Laura Leticia Zepeda Vasquez, Individually and on Behalf of the Estate of Jose Abraham Vasquez,Jr. v. Legend Natural Gas III, LP Legend Natural Gas, LLC Lewis Energy Group, LP And Lewis Petro Properties, Inc

ACCEPTED
04-14-00899-cv
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/31/2015 4:47:38 PM
KEITH HOTTLE
CLERK

04-14-00899-CV FILED IN
4th COURT OF APPEALS
In the SAN ANTONIO, TEXAS
03/31/2015 4:47:38 PM

Fourth Court of Appeals KEITH E. HOTTLE
Clerk

SITTING AT SAN ANTONIO

LETICIA ZEPEDA VASQUEZ, Individually and on Behalf of the Estate of
Jose Abraham Vasquez, Jr.,
Appellant,
v.
LEGEND NATURAL GAS III, LP; LEGEND NATURAL GAS, LLC;
LEWIS ENERGY GROUP, LP; LEWIS PETRO PROPERTIES, INC.;
ROSETTA RESOURCES OPERATING, LP; VIRTEX HOLDINGS,
LLP; VIRTEX OPERATING CO., INC.; ENTERPRISE PRODUCTS
HOLDINGS, LLC; ENTERPRISE PRODUCTS COMPANY; and XTO
ENERGY, INC.,
Appellees

Appealed From the 81st District Court
La Salle County, Texas
Trial Court Cause No. 14-07-0019-CVL

APPELLANT’S OPENING BRIEF
JEFFREY L. DORRELL
State Bar No. 00787386
jdorrell@hanszenlaporte.com

11767 Katy Freeway, Suite 850
Houston, Texas 77079
Telephone: 713-522-9444
FAX: 713-524-2580
ATTORNEY FOR APPELLANT
APPELLANT REQUESTS ORAL ARGUMENT .
 IDENTITY OF PARTIES & COUNSEL

Appellant certifies that the following is a complete list of the parties,

the attorneys, and any other person who has any interest in the outcome of

this matter:

PARTIES COUNSEL

Leticia Zepeda Vasquez, Jeffrey Lee Dorrell
Appellant H. Mark Burck
Daniel Dutko
Hanszen Laporte, LLP
11767 Katy Freeway, Suite 850
Houston, Texas 77079
Telephone: 713-522-9444
FAX: 713-524-2580
Attorney for Appellant

Legend Natural Gas III, LP, Isaac J. Huron
and Legend Natural Gas, LLC Davis, Cedillo & Mendoza, Inc.
Appellees McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78213
Telephone: 210-822-6666
FAX: 210-822-1151
Attorney for Legend Natural Gas III, LP, and
Legend Natural Gas, LLC

Lewis Energy Group, LP, and David L. Ortega
Lewis Petro Properties, Inc. Naman Howell Smith & Lee, PLLC
Appellees 1001 Reunion Place, Suite 600
San Antonio, Texas 78216
Telephone: 210-731-6300
FAX: 210-785-2953
Attorney for Lewis Energy Group, LP, and
Lewis Petro Properties, Inc.

ii
XTO Energy, Inc. Jose E. Garcia
Appellee Garcia & Villareal
4311 N. McColl Road
McAllen, Texas 78504
Telephone: 956-630-0081
FAX: 956-630-3631
Attorney for XTO Energy, Inc.

Rosetta Resources Oper., LP William A. Abernethy
Appellee Donnell, Abernethy & Kieschnick, P.C.
555 N. Carancahua, Suite 1770
Corpus Christi, Texas 78401
Telephone: 361-888-5551
FAX: 361-880-5618
Attorney for Rosetta Resources Oper., LP

Virtex Operating Co., Inc., and Christopher Lowrance
Virtex Holdings, LLP Royston, Rayzor, Vickery & Williams, LLP
Appellees 802 Carancahua, Suite 1300
Corpus Christi, Texas 78401
Telephone: 361-884-8808
FAX: 361-884-7261
Attorney for Virtex Operating Co., Inc., and
Virtex Holdings, LLP

Enterprise Products Holdings, E. Michael Rodriguez
LLC, and Enterprise Products Atlas, Hall & Rodriguez, LLP
Co. P.O. Box 6369 (78523-6369)
Appellees 50 W. Morrison Road, Suite A
Brownsville, Texas 78520
Telephone: 956-574-9333
FAX: 956-574-9337
Attorney for Enterprise Products Holdings,
LLC, and Enterprise Products Co.

iii
 TABLE OF CONTENTS
Page

IDENTITY OF PARTIES AND COUNSEL...….……………………….ii

TABLE OF CONTENTS ………………………………………………….iv

INDEX OF AUTHORITIES ………………………………………………v

STATEMENT OF THE CASE ……………………………………………2

STANDARD OF REVIEW ……...…………………………………………3

ISSUE PRESENTED FOR REVIEW ……………………………………4

STATEMENT OF FACTS.……………………………..………………….5

SUMMARY OF ARGUMENT…………………………………………….6

ARGUMENT ..…………………….…………………………………………7

Issue 1. Did defendants have a legal duty to act to prevent
Vasquez’s death from the dangerous situation on
Krueger Road that defendants themselves
negligently created? ……………………………………………..7
CONCLUSION …...……………………………………………………10

PRAYER ….……………………………………………………………11

CERTIFICATE OF SERVICE ………………………………………12

CERTIFICATE OF WORD COUNT COMPLIANCE .……………14

APPENDIX ……………………………………………………………15

iv
 INDEX OF AUTHORITIES
CASES
Page
Abalos v. Oil Development Co. of Texas,
544 S.W.2d 627 (Tex. 1976) …………………………………………9
Buchanan v. Rose,
159 S.W.2d 109 (Tex. 1942) …………………………………………9
Cactus Drilling Co. v. Williams,
525 S.W.2d 902 (Tex. Civ. App.—Amarillo 1975, writ ref’d n.r.e.)…9
Chrysler Corp. v. Dallas Power & Light Co.,
522 S.W.2d 742 (Tex. Civ. App.—Eastland 1975, writ ref’d n.r.e.).…9
City of Austin v. Liberty Mut. Ins.,
431 S.W.3d 817 (Tex. App.—Austin 2014, no pet.) …………………3
Courville v. Home Transportation Co.,
497 S.W.2d 788 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e.)..9
Dailey v. Thorpe,
445 S.W.3d 785 (Tex. App.—Houston [1st Dist.] 2014, no pet.).……3
Dallas Ry. & Terminal Co. v. Archer,
167 S.W.2d 290 (Tex. Civ. App.—Dallas 1942, writ ref’d w.o.m.) ….9
Devoll v. Demonbreun,
2014 Tex. App. LEXIS 13865 at *4
(Tex. App.—San Antonio December 31, 2014, n.p.h.) ………………3
GoDaddy.com, LLC v. Toups,
429 S.W.3d 752 (Tex. App.—Beaumont 2014, pet. denied) …………3
San Benito Bank & Trust Co. v. Travels,
31 S.W.3d 312 (Tex. App.—Corpus Christi 2000) …………………..9
SmithKline Beecham Corp. v. Doe,
903 S.W.2d 347 (Tex. 1995) ………………………………………8-9
Wooley v. Schaffer,
447 S.W.3d 71 (Tex. App.—Houston [14th Dist.]
2014, pet. filed) …………………………………………………….3, 7

v
 RULES
TEX. R. CIV. P. 91a .………………………………………………Passim

vi
 04-14-00899-CV
LETICIA ZEPEDA VASQUEZ, Individually and on Behalf of the Estate of
Jose Abraham Vasquez, Jr.,
Appellant
v.

LEGEND NATURAL GAS III, LP; LEGEND NATURAL GAS, LLC;
LEWIS ENERGY GROUP, LP; LEWIS PETRO PROPERTIES, INC.;
ROSETTA RESOURCES OPERATING, LP; VIRTEX HOLDINGS,
LLP; VIRTEX OPERATING CO., INC.; ENTERPRISE PRODUCTS
HOLDINGS, LLC; ENTERPRISE PRODUCTS COMPANY; and XTO
ENERGY, INC.,
Appellees

APPELLANT’S OPENING BRIEF

Appellant Leticia Zepeda Vasquez files her opening brief. Appellant

will be referred to individually by name, or as “plaintiff,” as she was

designated below. Appellees Legend Natural Gas III, LP; Legend

Natural Gas, LLC; Lewis Energy Group, LP; Lewis Petro Properties,

Inc.; Rosetta Resources Operating, LP; Virtex Holdings, LLP; Virtex

Operating Company, Inc.; Enterprise Products Holdings, LLC;

Enterprise Products Company; and XTO Energy, Inc., will be referred to

individually by name, or collectively as “defendants,” as they were

designated below.

1
 STATEMENT OF THE CASE
Nature of the case. On July 21, 2014, plaintiff sued the ten defendants

for negligence and gross negligence. (CR 5-6.) On October 2, 2014,

plaintiff filed her first amended original petition asserting the same claims.

(Tab C, CR 84-86.) The various defendants generally denied, raised

affirmative defenses, and counterclaimed. (CR 8-56.) The defendants’

affirmative defenses and counterclaims are not at issue in this appeal.

Course of proceedings. No trial was held. Defendants Legend

Natural Gas III, LP, and Legend Natural Gas, LLC, filed a motion to dismiss

plaintiff’s claims Under TEX. R. CIV. P. 91a. (CR 62.) A similar motion

was included in the body of the answer filed by defendants Lewis Energy

Group, LP, and Lewis Petro Properties. (CR 52-53.) On October 16, 2014,

the trial court held an oral hearing on defendants’ motions to dismiss.

Trial court disposition. The trial court granted defendants’ motions to

dismiss on November 20, 2014, but failed to dispose of certain other claims.

(CR 147-48.) Plaintiff filed a premature notice of appeal. (CR 159.) On

January 5, 2015, the trial court entered a final order granting all defendants’

motions to dismiss and severing the undisposed claims. (2d SCR 7-8.) (Tab

A.) On January 29, 2015, plaintiff filed an amended notice of appeal of the

new order. (2d SCR 1.)

2
 STANDARD OF REVIEW
This Court reviews the trial court’s dismissal of Vasquez’s claims

pursuant to TEX. R. CIV. P. 91a de novo. Devoll v. Demonbreun, 2014 Tex.

App. LEXIS 13865 at *4 (Tex. App.—San Antonio December 31, 2014,

n.p.h.); Wooley v. Schaffer, 447 S.W.3d 71, 75 (Tex. App.—Houston [14th

Dist.] 2014, pet. filed); Dailey v. Thorpe, 445 S.W.3d 785, 787 (Tex.

App.—Houston [1st Dist.] 2014, no pet.); City of Austin v. Liberty Mut.

Ins., 431 S.W.3d 817, 822 (Tex. App.—Austin 2014, no pet.);

GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont

2014, pet. denied).

3
 ISSUE PRESENTED FOR REVIEW
Issue 1: Did defendants have a legal duty to act to prevent
Vasquez’s death from the dangerous situation on Krueger Road that
defendants themselves negligently created?

4
 STATEMENT OF FACTS
On August 4, 2012, Jose Vasquez was tragically killed when his

vehicle flipped over in an accident that could have been avoided if not for

the negligence of defendants. (CR 82.) Vasquez was operating his vehicle

on Krueger Road in La Salle County, Texas, when he was blinded by a dust

cloud and drove into a ditch. (Id.) Once a safe, paved road for the public

(CR 83), Kruger Road has now become dangerously dilapidated as a result

of defendants’ negligent use of the road to operate their oil and gas wells in

the area. (CR 81-82.) The road now has potholes, crevices, bumps, and the

road has no markings to determine the proper lanes of travel. (CR 83, 85.)

Defendants’ negligent operation of their trucks and businesses

includes sending hundreds or thousands of trucks every year—some over

legal weight limits—driving “recklessly” or at too high a rate of speed down

Krueger Road. (CR 83.) Defendants knew that their operations had created

the dangerous conditions on Krueger Road that eventually killed Jose

Vasquez. (CR 83-85.) Defendants did nothing either to repair Krueger

Road or warn others of the dangerous conditions they have negligently

created. (CR 83-85.)

5
 SUMMARY OF THE ARGUMENT
The trial court was bound to take plaintiff’s factual allegations pled as

true and liberally construe them in her favor. The trial court implicitly found

that defendants owed no legal duty to Jose Vasquez when it dismissed his

widow’s claims under TEX. R. CIV. P. 91a because her claims allegedly had

“no basis in law.” However, Texas courts have long recognized at least two

species of duty when a defendant creates a dangerous condition. If the

defendant created the dangerous condition negligently, he has a duty to

repair it. If the defendant created the dangerous condition without being

negligent, he nevertheless still has a duty to warn those who may be injured

as a result. The trial court erred when it failed to recognize defendants’ duty

to repair or to warn Jose Vasquez of the unreasonably dangerous condition

their trucks had negligently created.

6
 ARGUMENT
Argument and Authorities—Issue 1

Issue 1: Did defendants have a legal duty to act to prevent
Vasquez’s death from the dangerous situation on Krueger Road that
defendants themselves negligently created?

Yes. However, the trial court implicitly found that there could be no

such duty when it dismissed plaintiff’s claims pursuant to Rule 91a as

having “no basis in law.”

Rule 91a allows a party to move to dismiss a baseless cause of action

on the grounds that it has no basis in law or fact. TEX. R. CIV. P. 91a.1. In

the case at bar, fact issues are not in dispute—the trial court’s order is

expressly limited to dismissal because the claims allegedly had “no basis in

law.” (Tab A.)

A cause of action has no basis in law if the allegations, taken as
true, together with inferences reasonably drawn from them, do
not entitle the claimant to the relief sought.

TEX. R. CIV. P. 91a.1. The trial court must decide a Rule 91a motion to

dismiss based solely on the pleading of the cause of action, together with

any exhibits permitted by Rule 59. TEX. R. CIV. P. 91a.6.

In conducting our [Rule 91a] review, … we must construe the
pleadings liberally in favor of the plaintiff, look to the pleader’s
intent, and accept as true the factual allegations in the
pleadings….

Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.—Houston [14th Dist.]

2014, pet. filed) [emphasis added].

7
 Thus, factual allegations the trial court was obliged to “take as true”

and liberally construe in favor of plaintiff included:

(i) It takes 1200 trucks to bring one oil or gas well into production;
(Tab C, CR 81)

(ii) It takes 350 trucks a year to maintain one oil or gas well; (Tab
C, CR 81)

(iii) The service life of roads in areas around oil or gas wells is
reduced more than 30% per year due to well operations; (Tab
C, CR 81-82)

(iv) Defendants knew that La Salle County could not repair Krueger
Road as fast as defendants destroyed it; (Tab C, CR 82)

(v) Some of defendants’ trucks travelled at an unsafe speed; (Tab
C, CR 83)

(vi) Some of defendants’ trucks travelled “recklessly;” (Tab C, CR
84)

(vii) Some of defendants’ trucks were overweight; (Tab C, CR 83,
85)

(viii) Krueger Road was once a safe, paved road for the public; (Tab
C, CR 83)

(ix) Krueger Road is now in a dangerously dilapidated condition,
with potholes, crevices, and bumps; (Tab C, CR 83, 85)

(x) Defendants knew they had created Krueger Road’s dangerously
dilapidated condition; (Tab C, CR 83, 85)

(xi) It was foreseeable that Vasquez (or others) could be injured
while in the lawful exercise of his right to drive on Krueger
Road; (Tab C, CR 83) and

(xii) Defendants did nothing either to repair Krueger Road or warn
others of the dangerous conditions defendants had created there.
(Tab C, CR 83)

8
 Texas courts have long held that if a party creates a dangerous

condition, he has a duty to prevent injury to others if it is reasonably

foreseeable that others in the exercise of their lawful rights may be injured

by the dangerous condition he created. SmithKline Beecham Corp. v. Doe,

903 S.W.2d 347, 353 (Tex. 1995); Buchanan v. Rose, 159 S.W.2d 109, 110

(1942); San Benito Bank & Trust Co. v. Travels, 31 S.W.3d 312, 319 (Tex.

App.—Corpus Christi 2000).

[I]t may be said generally, on the one hand, that if a party
negligently creates a dangerous situation it then becomes his
duty to do something about it to prevent injury to others if it
reasonably appears or should appear to him that others in the
exercise of their lawful rights may be injured thereby.

Buchanan, 159 S.W.2d at 110; see also Abalos v. Oil Development Co. of

Texas, 544 S.W.2d 627, 632-33 (Tex. 1976); Cactus Drilling Co. v.

Williams, 525 S.W.2d 902, 911 (Tex. Civ. App.—Amarillo 1975, writ ref’d

n.r.e.); Chrysler Corp. v. Dallas Power & Light Co., 522 S.W.2d 742, 744

(Tex. Civ. App.—Eastland 1975, writ ref’d n.r.e.); Courville v. Home

Transportation Co., 497 S.W.2d 788, 790-91 (Tex. Civ. App.—Beaumont

1973, writ ref’d n.r.e.); Dallas Ry. & Terminal Co. v. Archer, 167 S.W.2d

290, 293 (Tex. Civ. App.—Dallas 1942, writ ref’d w.o.m.).

Nor does it absolve a defendant of all duty if he creates the dangerous

condition on a “public way”—even if he does so without being negligent:

9
 We think it may also be said that if one by his own acts, although
without negligence on his part, creates a dangerous situation in
or along a public way and it reasonably appears that another in
the lawful use of such way in the exercise of ordinary care for his
own safety may be injured by the dangerous situation so created,
the one creating the same must give warning of the danger or be
responsible for the consequences. To illustrate: One who in the
exercise of a lawful right, and without negligence on his part,
makes an excavation across a street or sidewalk or on his
premises in close proximity to a public way, or parks a vehicle in
a road, or otherwise obstructs the road with a foreign substance,
is bound to give warning of the danger created thereby.

Buchanan, 159 S.W.2d at 110 [citations omitted]. Although the duty may

be different—to warn others of the dangerous condition as opposed to a duty

to repair the condition—there is nevertheless still a duty.

Defendants owed the Buchanan duties to Jose Vasquez. When they

breached their duties, defendants caused Jose Vasquez’s death.

CONCLUSION
The trial court was bound to take plaintiff’s factual allegations pled as

true and liberally construe them in her favor. The trial court implicitly found

that defendants owed no legal duty to Jose Vasquez when it dismissed his

widow’s claims under TEX. R. CIV. P. 91a as having “no basis in law.”

Because Texas courts have long recognized a duty when a defendant creates

a dangerous condition, the trial court erred when it failed to recognize

defendants’ duty to repair or to warn Jose Vasquez of the unreasonably

dangerous condition defendants’ trucks had created.

10
 PRAYER
For these reasons, appellant Leticia Zepeda Vasquez prays that the

Court reverse the trial court’s dismissal of her claims and causes of action

against defendants as having “no basis in law,” and remand to the trial court

for a trial.

Respectfully submitted,

By: /s/ Jeffrey L. Dorrell .

Jeffrey L. Dorrell
State Bar No. 00787386
jdorrell@hanszenlaporte.com
11767 Katy Freeway, Suite 850
Houston, Texas 77079
Telephone: 713-522-9444
FAX: 713-524-2580
ATTORNEYS FOR APPELLANT LETICIA ZEPEDA VASQUEZ

11
 CERTIFICATE OF SERVICE

I hereby certify that on 3-31 , 2015, a true and correct copy of the
foregoing was sent by:

Hand delivery
Certified mail
Telephonic document transfer
X E-service in accordance with TEX. R. APP. P. 9.5(b)

in accordance with TEX. R. APP. P. 9.5(c) to the following counsel of record:

Mr. William A. Abernethy
Donnell, Abernethy & Kieschnick, P.C.
555 N. Carancahua, Suite 1770
Corpus Christi, Texas 78401
Telephone: 361-888-5551
FAX: 361-880-5618
COUNSEL FOR DEFENDANT ROSETTA RESOURCES
OPERATING, LP.
Mr. David L. Ortega
Naman Howell Smith & Lee, PLLC
1001 Reunion Place, Suite 600
San Antonio, Texas 78216
Telephone: 210-731-6300
FAX: 210-785-2953
COUNSEL FOR DEFENDANTS LEWIS ENERGY GROUP, LP, and
LEWIS PETRO PROPERTIES, INC.
Mr. Christopher Lowrance
Royston, Rayzor, Vickery & Williams, L.L.P.
802 Carancahua, Suite 1300
Corpus Christi, Texas 78401
Telephone: 361-884-8808
FAX: 361-884-7261
COUNSEL FOR DEFENDANTS VIRTEX OPERATING CO., INC.,
and VIRTEX HOLDINGS, LLP

12
 Mr. Isaac J. Huron
Davis, Cedillo & Mendoza, Inc.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78213
Telephone: 210-822-6666
FAX: 210-822-1151
COUNSEL FOR DEFENDANTS LEGEND NATURAL GAS III, LP,
and LEGEND NATURAL GAS, LLC
Mr. E. Michael Rodriguez
Atlas, Hall & Rodriguez, L.L.P.
P.O. Box 6369 (78523-6369)
50 W. Morrison Road, Suite A
Brownsville, Texas 78520
Telephone: 956-574-9333
FAX: 956-574-9337
COUNSEL FOR DEFENDANTS ENTERPRISE PRODUCTS
HOLDINGS, LLC, and ENTERPRISE PRODUCTS CO.
Mr. Jose E. Garcia
Garcia & Villareal
4311 N. McColl Road
McAllen, Texas 78504
Telephone: 956-630-0081
FAX: 956-630-3631
COUNSEL FOR DEFENDANT XTO ENERGY, INC.

/s/ Jeffrey L. Dorrell
JEFFREY L. DORRELL

13
 CERTIFICATE OF WORD COUNT COMPLIANCE

In compliance with TEX. R. APP. P. 9.4, relying on the word count
function in the word processing software used to produce this document, I
certify that the number of words in this document including footnotes
(excluding captions, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of
compliance, and appendix) is 1,343.

/s/ Jeffrey L. Dorrell
JEFFREY L. DORRELL

14
 04-14-00899-CV
LETICIA ZEPEDA VASQUEZ, Individually and on Behalf of the Estate of Jose
Abraham Vasquez, Jr.,

Appellant

v.

LEGEND NATURAL GAS III, LP; LEGEND NATURAL GAS, LLC; LEWIS
ENERGY GROUP, LP; LEWIS PETRO PROPERTIES, INC.; ROSETTA
RESOURCES OPERATING, LP; VIRTEX HOLDINGS, LLP; VIRTEX
OPERATING CO., INC.; ENTERPRISE PRODUCTS HOLDINGS, LLC;
ENTERPRISE PRODUCTS COMPANY; and XTO ENERGY, INC.,

Appellees

APPELLANT’S APPENDIX

LIST OF DOCUMENTS

1. January 5, 2015, Order Appealed From ……………………………Tab A

2. TEX. R. CIV. P. 91a. …………..……………………………………Tab B

3. Plaintiff’s First Amended Original Petition ..………………………Tab C

15