition explains that the territory adjacent to the highway

frontage should be “primarily improved with” residences. Thus, the King Ranch
would not qualify as a residence district because the vast majority of the Ranch is

being used to raise cattle, and is not “primarily improved with” residences. In any

event, bad facts make bad law. The Court should be more concerned with the
much more common circumstance of larger lots with modest homes which may be

found throughout the State of Texas, and whether Plaintiffs’ tortured reading of the

Transportation Code could suddenly render deliveries, garbage pick-up, mail, and
school bus stops suddenly illegal at all of these residences.

Finally, Plaintiffs argue that the weight of non-Texas decisions supports

their interpretation that the term “residences,” as used in section 541.102(2) of the
Texas Transportation Code, means only the dwelling houses. This argument is

flawed, because as a decision that Plaintiffs cites explains: “An investigation of

the law pertaining to [these statutes] reveals that there are few cases and little
harmony on the subject. . . . This lack of harmony is due in large part to the wide

divergence in statutory language used by the various states in defining residence,

17
or residential district, but there are also conflicts between jurisdictions with similar

or identical statutes.” Gordon v. Cozart, 110 So. 2d 75, 76 (Fla. 2nd DCA 1959).
More important, there is a significant difference between the language of the

statutes applied in most of the decisions that Plaintiffs cite and the Texas statute.

Five of the eight non-Texas decisions that Plaintiffs cite involved statutes using the

term “dwellings” – not “residences,” as in the Texas statute,3 and thus held that

“dwellings” means only houses, and not the land, because that is how that term is

defined.4 This is a material distinction that, once recognized, actually shows that
these cases support Defendants’ interpretation – i.e., “dwellings” means houses,

whereas “residences” means residential lots. As discussed above, section 541.102

of the Texas Transportation Code recognizes the distinction between “residences”
and “dwellings” by using one term (“residences”) in subsection 2 (which defines

“residence district”) and another (“dwelling houses”) in subsection 3 (which

3
Appellees’ Brief at 21-23, cites Marshall v. Mullin, 320 P.2d 258, 261-62 (Or. 1958) (ORS
483.020 states: “(1) ‘Residence district’ means the territory contiguous to a highway not comprising a
business district when the frontage of such highway for a distance of 300 feet or more is mainly occupied
by dwellings or by dwellings and buildings used for business.”); McGill v. Baumgart, 288 N.W. 799,
802 (Wis. 1939) (“residence district”, as used in sec. 85.40(7), of the Wisconsin statutes, is defined in sec.
85.10(29), Stats., as “The territory contiguous to a highway not comprising a business district where the
frontage on such highway for a distance of three hundred feet or more is mainly occupied by dwellings or
by dwellings and buildings in use for business.”); Thoms v. Dowdy, 112 S.E.2d 868, 869 (Va. 1960)
(Code, § 46.1-1(24), defines a residence district as “The territory contiguous to a highway not comprising
a business district where seventy-five per centum or more of the total frontage, on both sides of the
highway, for a distance of three hundred feet or more is occupied by dwellings or by dwellings and
buildings in use for business purposes.”); State v. Zeus, 56 N.J. Super. 323 (Cty. Ct. 1959) ( New Jersey
statute states: “Residence district' or ‘residential district’ means the territory contiguous to a highway not
comprising a business district when the frontage on the highway for a distance of three hundred feet or
more is mainly occupied by dwellings, or by dwellings and buildings in use for business.' ); State v.
Bastian, 78 N.J. Super. 49 (Cty. Ct. 1962) (same).
4
“Dwelling” is “a shelter (as a house) in which people live.”
http://www.merriam-webster.com/dictionary/dwelling

18
defines “urban district”). If the Texas Legislature had intended residences to mean

only dwelling houses, it would have used the term dwelling houses just as it did in

subsection 3, and just as these other states did in their statutes defining a residence

district. But that is not what the Texas Legislature did; it deliberately used

“residences” instead.

Significantly, Plaintiffs state on page 40 of their Appellees’ Brief that the

jury saw maps and photographs that showed residences on either side of 109

Ranger Creek Road and that “the Rankins never contested that there were houses
on either side of 109 Ranger Creek Road; it is simply something that was not in

dispute.” This is further supported by the uncontested Survey showing adjacent

residential lots for over 300 feet. RR 17 (Pls’ Ex. 26). Therefore, if this Court

concludes, as it should, that under section 541.102(2) residences includes the

frontage lots primarily improved for residential purposes, then, as a matter of law,

109 Ranger Creek Road is within a “residence district,” and the jury’s finding in

Question 1 should be reversed.

D. Even under Plaintiffs’ Interpretation of Section 541.102(2), the
Evidence Is Legally and Factually Insufficient to Support the Jury’s
Finding that the Car Was Parked Outside of a “Residence District.”
Appellees’ Brief points to only two pieces of evidence that they claim

support their contention that there was less than 150 feet of structural frontage

within 300 feet of 109 Ranger Creek Road: (1) the aerial Google photograph,

Defs’ Exhibit 93A, and (2) the Lori Carroll Affidavit.

19
 1. The Google photograph is insufficient proof.
Plaintiffs did not present this Court with the Google photograph, either in

their brief or an appendix. It is easy to see why. The grainy, distant aerial

photograph is incompetent evidence for accurately calculating the structural

footage, as required for Plaintiffs to meet their burden:

This aerial Google photograph has multiple defects that make it insufficient

to estimate, much less accurately prove, the dimensions and relative proportions of

the structures. First, the photo was taken from more than 3,340 feet above and the

objects shown are very small. Second, a significant part of the highway frontage

within 300 feet to both the West and the East of 109 Ranger Creek Road is

20
obscured by trees, making it impossible to see all of the structures, much less

determine their dimensions. Third, the accident occurred on July 15, 2009, but the

photo is dated 2013. There is no evidence in the record that the photograph shows

the structures that existed when the accident occurred. Plaintiffs failed to respond

to this argument in their brief because they failed to present the jury with any such

proof. Fourth, the scale shown on the map is only for 900 feet to the West of 109

Ranger Creek Road, and there is no scale shown for 300 feet to either the West or

East of that address (and, indeed, no designation of that statutorily significant
portion at all). The jury had no way to accurately calculate the structural footage

within the relevant portion of highway frontage. At best, the jury could only guess

from the photo whether the frontage of the structures was not more than 150 feet to

both the East and the West of 109 Ranger Creek Road. “Evidence that is so slight

as to make any inference a guess is in legal effect no evidence.” Zavala v.

Burlington N. Santa Fe Corp., 355 S.W.3d 359, 370 (Tex. App.—El Paso 2011, no
pet.).

It is therefore no surprise that several courts (cited in Appellants’ Brief) have

held that “[a] photograph cannot be relied upon as proof in itself of the dimensions

of the depicted object or objects, and cannot be made properly available to

establish the relative proportions of such objects . . . .” See, e.g., Floeck v. Hoover,

52 N.M. 193, 195 P.2d 86, 88 (1948). Plaintiffs argue that these decisions should

be disregarded because photographic technology was allegedly different when

these cases were decided. This is an odd assertion given the quality of the Google

21
photograph (reproduced above), which the Court can now see is grainy, obscured

by trees and other impediments, taken from thousands of feet above the structures

that should be measured, and not scaled in a manner useful to making this kind of

structural footage measurement or scaled at the place to be measured. In any

event, the accuracy of Plaintiffs’ assertion is highly questionable. This Court can

take judicial notice of the fact that photos taken in the 1940s, such as those widely

published in Life Magazine, are not significantly less accurate or detailed than the

Google photograph above.
Plaintiffs also argue that Texas courts take a different view of photographic

evidence than these courts. However, neither decision cited by Plaintiffs actually

supports that contention. In Mooneyhan v. Benedict, 284 S.W.2d 741, 743 (Tex.
Civ. App.—Austin 1955, writ ref’d n.r.e), the Court of Appeals held that the trial

court did not err in declining to take judicial notice that the speed limit where the

collision occurred was 45 miles per hour because there was no evidence that the
collision occurred in either a business or residential district. The court noted that

“from photographs of the vicinity which are in the record the territory adjacent to

the highway appears to be open country.” Id. at 743. Thus, at most, Mooneyhan
indicated in dicta that photographs may constitute some evidence that the territory

adjacent to a highway is not occupied with any structures. Mooneyhan’s holding

in no way holds that a distant aerial photograph, like the Google photo, may be

relied on to prove the dimensions and relative proportions of building structures.

22
 In Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se. Texas,

Inc., 975 S.W.2d 546, 563 (Tex. 1998), photographs of abortion clinics that were

being protested were offered into evidence to prove there was a need for a buffer

zone to insure access into the clinics and to protect the clinics’ operations from

interference by the protesters’ noise. There is no indication that the parties or the

court attempted to rely on these photographs to prove the dimensions or relative

proportions of objects shown in the photographs.

Just because a photograph may be used as evidence for one purpose does not
mean that it is sufficient proof for every purpose. Plaintiffs cite no decision that a

distant aerial photograph, such as Exhibit 93A, is sufficient to prove the

dimensions and relative proportions of objects shown in the photograph.
The standard of proof that Plaintiffs were required to meet under their

(incorrect) interpretation of the statute is explained in Floeck v. Hoover, 52 N.M.

193, 195 P.2d 86, 89 (1948). The New Mexico Supreme Court observed that the
New Mexico statute’s use of the terms “dwellings” and “buildings” meant a

residence district is determined by measuring those dwellings and buildings.5 The

court held that the trial court correctly refused an instruction of the statutory

definition of “residence district” because plaintiff did not offer sufficient,

competent proof of the measurements of the frontage of all of the buildings. Id. at

89. A witness testified that the footage of the buildings at issue was approximately

410 to 415 feet, “but he did not give the dimensions of any of the buildings.” Id.

5
Again, this is a critical difference from the Texas statute, which deliberately uses the term
“residences” instead of “dwellings.”

23
The New Mexico Supreme Court held: “The burden of proof was upon the

plaintiff to show by actual measurements that the area occupied by the buildings,

to the exclusion of the vacant yard space, was more than 50 percent of the 300 feet

area. He failed to meet such burden.” Id. (emphasis added). Thus, actual, not

approximate, measurements must be shown. Plaintiffs failed to meet this burden.

Plaintiffs argue, without any supporting authority, that Defendants invited

error and are estopped from arguing that the Google photograph is insufficient to

support the jury’s finding that the car was parked outside of a residence because

Defendants introduced it. Respectfully, this is nonsense. Defendants introduced

the Google photo to show that 109 Ranger Creek Road was surrounded by

residences (places where families lived), and, indeed, that is exactly what the
former resident of 109 Ranger Creek Road confirmed in her testimony when

presented with that photograph. By introducing the Google photograph for that

purpose, Defendants did not concede that Plaintiffs’ interpretation of section
541.102(2) is correct, or that the photograph was sufficient to prove the dimensions

of the structures shown therein. That a photograph may be adequate proof for one

purpose does not mean that it is adequate for all purposes.

Plaintiffs claim that because Defendants never argued at trial that the Google

photograph was inadequate, Plaintiffs were denied the opportunity to offer

additional evidence to cure this defect. This claim ignores the Plaintiffs’ burden of

proof. Texas law does not require Defendants to point out at trial that the Google

photograph was insufficient to prove the dimensions of the structures. Rather, it is

24
Plaintiffs’ responsibility to evaluate the sufficiency of the Google photograph to

prove their negligence per se claim.

2. The Lori Carroll Affidavit is insufficient proof; in fact, its
admission was reversible error.
Plaintiffs also argue that the jury’s finding in Question 1 is supported by the

affidavit of Lori Carroll. This is a surprising argument, given that Plaintiffs

simultaneously argue that the erroneous admission of that affidavit was harmless

because it was unimportant to Plaintiffs’ case. Plaintiffs cannot have it both ways.

To this day, Plaintiffs have not offered a single argument as to why the

Carroll Affidavit is relevant. Evidence is only relevant if it makes the existence of
some fact of consequence to the determination of the matter more probable or less

probable. TEX. R. EVID. 401. All parties agree the Carroll Affidavit states that 109

Ranger Creek Road is not within a residence district in the city limit of Boerne,
Texas, but also that 109 Ranger Creek Road is not within the Boerne city limits.

RR 13 (Pls’ Ex. 15). Section 541.102(2) does not state that an area must be within

a city limit to qualify as a “residence district.” The Texas Transportation Code
governs roads everywhere in the state, not just roads within city limits (indeed,

section 541.102(2) actually refers to the “highway”). The Affidavit, therefore,

conveys nothing about the issue before this jury. In fact, when Plaintiffs argued to

the trial court that the affidavit proved that 109 Ranger Creek Road was in a

“residence district,” the trial court disagreed, stating: “that’s not what she said.

“She said it was not in the city.” RR 9:196-97.

25
 Thus, it appears that Plaintiffs’ only purpose in presenting this official-

sounding affidavit was to confuse the jury, and mislead it into believing,

incorrectly, that an address had to be within the city limit to qualify as a “residence

district” under the Transportation Code. Plaintiffs’ assertion that the affidavit was

unimportant and not harmful is belied by the record. See RR 9:196-97 (colloquy

between Plaintiffs’ counsel and the trial court regarding the affidavit, in which

counsel emphasized the importance of the affidavit and the court observed that

Plaintiffs were “enthusiastic” about it).
Plaintiffs were indeed enthusiastic about the Carroll Affidavit. They chose

to read the Affidavit into the record, without cross examination, context, or

rebuttal, to rest their case. Indeed, unlike ordinary testimony, the Carroll Affidavit

was a trial exhibit that the jury could review. They cannot now credibly claim this

was not harmful evidence.

The affidavit was also inadmissible hearsay. Plaintiffs argue that the
affidavit was admissible under Texas Rule of Evidence 803(8)(C) because it

allegedly states facts that resulted from an investigation made pursuant to authority

granted by law. See Appellant’s Brief at 33.6 However, the Carroll Affidavit does
not meet this hearsay exception for several reasons.

First, the Affidavit did not result from an independent government

investigation, but rather was prepared for a civil lawsuit in which the government

6
Plaintiffs’ argument on page 33 of their brief quotes all of Rule 803(8), but appears only to argue
that the third exception, under provision (C), applies.

26
is not even a party. Second, the preparation of affidavits to support a party’s

position in a civil lawsuit is not part of the authority granted by law to Ms. Carroll.

Finally, Ms. Carroll’s statement that 109 Ranger Creek Road was not within

any business or residence district of the City is not a factual finding, but is a

conclusion of law based on her uncross-examined interpretation of section
541.102(2). Rule 803(8) only excepts “factual findings” from the hearsay rule, not

conclusions based on the interpretation of a law or statute. In this regard, the

United States Court of Appeals has held that the corresponding federal rule, Fed.
R. Evid. 803(8)(C), “does not provide for the admissibility of the legal conclusions

contained within an otherwise admissible public report.” Hines v. Brandon Steel

Decks, Inc., 886 F.2d 299, 302 (11th Cir. 1989); see also Sullivan v. Dollar Tree
Stores, Inc., 623 F.3d 770, 777 (9th Cir. 2010) and Zeus Enters., Inc. v. Alphin

Aircraft, Inc., 190 F.3d 238, 243 (4th Cir. 1999).

For these reasons, the Carroll affidavit does not support the jury’s finding in
Question 1 and the trial court reversibly erred in admitting it.

E. Defendants Did Not Waive their Objection to the Trial Court’s
Erroneous Submission of an Unsupported Negligence Per Se Claim
and Such Error is Reversible.
Plaintiffs wrongly contend that Defendants did not preserve their complaint

that the trial court erred in submitting the Plaintiffs’ negligence per se claim to the

jury in Questions 1 and 2. To the contrary, Defendants objected both in writing

and orally to the submission of Questions 1 and 2 and their instructions on the

ground that the evidence was insufficient to support their submission. II CR 145-

27
46 (Objections Nos. 3 and 5); RR 10:46-47. Defendants’ counsel also objected

that the trial court’s submission of the unsupported negligence per se claim in

Questions 1 and 2 may adversely prejudice the jury answer’s to the proportionate

responsibility question. RR 10:50.

These objections are clearly adequate under Texas law. In Thota v. Young,
366 S.W.3d 678, 689-91 (Tex. 2012), the Texas Supreme Court held that: (1) a no

evidence objection is all that is necessary to preserve a complaint regarding the

submission of a claim that is not supported by the evidence, and (2) a party is not

required to point out to the trial court the problems that submitting a unsupported

claim creates, which are discussed in Crown Life Ins. Co. v. Casteel, 22 S.W.3d

378, 388 (Tex. 2000). The Texas courts of appeals agree that an objection to the
submission of an unsupported claim or theory “also preserves error for any impact

the wrongful inclusion has on the other charge questions,” including the

proportionate responsibility question and damage questions. McFarland v.
Boisseau, 365 S.W.3d 449, 453-54 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(citing Mo. Pac. R.R. Co. v. Limmer, 180 S.W.3d 803, 822 (Tex. App.—Houston

[14th Dist.] 2005), rev’d on other grounds, 299 S.W.3d 78 (Tex. 2009) and

Schrock v. Sisco, 229 S.W.3d 392, 395 (Tex. App.—Eastland 2007, no pet.)).

Plaintiffs also argue that any error in submitting the unsupported negligence

per se claim is not reversible error because the jury could not have been
significantly influenced by the negligence per se claim in assessing proportionate

28
responsibility in Question 4. This argument is not supported by Texas law or the

trial record.

In Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225-28 (Tex.

2005), the Texas Supreme Court held that the submission of a claim for liability

that is not supported by the evidence is generally reversible if it cannot be

determined whether that submission affected the jury’s answer to the proportionate

responsibility question. “[U]nless the appellate court is ‘reasonably certain that

the jury was not significantly influenced by issues erroneously submitted to it,’ the

error is reversible.” Id. at 227-28 (emphasis added). “Even if the jury could still

have made the same apportionment of fault, the error in the question is

nevertheless reversible . . . .” Id. at 226. The Supreme Court held that the
submission of an unsupported malicious credentialing claim was reversible error

because it had no certainty that this claim did not influence the jury in the

apportionment question. Id. at 227-28. “If the jury’s apportionment of liability
could have been affected by an issue on which the trial court charged the jury but

on which there was legally insufficient evidence, a new trial on the entire

negligence claim is required.” Heritage Hous. Dev., Inc. v. Carr, 199 S.W.3d 560,
570 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Romero).

Plaintiffs argue that Romero is distinguishable because it involved the

submission of an unsupported intentional tort, and that there is no reversible error
when the unsupported claim is a negligence claim. To the contrary, Romero makes

no such distinction and the Courts of Appeals have not limited Romero to

29
unsupported intentional torts. See, e.g., Limmer, 180 S.W.3d at 828-29 (in case

where the jury was required to apportion responsibility between the parties, the

Court of Appeals held that error in submitting an invalid negligence theory to jury

was reversible because the court was not reasonably certain that the jury was not

influenced by that theory); Benge v. Williams, 01-12-00578-CV, 2014 WL
6462352, at *25 (Tex. App.—Houston [1st Dist.] Nov. 18, 2014, no. pet. h.)

(holding that allowing the jury to consider an invalid negligence theory was

reversible error because the court of appeals could not say that the jury was not

significantly influenced by the invalid theory).7

This Court should find reversible error here because it cannot be certain that

the jury, in apportioning responsibility between Mr. Leal and Mr. Rankin, was not
influenced by its findings in Questions 1 and 2 that Mr. Leal failed to comply with

the law and that this caused Mr. Rankin’s injury. Generally, people consider

someone who breaks the law more culpable than someone who is merely negligent.

The jury heard evidence that Mr. Leal was an experienced, trained driver who

made deliveries for a living. In finding that Mr. Leal parked illegally, the jury

likely concluded that Mr. Leal knew or should have known that he was breaking

the law. This Court cannot be reasonably certain that the jury did not hold

Mr. Leal more culpable or responsible for his violation of the law than if they had

7
Plaintiffs also cite Texas Mut. Ins. Co. v. Morris, 287 S.W.3d 401, 431 (Tex. App.—Houston
[14th Dist.] 2009), judgment rev’d, 383 S.W.3d 146 (Tex. 2012). Not only was that decision reversed,
but it is not relevant because there was no proportionate responsibility question, and there was no
possibility that the unsupported negligence theories influenced the jury’s answers to other questions in the
charge. Id. at 430.

30
merely found ordinary negligence. The consequences of this error are enormous

because if the jury had found Mr. Leal 1% less responsible, the Rankins claims

would have been barred. See TEX. CIV. PRAC. & REM. CODE §33.001.

F. The Jury’s Findings in Questions 2 and 3 (Proximate Cause) and
Question 4 (Mr. Rankin Was Only 50% Responsible) Are Not
Supported by Sufficient Evidence.
Plaintiffs argue that Defendants waived the argument that the evidence is

insufficient to support the jury’s finding in Questions 2 and 3 that the negligence of
Roland Leal proximately caused the occurrence because their Proposed Jury

Charge included questions regarding negligence and proximate cause. However,

Defendants’ Proposed Jury Charge states:
Defendants object to the submission of each of the Plaintiffs’ claims
against them because such are not supported by legally sufficient
evidence. Defendants reserve their right at the charge conference(s)
to object to any of the questions or instructions proposed herein.
Defendants do not concede that any of these questions or instructions
that submit Plaintiffs’ claims will be supported by the evidence.
II CR 120. Defendants included the negligence questions in their proposed charge

solely to explain their position as to the correct legal form of these questions, not
because they agreed that they should be submitted. And Defendants clearly

objected to Questions 2 and 3 in the charge conference. RR 10:47-48.

Plaintiffs assert that there are testimony, video, and photographs that

indicate “it was very difficult to see a truck parked in that exact location until mere

seconds before coming upon it.” Appellees’ Brief at 45. However, none of the

Plaintiffs’ record cites support their assertion. Plaintiffs reference their Exhibits 22
and 29, but these exhibits were not admitted and are not in the record. RR 1:30-31.

31
Plaintiffs also reference six photographs (Defendants’ Exhibits 99F, 99G, and

144E-144H), but none of them indicates that the package car (which was parked in

the same location as Mr. Leal parked his car) was difficult to see. To the contrary,

Defendants’ Exhibits 144A-E, contained in the Appendix to this brief, show that

the car is plainly visible from 200 to 1000 feet away.

A motorist “is not required to anticipate negligence or other unlawful

conduct on the part of another.” Turner v. Cruz, 2010 WL 5545392, *4 (Tex.

App.—San Antonio Dec. 29, 2010, no pet.). According to Plaintiffs’ counsel, to
not see the car, Mr. Rankin would have had to have been looking down at the

pavement for over a minute. RR 10:103. He kept no lookout for construction,

stopped vehicles, or people or animals crossing the road. Extreme negligence of
this kind is not foreseeable and Mr. Leal had no duty to anticipate it. Appellees’

Brief does not address this argument.

When the actions of Mr. Rankin and Mr. Leal are compared, no jury could

reasonably conclude that Mr. Rankin was not more responsible for the accident

than Mr. Leal. Mr. Rankin could see that there were residences on the road where

vehicles enter and exit the roadway, and regularly stop to deliver mail or pick-up

garbage, but he kept no lookout and rode with his head down for over a minute.

RR 5:118-19; RR 6:196, 198-99; RR 10:103. In contrast, Mr. Leal parked his car

to make a delivery that took less than two minutes, with the hazard lights flashing,
where it was visible for thousands of feet, and only partially obstructed one lane

(leaving 20 feet of open roadway). RR 9:90-91, 95, 103. The jury’s finding of

32
equal responsibility was based, not on the evidence, but on the erroneous

negligence per se jury instructions and on sympathy for the Rankins.

Respectfully submitted,

KING & SPALDING LLP

/s/ H. Victor Thomas
W. Randall Bassett
Pro Hac Vice Pending
Bradley W. Pratt
Pro Hac Vice Pending
King & Spalding, LLP
1180 Peachtree Street, N.E.
Atlanta, Georgia 30309
Telephone: (404) 572-4600
Facsimile: (404) 572-5100

H. Victor Thomas
Texas Bar No. 19851500
Thomas Michael Gutting
Texas Bar No. 24067640
King & Spalding, LLP
1100 Louisiana, Suite 4000
Houston, Texas 77002-5213
Telephone: (713) 751-3200
Facsimile: (713) 751-3290

and

33
Ricardo R. Reyna
State Bar No. 16794845
Audrey A. Haake
State Bar No. 08658100
BROCK PERSON GUERRA REYNA, P.C.
17339 Redland Road
San Antonio, Texas 78247-2302
Telephone: (210) 979-0100
Facsimile: (210) 979-7810

Counsel for Appellants United Parcel
Service, Inc. and Roland Leal

34
 CERTIFICATE OF COMPLIANCE
I certify that on February 19, 2015, that this Reply Brief was produced on a

computer and contains 7,414 words, excluding the caption, table of contents, index

of authorities, and Appendix, and thus does not exceed the 7,500 word limit

provided for by Tex. R. App. P. 9.4(i).

/s/ H. Victor Thomas
H. Victor Thomas

CERTIFICATE OF FILING AND SERVICE
I certify that on February 19, 2015, I used the Court’s electronic case filing

system to file this Reply Brief and to serve this document on the counsel for

appellees:

Doug Perrin
Mark Perrin
The Perrin Law Firm
325 N. Saint Paul St., Suite 600
Dallas, TX 75201-3828

Peter D. Marketos
Reese Gordon Marketos LLP
750 N. Saint Paul St., Suite 610
Dallas, Texas 75201

/s/ H. Victor Thomas
H. Victor Thomas

35
 Appendix of Photographs of
Parked UPS Package Car

(Defendants’ Exhibits 144A-H).

36
37
38
39
40
41
42
43