v.
Texas College and MPF Investments, LLC D/B/A \A-1 Rent All\""
ACCEPTED
12-15-00121-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 10/15/2015 9:45:20 PM Pam Estes CLERK
No. 12-15-00121-CV _____________________________________________________________ FILED IN 12th COURT OF APPEALS IN THE COURT OF APPEALS TYLER, TEXAS FOR THE TWELFTH DISTRICT OF TEXAS 10/15/2015 9:45:20 PM TYLER, TEXAS PAM ESTES Clerk _____________________________________________________________
GARRY L. ROLLINS AND CARLA D. ROLLINS, Appellants
V. TEXAS COLLEGE AND MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL," Appellees _____________________________________________________________
Appeal from Cause No. 13-3353-A In the 7th District Court of Smith County, Texas _____________________________________________________________
BRIEF of APPELLANTS GARRY L. ROLLINS AND CARLA D. ROLLINS _____________________________________________________________
Sigmon Law, PLLC
Ernesto D. Sigmon State Bar No. 24010397 2929 Allen Parkway, Suite 200 Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) [email protected]
ORAL ARGUMENT REQUESTED
No. 12-15-00121-CV _____________________________________________________________
IN THE COURT OF APPEALS
FOR THE TWELFTH DISTRICT OF TEXAS
TYLER, TEXAS
_____________________________________________________________
GARRY L. ROLLINS AND CARLA D. ROLLINS, Appellants
V. TEXAS COLLEGE AND MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL," Appellees _____________________________________________________________
IDENTITY OF THE PARTIES AND COUNSEL
_____________________________________________________________ APPELLANTS:
Garry L. Rollins Carla D. Rollins ATTORNEYS FOR APPELLANTS:
Trial Counsel Ernesto D. Sigmon State Bar No. 24010397 SIGMON LAW, PLLC 2929 Allen Parkway, Suite 200 Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) [email protected]
Appellate Counsel Ernesto D. Sigmon State Bar No. 24010397 SIGMON LAW, PLLC 416 West Saulnier Street 2929 Allen Parkway, Suite 200 Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) [email protected]
FIRST APPELLEE:
Texas College ATTORNEYS FOR APPELLEE, TEXAS COLLEGE Trial Counsel:
Mr. Trey Yarbrough YARBROUGH WILCOX GUNTER, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702 Telephone: (903) 595-3111 Facsimile: (903) 595-0191 Lead Appellate Counsel:
Greg Smith Texas Bar No. 18600600 Nolan D. Smith Texas Bar No. 24075632 RAMEY & FLOCK, P.C.
100 E. Ferguson, Suite 500 Tyler, Texas 75702 Telephone: 903-597-3301 Facsimile: 903-597-2413 Associate Appellate Counsel:
Mr. Trey Yarbrough YARBROUGH WILCOX GUNTER, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702 Fax: 903.595.0191 SECOND APPELLEE:
MPF Investments, LLC, d/b/a "A-1 Rent All" ATTORNEYS FOR APPELLEE, MPF INVESTMENTS Trial Counsel:
Todd M. Lonergan Texas Bar No. 12513700 [email protected] MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile Ryan K. Geddie Texas Bar No. 24055541 [email protected] MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas 75248 (214) 420-5500 – Telephone (214) 420-5501 – Facsimile Lead Appellate Counsel:
Levon G. Hovnatanian Texas Bar No. 10059825 [email protected] [email protected] MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile Associate Appellate Counsel:
Todd M. Lonergan Texas Bar No. 12513700 [email protected] 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile Ryan K. Geddie Texas Bar No. 24055541 [email protected] MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas 75248 (214) 420-5500 – Telephone (214) 420-5501 – Facsimile TRIAL COURT:
Cause No. 13-3353-A 7th District Court of Smith County, Texas Honorable Kerry L. Russell, Presiding
CONTENTS
INDEX OF AUTHORITIES ...............................................VII
STATEMENT OF THE CASE.............................................. 1
1. STATEMENT OF PROCEDURAL HISTORY ................. 1
2. STATEMENT OF JURISDICTION ............................... 5
STATEMENT REGARDING ORAL ARGUMENT ................... 6
ISSUES PRESENTED ........................................................ 7
1. Whether the Trial Court Erred in Granting the Motion for Summary Judgment of Texas College and Its Underlying Objections to Evidence. .......................... 7 i
2. Whether the Trial Court Erred in Granting the Motion for Summary Judgment of MPF and Its Underlying Objections to Evidence. ........................................... 7
3. Whether the Trial Court Abused Its Discretion in Refusing to Re-Open the Evidence. .......................... 7
STATEMENT OF FACTS ................................................... 8
1. SUMMARY................................................................ 8
2. LITIGATION FACTS. ................................................. 8
3. CASE FACTS .......................................................... 10 ii SUMMARY OF THE ARGUMENT ..................................... 31
ARGUMENT ................................................................... 32
1. STANDARD OF REVIEW.......................................... 32 iii
2. THE TRIAL COURT ERRED IN GRANTING TEXAS
COLLEGE’S TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT..................... 39
1. Duty and Breach of Duty ................................ 41 a) Ordinary Care ............................................. 44 b) Duty to provide assistance .......................... 44 c) No Duty to Warn ......................................... 45 d) Negligent Supervision, Negligent Training ... 47 e) No Duty to Provide Unnecessary Assistance 48 f) No evidence that the work is unusually precarious .................................................. 49 g) No evidence that the job required specialized training ...................................................... 50 h) No evidence that additional personnel were necessary ................................................... 50 i) No obligation to dissuade ............................ 51
2. Proximate Cause............................................. 52 iv a) Generally .................................................... 52 b) Medical Causation ...................................... 54
1. Bracken’s Deposition Excerpts ....................... 58
2. Owner’s Manual .............................................. 58
3. Rollins Affidavit ............................................. 59
4. Barnett Letter ................................................ 60
3. THE TRIAL COURT ERRED IN GRANTING MPF’S
MOTION FOR SUMMARY JUDGMENT..................... 64
1. Duty ............................................................... 65
2. Breach of duty ................................................ 67
3. Proximate Cause............................................. 68
1. Owner’s Manual .............................................. 69
2. Rollins Affidavit ............................................. 71 v
3. Thorpe Affidavit ............................................. 72
4. The ANSI Standard and "Statement of Best
Practices” ...................................................... 75
CONCLUSION AND PRAYER ........................................... 76
CERTIFICATE OF COMPLIANCE ..................................... 78
CERTIFICATE OF SERVICE............................................ 79 vi
INDEX OF AUTHORITIES
CASES
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015) ........ 46, 48 City of Dallas v. Furgason, 05-06-00875-CV, 2007 WL 2703134 (Tex. App.—Dallas Sept. 18, 2007, no pet.) ................................ 55 City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979) ................................................................................. 32 Cotton Patch Cafe v. McCarty, 2-05-082-CV, 2006 WL 563307 (Tex. App.—Fort Worth Mar. [9], 2006, no pet.).................................... 55 Cunningham v. Columbia/St. David's Healthcare System, L.P., 185S.W.3d 7 (Tex.App.-Austin 2005) ................................... 73, 74 Daugherty v. S. Pac. Transp. Co., 772 S.W.2d 81 (Tex. 1989) ........ 75 Dawson v. Briggs, 107 S.W.3d 739 (Tex. App.—Fort Worth 2003, no pet.) .......................................................................................... 55 Desiga v. Scheffey, 874 S.W.2d 244 (Tex.App.—Houston [14th Dist.] 1994, n.w.h.) ....................................................................... 37, 38 Figueroa v. Davis, 318 S.W.3d 53 (Tex. App.—Houston [1st Dist.] 2010, no pet.) ............................................................................ 55 vii Goodwin v. Bluffton Coll., 2004-Ohio-2223 ................................... 65 Grey Wolf Drilling Co., L.P. v. Boutte, 154 S.W.3d 725 (Tex. App.— Houston [14th Dist.] 2004) ........................................................ 55 Gutierrez v. Gutierrez, 86 S.W.3d 729 (Tex.App. -El Paso 2002) .... 74 Halliburton Oil Well Cementing Co. v. Groves, 308 S.W.2d 919 (Tex. Civ. App. 1957) ......................................................................... 54 Hernandez v. Brinker Int'l, Inc., 285 S.W.3d 152 (Tex. App. 2009) . 33 Hill v. Melton, 311 S. W.2d 496 (Tex.Civ.App.--Dallas 1958, writ dism'd.) ..................................................................................... 64 Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172 (Tex. 2004) ................................................................................ 60 In re Hawk, 5 S.W.3d 874 (Tex.App.-Houston [14 Dist.] 1999) ...... 64 In re Prot. of H.W., 85 S.W.3d 348 (Tex. App. Tyler 2002) .............. 36 Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006.) ....................... 42 Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000) ............................. 41 Kroger Co. v. Milanes, No. 14-13-00873-CV, 2015 WL 4594098 (Tex. App. July 30, 2015) ............................................................. 52, 53 Lawrence v. Coastal Marine Serv. of Texas, Inc., 983 S.W.2d 757 (Tex. App. 1997) ........................................................................ 65 viii Lifestyle Mobile Homes v. Ricks, 653 S.W.2d 602 (Tex. App.- Beaumont 1983, writ ref'd n.r.e.)).............................................. 36 McEachern v. Glenview Hosp., Inc., 505 S.W.2d 386 (Tex. Civ. App. 1974), writ refused NRE (June 12, 1974) ................................... 49 McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954) abrogated by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978)) ... 51 McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299 (Tex.Civ.App. -Dallas 1968) ............................................................................ 63 Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984) ......... 55 Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985) .... 34 Rea v. Cofer, 879 S.W.2d 224 (Tex. App. 1994) ............................. 37 Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972) ............................... 32 Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718 (Tex.App. -San Antonio 1995) ..................................................................... 67, 76 Word of Faith World Outreach v. Oechsner, 669 S.W.2d 364 (Tex.App.-Dallas 1984, no writ) ................................................. 63 Wylie v. Hide-A-Way Lake Club, Inc., No. 12-12-00290-CV, 2013 WL 6797871 (Tex. App. Tyler, Dec. 20, 2013), review denied (Aug. 22, 2014) .................................................................................. 32, 35 ix
STATUTES
Tex. Gov't Code Ann. § 22.220 ........................................................ 5 Tex. Labor Code Ann. § 406.033 ................................................... 41
OTHER AUTHORITIES
ANSI’s STATEMENT OF BEST PRACTICES OF GENERAL TRAINING AND FAMILIARIZATION FOR AERIAL WORK PLATFORM EQUIPMENT, February 2010 ......................................................................................... 75
RULES
Tex. R. Civ. P. 1 ............................................................................ 64 Tex. R. Civ. P. 193.6(b) ................................................................. 72 Tex. R. Civ. P. 270 ........................................................................ 62 Tex. R. Ev. 201 ............................................................................. 76 Tex. R. Ev. 803(4) ......................................................................... 59 Tex. R. Ev. 901 ............................................................................. 60
REGULATIONS
A92.6, AMERICAN NATIONAL STANDARD FOR SELF-PROPELLED ELEVATING WORK PLATFORMS ............................................................ 66, 67, 75 x CONSTITUTIONAL PROVISIONS Tex. Const. art. V, § 6 ..................................................................... 5 xi
STATEMENT OF THE CASE
1. STATEMENT OF PROCEDURAL HISTORY
This is a non-subscriber suit for a work related injury. Plaintiffs/Appellants, Gary Rollins and Carla Rollins filed suit on December 20, 2013. (CCR 1: 1-5.)1 Appellants shall be referred to as “Rollins” and “Mrs. Rollins” respectively, and “Mr. and Mrs. Rollins,” “plaintiffs” or “appellants” collectively).
SUMMARY JUDGMENT
Defendant/Appellee, MPF Investments, LLC, d/b/a "A-1 Rent All" (hereinafter “MPF”) filed a motion for summary judgment on January 15, 2015. (CCR 2:104–248.) On the very same day defendant Texas College (hereinafter “TC”) filed a motion for summary judgment. (CCR 4:249-5:497.) Mr. and Mrs. Rollins filed a response to TC’s summary judgment motion on February 4, 2015 (CR 6:815- 22:3234) and a response to MPF’s summary judgment motion on February 6, 2015. (CR 22:3241 -24:3474.)
TC filed a summary judgment reply on February 12, 2015 (CCR 21: 3512–3645) and MPF filed a summary judgment reply on February 13, 2015 (CCR 22:3701–3736). MPF’s reply included a series of objections and request to strike plaintiffs’ summary judgment evidence.
MOTIONS TO STRIKE
During the pendency of the summary judgment motions, MFP and TC filed a joint motion to strike Rollins’ designation of Burt Thorpe, a safety expert, on January 23, 2015. (CCR 5:508 – 567.) Appellants filed a response on February 3, 2015. (CCR 6:700 – 746.) MFP filed a reply on February 9, 2015. (CCR 21: 3475-3484.) Rollins filed a sur-reply (erroneously titled “reply”) on the same day (CCR 21:3485-3495.)
On January 26, 2015, MPF and TC also filed a joint motion requesting that “the reports and any opinions” of Gilbert Martinez, Joe G. Gonzales, and Thomas M. Roney - a neuropsychologist, medical doctor, and economist, respectively. (CCR 6:568-699.) Rollins filed a response on February 3, 2015. (CCR 6:747 -7:813.) A joint reply was filed on February 6, 2015 (CCR 20:3235-3239.)
On February 13, 2014 TC filed objections and a motion to strike evidence and references in Rollins’ responses to TC’s motion for summary judgment. (CCR 22:3666 – 3700.) Rollins filed a response on February 13, 2015. (CCR 22:3737 – 23:3922.)
THE FEBRUARY 19 ORDERS
On February 19, 2015, the trial court issued a series of orders relating to the summary judgments and the evidence. The court granted the joint motion to strike the designation of Rollins’ liability expert, Burt Thorpe, (CCR 24:3923). The court also granted nearly all of the requests to strike portions of Rollins’ affidavit. (CCR 24:3925-3934.) The court also sustained the objections to summary judgment evidence set forth in MPF’s summary judgment reply. (CCR 24:3936-3937.) However, the court denied the joint motion to strike the reports and opinions of Gilbert Martinez, Joe G. Gonzales, and Thomas M. Roney. (CCR 24:3924.) Finally, the court granted TC’s motion for summary judgment (CCR 24:3935), and granted MPF’s motion for summary judgment (CCR 24:3938).
RECONSIDERATION
On February 24, 2015 Mr. and Mrs. Rollins filed an emergency motion to reopen the evidence. (CCR 24:3939 – 4027.) On the same day Mr. and Mrs. Rollins also filed a motion to reconsider regarding TCs motion for summary judgment. (CCR 24:4028 – 4136) On March 2, 2015 they also filed a motion to reconsider MPF’s motion for summary judgment. (SR 10-23).
On March 9, 2015, TC filed a response to the emergency motion to reopen the evidence. (CCR 25:4151-4163.) On March 11, 2015, TC filed a response to the motion to reconsider. (CCR 25: 4164 – 4170.) On March 12, 2015, MPF filed its response to the emergency motion to reopen the evidence. (CCR 25:4171 – 4176).
On March 17, 2015, the court below, denied Mr. & Mrs. Rollins’ motion for reconsideration of the TC summary judgment (SR 7), and also denied their motion to reopen the evidence (SR 8).
On April 10, the Court below denied Rollins’ motion for reconsideration of the MPF summary judgment. (CCR 25:4180.)
A notice of appeal was filed on May 8, 2015. (CCR 25:4181- 4183) The clerk’s record was filed (incorrectly) on June 9, 2015. A supplemental record was filed on September 2, 2015. A “corrected” record (with significant omissions) was filed on September 15, 2015. Due to the fact that the trial court held no oral hearings before ruling to strike the evidence and grant summary judgment, there is no reporter’s record.
2. STATEMENT OF JURISDICTION
This Court has jurisdiction under Tex. Const. art. V, § 6 and Tex. Gov't Code Ann. § 22.220.
STATEMENT REGARDING ORAL ARGUMENT
No oral argument was had in the court below. Appellants believe the lack of oral argument contributed to the erroneous rulings of the lower court. The orders of dismissal contain no discussion of the testimony as they relate to the elements of the claims. Also, the court below has stricken factual statements made in the affidavit of an unsophisticated lay witness, plaintiff/appellant, Garry Rollins. They were stricken because the lower court believed they were either inconsistent with his deposition testimony, or simply beyond his competence.
Oral questioning of counsel will be the most effective way for this Court to extract a detailed and accurate presentation of the parties’ arguments on consistency (or inconsistency) of the evidence. Oral argument will thus emphasize and clarify the written arguments, significantly aiding the decisional process of this Court.
ISSUES PRESENTED
1. Whether the Trial Court Erred in Granting the Motion for Summary Judgment of Texas College and Its Underlying Objections to Evidence.
2. Whether the Trial Court Erred in Granting the Motion for Summary Judgment of MPF and Its Underlying Objections to Evidence.
3. Whether the Trial Court Abused Its Discretion in Refusing to Re-Open the Evidence.
STATEMENT OF FACTS
1. SUMMARY
Gary Rollins was injured when he “blacked out” and fell during an attempt to dismount from the platform of a “scissor lift.” Over his own protest, he had been ordered to “get up there” and patch the high ceiling of a gymnasium. Defying all common sense, his direct supervisors ordered him “up there” knowing that he suffered from a fear of heights and “syncope,” a condition which causes frequent and unpredictable loss of consciousness. Moreover, he had not received training or instruction on the use of the lift.
2. LITIGATION FACTS.
Despite its simplicity, the case below was hotly contested by Texas College, a non-subscriber to the workers compensation system, and TC’s co-defendant. From the beginning the case was burdened with numerous aggressive filings -- special exceptions, motions to compel, motions to strike evidence, and motions for summary judgment. (CCR passim).
Eventually, the case reduced to two (2) summary judgment motions and a number of supporting motions to strike evidence. On February 19, 2015 the trial court simultaneously issued orders on all of the pending motions.
The court sustained numerous objections to many parts of the summary judgment evidence (CCR 24:3936-3937.), expert designations (CCR 24:3923), and certain parts of Mr. Rollins’ affidavit (CCR 24:3925-3934.) – which required redaction. However, as will be shown below, the striking of the various parts of the evidence was truly inconsequential. What survived, was ample summary judgment evidence.
Preserving some significant evidence, the trial court denied defendants’ request to strike expert reports of certain doctors (CCR 24:3924). These reports had been incorporated by reference into appellants’ responses to requests for disclosures. The disclosure responses were specifically used as summary judgment evidence. (CCR 2:109) (See reference to Exhibit “H”).
Without oral hearing, the trial court granted the motions for summary judgment.
An attempt was made here to draft this statement using only information from materials on file and documents referenced by the parties which were not stricken at the time of the February 19 orders.[2] These facts do not contain materials submitted on reconsideration or on the request to re-open the evidence. These facts were not stricken and were specifically allowed by trial court when it granted the summary judgments:
3. CASE FACTS
GARY ROLLINS, TEXAS COLLEGE, AND MPF
Gary Rollins worked “at Texas College as a maintenance Tech and Supervisor for about six years.” (CCR 25:4131). He is 55 years old. (CCR 3:234). He supervised a small group of three workers. (CCR 4:322). He was an “excellent” supervisor, according to one co- worker. (CCR 4:430). Roland Brackens (“Brackens”) was his immediate “supervisor” at the college. (CR 4:292). Brackens had evaluated Rollins as “honest” “responsible,” and rated him “good” in “willingness to do work.” (CCR 4:359).
Bracken’s direct supervisor was James Harris, Vice President of Business and Finance. (CCR 7:930, 21:3513). Dwight Fennel was the College President (CCR 7:931).
MPF Investments, LLC d/b/a A-1 Rent All (“MPF”), is the company from whom Texas College rented one of the two scissor lifts that were in the gym where Mr. Rollins was working on October 22, 2013. (CCR 2:104).
THE FIRST “BLACK OUT” INCIDENT Rollins first experienced “syncope and associated symptoms” during a September 2013 physical plant work assignment. (CCR 3:234). On September 8, 2013, Rollins “briefly passed out” after coughing and sneezing while he was trying to lift a heavy slab of marble. ROLLIN’S AFFIDAVIT (CCR 25:4132). The next day, September 9. 2013, he “went to the doctor.” Id “He was eventually told he had an episode of ‘syncope.’” REPORT OF JOE G. GONZALEZ, MD (CCR 6:651).
ROLLINS IS DIAGNOSED WITH SYNCOPE
In his expert report to the trial court, Dr. Joe G. Gonzales,3 summarized his medical history of Rollins:
On September 9, 2013, Mr. Rollins was seen at the Emergency Department of Baylor University Medical Center for syncope. It was indicated Mr. Rollins had multiple episodes and each spell was "ppt" by generalized paresthesia, and some lightheadedness. It was also indicated Mr. Rollins had episodes at work, while driving and had several spells that day. It was also noted Mr. Rollins lost consciousness that day and Mr. Rollins had a GCS score of 15.
On September 10, 2013, Mr. Rollins was discharged home in stable condition and was provided a diagnosis of syncope. It was indicated Mr. Rollins was provided discharge instructions for syncope (fainting episode). It was noted Mr. Rollins was provided a work release form which allowed Mr. Rollins to be able to return to work in 2 days with no restrictions. On October 14, 2013, Mr. Rollins was seen by William J. Hwang, M.D. for blackout spell during exertion, pain in neck and back, and numbness from the neck down. It was noted Mr. Rollins was lifting a heavy object on September 4, 2013, sneezed during the episode and developed weakness and numbness from the neck down. It was indicated Mr. Rollins passed out twice that day and had felt dizzy and lightheaded prior to blackout spells. …. Dr. Hwang provided assessments of 1 episode of blackout spell, and noted differential diagnoses included syncope versus seizures, stroke and TIA. …. Dr. Hwang advised to follow up with primary care doctor for chest pain and possible syncope episode such as a cardiogenic syncope and instructed Mr. Rollins NOT TO DRIVE until free from blackout spells for 6 months.
REPORT OF JOE G. GONZALES, MD (CCR 6:646-647) (emphasis added).
NOTICE OF SYNCOPE DIAGNOSIS AND REMOVAL FROM DRIVING DUTY Importantly, Rollins informed both Harris and Brackens that he “was now having dizziness and blackout spells.” ROLLINS AFFIDAVIT (CCR 25:4132). Brackens admitted to hearing about the problem: “…I left out on the 9th of September and I think I returned on the 17th. I think that's when I -- the day I returned back from vacation. There was a incident that I heard that he had had a light stroke or a heart attack or something --…” (CCR 4:382). In addition, on at least one prior occasion Rollins told Brackens that he was afraid of heights. (CR 4:294)
In his affidavit, Rollins indicated that he “produced a Doctor note to prove that [he] had been to the hospital. Mr. Harris and Mr. Brackens then removed [him] from a driving duty [he] had been performing for some time at Texas College where [he] would drive students from Dallas to Tyler to attend classes.” (CCR 25:4132). In his sworn interrogatory answers Rollins stated that he was “restricted from driving” in September of 2013. (CCR 3:236).
Rollins had been asked to drive TC students on Tuesday and Thursday mornings. (CCR. 4:306). Brackens testified that he “knew” about the “park-and-rides” Rollins was “doing” on Tuesdays and Thursdays. (CCR 4:362). Confirming Rollins’ version of events, Brackens also testified that he suspected that Harris was responsible for the suspension:
Q. Who is it -- who is it that likely took him off of the driving detail?
A. Mr. Harris.
Q. And do you know why Mr. Harris took him off the driving detail?
A. No, sir, I do not.
Q. Did it have anything to do with Garry having some issues behind the wheel, passing out, that sort of thing? A. That I do not know. I know that he had been in and out sick all the time. That could have been the issue. (CCR 7:883-883).
THE GROWING ANTAGONISM
During this time, Rollins began “to experience problems getting along with Mr. Brackens.” (CCR 25:4132). “At times” he questioned Bracken’s “leadership ability and competence.” Id. Brackens was having Rollins “perform maintenance and repair jobs that were at times degrading and a little frightening.” Id. Rollins began to question the schools attitude toward their safety. (CCR 25:4133).
Although he was Rollins’ superior, Brackens admitted that he resigned because he had “leadership problems” and that employees were “not listening” to him. (CCR 4:343). A colloquy with counsel shows that Brackens had an issue with people not taking his orders:
Q. Meaning that people were not respecting your leadership and authority and your position?
A. Correct.
Q. And why do you think that there was a lack of respect for your authority and leadership at Texas College? A. Don't know. Don't know. That's -- the employees, that's the problems that I had. You cannot make grown folks work, and all I could do was ask them to do jobs and they it wasn't getting done.
(CCR 4:344) (emphasis added).
THE WORK ON OCTOBER 21, 2013
On October 21, 2013 Roland Brackens told Rollins, that “Dr. Fennel wanted the ceiling in the gym fixed....” and that a “scissor lift would be out” and to “go in” the gym. (CCR 4:297). Mr. Rollins described his response: “I expressed to him then I didn’t know how to use it and I didn’t want to get up on it because I done got too old and I’m afraid of the height.” (CCR. 4:297). Nevertheless Brackens told Rollins to get with another employee “Michael Jones” who Brackens claimed knew “how to use it.” (CCR 4:297). Rollins complied. Id.
After some difficulty with the lift, as Mr. Rollins described: “We finally got it crunk up, and we went up and patched the roof, the ceiling. I stayed up there about five minutes on the 21st showing him what needed to be done, and him and a community service finished off.” (CCR 4:297) (emphasis added). Although, Rollins had no “trouble getting off the lift” (CCR 4:299), he was “nervous the entire time” he was “up there.” (CCR 25:4133). They did not finish the work that day. (CCR 25:4133).
Bracken’s judgment was not good. Earlier that day he had instructed the men to put a ladder on top of the scissor lift platform to reach even higher. (CR. 4:303-304). He admitted to it. (CCR 4:342). His order was universally rejected by his subordinates and his superiors. (CCR 4:304). The deposition testimony describes this crazy suggestion, as well as Rollins’ response in rejecting the idea:
Q. What other conversation took place?
A. I discussed with Mr. Harris Roland told them guys to set a ladder up on top of the lift and get up there because it wouldn't reach a certain height that they had to get to and he told them to set a ladder up on top of the lift and I told them not to set no ladder up on there because they be done fell out and kill theirself. And I told Ms. Bowie and Mr. Harris that. Well, Mr. Harris started laughing about it and said that that was stupid of Roland to even suggest that being in the position that he's in. Q. And you were standing there when Mr. Brackens told this to Stevie?
A. No. They came and told me, and I confronted Mr. Bracket about it.
Q. Stevie was one of them, was the other one --
A. Mike and Alex.
Q. All three.
A. Yes.
Q. And they told you and then you went --
A. And then I went and talked to Roland about it first, asked him why would he tell them to set a ladder up on that lift.
Q. And what did he say?
A. He said that Dr. Fennell want this done, he want it done by Friday, so whatever it takes to get it done, that's what we need to do.
(CCR 24:4041-4042) (emphasis added).
THE CONFRONTATION ON THE AFTERNOON OF OCTOBER 21ST Rollins’ refusal to obey Mr. Brackens had consequences. Later that evening Rollins “was called to the office by Mr. Harris and Ms. Bowie....” (CCR 4:297-298). As Mr. Rollins put it: “…Mr. Bracket had told them that I said I wasn’t going to get up there and do it….” (CCR. 4:298). Harris told Rollins that Brackens had “complained” that Rollins was an “ongoing discipline problem” and that Rollins “didn’t want to do as told.” (CCR 25:4133). “Mr. Harris informed [Rollins] that in order to keep [his] job [he] needed to get the ceiling fixed as directed.” Id. (emphasis added).
In his deposition, Rollins described the pressure to be on the lift due to the presence of a camera in the gym:
Q. Now, I do want to ask you about this conversation. Tell me, just describe in your own words as best you can what you said to them and what they said to you. A. Well, when I walked in the office, I asked Mr. Harris what was going on, and I saw Ms. Bowie. And normally if something is going on that Mr. Harris want me to take care of, he usually calls me up there and I do the job. When I saw Ms. Bowie, I asked them what was going on. They said, "Mr. Bracket said that you won't do nothing he said."
And I told them he was a liar. I say, "I done been in the gym this morning and started Mike and them in there patching the roof." We got cameras in there in the gym, and I was seen on the cameras up there on the lift. Q. How do you know that? Was that part of this conversation? A. Was it part of who conversation?
Q. The conversation with Mr. Harris and Ms. Bowie? A. Yes. I told them I was seen by Dr. Fennell and Ms. Marshall. Q. On the camera.
A. Yes.
Q. How do you find out about that?
A. Ms. Marshall told me.
Q. When did she tell you that?
A. That evening on the way home. She said, "I was sitting up here wondering why did you get up on the lift feeling the way you feel."
AND I TOLD HER I DIDN'T HAVE NO CHOICE and I got to finish it up tomorrow.
Q. But you were discussing that with Mr. Harris and Ms. Bowie?
A. Yes.
Q. But you weren't aware that you were seen on the camera until after you left the campus to go home. A. No, no, no. When we got in the car, Ms. Marshall automatically started talking with me about why would you get up on that lift.
… Q. So, tell me -- all right. So, tell me about this discussion then about being on the camera with – I mean, the discussion you had with Ms. Bowie and Mr. Harris about being on the camera.
A. It wasn't a long discussion, it was just when I was called in the office that evening, I was already in Ms. Marshall's office sitting in her office. And she sit up there and ask me, "Why would you get up on the lift like that and you know how you're feeling?"
So, I told her at that time, "Well, Roland told me that I had to GET UP THERE and get it done." And then in the next two or three minutes, Mr. Harris called my phone and had me come around to his office, we're in the same building. I went around to his office, and he immediately told me that Mr. Bracket said that I wouldn't do nothing he told me to do and I was supposed to been in there fixing that gym and I wasn't even doing that. And I told him that Mr. Bracket is telling a lie, I say Ms. Marshall and Dr. Fennell saw me on there. Q. So, Ms. Marshall told you that she and Dr. Fennell saw you.
A. Yes.
(CCR 4:300 - 303) (emphasis added). Rollins continued to describe the specific directive he received that afternoon from Mr. Harris:
Q. Did you have any further conversation with Ms. Bowie and Mr. Harris?
A. No. As far as on that evening, Mr. Harris just told me that first thing in the morning go in there and get that done, he say, because Dr. Fennell been telling Roland that he wanted to get it done and Roland come up here and say you say you ain't going to do it, but we need to get that done before Friday. I told Mr. Harris, "Mr. Harris, I'm going to tell you like I told Roland, I'm afraid of the height, but I'm going to get in there and I'm going to get it done." And at that time, I was also angry. But when Tuesday came, I went in there and I got it done.
(CCR 4:304-305).
Interestingly, Mr. Brackens testied repeatedly that Rollins was not at work on the 21st. (CCR 20:3289). But Michael Johnson, a co- worker indicated that Rollins was there and had instructed him to disregard the crazy ladder instruction made by Brackens earlier on that day. (CCR 20:3269).
THE WORK ON OCTOBER 22ND
Rollins testified that he showed up for work at about 7:15 am on the morning of the 22nd and after a short “McDonalds” breakfast the crew got to work. (CCR 4:307). He continued: And by that time, the guys would be through picking up trash out through the campus, and we all get started to work. So, on that Tuesday, I knew I didn't have a choice, I feel like my job was in jeopardy and I was still mad and angry. But I went in the gym, me, Steve Alex, Mike hadn't showed up yet, and we try to get the lift started. We couldn't get it started; so, it was another lift on the other end, we went down there and we managed to get that one crunk up. And I went up there and start patching the holes. Maybe five minutes Mike came in, and he told me that he would go ahead and finish it. And I told him, nah, I said, no, Roland done called me in the -- I mean, Mr. Harris done called me in the office yesterday evening because of Roland telling him that I wouldn't do it. He said, "Well, Roland is just lying, we was in here." I said, "Well, I know it" I said, "but I'm not worried about that," I say, "I just need to get this done because I don't need them saying nothing else to me about this gym."
Id. In another exchange, Rollins testified about the situation with more detail:
Q. And how long were you up on the lift up there by yourself before Mike came in?
A. Maybe 5 or 8 minutes. When he came in, I let it down and he got on. And he told me that, "Well, you go ahead and get off, man, because you look like you're scared." I said, "Well, I don't want to be up here anyway, but your uncle went and lied yesterday; so, I got to get this done."
Q. So, he and Mike initiated the comment that you go ahead and get down because you look like you're scared. A. Yes.
Q. And then you told him no because your uncle -- A. I had to get it done.
Q. Because your uncle lied yesterday.
A. Yes. I was directed by Mr. Harris to get it done Tuesday. Q. That wasn't T-uesday, was it? A. That was on a Monday when Mr. Harris direct me Tuesday morning GET UP THERE and get it done. (CCR 309)(emphasis added).
Rollins was “afraid” of working on the scissor lift at that time “because [he] didn’t know how to operate it, hadn’t been trained, and was fearful because of [his] injury and blackouts.” (CCR 25:4134).
Harris testified that Rollins was duty bound to get on the lift if Mr. Brackens told him to – even if Brackens knew about the syncope!
Q. So, you're now going to testify -- or are you testifying now that if a manager knows that an employee is suffering from seizures, the employee should get on the scissor lift if the manager says get up there and do it, is that what you're telling me?
A. Yes.
(CCR 868). This is the type of evidence which supports a finding of gross negligence. Brackens has completely denied the events and stated that he told Mr. Rollins not to “be in the Gym” on Oct. 22d. (CCR 4:354).
Rollins “would not have gotten on the lift if [he] had not been specifically instructed to do so by Mr. Brackens and later by Mr. Harris.” (CCR 25:4134). “The only reason [he] got on the lift is because [he] was told to do so and was made to feel as though [his] job depended on it.” (CCR 25:4134-4135) (emphasis added). Rollins “didn't want to do it.” (CCR 25:4135).
If Mr. Brackens had looked at the owner's manual and informed [Rollins] that a person with blackouts shouldn't be on a lift, [Rollins] would not have gotten on. Mr. Brackens however did not do this. He did not look at a safety manual, and if he did, he certainly did not inform or warn [Rollins] that a person in [Rollins’] condition shouldn't be on a scissor lift. Id.
THE FINAL “BLACK OUT” AND THE “FALL” Once Mike “brought the lift down” Rollins “went to exit and fell from the top of the platform flat on [his] back onto the gym floor.” (CCR 25:4134). “The top of the lift platform is still a good three feet off the ground when its all the way down and [he] fell straight back with nothing breaking his fall.” Id. Rollins does not “remember taking the first step down.” Id.
Insinuating that Rollins’ prior ordeal (of multiple hospital visits, medical tests, and ultimate syncope diagnosis) was the first part of some elaborate fraud, Michael Johnson who is apparently Bracken’s nephew (CCR 4:309) and was still on the payroll (CCR 4:400) testified that Rollins looked like he just “let go.” (CCR 4:410). Johnson also claimed Rollins offered to “take care of” him “when this is over.” (CCR 4:413). In a move completely inconsistent with fraud, after the fall, Rollins said something like “Yea, I’m fine or okay.” (CCR 4:458.) He told Stevie Barron “that he was just embarrassed.” Id. Rollins was, in fact, embarrassed and thought he was alright. (CCR 25:4134). He “tried to get up fast because [he] was more embarrassed knowing that Dr. Fennell was looking at the cameras.” (CCR 21:3620). “Of course, [he] later ended up having to have major surgery.” Id.
Regardless, the “stress of the work at that height had [him] disoriented and dizzy. Id. He was already “nervous being that high in the air.” Id. All Rollins remembered was “turning around on the platform, gripping the handrails, and then being on [his] back.” Id.
Q. So, you had a right hand on one handrail and a left hand on the other.
A. Yes.
Q. While you were still standing on the platform, the floor. A. Right.
Q. And then you proceeded to step down --
A. Yes.
Q. -- the first step? With your right foot or left foot? A. I don't know was it my right or left, I can't recall. Q. Were you able to step down on that step? A. I stepped down, and when I stepped, I fell. Q. How did you fall?
A. I just fell flat on my back, I don't know what happened, I just fell.
(CCR. 21:3619-3620).
THE ATTEMPT TO MANUFACTURE EVIDENCE OF “CONSCIOUSNESS” In deposition, Texas College’s counsel repeatedly asked Rollins questions which could be misconstrued. When Rollins said he remembered “falling,” counsel attempted to make it seem as though the witness was saying that he was conscious, but Rollins had to correct the effort of misdirection:
Q. Don't remember if you slipped.
A. No.
Q. Don't remember if you stumbled?
A. No.
Q. But you do remember falling down on the floor. A. Yes.
Q. So, you were conscious the whole time.
A. I don't know if I was conscious or not. When I hit the floor -- right at this time, I don't know what happened. Q. But do you -- you recall falling down, right? A. Yes.
Q. You don't recall -- I mean, you recall holding on and then you fell down.
A. And that's all I remember.
(CCR 4:313-314).
The testimony above makes it clear that Mr. Rollins lost consciousness or most likely lost consciousness. Despite counsels’ continued attempt to get Mr. Rollins to admit to consciousness during the fall, the witness simply stated: that he remembered falling (as in being standing, then being on the ground) – not that he remembered the entire sequence of the fall.
This testimony was not clearly presented to the trial court, but instead paraphrased: “Rollins has no explanation as to how he fell;; just that he fell.” See TC’S MOTION FOR SUMMARY JUDGMENT, p. 2. (CCR 4:250).
Ironically, when cross examined by counsel for MPF, the syncope explanation becomes more likely:
Q. All right, Mr. Rollins. You testified that before the October 22nd incident you had an issue where you were driving home and you started to black out; is that correct? A. Yes.
Q. Okay. Is it a possibility that the day that you fell off the lift that you blacked out and fell on it? A. I really don’t know how to answer that because I really don’t know what happened that day.
Q. (BY MR. GEDDIE) Okay. So you agree with me that that’s a possibility that you blacked out that day. A. Again, my response is I don’t know exactly what happened. Q. Can you think of any reason why it could not be an explanation for your fall that you blacked out?
A. No.
(CCR 2:155-156) (emphasis added). Rollins explanation might be simple, but it makes sense: “I shouldn't have been on it.” (CCR 4:317).
THE CONDITION OF THE LIFT AND TRAINING
The lift had been rented by Texas College from MPF. (CCR 5:469). According to Brackens, who signed off on the lift, there was no owner’s manual on board the lift. (CCR 2:162). Mr. Bracken’s testified that although he was given instruction on “how to operate” the lift, he did not pass that training onto his subordinates:
Q. But you didn’t’ turn around and show or train your subordinates how to operate it?
A. My subordinates had already been trained, because that is not the first time that we had a scissor lift on the premises and was used.
Q. And is proof of training kept in their personnel files? A. No.
Q. Why?
A. That I can’t answer.
(CCR 2:162). Rollins swore that MFP (A-1) “did not offer us training” or “familiarize us with the lift.” (CCR 25:4133) (emphasis added). Mr. Harris, agreed that “untrained employees shouldn’t be on scissor lifts.” (CCR 7:863).
Rollins “hadn’t been trained” and “didn’t know how to operate it.) (CCR 25:4134). Rollins was “present outside the gym when A·1 Rent All delivered the scissor lift to Texas College.” (CCR 25:4143). He “asked the delivery person if A·1 would bring the lift inside the gym and who was going to show [them] how to use it.” Id. “The A·1 person informed [Rollins] that he couldn't bring the lift indoors and that the folks at Texas College knew how to use the lift.” Id. Rollins stated that “A-1 did not offer us training nor did it familiarize us with the lift. The person from A·1 just came and delivered the machine and left.” Id.
When asked about what training could have made a difference, Mr. Rollins testified as follows:
Q. Here's my question, and I'm trying to make sure that I'm clear about it: What training could you have been given, if any, if you know, that would have enabled you to get on the lift or get off of it onto the floor any better than you did? A. Any proper training that someone that already knew how to use the lift or someone that already was licensed to use the lift.
Q. (BY MR. YARBROUGH) Is that your answer?
A. Yes.
Q. And how would that specifically have helped you do anything different?
A. Then I would have been trained to know how to use it and to get on and off the proper way, operate it the proper way.
But it still -- I was still afraid to get on it, period; so, I shouldn't have been on it.
(CCR 4:316-317) (emphasis added).
THE INJURY
Mr. Rollins testified that as soon as he fell, he was “hurting” in the “back of my neck.” (CCR 4:314). He had no prior complaints about neck pain:
Q. Yeah. What I'm asking is after you recovered from the first surgery to your neck, two months after that before the incident at Texas College on October 22, 2013, had you complained of pain in your neck"? A. No, I had not complained about pain in my neck. (CCR 4:318).
In his report to the trial court, Dr. Gilbert Martinez, noted the link between the fall and Rollins’ neck injury:
Correspondence on July 18, 2014, by Dr. Barnett includes the opinion that there was reasonable medical probability that Mr. Rollins suffered an acute herniated disc at C4-C5 and spinal cord contusion caused by the fall on October 22, 2013, and that he would have chronic pain in his neck and spinal cord dysfunction as a result of the injury. REPORT OF GILBERT MARTINEZ PHD (CCR 6:611). The photos are telling: REPORT OF JOE G. GONZALES, MD (CCR 6:674). Dr. Martinez’ Report continues:
3. Mr. Rollins will benefit from a comprehensive pain management program with a focus on interventions designed to reduce the effects of acute and chronic and pain. This should include evaluation by a medical pain specialist who can evaluate Mr. Rollins' potential for benefiting from medical procedures designed to alleviating chronic pain, as well as participation in various therapies designed to improve physical and behavioral adjustment of individuals with chronic pain. Such programs typically include a brief inpatient hospitalization for initial evaluation, medication management, and intensive therapy, followed by a more extended course of outpatient therapy.
4. In addition to the effects of his physical problems, Mr. Rollins' chronic reactive depression will contribute to his functional disability and will have a negative impact on his long-term vocational adjustment. Life care planning should account for Mr. Rollins' significantly diminished occupational potential.
REPORT OF GILBERT MARTINEZ, PHD (CCR 6:620). The prognosis if poor for Gary Rollins:
Based on the known medical conditions, Mr. Gary L. Rollins will have lifelong, progressive symptoms, physical impairment and subsequent disability which will require long-term medical care.
REPORT OF JOE G GONZALES, MD (CCR 6:628).
SUMMARY OF THE ARGUMENT
When one seeks to win by excluding key evidence on the basis of strategic, technical grounds, one must live and die by the technical and strategic failures of one’s own motions. Rather than argue the merits of this case, Texas College and MPF launched a technical war and jointly attempted to eliminate all relevant testimony, affidavits, expert reports, operating manuals, and relevant medical records from the record. Instead, they failed to convince the court to strike key parts of Rollins’ Affidavit, they lost a key battle over Doctor Reports which they introduced and referenced without objection, and they actually introduced the majority of the testimony which proves their own liability.
Moreover, many of the evidentiary objections were simply without merit. If revisited by this Court, even more summary judgment evidence supporting appellants’ claims will surface.
Finally, even on the remote chance more evidence is needed, this Court should reverse the trial courts denial of the motion to re- open the evidence.
ARGUMENT
1. STANDARD OF REVIEW
The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex.1979); Swilley v. Hughes, 488 S.W.2d 64,
68 (Tex.1972).
Recently in Wylie v. Hide-A-Way Lake Club, Inc., No. 12-12- 00290-CV, 2013 WL 6797871, at *7-8 (Tex. App. Tyler, Dec. 20, 2013), review denied (Aug. 22, 2014) this Honorable Court summarized the standard of review for a case similar to this, which involved both traditional and no-evidence summary judgments.
TRADITIONAL MOTION STANDARD
In Wylie, this Court cited the authority and set forth the standard:
The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548. When the movant seeks summary judgment on a claim in which the nonmovant bears the burden of proof, the movant must either negate at least one essential element of the nonmovant's cause of action or prove all essential elements of an affirmative defense. See Randall's Food Mkt., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). When the movant seeks summary judgment on a claim in which the movant bears the burden of proof, the movant must prove all essential elements of the claim. Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 201 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Once the movant has established a right to summary judgment, the burden shifts to the nonmovant to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.1979). Id. at *7 (emphasis added). “In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and we make all reasonable inferences in his favor.” Hernandez v. Brinker Int'l, Inc., 285 S.W.3d 152, 163 (Tex. App. 2009) (emphasis added). Elements of the action must be “conclusively” negated in order for the defendants to prevail. Id. (emphasis added). Any doubts are to be resolved in the non-movant’s favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548–49 (Tex.1985).
As will be shown here, even if one removes from consideration all of the stricken evidence, there is still a genuine issue of material fact as to Duty, Breach of Duty and Causation against each defendant.
NO EVIDENCE MOTION STANDARD
In Wylie, this Court’s explanation of the no-evidence standard was equally complete:
Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). We review a no evidence motion for summary judgment under the same legal sufficiency standards as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.2003). A no evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. Id. at 751. If the evidence supporting a finding rises to a level that would enable reasonable, fair minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. Id.
Id. These facts do “more than create a mere surmise of suspicion” of a negligence claim.
ORDER OF CONSIDERATION
This Court continued in Wylie to explain the proper order of consideration of the issues:
In both traditional and no evidence summary judgment motions, we review the entire record de novo and in the light most favorable to the nonmovant, INDULGING EVERY REASONABLE INFERENCE AND RESOLVING ANY DOUBTS AGAINST THE MOTION. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex.R. Civ. P. 166a(c). If the trial court's order does not specify the grounds on which it granted summary judgment, we affirm the trial court's ruling if any of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).
Moreover, when a party moves for both a traditional and a no evidence summary judgment, generally, we first review the trial court's summary judgment under the no evidence standards of Rule 166a(i). Ridgway, 135 S.W.3d at 600. If the no evidence summary judgment was properly granted, we do not reach arguments made under the traditional motion for summary judgment. See id. at 602.
Id. at *8 (emphasis added). Here, appellant will show that under the current law there is substantial evidence of the elements of the claims. In doing so, the showing will also defeat any summary judgment on traditional grounds.
MOTION TO RE-OPEN EVIDENCE
A motion to re-open the evidence is reviewed under an abuse of discretion standard. In re Prot. of H.W., 85 S.W.3d 348, 358 (Tex. App. Tyler 2002). In the case of In re Prot. of H.W., this Court indicated a primary consideration when it stated: “…the trial judge should liberally exercise his discretion to permit both sides to fully develop their case. Id. (citing Lifestyle Mobile Homes v. Ricks, 653 S.W.2d 602, 604 (Tex. App.-Beaumont 1983, writ ref'd n.r.e.)) (emphasis added).
As will be shown, the trial court here did the opposite. It struck evidence on dubious technical grounds and refused to allow correction of the “alleged” defects. This precluded the parties from fully developing the case.
SCOPE OF EVIDENCE
On February 19, 2015 the trial court issued 6 orders on six intertwined matters: Texas College’s two motions for summary judgment, appellees joint motion to strike the designations and reports of Dr. Martinez (psychologist), Dr. Gonzales (medical doctor) and Thomas Roney (economist);; MPF’s motion to strike the designation and testimony of Burt Thorpe (aerial lift equipment expert);; Texas College’s motion to strike evidence;; and MPF’s objections to evidence.
When a trial court sets a single hearing for multiple intertwined motions, the court is free to consider the evidence together. It may consider evidence advanced by one party in one motion, to support a motion or response by another party. In Rea v. Cofer, 879 S.W.2d 224 (Tex. App. 1994) the appellant had asserted the discovery rule. Appellees’ motion for summary judgment, failed to even address the issue. Nevertheless the Court of Appeals determined that the omission was not fatal, “because the proof necessary to negate the discovery rule was contained in [another party’s] motion for summary judgment on file with the court.” Id. at 228. The Rea court cited Desiga v. Scheffey, 874 S.W.2d 244 (Tex.App.—Houston [14th Dist.] 1994, n.w.h.) in which the court held that when a trial court sets a single hearing for multiple motions for summary judgment, the court may look to other proof on file with the court to determine any of the motions. In a particularly instructive passage, the Desiga court stated:
However, in view of the unique circumstances of this case, we find this omission to be not fatal as to Dr. Guerrero's summary judgment for the following reasons. Only one hearing was set for the judge to rule on all of the motions. All of the motions were heard at the same time, January 22, 1993 at 9 a.m. At the same hearing, the trial court heard all of the arguments in support of the various motions. The trial court granted summary judgment for all appellees the same day. In the unique facts and circumstances of this case, to find otherwise would place the trial court in a position of having to engage in the ARTIFICE OF IGNORING Mr. Desiga's deposition testimony which was otherwise on file with the court in the form of the other appellees' motions for summary judgment.
Id. at 253 (emphasis added). The Desiga court noted the Texas Supreme Court’s increasing leniency with regard to summary judgment evidence:
We find support for this holding in the Texas Supreme Court’s recent demonstrations of increasing leniency in the areas of both summary judgment proceedings in general and summary judgment evidence specifically. See McConathy v. McConathy, 869 S.W.2d 341, 341 (Tex.1994) (holding deposition excerpts used as summary judgment evidence need not be authenticated to be considered competent summary judgment proof); Mafrige v. Ross, 866 S.W.2d 590, 590 (Tex.1993) (holding parties may make otherwise unappealable order final simply by adding “Mother Hubbard” language in the order). Such a holding with regard to Dr. Guerrero is in effect acknowledging the trial court's capacity to take judicial notice of those documents on file with it at the time of a hearing on a motion for summary judgment. The other parties' motions for summary judgment having been duly filed with the trial court for its consideration constituted part of the record before it.
Id.
In addition, both orders of summary judgment contained language expanding the scope of evidence far beyond the confines of rule 166a to “any additional briefing accepted by the court.” (CCR 24:3935 and 24:3938). Thus, this Court need not engage in the “artifice of ignoring” the evidence that was before the trial court at the time of the February 19th rulings. It may consider all of the evidence presented by all the parties together, when deciding the fate of any particular motion.
2. THE TRIAL COURT ERRED IN GRANTING TEXAS
COLLEGE’S TRADITIONAL AND NO EVIDENCE MOTION
FOR SUMMARY JUDGMENT
Because the trial court did not hold oral argument and because its orders are silent as to any reasoning, this brief will examine the rationale behind appellees’ motions.
NATURE OF CLAIMS INVOLVED
Texas College’s motion is chock full of inapplicable premises liability cases, as well as cases in which there was no evidence of unusual danger. Here, there is a singular sterling difference between the facts of this case and the facts of any case cited in support of Texas College’s motion. It is the truly insane and spiteful order for Rollins to “get up there” and finish the work.
The order was given despite both Brackens and Harris knowing that Rollins was “unfit” for the job due to his “black-out” spells. Appellee’s motions would have this court adopt the standard of liability provided by Harris in his deposition:
Q. So, you're now going to testify -- or are you testifying now that if a manager knows that an employee is suffering from seizures, the employee should get on the scissor lift if the manager says get up there and do it, is that what you're telling me?
B. Yes.
(CCR 7:868). This is not the law. It should not be the law. None of the cases cited in the motions involve the commanding of an employee to do a knowingly unsafe act – an act which is not unsafe because of a premises condition – but is unsafe because the plaintiff was physically “unfit” for the job – he had fainting spells.
This is not a premises liability case. The only place in appellants’ pleadings which the word “premises” appears is the prayer: “WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray….” (CCR 498-505, 8th Amended) (CCR 92-101, 7th Amended) (CCR 83- 91, 6th Amended). This case involves active and grossly negligent supervision. As to Texas College, Rollins plead:
Defendant's failure to: 1) provide a reasonably safe workplace; 2) furnish reasonably safe machinery or reasonably safe personal protective equipment for use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff Garry Rollins was fit to perform work on a scissor lift. 7TH AMENDED PETITION (CCR 1:96) (emphasis added). THE ELEMENTS AND THE EVIDENCE
1. Duty and Breach of Duty
Tex. Labor Code Ann. § 406.033 eliminates significant defenses in nonsubscriber cases such as this. The provision reads in pertinent part:
“… it is not a defense that:
(1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee.
Id. (emphasis added). The Texas Supreme Court also reaffirmed that comparative negligence may not be submitted in a nonsubscriber case. See Kroger Co. v. Keng, 23 S.W.3d 347, 352-53 (Tex. 2000) (“We therefore hold that a nonsubscribing employer is not entitled to a jury question on its employee's alleged comparative responsibility.)
Texas College’s motion focused primarily on the lack of duty to warn of dangers which an employee already appreciates. This theory might have been applicable had Rollins plead “failure to warn.” He did not.
Texas College made extensive use of Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006.) See TEXAS COLLEGE MOTION FOR SUMMARY JUDGMENT (CCR 4:249-271). Elwood was a near frivolous case, with little in common to the instant case:
Billy Elwood, a courtesy clerk at a Kroger grocery store, was injured when a customer shut her vehicle door on his hand while he was transferring items from a grocery cart to the vehicle. Elwood had placed one hand in the vehicle's doorjamb, and one foot on the cart, to keep the cart from rolling down a slope in Kroger's parking lot. Elwood, 197 S.W.3d at 794 (emphasis added). But even in Elwood the Court acknowledge the concept of “duty.” Albeit lengthy, the following passage from Elwood and its highlighted language shows why its holding and the holdings of similar cases do not apply here:
An employer has a DUTY TO USE ORDINARY CARE in providing a safe workplace. Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975). IT MUST, for example, warn an employee of the hazards of employment and PROVIDE NEEDED safety equipment or ASSISTANCE. Id. However, an employer is not an insurer of its employees' safety. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993). It owes NO DUTY to WARN of hazards that are commonly known or already appreciated by the employee. See Nat'l Convenience[*795] Stores, Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex.App.—Houston [14th Dist.] 1999, no pet.). It has NO DUTY to provide equipment or ASSISTANCE THAT IS UNNECESSARY to the job's safe performance. See Allsup's Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 438 (Tex.App.—Amarillo 1996, writ denied). And, when an employee's injury results from performing the same character of work that employees in that position have always done, an employer is not liable if there is NO EVIDENCE THAT THE WORK IS UNUSUALLY PRECARIOUS. Werner, 909 S.W.2d at 869 (citing Great Atl. & Pac. Tea Co. v. Evans, 142 Tex. [1], 175 S.W.2d 249, 251 (1943)).
In this case, there is no evidence that loading groceries on the sloped portion of Kroger's parking lot is an unusually dangerous job, nor is there evidence that other courtesy clerks sustained similar injuries while loading groceries on the sloped lot. Indeed, loading purchases into vehicles is a task performed regularly—without any special training or assistance—by customers throughout the grocery and retail industry. While there is evidence that grocery carts had rolled into vehicles due to the parking lot's slope and may have posed a foreseeable risk of damage to customers' vehicles, this is no evidence that the slope posed a foreseeable risk of injury to Kroger's employees. Elwood presented NO EVIDENCE that his JOB REQUIRED SPECIALIZED TRAINING. See Nat'l Convenience Stores, 987 S.W.2d at 149. Elwood testified that, prior to working at Kroger, he knew it was dangerous to place his hand in a vehicle's doorjamb. Moreover, there is NO EVIDENCE that carts with wheel locks or ADDITIONAL PERSONNEL WERE NECESSARY to safely load groceries. See Allsup's Convenience Stores, 934 S.W.2d at 438. Kroger had no duty to warn Elwood of a danger known to all and NO OBLIGATION TO provide training or equipment to DISSUADE an employee from using a vehicle doorjamb for leverage. Employers are not insurers of their employees. See Leitch, 935 S.W.2d at 117; Exxon Corp., 867 S.W.2d at 21. Accordingly, without hearing oral argument, we reverse the court of appeals' judgment and render judgment for Kroger. See TEX. R. APP. P. 59.1, 60.2(c).
Id. at 794-95 (Tex. 2006) (emphasis added). The highlighted matters are discussed below: a) Ordinary Care
First and foremost: Is there really any doubt that a supervisor who knows his employee is having “black outs” is not exercising “ordinary care” when he instructs that employee to “get up there” in a scissor lift and patch the gym ceiling? Mr. Elwood’s supervisors did not tell him to “get over there and put your hand in the door jamb.” b) Duty to provide assistance
Second, the facts here show that Texas College breached the duty to provide assistance. Recall that on October 21st Brackens told Rollins that he “had to GET UP THERE and get it done." (CCR 4:303) (emphasis added). But Rollins had safely gotten off the lift and directed his assistants do the work. He “…stayed up there about five minutes on the 21st showing him what needed to be done, and him and a community service finished off.” (CCR 4:297). Mr. Brackens had been apparently upset by that fact. So later that afternoon “…Mr. Bracket [sic] had told them that [Rollins] said [he] wasn’t going to get up there and do it….” (CCR 4:298). So, once again, Rollins was ordered to get up there. “That was on a Monday when Mr. Harris direct me Tuesday morning GET UP THERE and get it done.” (CCR 4:309) (emphasis added). Rather than let Rollins use the assistance of his subordinates to do the patching, as he was attempting to do on the 21st, Brackens and Harris got mad about it, and ordered him personally to “get up there” on the 22nd. They made the order, knowing he had been having “black outs.” The evidence shows without a doubt that Texas College breached the duty to provide needed assistance as set forth in Elwood. c) No Duty to Warn
Here, Rollins is not complaining that Texas College should have warned him of something he already knew (that it was dangerous for him to get on the lift in his condition). He certainly knew that. He is complaining that despite the fact that his employer also knew it, the employer ordered him to take the risk he did not want to take. This is not a “failure to warn” case. It is an “ordered to do it” case – involving active and gross negligence.
Very recently, the Texas Supreme Court answered questions which had been certified to it by the United States Court of Appeal for the Fifth Circuit. In the case of Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015), the Texas Supreme Court surveyed the landscape of cases relating to employer duty in non-subscriber cases. Although most of the opinion deals with questions of liability relating to premises defects, the Court mentioned an exception to the “no- duty” rule in premises cases, which has at least some logical bearing here:
Instead, the Court's abolition of the no-duty rule should play a role only when an exception to the general rule applies— that is, when the nonsubscribing employer owes a duty despite the obviousness or employee's appreciation of a danger because, despite the awareness of the danger, it is necessary that the employee use the dangerous premises and the employer should anticipate that THE EMPLOYEE IS UNABLE TO TAKE MEASURES TO AVOID THE RISK. In such cases, the employer cannot rely on the fact that the risk was obvious and known to the employee to argue that the employee bears some portion of the responsibility for his own injuries, because the TWCA waives those defenses. Compare Del Lago, 307 S.W.3d at 772–73; Parker, 565 S.W.2d at 520, with Tex. Lab. Code § 406.033(a); Keng, 23 S.W.3d at 352.
Id. at 210 (emphasis added). Here there is active negligence, but even if it were a premises case, it would be excepted from the no-duty to warn rule, because Rollins, being ordered to “get up there,” was “unable to take measures to avoid the risk.” Once he obeys the master’s orders, the risk is unavoidable. He is up high, in harm’s way, subject to “blacking out.” d) Negligent Supervision, Negligent Training
In addition, as the Texas Supreme Court noted in Austin:
Thus, when a claim does not result from contemporaneous activity, the invitee has no negligent-activity claim, and his claim sounds exclusively in premises-liability. See Shumake, 199 S.W.3d at 284; Keetch, 845 S.W.2d at 265. But when the landowner is also an employer and the invitee is also its employee, this additional relationship may give rise to additional duties, such as a DUTY TO PROVIDE NECESSARY EQUIPMENT, TRAINING, OR SUPERVISION. …..
When an injury arises from a premises condition, it is often the case that any resulting claim sounds exclusively in premises liability, but that is not necessarily the case. An injury can have more than one proximate cause. Del Lago, 307 S.W.3d at 774; Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex.2001). The fact that Austin alleged that a condition of the premises proximately caused his injury does not preclude his allegation that Kroger's negligent failure to provide the Spill Magic system also caused his injury. If the only relationship between Austin and Kroger were that of landowner–invitee, the alleged facts could only give rise to a premises-liability claim. …..
AS AUSTIN'S EMPLOYER, KROGER OWED AUSTIN
duties in addition to its premises-liability duty and ITS DUTY NOT TO ENGAGE IN NEGLIGENT ACTIVITIES, including the duty to provide Austin with necessary instrumentalities.
Id. at 215-16 (emphasis added). Here, there is not even an allegation of premises liability, such as in Austin. But it is clear that the Texas Supreme Court acknowledges the duties owed in this case.
The evidence of negligent supervision is glaring. Not only did Harris and Brackens give Rollins a foolish order to “get up there” (CCR 4:303, 4:309), Brackens admitted that he had “leadership and authority” problems (CCR 4:344). He had even suggested they put a ladder on the platform to reach even higher. (CCR 4:303-304). This is a textbook “reasonable person” failure.
As far as negligent training, Brackens admitted that he did not pass the training he received on to his subordinates. (CCR 3:162). (CCR 25:4133). Rollins “hadn’t been trained” and “didn’t know how to operate it.) (CCR 25:4134) Mr. Harris, agreed that “untrained employees shouldn’t be on scissor lifts.” (CCR 7:863). e) No Duty to Provide Unnecessary Assistance
This statement in Elwood is a non-sequitur. Who needs “unnecessary” assistance? Here, to avoid undue risk, the assistance Rollins wanted was necessary. It is not outlandish to require a supervisor with knowledge of the risk that one of his employees may suddenly fall, to provide assistance and prevent it. See e.g.
McEachern v. Glenview Hosp., Inc., 505 S.W.2d 386 (Tex. Civ. App. 1974), writ refused NRE (June 12, 1974). In McEachern, the Court of Appeals reversed and rendered a verdict for the plaintiff because it was reasonably foreseeable that a patient who was on table in emergency room of hospital might faint as result of psychogenic shock, or some similar event, and that the hospital was under duty to have someone in attendance with patient and keep proper lookout for his safety.) f) No evidence that the work is unusually precarious
This statement in Elwood distinguishes the case quickly. Elwood, involved loading groceries on the sloped portion of Kroger's parking lot – “a task performed regularly—without any special training or assistance—by customers.” Elwood, 197 S.W.3d at 795. Here, there is no indication that untrained students were using the scissor lift regularly. It goes without saying that elevating one’s self to the top of a gymnasium ceiling on a “scissor lift” is precarious.
(CCR 21:3467) g) No evidence that the job required specialized training
Here, again the case facts are opposite Elwood. Even Mr. Harris said that that “untrained employees shouldn’t be on scissor lifts.” (CCR 7:863). h) No evidence that additional personnel were necessary
Once again, this case is different from Elwood. Here, Rollins used additional personnel on the 21st without incident, and let them finish the work. (CCR 4:297). But on the 22d, the order of “get up there” forced him upon the lift, when using his subordinates would be the safer choice. i) No obligation to dissuade
Finally, this case is different from Elwood and its companions in that Rollins’ superiors were commanding him to take the dangerous action. They were not watching him do it on his own and failing to “dissuade” him. They were “persuading” him to do it under threat of insubordination and possible termination. As the Texas Supreme Court Stated in Austin: “an employee always has the option to decline to perform an assigned task and incur the consequences of that decision.” 465 S.W.3d at 214 (citing in jest, the long abrogated McKee v. Patterson, 153 Tex. 517, 525, 271 S.W.2d 391 (1954) abrogated by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978)). Even McKee recognized that its “no duty” rule had limits:
This extreme common law view, which traded on the economic necessity of the workman to earn a living, resulted in the adoption of Liability and Compensation Acts to offer a measure of certain protection to the workman. The plaintiff here collected benefits under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq. In cases where legislation has not abolished the defense of assumed risk, the common law rule still prevails in this country in master and servant relationships.
Id. at 396 (emphasis added).
In sum, the trial court either misread or misapplied the law and facts on the concept of “duty.” There are several duties which apply here: 1) the exercise of ordinary care; 2) the duty to provide assistance; 3) the duty to provide adequate supervision; and 4) the duty to provide proper training. Texas College commanded Rollins to “get up there” without any training, and more importantly, while knowing he had been suffering “black-outs.” This simple act breached all of these duties.
2. Proximate Cause a) Generally
In Kroger Co. v. Milanes, No. 14-13-00873-CV, 2015 WL 4594098 (Tex. App. July 30, 2015) the Court affirmed a lower court judgment against the employer and summarized the requirements of causation in a non-subscriber case:
Proximate cause consists of two elements: cause in fact and foreseeability. Del Lago Partners, Inc., 307 S.W.3d at 774. Cause in fact means that the defendant's act or omission was a substantial factor in bringing about the injury, which would not otherwise have occurred. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.2005). Cause in fact is not shown if the defendant's conduct did no more than furnish a condition that made the injury possible. Id. The second element of proximate cause, foreseeability, requires that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995). These elements cannot be established by mere conjecture, guess, or speculation. Id. at 477. Proximate cause may, however, be established by direct or circumstantial evidence and the reasonable inferences drawn from that evidence. Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 889 (Tex.App.–Texarkana 2004, pet. denied) (citing McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980)).
Id. at[*11] (emphasis added).
The negligent order was the cause in fact of the fall. Here it was more than a substantial factor in causing Mr. Rollins to fall. Mr. Rollins swore that he “would not have gotten on the lift” but for the order by Brackens and Harris. (CCR 25:4134). By simple logic, the fall would not have occurred had he not been ordered to “get up there.”
The accident was foreseeable here. It simply defies logic to believe that Brackens should not have foreseen the possibility of Rollins falling. Rollins informed both Harris and Brackens that he “was now having dizziness and blackout spells.” ROLLINS AFFIDAVIT (CCR 25:4132). They had removed him from driving duty (CCR 25:4132), presumably to prevent an accident.
Certainly an order to engage in a negligent activity can be the proximate cause of an accident. In Halliburton Oil Well Cementing Co. v. Groves, 308 S.W.2d 919 (Tex. Civ. App. 1957), writ refused NRE, the court found that a supervisor’s negligent direction to an employee to apply an excessive “pull” on some tubing was a “proximate cause” of the crown block breaking – an event which killed the employee. Id. at 933. Similarly, an order to “get up there” knowing the possibility of a black out, can be the proximate cause of a fall. b) Medical Causation
It is assumed that Appellees worked so hard at the trial court level to exclude the doctor’s reports because they knew they needed to defeat Rollins on the issue of medical causation. They tried mightily to eliminate proof that the fall caused Rollins’ neck injury. But they succeeded only in excluding the letter from Rollins’ treating physician Samuel Barnett, MD. They did this by convincing the lower court that the letter had not been properly authenticated. However, it was properly authenticated as will be shown below in the next argument. Nonetheless, there are two reasons why excluding Dr. Barnett’s letter is irrelevant.
First, in a personal injury and fall case, lay testimony on injury causation is sufficient: …non-expert evidence may be sufficient to support a finding of causation in cases where both the occurrence and the medical conditions complained of are such that the general experience and common sense of lay persons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence.
City of Dallas v. Furgason, 05-06-00875-CV, 2007 WL 2703134, at *1 (Tex. App.—Dallas Sept. 18, 2007, no pet.). Texas law is replete with cases on the topic. See e.g. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984) (temporal connection to time of exposure and physical proximity to fumes per testimony of plaintiff was competent evidence that her alleged injuries were caused by the release of chemicals.); Figueroa v. Davis, 318 S.W.3d 53, 61 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (plaintiff’s testimony about broken teeth after car accident sufficient); Cotton Patch Cafe v. McCarty, 2-05-082-CV, 2006 WL 563307, at *3 (Tex. App.—Fort Worth Mar. [9], 2006, no pet.) (trip and fall case with plaintiff testimony about injuries and doctor visits sufficient); Dawson v. Briggs, 107 S.W.3d 739, 754 (Tex. App.—Fort Worth 2003, no pet.) (plaintiff’s lay testimony about jaw problems after wreck was sufficient).
In Grey Wolf Drilling Co., L.P. v. Boutte, 154 S.W.3d 725, 744 (Tex. App.—Houston [14th Dist.] 2004), review granted, judgment vacated, and remanded by agreement (Mar. 4, 2005) the court stated that lay testimony which establishes a sequence of events providing a “strong, logically traceable connection between the event and the condition is sufficient proof of causation.”
Here, Rollins’ affidavit indicated that as a result of the accident he “ended up having to have major surgery.” (CCR 25:4134). Rollins’ affidavit also indicates that immediately after the fall, he “could not move at first” and “eventually” rolled over onto his feet. (CCR 25:4134). Rollins described the fall as “I just fell flat on my back and my neck.” (CCR 4:311). Dr. Barnett’s surgery discharge summary in the medical records filed by Texas College shows that his major neck surgery happened on October 26, just a few days after the October 22nd fall. (CCR 8:1050). The records also indicate a primary diagnoses of “syncope and collapse.” (CCR 8:983). Certainly this is a strong, logically traceable connection between the event and the condition.
Second, the attempt at excluding the Dr. Reports failed. The trial court denied the motion to strike them, and they contained the very same information appellees were seeking to exclude by keeping out the Barnett letter. The disclosure responses which incorporated the reports, were specifically used as summary judgment evidence. (CCR 2:109) (See reference to summary judgment exhibit “H” - Plaintiffs' Fifth Supplemental Responses to Requests for Disclosure.). The language of the reports leaves little doubt as to medical causation:
Correspondence on July 18, 2014, by Dr. Barnett includes the opinion that there was reasonable medical probability that Mr. Rollins suffered an acute herniated disc at C4-C5 and spinal cord contusion caused by the fall on October 22, 2013, and that he would have chronic pain in his neck and spinal cord dysfunction as a result of the injury. REPORT OF GILBERT MARTINEZ PHD (CCR 6:611).
In summary, there is ample evidence of duty, breach of duty, and causation. It was all still before the court after the onslaught of exclusionary rulings. The summary judgment granted in favor of Texas College should be reversed.
ADDITIONAL EVIDENCE WAS IMPROPERLY STRICKEN
Even if one assumes that somehow more evidence is needed to defeat Texas College’s summary judgment motion, more evidence can be considered (see argument, infra). The trial court made numerous basic errors when it granted Texas College’s Motion to Strike Evidence (and related references in appellants’ response). Since the order itself contains most of the text of what was stricken, it serves as an easy guide to follow with the argument. It is contained in the appendix as “FEB 9 ORDER ON TC EVIDENCE OBJECTIONS.”
1. Bracken’s Deposition Excerpts
A brief review of page 2 of the order indicates that the court struck evidence to which Mr. Brackens was qualified to speak. He indicated that he had received “scissor lift” training in his deposition. (CCR 2:162). Moreover, he is simply reading the conditions prescribed by a regulation and then stating (with his personal knowledge) that the conditions required “did not take place.” (CCR 24: 3926).
2. Owner’s Manual
This was excluded on page 3 of the order. Perhaps it was not noticed, but the manual was authenticated during Mike Frazier’s Deposition:
Q. (BY MR. SIGMON) Have you ever seen this document before?
A. sure.
Q. Okay. What is this?
A. This is the operation and safety manual that's inside the scissor lift.
(CCR 20:3319). It is certainly relevant and Mr. Frazier is certainly qualified. He is the “Manager of A-1 Rent All.” (CCR 2:172). It should not have been excluded.
3. Rollins Affidavit
Parts of the Rollins affidavit were redacted based upon the order of the Court. Although the redacted version was plenty to support the statement of facts set forth in this brief, some additional relevant material should not have been taken from the affidavit.
The objection labelled “D-3” on page 4-5 of the order should not have been sustained. Mr. Rollins is perfectly qualified to authenticate the excuses given to him by his Doctors.
The objection labelled “D-6” on page 5 of the order should not have been sustained. Mr. Rollins is qualified to testify as to what his doctor told him, and it is clearly admissible hearsay, because it is a statement made for the purpose of medical diagnoses and is admissible pursuant to 803(4) of the Texas Rules of Evidence.
The objection labelled “D-7” on page 5 of the order should not have been sustained. It is not hearsay. He is simply stating what he was directed to do. Moreover, he is qualified to authenticate a note given to him by his doctor.
4. Barnett Letter
The objection labelled “D-15” on page 7 of the order should not have been sustained. This is Mr. Rollins’ authentication of the letter from Dr. Barnett, the non-paid, treating physician who performed the surgery on Rollins. In its motion to exclude, Texas College did not object to the effort of Mr. Rollins to authenticate it. That is no doubt because they were aware of the significant body of law allowing lay witnesses to identify and authenticate correspondence. See, e.g. Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 177 (Tex. 2004) (Dunwoody's affidavit also authenticates correspondence that passed between the condemnors and the landowners). Moreover, the bar on authentication is very low. Rule 901 of the Texas Rules of Evidence merely requires that a witness with knowledge testify “that an item is what it is claimed to be.” Tex. R. Ev. 901. Rollins’ affidavit clearly does that with respect to the letter:
My surgeon’s letter to my lawyer describing my injury is attached to my affidavit as Exhibit D. I have reviewed this document with my lawyer and I am familiar with my surgeon's opinion. He provided the letter in connection with this case. ROLLINS AFFIDAVIT (CCR 7:888).
Texas College’s only objection to the Barnett Letter is a stock objection that does not apply. The objection in its entirety is as follows:
This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not considered by the Court because the information is hearsay. The letter attached to Rollins' affidavit as Exhibit D is incompetent hearsay for which no exception applies. Mr. Rollins' sole purpose for including such records is to prove the truth of the matter asserted by Mr. Rollins. Therefore, Texas College's objection to this portion of Mr. Rollins' affidavit and the exhibit referenced should be sustained, and this portion and the exhibit stricken and disregarded by the Court.
(CCR 22:3678) (emphasis added). The objection is simply erroneous and inapplicable. Rule 803(4) specifically reads as follows:
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for--and is reasonably pertinent to--medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause. TX R EVID Rule 803. A simple review of the letter indicates that it is precisely what the rule applies to. See BARNETT LETTER (in Appendix). The Barnett letter should not have been excluded.
THE TRIAL COURT SHOULD HAVE REOPENED THE EVIDENCE Appellants sought leave to introduce two pieces of evidence in its motion to re-open the evidence. However, they now complain only about the trial court’s refusal to consider the Barnett Affidavit. See BARNET AFFIDAVIT (in Appendix). Dr. Barnett's sworn affidavit offers nearly the exact same information that is contained in the Barnett Letter. See BARNETT LETTER (in Appendix). Thus, this appellate request is superfluous in the event that this Court agrees that the letter was properly authenticated. Moreover, since the opinions of Dr. Barnett were also summarized by Dr. Gonzales in his report, this argument is, in reality, a fourth tier of insurance. For this issue to be decisive, this Court would first have to: (1) reject Rollins’ lay testimony combined with the medical records already in evidence, (2) reject the use of Dr. Gonzales report, and (3) rule that Rollins was unqualified to authenticate correspondence about his own treatment from his treating physician. Nevertheless, in the event of such a slim possibility, this Court should then concern itself with fairness - not technicalities.
A trial court may permit a party to offer other additional evidence when it "clearly appears to be necessary to the due administration of justice." Tex. R. Civ. P. 270. In determining whether to grant a motion to reopen, the trial court considers whether: (1) the moving party showed due diligence in obtaining the evidence, (2) the proffered evidence is decisive, (3) reception of such evidence will cause undue delay, and (4) the Court's refusal will cause an injustice. Word of Faith World Outreach v. Oechsner, 669 S.W.2d 364, 366-67 (Tex.App.-Dallas 1984, no writ). The trial court should exercise its discretion liberally "in the interest of permitting both sides to fully develop the case in the interest of justice." Id. at 367.
The subject matter of the Barnett letter/affidavit is highly relevant, material, and (as noted above) potentially decisive. There was no lack of diligence in securing this evidence, rather, the evidence was offered as a narrative opinion letter early on. It was properly attached to, and authenticated by Rollins’ summary judgment affidavit.
It was shortly after the letter was stricken that Rollins’ counsel sought to cure the alleged (but non-existent) defect by reformulating it as an affidavit and obtaining the Doctor’s oath. It was provided to the court in a motion for reconsideration, and as a motion to reopen.
Reopening a case for the reception of additional evidence is discretionary. See McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299 (Tex.Civ.App. -Dallas 1968). The discretion is to be liberally exercised, particularly if doing so is in the interest of justice. Id. See also, Hill v. Melton, 311 S. W.2d 496 (Tex.Civ.App.--Dallas 1958, writ dism'd.) (Court stating there are occasions where it may be the court's duty to grant the motion to reopen). Appellees would not have been prejudiced if the trial court had granted appellants’ request. Dr. Barnett's opinion was known to Texas College. The affidavit format is virtually identical in substance to the letter disclosed to defense counsel during discovery.
Appellants have meritorious claims in this non-subscriber case that should have survived summary judgment. If there was a defect, the affidavit cured it. The trial court should have exercised its discretion flexibly "to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law." Tex. R. Civ. P. 1. See also In re Hawk, 5 S.W.3d 874 (Tex.App.-Houston [14 Dist.] 1999).
3. THE TRIAL COURT ERRED IN GRANTING MPF’S MOTION FOR SUMMARY JUDGMENT The rental company should not “get a pass” for renting dangerous construction equipment without including operator safety manuals.
THE ELEMENTS AND THE EVIDENCE
1. Duty
In Lawrence v. Coastal Marine Serv. of Texas, Inc., 983 S.W.2d 757 (Tex. App. 1997) the Court of Appeals reversed a directed defense verdict in a case involving a death due to improper operation of a crane. Among the significant facts of the case, the court described the following:
…there was no operator's manual present, and, that the operator's manual that should have been in the crane contained specific instructions to avoid moving the crane until all personnel are clear. Wiethorn further testified that there was no load chart to comply with the American National Standards Institute (ANSI) within the crane. The operator's manual was required by OSHA and ANSI to be kept in the cab at all times. According to Wiethorn, OSHA and ANSI standards applied to this particular crane and Coastal could have easily provided the people who worked with the crane with the pertinent OSHA standards regarding its operation. He testified that proper operation of a crane calls for the operator to be thoroughly conversant with the crane's operating manual, which the crane operator could not have done in this case because it was not present in the cab. Id. at 760-61 (emphasis added). The court indicated that even though the general contractor [Coastal] did not control the crane, “Coastal had a responsibility to ensure a safe and suitable crane…” Id. at 761. See also Goodwin v. Bluffton Coll., 2004-Ohio-2223 (material issue of fact as to whether company's breach of duty to provide college with safety instruction manuals and safety components necessary for proper erection of scaffolding was proximate cause of student's death precluded summary judgment.).
Here the situation is similar: although A-1 (MPF) did not control the situation in the gymnasium on the day Rollins was injured, they had a duty to provide a “safe and suitable” scissor lift.
A scissor lift is a piece of heavy machinery governed by CFR 1926.454 of the Occupational Health and Safety Act (“OSHA”) as a "mobile scaffold". The American National Standards Institute ("ANSI") safety standard A92.6, AMERICAN NATIONAL STANDARD FOR SELF-PROPELLED ELEVATING WORK PLATFORMS, (CCR 21:3430-3573) also addresses scissor lifts and the care they require. In Texas:
The relevance of an OSHA standard is that it, and the ANSI standards which form the basis for most OSHA standards, are the cumulative wisdom of the industry on what is safe and what is unsafe. While OSHA was written to protect employees, an unsafe practice for an employee applies equally well to a customer who legitimately finds himself in the same geographic space as the employee. Safety principles don't change depending on whether the victim is an employee, a customer, or a passerby. Therefore it has relevance to the standard of care. It doesn't establish negligence per se, and it does not create a separate cause of action. Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir.1981); Jeter v. St. Regis Paper Co., 507 F.2d 973 (5th Cir.1975). But it may be relevant evidence. …. All of appellants' authorities deal with causes of action brought for violations of those OSHA regulations. In the case at bar, no such recovery was sought by appellee. Rather, the evidence was introduced for the purpose of establishing a standard of conduct to serve as a basis for a negligence cause of action ... the testimony concerning the OSHA regulations only provided statutory reinforcement of the obvious common-law standard. Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718 (Tex.App. -San Antonio 1995).
ANSI A92.6 part 6.3.1 requires the owner to provide the “operating manual” with each “rental” delivery. (CCR 21:3454). (emphasis added). The manual begins by reminding us that the manual itself is a very important "tool" and "keep it with the machine at all times". JLG OWNER'S MANUAL "FOREWORD.” (CCR 23:3766) (emphasis added). Nothing more need be said. There is a duty.
2. Breach of duty
Here, there was no owner’s manual on board the lift. (CCR 2:162). Rollins swore that MFP (A-1) “did not offer us training” or “familiarize us with the lift.” (CCR 25:4133) (emphasis added). The MPF [A-1] delivery crew did not bother to come in and train Rollins, even though he inquired. They told him that Texas College already “knew how to use the lift.” Id. (CCR 25:4143). Rollins stated that “A-1 did not offer us training nor did it familiarize us with the lift. The person from A·1 just came and delivered the machine and left.” Id. Of course the “machine” had no manual. The duty was breached.
3. Proximate Cause
Rollins “hadn’t been trained” and “didn’t know how to operate it.) (CCR 25:4134) Mr. Harris, agreed that “untrained employees shouldn’t be on scissor lifts.” (CCR 7:863). When asked about what training could have made a difference, Mr. Rollins testified that he “would have been trained to know how to use it and to get on and off the proper way…” (CCR 4:316-317).
Most importantly, section 2.1 of the manual reads:
The aerial platform is a personnel handling device; so it is necessary that it be operated and maintained only by trained personnel.
Persons under the influence of drugs or alcohol or who are subject to seizures, dizziness or loss of physical control must not operate this machine.
JLG OWNER'S MANUAL at 2-1 (CR 23:3341) (uncorrected record). Mr. Rollins indicated that “If Mr. Brackens had looked at the owner’s manual and informed me that a person with blackouts shouldn’t be on a lift, I would not have gotten on.” (CCR 25:4135). This is certainly more than a scintilla of evidence on proximate cause.
ADDITIONAL EVIDENCE WAS IMPROPERLY STRICKEN
1. Owner’s Manual
The objections to the admission of the owner’s manual is ludicrous. First and foremost, it is part of the equipment that they admittedly rented. Second, a copy (as asserted by MPF) was already in their possession. It was produced at Mike Frazier’s Deposition and properly authenticated:
(Plaintiff's Exhibit 4 marked.) MR. SIGMON: Let me hand you what' a being marked as Plaintiff's 4.
THE WITNESS: I'm sorry. Closing these so I have some room. Okay, sir.
Q. (BY MR. SIGMON) Have you ever seen this document before? A. sure.
Q. Okay. What is this?
A. This is the operation and safety manual that's inside the scissor lift.
Q. Okay. So this is an operation and safety manual from JLG, correct?
A. Yes.
Q. JLG is the manufacturer of the model 1930es right? A. Yes.
Q, Which is the same model that you rented to Texas College that is involved in this lawsuit, right? A. Yes.
Q, Now, on the front page down in the left-hand portion of the page, you see four letters? You see those four letters? A. The AN -- the ANI -- ANSI?
Q. Yes, A. Yes.
Q, Do you see that? And you've already identified what ANSI stands for, right?
A. Yes.
Q. And what is it again?
A. American National Safety Institute.
Q. So you'd agree with me that the American National Safety Institute has put its logo on the front of this owner's manual, right?
MR. GEDDIE: Objection, form.
A. It's yes, it's on there.
(CCR 20:3318-3319). As one can see, the objection that “plaintiffs have failed to establish its authenticity or relevance, or lay any proper predicate for the admissibility of same, either through a qualified witness or otherwise,” as set forth in MPF’s filing (CCR 22:3720) is baseless.
Moreover, one can look at the objections filed by MPF (CCR 22:3718-3725) and discern that they are (in large part) stock objections, edited and filed without any supporting evidence, and in many cases lacking detail. MPF objected to the manual on the basis that it was not produced timely in violation of Texas Rule of Civil Procedure 193.6(a). (CCR 22:3719-3720). But the objection is a “stock objection,” taken off the shelf and pressed without any supporting evidence or explanation. Bare stock objections filed in writing - with no oral hearing, no evidence, or explanation - should be given short shrift by this Court. As shown in the argument above, the manual is probative. It was authenticated. It is admissible.
2. Rollins Affidavit
MPF objected to the Rollins affidavit on the grounds that it was a sham and should “be stricken in its entirety. (CCR 22:3720). However the trial court did not exclude the entire affidavit, but rather painstakingly edited it in response to Texas College’s objections.
MPF alternatively asked the court to, at a minimum, exclude “the statements that directly contradict” his testimony. Id. Because MPF sought an alternative form of relief, the objection is multifarious. Compounding the confusion, the order is vague. It is simply a check line with a check mark in it, placed in the “sustained” column. See FEB 9 ORDER ON MPF EVIDENCE OBJECTIONS p. 2 (CCR 24:3937) (also in appendix). There is no way for this Court to discern which one of the alternative forms of relief was granted by looking solely at the order. However, because the trial court did edit the affidavit to exclude the testimony referenced in the alternative plea (CCR 24:3930-3931) (Texas College objection 13 sustained), one can discern that the trial court did not strike the affidavit entirely, but granted the lesser relief. Thus, this Court should consider the entire affidavit (subject to Texas College objection 13) as to MPF.
3. Thorpe Affidavit
Appellees filed a joint motion to strike the affidavit of appellants’ aerial lift safety expert, Burt Thorpe. See THORPE AFFIDAVIT (CR 23:3402-3409) (original record) (also in appendix). Tellingly, the motion to strike the affidavit did not emphasize unfair surprise or prejudice. That is because there was none.
The issues presented in the Motion were: whether Plaintiffs timely disclosed Burt Thorpe; whether the disclosure was sufficient; and whether Plaintiffs' supplemental designations passed muster of the discovery rules and in no way constitute unfair surprise, prejudice or trial by ambush. See Tex. R. Civ. P. 193.6(b).
It was undisputed that the trial court's scheduling order required Plaintiffs' to designate all experts by October 16, 2014. Plaintiffs met the deadline with their October 13, 2014 Fourth Supplemental Disclosure adding Burt Thorpe as a safety expert. (CCR 6:710-718) Appellees argued that the supplemental October 13 disclosure was inadequate and therefore untimely per Rule 194.2(f).
Appellees cited Cunningham v. Columbia/St. David's Healthcare System, L.P., 185S.W.3d 7 (Tex.App.-Austin 2005) for support. In Cunningham, the plaintiff was required to designate all experts by June 29, 2004. Id. at 11. Plaintiff responded to a December 2003 request for disclosure that she had not yet determined "any testifying expert witnesses" and would supplement. Id. The June disclosure deadline passed without plaintiff supplementing her response (i.e. she provided no information about her expert). Id. On September 7, 2004 (i.e. 90 days later) plaintiff attached her expert's affidavit for the first time, attempting to rely upon it as proof that her claims should survive summary judgment. Id. at 11. The appeals court affirmed defendant's motion to strike on the grounds that plaintiff had herself conceded the designation was untimely and that she failed to satisfy her burden of showing either good cause or a lack of unfair surprise or prejudice. Id. at 13.
The facts here are distinguishable: at the time Rollins disclosed Burt Thorpe in October, he provided to appellees all of the requirements of 194.2(f) including: his name, address and telephone number; the subject matter on which he was to testify; the general substance of his mental impressions and opinions; and his current resume. See PLAINTIFFS' FOURTH SUPPLEMENTAL DISCLOSURE at 6-7 (CCR 6:710-718). At the time of the disclosure, Plaintiffs expert had not been provided any "documents, tangible things, reports, models or data compilations" per 194.2(f)(A). In fact, he had only been retained recently to testify about issues pertaining to safety and the lack thereof - not on medical or damages issues. The difference between the substance of Plaintiffs' disclosure of Burt Thorpe in this matter, (timely per the scheduling order) and the complete lack of response by the plaintiff in Cunningham is clear. The court in Cunningham was absolutely correct in its judgment that the plaintiff had not met her burden. There was no evidence of her expert's utter existence prior to her summary judgment response, which is the epitome of "unfair surprise"- particularly in the context of a dispositive proceeding. Id. at 14. Here, Rollins met the initial requirement of a timely disclosure per the rules and the Court's Scheduling Order when he designated Mr. Thorpe on October 13.
Defendants received fair notice of Mr. Thorpe's participation as an expert; and were given the subject matter of his testimony, thus refuting any claim of unfair surprise. See Gutierrez v. Gutierrez, 86 S.W.3d 729 (Tex.App. -El Paso 2002).
4. The ANSI Standard and "Statement of Best Practices”
During the course of the proceedings, appellants introduced the American National Standards Institute ("ANSI") safety standard A92.6, AMERICAN NATIONAL STANDARD FOR SELF-PROPELLED ELEVATING WORK PLATFORMS, (CCR 21:3430-3573) and ANSI’s STATEMENT OF BEST PRACTICES OF GENERAL TRAINING AND FAMILIARIZATION FOR AERIAL WORK PLATFORM EQUIPMENT, February 2010 (CCR 20:3215-3234).
MPF objected to these documents claiming that they were not authenticated, not timely disclosed, and irrelevant. Ironically, with respect to ANSI 92.6, MPF itself produced the same text on 6/26/14 in response to Plaintiffs’ written request for production. (SR 13).
Both standards are discussed in the Thorpe affidavit. They are referenced in response to requests for disclosure regarding Mr. Thorpe’s testimony. They are relevant. Although the trial court sustained the objections, it should not have. Appellant submitted the matters requesting “judicial notice of the Code of Federal Regulations, OSHA and ANSI provisions cited” therein, and gave “notice of their intent to rely” on them. (CCR 20:3264). See, Daugherty v. S. Pac. Transp. Co., 772 S.W.2d 81 (Tex. 1989) wherein the Texas Supreme Court held that: (1) a court may take judicial notice of OSHA regulations without such regulations being included in the pleadings, and (2) that the trial court committed reversible error by not considering the OSHA regulation. See also Tex. R. Evid. 201. It bears repeating that ANSI standards “form the basis for most OSHA standards.” Seale, 904 S.W.2d at 720. Since OSHA adopts ANSI standards as its standards, the court was duty bound under Rule 201 to take notice.
THE TRIAL COURT SHOULD HAVE REOPENED THE EVIDENCE Appellants incorporate by reference the same argument made as to Texas College.
CONCLUSION AND PRAYER
Wherefore, Appellants pray that this Court: (1) reverse the trial court’s order granting summary judgment in favor of Texas College; (2) reverse the trial court’s order granting summary judgment in favor of MPF Investments, LLC; and (3) remand the case for further proceedings. Also in the interest of justice and clarity: (4) reverse the orders (a) denying the motion to reopen the evidence, (b) striking the expert designation of Burt Thorpe, and to the extent argued in this brief, granting (c) Texas College’s evidentiary objections and (d) MPF’s evidentiary objections.
Respectfully submitted, /s/ Ernesto D. Sigmon Ernesto D. Sigmon State Bar No. 24010397 LAW OFFICES OF ERNESTO D.
SIGMON
WALKER SIGMON LAW
416 West Saulnier Street Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) [email protected] ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D.
ROLLINS
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft Word 2013 and contains 14,980 words, as determined by the computer software’s word-count function, excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(l).
/s/ Ernesto D. Sigmon
Ernesto D. Sigmon State Bar No. 24010397 LAW OFFICES OF ERNESTO D. SIGMON WALKER SIGMON LAW 416 West Saulnier Street Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) [email protected] ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS
CERTIFICATE OF SERVICE
I certify that on October 15, 2015 I served a copy of Appellants’ Brief and Appendix on the parties listed below by electronic service and that he electronic transmission was reported as complete. My e- mail address is [email protected].
/s/ Ernesto D. Sigmon Ernesto D. Sigmon State Bar No. 24010397 SIGMON LAW, PLLC 2929 Allen Parkway, Suite 200 Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) [email protected] ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS Greg Smith Texas Bar No. 18600600 Nolan D. Smith Texas Bar No. 24075632 RAMEY & FLOCK, P.C.
100 E. Ferguson, Suite 500 Tyler, Texas 75702 Telephone: 903-597-3301 Facsimile: 903-597-2413 Mr. Trey Yarbrough YARBROUGH WILCOX GUNTER, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702 Fax: 903.595.0191 Levon G. Hovnatanian Texas Bar No. 10059825 [email protected] [email protected] MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile Todd M. Lonergan Texas Bar No. 12513700 [email protected] 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile Ryan K. Geddie Texas Bar No. 24055541 [email protected] MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas 75248 (214) 420-5500 – Telephone (214) 420-5501 – Facsimile No. 12-15-00121-CV __________________________________________________________________
IN THE COURT OF APPEALS
FOR THE TWELFTH DISTRICT OF TEXAS
TYLER, TEXAS
__________________________________________________________________
GARRY L. ROLLINS AND CARLA D. ROLLINS, Appellants
V. TEXAS COLLEGE AND MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL," Appellees __________________________________________________________________
APPELLANTS’ APPENDIX
__________________________________________________________________ Trial Court Orders
February 19 Order Denying Motion to Strike Doctor Reports……….. 3 February 19 Order Striking Thorpe Testimony…………………………. 4 February 19 Order on MPF Evidence Objections……………………….. 5 February 19 Order on TC Evidence Objections…………………………. 6 February 19 Order Granting MPF Summary Judgment…………….... 7 February 10 Order Granting TC Summary Judgment……………..…. 8 Order Clarifying Objections………………………………………………….. 9 Order Denying Reconsideration of TC Summary Judgment…………. 12 Order Denying Reconsideration of MPG Summary Judgement…….. 13 Order Denying Motion to Reopen Evidence……………………………… 14 Pleadings
6th Amended Petition………………………………………………………….. 15 7th Amended Petition………………………………………………………….. 24 8th Amended Petition………………………………………………………….. 34
(contents continued on next page) Key Documents
Full Rollins Affidavit…………………………………………………………… 42 Redacted Rollins Affidavit……………………………………………………. 47 Barnett Letter…………………………………………………………………… 52 Barnett Affidavit……………………………………………………………….. 54 Thorpe Affidavit………………………………………………………………… 56 Objections to Evidence
Texas College’s Objections to Evidence…………………………………… 64 MPF’s Objections to Evidence………………………………………………. 83
Cases
Austin v. Kroger………………………………………………………………… 96 Kroger v. Elwood……………………………………………………………….117 Kroger v. Milanes………………………………………………………………120 Lawrence v Coastal Marine Service………………………………………..140
CAUSE N0.13-33153-A
GARRY L. ROLLINS and CARLA D. ROLLINS
Plalntlffa, Vs. SMITH COUNTY, TEXAS TEXAS COLLEGE and MPF INVESTMENTS, LLC D/B/A "A·1 RENT ALL"
Defendants, 7th JUDICIAL DISTRICT
ORDER ON DEFENDANTS MPF INVESTMENTS, LLC D/B/A A·1 RENT ALL AND TEXAS COLLEGE'S MOTION TO STRIKE EXPERT DESIGNATIONS OF GILBl!!RT MARTINEZ, JOE 0. GONZALES, AND THOMAS M. RONEY
THE COURT has considered Defendant's Motion to Strike the Expert Designations of Giibert Martinez, Joe G. Gonzalez and Thomas M. the applicable law, and the 'lM K:-tPl:t,, response from Plalntlf'fs and supporting exhibits! Having ddne so, the Court Is of the opinion that the Defendant Is not entitled to the relief sought In its Motion. It Is therefore,
ORDERED, ADJUDGED, and DECREED that the motion Is DENIED.
It Is so ORDERED.
ORDER Solo P1g1
APPENDIX 3
Page 3924
CAUSE NO. 13-3353·A GARRY L. ROLLINS AND § CARLA D. ROLLINS, § Plaintiffs, § I v. § SMITH COUNTY, TEXAS § TEXAS COLLEGE, CHRISTIAN § METHODIST EPISCOPAL CHURCH § AND MPF INVESTMENTS, LLC § D/B/A 14A·l RENT ALL", § Defendant•. § 7TH DISTRICT COURT
ORDER GRANTING MPF INVESTMENTS, LLC D/B/A A·l RENT ALL'S MQTION TO STRIKE EXPERT DESIGNATION OF BURT IHORfE
The Court has considered Defendant MPF Investments, LLC dlb/a A·l Rent All's Motion to Strike Expert Designation of Burt Thorpe, Plaintiffs' Response, the pleadings on file, any additional briefing accepted by the Court, and the applicable law. Having done so, the Court is of the opinion that Defendant, MPF Investments, LLC d/b/a A· l Rent All, is entitled to the relief requested. It is therefore,
ORDERED, ADJUDGED and DECREED that Burt Thorpe shall not testify at trial in this matter and no opinion testimony from Burt Thorpe will be admined into evidence in this matter for any purpose.
It is so ORDERED.
Sii!led this of ..........
ORDER GMND'.'\G DEFENDANT MPf !NYESIMENJ. LLC'S MOTION IO STRJKE EXfERI DESIGNATION OF BURI IHOBPt: SOLO PAGE
APPENDIX 4
Page 3923
CAUSE NO. 13-3353-A
GARRY L. ROLLINS AND § CARLA D. ROLLINS, § Plaintiffs, § § v. § SMITH COUNTY, TEXAS § TEXAS COLLEGE, CHRISTIAN § METHODIST EPISCOPAL CHURCH § AND MPF INVESTMENTS, LLC § D/B/A "A·l RENT ALL", § Defendantl. § 7TH DISTRICT COURT
ORDER ON MPF INVESTMENTS, LLC D/B/A A·l RENT ALL'S OBJECTIONS TO PLAINWFS' SUMMABY JypGMENT EVIDENCE
The Court has considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's Motion to considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's Objections to Plaintiffs' Summary Judgment Evidence, Plaintiffs' Response to MPF's Summary Judgment and any responses and replies thereto, the pleadings on file, any additional briefing accepted by the Court, and the applicable law. Having done so, the Court makes the following rulings on A-1 's objections:
Evidence Sustalped Depleci
1. Excerpts from the deposition of Mike Frazier
Question at 59: 10 Questions beginning at 60:21
Questions beginning at 61:4 - 14 Questions beginning at 62:4