ACCEPTED
03-15-00511-CV
7910530
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/19/2015 3:17:25 PM
JEFFREY D. KYLE
CLERK
Cause No. 03-15-00511
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTINAUSTIN, TEXAS
11/19/2015 3:17:25 PM
Diane V. Wade, JEFFREY D. KYLE
Clerk
Appellant
vs.
David's Landscaping and David's Landscaping, Inc.,
Appellees
On appeal from the 419th Judicial District Court of Travis County, Texas
BRIEF OF APPELLANT
Stuart Whitlow
LAW OFFICES OF STUART WHITLOW
1104 S. Mays Street, Suite 116
Round Rock, Texas 78664
(737) 346-1839
(512) 255-5938 (fax)
stuartwhitlowlaw@yahoo.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT REQUESTED
C:IWADE BRIEF APPELLANT
NAMES OF ALL PARTIES TO FINAL JUDGMENT
PLAINTIFFIAPPELLANT:
Diane Wade
Represented at trial and on appeal by:
Stuart Whitlow
LAW OFFICES OF STUART WHITLOW
1104 S. Mays Street, Suite 116
Round Rock, Texas 78664
(737)346-1839
(512) 255-5938 (fax)
stuartwhitlowlaw@yahoo.com
DEFENDANTS/APPELLEES·
David's Landscaping and David's Landscaping, Inc.
Represented at trial and on appeal by:
Robert A. House
Clark & Trevino
1701 Directors Blvd., Suite 920
Austin, Texas 78744
C \WADE BRIEF APPELL~NT
TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES.. . . .. .. .. vi, vii
STATEMENT OF THE CASE ...... "" . ................. . .. ....... 1
ISSUE PRESENTED ON APPEAL ....................................... 2
Did the trial court err in granting David's Landscaping and David's
Landscaping, Inc.'s no-evidence motion for summary judgment
inasmuch as Appellant raised a material issue of fact with respect to
each of the elements of Appellant's negligence claim challenged by
Appellees?
STATEMENT OF FACTS . . . ....... .... ..... .. ..................................... 2
BASIC LAW REGARDING NO-EVIDENCE MOTIONS FOR SUMMARY
JUDGME.NT... .. .. .. . .. . .. .. . . . . .. .. . . . . . . . .. .. .. . .. . . .. . .. ........ 4
ARGUMENT.. . ... .. . .. . .. .......................... 5
A. The trial court erred in granting Appellee's no-evidence motion for
summary judgment inasmuch as Appellant raised a material issue
of fact respect to all of the elements of Appellant's' negligence
claim challenged by Appellee.
CONCLUSION AND PRAYER FOR RELIEF. . .. 8
CERTIFICATE OF SERVICE... . ............ . .............. 10
APPENDIX . .. . ... . .... ........ 11
\WADE BRIEF
INDEX OF AUTHORITIES
CASES
Page
C&H Nationwide v. Thompson, 810 S.W.2d 259, 266-267 (Hou. [1st Dist.]
1991, rev'd in part on other grounds, 903 S.W.2d 315 ...... '" .......... 6
D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).. . . . . . .... 6, 7
Excel Corp. v. Apodaca, 81 S.W.3d 817,820 (Tex. 2002).... . ... . . ....... 6, 7
Ford Motor Company v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) ........ .4
In re Mohawk Rubber Company, 982 S.W.2d 494, 498 (Tex. App
Texarkana 1998, orig. proceeding) . .... . .... . ................ 5
Lehrer v. Zwernemann, 14 S W.3d 775, 777 (Tex.App.- Houston [1st Dist.]
2000 pet. denied)... . . .. .. . . .. .. .. . . .. . . . . .. .. .. .. .. . ............... 5
Lowe's Home Ctrs., Inc. v. GSW Marketing, 293 S.W.3d 283, 291 (Houston
[14th Dist.] 2009, denied . . . . .. . . . . .. .. . . . .. . . . .. .. ................. 6
Military Highway Water Supply Corp. v. Morin, 156 S.W.3d 569, 570 (Tex.
2005) ..... " """".. .. " ............ " . .. . .. " .. .. .. .. " .. .. . 6
Nixon v. Mr. Property Management Company, 690 S.W.2d 546, 548-549 (Tex.
1985).. . .. . .. . . . .. . .... .. . .... .. .. .. . ...... . . ...... 4, 5
Randall v. Dallas Power & Light Company, 752 S.W.2d 4,5 (Tex. 1988 (per
cunam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 4
Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009) (per
curiam).... . . . . . .. . .. . . . .. . .. . .. . . . .. . . . .. .. .. .5
Torrington v. Stutzman, 46 S.W.3d 829, 838 (Tex. 2000) .. ... .. ....... 6
C:\WADE BRIEF APPELLANT
Trico Techs v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997).... . .. .. . . . . .. 8
C \WADE BRIEF APPELLANT
IN THE COURT OF APPEALS
THE IRD DISTRICT OF TEXAS AT AUSTIN
Diane V. Wade,
Appellant
David's Landscaping and David's Landscaping, Inc.,
Appellees
On appeal from the 419th Judicial District Court of Travis County, Texas
BRIEF OF APPELLANTS
TO THE HONORABLE COURT OF APPEALS·
Appellant, Diane Wade, submits this brief in support of her appeal
and requests for reversal of the trial court's order granting Appellees' David's
Landscaping and David's Landscaping, Inc.'s no-evidence motion for
summary judgment Appellant asks that this cause be set for submission on
oral argument
STATEMENT OF THE CASE
This is an appeal from an order granting Appellees David's Landscaping
and David Landscaping Inc.'s no-evidence motion for summary that
Appellant take nothing on her negligent claim against David's Landscaping
and David's Landscaping, Inc. (hereinafter sometimes referred to as
C:IWADE BRIEF APPELLANT 111415 DOC
Appellees) Appellant brought a negligence claim against Appellees at the trial
court. Appellees filed a no-evidence motion for summary judgment which
alleged that Appellant had no evidence for elements of her negligence claim.
The trial court granted Appellee's no-evidence motion for summary judgment.
Appellant timely perfected her appeal to this Court.
ISSUES PRESENTED ON APPEAL
Did the trial court err in granting Appellees' no-evidence motion for
summary judgment inasmuch as Appellant raised a genuine issue of material
fact with respect to all of the elements of Appellant's negligence claim
challenged by Appellees?
STATEMENT OF FACTS
On November 30, 2011, Appellant Diane V. Wade fell as a result of
landscaping debris left on the sidewalk by Appellees David's Landscaping and
Defendant David's Landscaping, Inc. (hereinafter in this Statement of Facts
referred to collectively as Appellee David's Landscaping) at her rental property
located in a complex at 1125 Christopher Avenue A in Round Rock Williamson
County, Texas 78681-7552. Plaintiff Diane V. Wade's Response to
Defendant's Motion for Summary Judgment, Clerk's Record, Volume 1, P. 20.
The landscaping debris caught under Appellant's shoe and caused her to fall
as she walked on the sidewalk leading from her rental home to the driveway
C \WADE BRIEF APPELLANT
where she parked her car at the complex where she lived. /d. The landscaping
company for the complex where Appellant lived was Appellee David's
Landscaping. /d. Appellee David's Landscaping frequently came to the
complex where Appellant lived to provide landscaping services and Appellant
saw their trucks at the complex on the evening prior to her fall /d. Since
Appellee David's Landscaping left the debris on the sidewalk, it was aware or
should have been aware of the fact that the landscaping debris were left on
the sidewalk and that they posed a danger to someone walking along the
sidewalk (as people frequently do). /d. Appellee David's Landscaping failed to
exercise ordinary care in allowing the debris to remain on the sidewalk after it
left the complex on the evening before Appellant's faiL /d. Appellee David's
Landscaping did not warn Appellant about the landscaping debris being on the
sidewalk. /d. As a result of the fall, Appellant sustained substantial injuries to
her body and felt severe pain and suffering. /d. As a result of the fall caused by
the landscaping debris, Appellant also has experienced substantial physical
impairment and mental anguish. /d. Such pain and suffering, as well as the
physical impairment resulting from the injuries and mental anguish continue to
this day. !d.
C \WADE
BASIC LAW REGARDING NO-EVIDENCE
MOTIONS FOR SUMMARY JUDGMENT
Appellant hereby incorporates the factual assertions set forth in the
Statement ofF acts set forth above. Appellees contended at the trial court that
Appellant's claims should be dismissed because Appellant has produced no
evidence that raised a fact issue with respect to any of the elements of her
negligence claim. The nonmovant to a no-evidence motion for summary
judgment must respond to the motion by raising a genuine issue of material
fact with respect to each challenged element. Ford Motor Company v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). This will defeat the no-evidence
motion for summary judgment. !d. The nonmovant raises a genuine issue of
material fact with respect to each challenged element by bringing forth more
than a scintilla of evidence. Ridgway, 135 S.W.3d at 600. The nonmovant
may use both direct and circumstantial evidence to produce more than a
scintilla of evidence. Ridgway, 135 S.W.3d at 600-601. If the nonmovant's
summary judgment proof provides a basis for conflicting inferences, a fact
issue will arise. Randall v. Dallas Power & Light Company, 752 S.W.2d 4, 5
(Tex. 1988) (per curiam). Evidence favorable to the non-movant will be taken
as true, every reasonable inference will be indulged in favor of the non movant,
and any doubts will be resolved in the nonmovant's favor. Nixon v. Mr.
111415
Property Management Company, 690 S.W.2d 546, 548-549 (Tex. 1985);
Lehrer v. Zwernemann, 14 S.W.3d 775, 777 (Tex.App.-Houston [1st Dist]
2000 pet denied). In deciding whether there is a disputed fact issue, the court
considers all the evidence in the light most favorable to the non movant Timpte
Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (per curiam). To
defeat a no-evidence motion for summary judgment, the nonmovant is not
required to marshal its proof. In re Mohawk Rubber Company, 982 S.W.2d
494, 498 (Tex. App. Texarkana 1998, orig proceeding). Marshaling evidence
means organizing all of the evidence in the order that it will be presented at
trial. /d. The non movant's response only needs to point to evidence that raises
a fact issue on the elements which are challenged. /d. In other words, the
nonmovant must only point to facts which raise more than a scintilla of
evidence on the challenged elements. /d.
ARGUMENT
The trial court erred in granting Appellees' no-evidence motion for
summary judgment inasmuch as Appellant raised a genuine issue
of material fact with respect to each of the elements of Appellant's
negligence claim challenged by Appellees.
The elements of a cause of action for negligence brought by an
individual such as Appellant are (1) appellee(s) owed a legal duty of ordinary
C \WADE BRIEF APPELLANT 11 DOC
care to appellant, (2) appellee(s) breached the duty of ordinary care (3)
appellee's (appellees') breach proximately caused the appellant's injury. 0.
Houston, Inc. Love, S.W.3d 450, 454 (Tex. 2002); Excel Corp. v.
Apodaca, 81 S.W.3d 817, 820 (Tex. 2002); C&H Nationwide v. Thompson,
810 S.W.2d 259, 266-67 (Hou [1st Dist] 1991, rev'd in part on other grounds,
903 S.W.2d 315 (Tex. 1994) Appellant was owed a legal duty by Appellees
and Appellees' breach of that legal duty proximately caused Appellant's
injuries. /d.
Appellant raised a fact issue with respect to the legal duty in the
affidavit attached to her response to Appellee's no-evidence motion for
summary judgment. C&H Nationwide, 810 S.W.2d at 266 -267; Torrington v.
Stutzman, 46 S.W.3d 829, 838 (Tex. 2000); Lowe Home Ctrs., Inc. v. GSW
Marketing, 293 S.W.3d 283, 291 (Hou. [14th] 2009, denied); Military Highway
Water Supply Corp. v. Morin, 156 S.W.3d 569, 570 (Tex. 2005) Appellees
frequently provided landscaping services at the complex where Appellant
lived. Of course, these services generally benefitted Appellant and other
residents who lived at the complex. Appellant has also brought forth summary
judgment proof which raises a fact issue with respect to whether Appellees
breached their duty of ordinary care to Appellant. Appellees left landscaping
debris on the sidewalk that Appellant used to go back and forth from her home
C IWADE BRIEF APPELLANT
to her vehicle and did not provide her any warning that they had done so.
Clerk's Record, Volume 1 of 1, Page 20. This is despite the fact that they were
aware or should have been aware both that the debris were on the sidewalk
since they left them there, and the obvious reality that these debris could pose
a danger to residents such as Appellant fd.; D. Houston, Inc., 92 S.W.3d at
454; Apodaca, 81 S.W.3d at 820. Appellant has also brought forth more than
a scintilla of evidence and raised a fact issue with respect to whether
Appellees' negligent failure to exercise ordinary care (breach of duty) by
Appellant was a direct and proximate cause of the injuries, harm and damages
to Appellant. /d. Appellant stated in the affidavit attached to the response to
Appellees no-evidence motion for summary judgment that the debris caused
her trip and that as a result she tripped and felL Clerk's Record, Volume 1 of 1,
Page 20. She also stated in that affidavit that the fall caused her to sustain
substantial physical injuries, to experience pain and suffering, to warning
Appellant about this dangerous condition. /d. As a result of the fall, Appellant
sustained substantial injuries to her body, as well as great pain and suffering.
/d. As a result of the fall, Appellant also has experienced substantial physical
impairment and mental anguish /d. Such pain and suffering, as well as the
physical impairment resulting from the injuries and mental anguish, continue
until this day. /d.
C \WADE BRIEF APPELLANT DOC
Before the District Court, Appellees sought to characterize the affidavit
of Appellant in support of her response to Appellees no-evidence motion for
summary judgment as being very complicated Actually, the affidavit is very
simple. It states forth what happened prior to and at the time of the incident
which is the basis of this case. In her affidavit, Appellant also discussed the
harm that she sustained as a result of her fall on the sidewalk at her complex.
The testimony in her affidavit is positive, direct, credible, clear and free from
contradiction. Even if this was a traditional motion for summary judgment by a
defendant and that defendant was presenting his or her own "interested party"
affidavit (one that very similar to Appellant's affidavit in terms of the attributes
set forth above in this paragraph) in support of its traditional motion for
summary judgment, the defendant's affidavit would support a traditional
motion for summary judgment if the facts in it were not properly controverted
by the plaintiff. Trico Techs v. Montiel, 949 S.W.2d 308, 310 (Tex, 1997).
CONCLUSION AND PRAYER FOR RELIEF
As Appellant Diane V. Wade has demonstrated, the trial court erred in
granting Appellee David's Landscaping and David's Landscaping, Inc.'s no-
evidence motion for summary judgment as to Appellant's negligence claim.
Appellant properly raised a material issue of fact with respect to each of the
elements of the negligence claim brought by Appellant. Accordingly, the
C·\WADE BRIEF APPELLANT 8
summary judgment issued by the trial court should be reversed and the cause
should be remanded for trial
WHEREFORE, Appellant Diane V. Wade asks this Court to rule for
Appellant with respect to the issues she presented for appeal, to reverse the
trial court's granting of Appellees David's Landscaping and David's
Landscaping, Inc.'s motion for no-evidence summary judgment and to remand
the cause to the trial court for further proceedings. Appellant further
respectfully requests that this Court assess costs of this appeal against
Appellees, Tex. R. App. P 82, and grant Appellant such other and further
relief to which she may be entitled
Respectfully submitted,
LAW OFFICES OF STUART WHITLOW
1104 S. Mays Street, Suite 116
Round Rock, Texas 78664
(737)346-1837
(512) 255-5938 (fax)
stuartwhitlowlaw@yahoo.com
By: /s/ Stuart Whitlow
Stuart Whitlow
State Bar No. 21378050
ATTORNEY FOR APPELLANT
C \WADE BRIEF APPELLANT 111415 DOC
9
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
document has been forwarded to the following counsel of record listed below
on this 19th day of November, 2015.
Robert A. House
Clark & Trevino
1701 Directors Blvd, Suite 920
Austin, Texas 78744
Stuart Whitlow- - -
Stuart Whitlow
CERTIFICATE OF PAGE NUMBER COMPLIANCE
I hereby certify that I have counted the words in the brief and that they
total 1821.
------Is/Stuart Whitlow-----
Stuart Whitlow
C \WADE BRIEF APPELLANT
APPENDIX
Document
Plaintiff Diane Wade's Response to Defendant's Motion for Summary
.J
""'l
JudgmenL"'J
C:\WADE BRIEF APPELLANT 111415,00C
12/11/2014 4:01:26 PM
Amalia Rodriguez-Mendoza
District Clerk
Travis County
0-1-GN-13-004070
CAUSE NO. D-1-GN-13-004070
DIANEV. WADE, § IN THE DISTRICT COURT
Plaintiff §
§
v. § TRAVIS COUNTY, TEXAS
§
DAVID'S LANDSCAPING, DAVID'S §
I~ANDSCAPING, INC., DAl'\TLY PROPERTIES, §
SAAD I~"VESTMENTS, LLC, §
WESTWIND RR LIMITED PARTNERSHIP, §
AND SKY MANAGEMENT, INC., §
Defendants § 419th JUDICIAL DISTRICT
PLAINTIFF DIANE V. WADE'S RESPONSE TO
DEI?ENDANT'S MOTION FOR SUMMARY JUDGMENT
COMES NOW, Plaintiff Diane V. Wade sometimes referred to as
"Plaintiff') and files this Response to Defendant's No-Evidence Motion for Summary
Judgment, and in support thereof states as follows:
L
Defendant has filed a No-Evidence Motion for Summary Judgment this case. Plaintiff
can raise fact issues with respect to each of the elements causes of action.
II.
On November 30, 2011, some landscaping debris caught under Plaintiffs shoe and
caused her to fall as she walked on the sidewalk leading from her rental home to the driveway
where she parked her car at complex where she lived. Affidavit of Diane Wade attached
hereto as Exhibit "A" and fully incorporated herein by reference. Plaintiff's address at the
complex where she lived was 1125 Christopher Avenue A, Round Rock, Williamson County,
Texas. 78681-7552. The landscaping company for the complex where Plaintiff lived, Defendant
David's Landscaping, had left the landscaping debris on the sidewalk. See Exhibit "A." This
company is also known as Defendant David's Landscaping, Inc. but Plaintiff will refer to this
company in this affidavit as Defendant David's Landscaping. See Exhibit " Defendant
David' Landscaping frequently came to the complex where Plaintiff lived to provide
landscaping services and Plaintiff saw their trucks at the complex on the evening prior to her falL
See Exhibit "A." Since David's Landscaping left the debris on the sidewalk, it was aware or
should have been aware of the fact that the landscaping debris were left on sidewalk and that
they posed a danger to someone walking along the sidewalk (as people frequently do). See
Exhibit "A." David's Landscaping failed to exercise ordinary care in allowing the debris to
remain on the sidewalk after it left the complex on the evening before Plaintiffs fall. See Exhibit
" Def~ndanl s did not warn Plaintff about the landscaping debrs being on
the sidewalk. See Exhibit "A. a result of the fall, Plaintiff sustained substantial injuries to her
body and felt severe pain and suffering. See Exhibit " a result of the fall caused by the
landscaping debris, Plaintiff also has experienced substantial physical impairment and mental
anguish. See Exhibit "A." Such pain and suffering, as well as the physical impairment resulting
from the injuries and mental anguish continue to this day. See Exhibit "A"
Defendant had a duty to exercise reasonable care to avoid a foreseeable risk injury to
Plaintiff. Defendant breached that duty by failing to reasonable care to reduce or
eliminate the involving debris on the Further, Defendant failed to
warn Plaintiff about the dangerous condition by the landscaping debris on the sidewalk
despite the fact that Defendant was aware this dangers risks created by the existence of
the landscaping debris on sidewalk. The negligent reckless acts and omissions of
Defendant with respect to the dangerous condition created the landscaping debris on the
sidewalk were a direct and proximate cause of the injuries, harm and damages sustained by
Plaintiff.
WHEREFORE, PREMISES CONSIDERED, Diane V. Wade respectfully
submits this Response to Defendant's No-Evidence Motion Summary Judgment and requests
that the Court deny Defendant's No-Evidence Motion for Summary Judgment and that the Court
grant Plaintiff such
18
LAW OFFICES STUART
Whitlow
1104 S. Mays, Suite 1
Round Rock , Texas 78~64
12) 8-9292
Stuart Whitlow
SBN: 21378050
Email:stuartwhitlowlaw@yahoo.com
ATTORNEY FOR PLAINTIFF
WADE
IZZO & SEMLER,
1104 S. Mays, Suite 116
Round Rock, Texas 78664
(512) 218-9292
(51
John Thomas Izzo
SBN: 24007426
Email :dahlia@ roundrocklaw .com
ATTORNEYS FOR PLAINT~
DIANE WADE
CERTIFICATE OF SERVICE
I hereby certify that have served opposing counsel, Robert House of Clark, Price &
Trevino, Southpark One, Suite 920, 1701 Direclors Boulevard, Austin, Texas 78744, and Jason
L. West of, Brock Person Guerra Reyna, 17339 Redland Road, San Antonio, TX 78247-2304 in
accordance with the Texas Rules Civil Procedure on l lth day of December, 2014.
Stuart Whitlow
9
CAUSE NO. D-1-GN-13-004070
DIANE V. WADE, § IN THE DISTRICT COURT
Plaintiff §
§
v. § TRAVIS COUNTY, TEXAS
§
DAVID'S LANDSCAPING, DAVID'S §
LANDSCAPING, INC., DANLY PROPERTIES,§
SAAD INVESTMENTS, LLC, §
WESTWIND RR LIMITED PARTNERSHIP, §
AND SKY MANAGEMENT, INC.~ §
Defendants § 419 1h JUDICIAL DISTRICT
AFFIDAVIT OF DIANE WADE
Before me, the undersigned notary, appeared a person whose identity is known to me as
Diane Wade. After I administered the oath to her, upon her she swore as follows:
"My name is Diane Wade and I am competent to testify to the facts set forth below. I am
the Plaintiff in the above styled and numbered cause. I am over 21 years of age and have
personal knowledge of the facts set forth herein. The facts stated herein are true and correct.
"On November 30, 2011, some landscaping debris caught under my shoe and caused me
to fall as I walked on the sidewalk leading from my rental home to the driveway where I parked
car. My address at rental home in the complex where I lived was 1 Christopher
Avenue A, Round Rock, Williamson County, Texas. 78681 The landscaping company for
the complex where I lived, Defendant David's Landscaping, had left the landscaping debris on
the sidewalk. This company is also known as Defendant David's Landscaping, Inc. but I will
refer to this company in this affidavit as Defendant David's Landscaping. Defendant David's
Landscaping frequently carne to the complex where I lived to provide landscaping services and I
saw their trucks at the on the evening prior to fall. Since David's Landscaping left
the debris on Lhe sidewalk, it was aware or should have been aware the fact that the
landscaping debris were left o.n the sidewalk and that they posed a danger to someone walking
along the sidewalk (as people frequently do). David's Landscaping failed to exercise ordinary
care in allowing the debris to remain on the sidewalk after it left the complex on the evening
before my fall. Defendant David's Landscaping did not warn me about the debris being on the
sidewalk. As a result of the I sustained substantial injuries to my body and felt severe pain
and suffering. a caused by the landscaping debris, I also have experienced
substantial physical impairment and mental anguish. pain and suffering, as well as the
physical impairment resulting from the injuries and mental anguish continue to this day.
"Further, Affiant sayeth not
SWORN TO AND SUBSCRIBED before me on this ofDecember, 2014.
Notary Public In and For the State of Lf:>w S/ ~
MARYN.SMmt
a! L(Jr!F.t~J NOTJ\.RYPUBUC#134a51J
·t, PARISH OF ORLEANS, STA'TE OF lOUISIANA
• WITH STATE WIDE JURISDICTION •
MY COMMISSION IS ISSUED FOR UFS