ACCEPTED 06-15-00009-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/7/2015 12:06:42 PM DEBBIE AUTREY CLERK
NO. 06-15-00009-CV IN THE COURT OF APPEALS FOR THE FILED IN 6th COURT OF APPEALS SIXTH DISTRICT OF TEXAS TEXARKANA, TEXAS AT TEXARKANA 12/7/2015 12:06:42 PM DENNIS RAYNER and DEBBIE AUTREY Clerk JOE TEX XPRESS, INC. APPELLANTS
V.
KRISTA DILLON APPELLEE
Appeal from the District Court of Hopkins County, Texas 62nd Judicial District Honorable Will Biard Presiding
BRIEF OF APPELLEE
John R. Mercy Brent Goudarzi Texas State Bar No. 13947200 Texas State Bar No. 00798218 MERCY p CARTER p TIDWELL, L.L.P. Email: brent@goudarzi-young.com 1724 Galleria Oaks Drive Marty L. Young Texarkana, TX 75503 Texas State Bar No. 24010502 Telephone: (903) 794-9419 Email: myoung@goudarzi-young.com Facsimile: (903) 794-1268 Geoffrey Hoover E-mail: jmercy@texarkanalawyers.com Texas State Bar No. 24074437 Email: ghoover@goudarzi-young.com GOUDARZI & YOUNG P.O. Box 910 Gilmer, TX 75644 Telephone: (903) 843-2544 Facsimile: (903) 843-2026
ATTORNEYS FOR APPELLEE
Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellee
lists below the names and addresses of all parties to the trial court’s final judgment
together with their counsel in the trial court. This list is provided so that the justices
of this Court may evaluate possible disqualification and recusal, and so that the Clerk
of the Court of Appeals may notify all parties of this Court’s final judgment.
Dennis Rayner and Joe Tex Xpress, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellants
Bryan P. Reese Jennifer M. Lee FEE, SMITH, SHARP & VITULLO, L.L.P. Three Galleria Tower 13155 Noel Road, Suite 1000 Dallas, TX 75240.. . . . . . . . . . . . . . . . . Trial and Appellate Counsel for Appellants
Samuel V. Houston, III HOUSTON DUNN, PLLC 4040 Broadway, Suite 440 San Antonio, TX 78209.. . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellants
Krista Dillon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellee
Brent Goudarzi Marty Young Geoffrey Hoover GOUDARZI & YOUNG P.O. Box 910 Gilmer, TX 75644. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellee
John C. Ginn SMITH MCDOWELL GINN P.O. Box 493 Sulphur Springs, TX 75483.. . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellee
i John R. Mercy MERCY p CARTER p TIDWELL, L.L.P. 1724 Galleria Oaks Drive Texarkana, TX 75503. . . . . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellee
ii TABLE OF CONTENTS Page
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Response to Issue Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Gross Negligence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Objective and Subjective Elements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Evidentiary Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Objectively Joe Tex Knew of the Extreme Risk. . . . . . . . . . . . . . . . . . . . . . 11
Objectively Rayner Knew of the Extreme Risk. . . . . . . . . . . . . . . . . . . . . . 13
Evidence Supports Objective Prong for Gross Negligence. . . . . . . . . . . . . 14
Joe Tex Proceeds with Conscious Indifference. . . . . . . . . . . . . . . . . . . . . . 14
Rayner Proceeds with Conscious Indifference. . . . . . . . . . . . . . . . . . . . . . . 15
Evidence Supports the Subjective Prong for Gross Negligence.. . . . . . . . . 16
iii Defendants Had No Credibility.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Lack of Evidentiary Support for Defendants’ Argument. . . . . . . . . . . . . . . 17
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Appendix: A - Accident Report Drawing (P. Ex. 17 p. 6)
B - Hours of Service: Record of Duty Status Falsification List (P. Ex. 3 [emphasis added])
C - Joe Tex July 12, 2010 Violation Report (P. Ex. 18 [emphasis added])
D - 4.30.10 Joe Tex letter (P. Ex. 26 [emphasis added])
E - 7.1.10 Joe Tex letter (P. Ex. 24 [emphasis added])
F - Joe Tex letter (P. Ex. 27 [emphasis added])
iv INDEX OF AUTHORITIES
Cases: Page
Boerjan v. Rodrigues, 436 S.W.3d 307 (Tex. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17
Columbia Medical Center of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Dalworth Trucking Co. V. Bulen, 924 S.W.2d 724 (Tex. App. – Texarkana 1996, no writ). . . . . . . . . . . . . . . 16
In Re H.R.M., 209 S.W.3d 105 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 17
In Re J.O.A., 283 S.W.3d 336 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16
State v. Addington, 588 S.W.2d 569 (Tex. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
State v. K.E.W., 315 S.W.3d 16 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Transportation Ins. Co. V. Moriel, 879 S.W.2d 10 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
U-Haul International, Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
USA Truck, Inc. v. West, 189 S.W.3d 904, 907 (Tex. App. – Texarkana 2006, no writ). . . . . . . . 10, 17
v Statutes:
TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 § 41.001(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 § 41.003(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Code of Federal Regulations:
49 CFR 395. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 49 CFR 395.3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
vi NO. 06-15-00009-CV IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA DENNIS RAYNER and JOE TEX XPRESS, INC. APPELLANTS
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Appellee, KRISTA DILLON, and files this her brief in
response to Appellants’ brief, and would show unto the Court the following.
STATEMENT OF THE CASE
Nature of the case: This is a truck wreck case.1 .
Trial court: Honorable Will Biard, 62nd Judicial District, Hopkins County
Parties: Plaintiffs: Dennis Rayner Joe Tex Xpress, Inc.
Defendant: Krista Dillon
1 Appellant, Dennis Rayner, will be referred to as “Rayner”, Appellant, Joe Tex Xpress, Inc, will be referred to as “Joe Tex”, Rayner and Joe Tex will be referred to collectively as “Defendants”, and Appellee, Krista Dillon, will be referred to as “Dillon.” The Clerk’s Record will be cited as (CR _); the Reporter’s Record will be cited as (_ RR _); and exhibits will be cited as (P. Ex. _).
1 Trial: The case was tried for seven days to a jury.
Verdict: The jury found Rayner and Joe Tex liable and awarded $1,110,629.76 in actual damages. (CR 3011-13). The jury also found Rayner and Joe Tex grossly negligent, awarding $2,000.00 in exemplary damages against Rayner and $3,000,000.00 in exemplary damages against Joe Tex. (CR 3014-15, 3022-23). The trial court reduced the exemplary damages against Joe Tex to $1,679,295.52 and entered judgment. (CR 3032).
Post-Trial Motions: Defendants filed a motion for new trial which was overruled by operation of law. This appeal ensued.
2 RESPONSE TO ISSUE PRESENTED
Responsive Issue
Where the evidence included acknowledgment that: • maintaining accurate log books was required under federal law, • the purpose of log books was to prevent fatigued drivers from driving 18-wheelers, • the Department of Transportation had found Joe Tex in violation of the law, • Rayner was the second most cited driver for Joe Tex, • Joe Tex paid a significant fine for making false reports of duty status on log books • Rayner was missing ten log books during the month before the accident, • Rayner’s log books for the day before and the day of the accident were falsified, • The jury heard evidence that Joe Tex and Rayner were not credible; and • Rayner ran Dillon off the road because he didn’t see her. There was clear and convincing evidence to support the jury’s finding of gross negligence against Rayner and Joe Tex.
3 STATEMENT OF FACTS
Joe Tex claimed that Rayner was one of “the best hands he ever had.” (2 RR
300). At the trial Rayner admitted that he received a four-year sentence for leaving
the scene of a hit-and-run accident, “sucked at logs”, falsified his log books, had been
found to have falsified his log books repeatedly, falsified his log books on the day
before and the day of the accident, had been sloppy with log books for years and
didn’t ever get disciplined. (5 RR 218, 225, 235, 245, 278, 294, 299, 331). Despite
this Joe Setina, president and owner of Joe Tex, would still let Rayner drive a Joe Tex
truck even today. (2 RR 276).
On July 23, 2010, Rayner hit Dillon’s Chevy Malibu from behind and ran her
off Interstate 30. (P. Ex. 17, Appendix A). He claimed that he never saw her until
after her car was hurdling through the median. (5 RR 284-285). Rayner claimed that
Dillon was in his blind spot even though she was in front of him. (5RR 284-285).
At trial Rayner and Joe Tex accepted full responsibility for the accident. (2 RR 248;
5 RR 202). The jury agreed that it was Rayner’s fault. (CR 3006).
The trucking industry is heavily regulated under the Federal Motor Carrier
Safety Act. (See 49 CFR 395). Because driving an 18-wheeler while fatigued is
extremely dangerous, the Federal Motor Carrier Safety Administration has
promulgated specific regulations that restrict the number of driving/working hours.
(49 CFR 395.3; 5 RR 204). These regulations require drivers to keep log books 4 detailing the hours that they work, are driving, on duty, sleeping, and off duty. (49
CFR 395). The purpose of these regulations is to protect the public from the known
extreme danger of fatigued drivers. (2 RR 79). Joe Tex knew all this. (2 RR 256; 3
RR 27-28).
But Joe Tex had a systemic problem in violating federal regulations designed
to prevent fatigue. In April 2010, just three months before this accident, Joe Tex was
audited by the Department of Transportation. (P. Ex. 3 and Appendix B). The DOT
audit of a random thirty-day period showed that Joe Tex had 48 violations, of which
34 were critical violations. (2 RR 91; 3 RR 57). Rayner was the second worst
offender during the DOT audit time frame. (2 RR 156, 300). In that thirty-day period
Rayner had 9 violations. (P. Ex. 3, 29; Appendix B). As a result of the DOT audit
Joe Tex had its rating reduced from satisfactory to conditional, and was fined
$17,000.00. (2 RR 143, 150, 261, 275; 7 RR 134).
Rayner admitted that he did not keep proper log books and that it was known
by Joe Tex. (5 RR 223, 239-240, 278). He further testified that no action was ever
taken against him because of his log book violations. (5 RR 223, 239-240). He
continued to not properly maintain log books right through the accident. (5 RR 294).
During the month prior to the accident he had 12 missing log books, had inaccurate
log books on the day before and the day of the accident and admitted to pre-filling out
his log books before beginning to work even on the day of the accident. (5 RR 235,
5 294-295). (P. Ex. 18, Appendix C). Rayner and Joe Tex admitted that accurate log
books were critical in determining whether a driver was fatigued. (2 RR 79, 233, 256;
5 RR 12, 31, 206). But Rayner admitted that because of the inaccuracies in his log
books that if his log books were wrong on the day before that the jury could not tell
that he was not fatigued. (5 RR 251). He did admit that the times on his log books
for the day of the accident were “screwed up again”. (5 RR) 294).
Based on the above evidence the jury found both Rayner and Joe Tex grossly
negligent.
6 STATEMENT REGARDING ORAL ARGUMENT
The Court should grant oral argument for the following reasons:
a) Oral argument would give the Court a more complete
understanding of the facts presented in this appeal. Tex. R. App.
P. 39.1(c).
b) Oral argument would significantly aid the Court in deciding the
case. Tex. R. App. P. 39.1(d).
7 SUMMARY OF THE ARGUMENT
After having been cited and fined by the DOT for 48 violations in a thirty-day
period three months before this accident, Joe Tex made no attempt to correct the log
book falsifications.
Joe Tex knew of the risks of falsifying log books and that it would lead to
fatigued drivers. Joe Tex knew that the risk would lead to catastrophic injuries. But
Joe Tex did not appear to care.
Joe Tex didn’t fire drivers that falsified log books. Joe Tex didn’t discipline
drivers that falsified log books. Joe Tex didn’t follow its own policies regarding
preventing falsifying log books.
As a result on July 23, 2010, Krista Dillon was run over by a Joe Tex driver.
A Joe Tex driver who continually falsified log books. A Joe Tex driver who falsified
his log books the day before the accident. A Joe Tex driver who falsified his log
book on the day of the accident. A Joe Tex driver who claimed to not see Dillon in
front of him until he had run her off the road.
This evidence complete with the total lack of credibility of Rayner and Joe Tex
support the jury’s finding of gross negligence.
8 ARGUMENT AND AUTHORITIES
“It’s my call. It’s my company. I can kind of do what I want.” – Joe Setina (3 RR 27)
With just such a cavalier attitude, Setina, as president of Joe Tex, put drivers
on the road. Joe Tex knew it was catastrophically dangerous to have fatigued drivers
on the road. Despite this, Joe Tex did not require its drivers to maintain proper log
books nor train them to do so. Joe Tex did not enforce its own policies regarding log
books. Joe Tex did not discipline drivers for failure to properly fill out log books.
Joe Tex did not check to see if drivers’ log books accurately reflected whether they
were fatigued or not. Joe Tex lied to the DOT about having hired a safety manager.
Joe Tex lied to the DOT regarding having taken disciplinary action against the “worst
offending drivers.” It is against this background that Rayner and Joe Tex now attempt
to argue there was not evidence of gross negligence.
Gross Negligence
Gross negligence must be proved by a clear and convincing evidence. Clear
and convincing evidence is that measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegation
sought to be established. TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(2). While the
proof must be of a heavier weight than merely the greater weight of the credible
9 evidence, there is no requirement that the evidence must be unequivocal or
undisputed. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).
Objective and Subjective Elements
Exemplary damages may be awarded if the proof shows that the harm suffered
resulted from gross negligence. TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(a)(3).
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 20 (Tex. 1994). USA Truck, Inc.
v. West, 189 S.W.3d 904, 907 (Tex. App. – Texarkana 2006, no writ). “Gross
negligence” means an act or omission: (A) which when viewed objectively from the
standpoint of the actor at the time of its occurrence involves an extreme degree of
risk, considering the probability and magnitude of the harm to others; and (B) of
which the actor had actual subjective awareness of the risk involved but nevertheless
proceeds with conscious indifference to the rights, safety, or welfare of others. TEX.
CIV. PRAC. & REM. CODE ANN. § 41.001(11). Under the objective element, an
extreme risk is “not a remote possibility of injury or even a high probability of minor
harm, but rather the likelihood of serious injury to the plaintiff.” Boerjan v.
Rodrigues, 436 S.W.3d 307, 311 (Tex. 2014). Under the subjective element “actual
awareness means the defendant knew about the peril, but its acts or omissions
demonstrated that it did not care.” Id. Circumstantial evidence may suffice to prove
either element. Id.
10 Evidentiary Review
In evaluating the legal sufficiency of the evidence, this Court must determine
whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction that its finding was true. State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).
Columbia Medical Center of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex.
2008). This Court must review the evidence in the light more favorable to the jury’s
finding of gross negligence. U-Haul International, Inc. v. Waldrip, 380 S.W.3d 118,
138 (Tex. 2012). This Court must resolve any disputed facts in favor of the finding
if a reasonable fact finder could have done so. K.E.W., 315 S.W.3d at 20. This
Court must disregard evidence contrary to the finding unless a reasonable fact finder
could not. Id. The jury, not the appellate court, is the sole judge of the credibility and
demeanor of the witnesses. In Re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
In forming a factual sufficiency review this Court must determine whether on
the entire record a fact finder could reasonably form a firm conviction or belief that
its finding was true. In Re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). This Court
though may still not substitute its judgment for that of the jury. Id.
Objectively Joe Tex Knew of the Extreme Risk
Joe Setina, the president of Joe Tex, admitted that an improperly driven 18-
wheeler can cause serious damage to people. (2 RR 256). He admitted that he knew
fatigue was a big problem that could cause catastrophic injuries. (2 RR 256). He
11 further admitted that the way to keep up with drivers’ fatigue was by monitoring the
log books. (2 RR 256). He further testified that he recognized the problem with
drivers being tired and causing accidents. (3 RR 66). He also admitted that he knew
that falsifying the log books was a “bad thing.” (2 RR 259). He further admitted that
he knew Joe Tex drivers were falsifying log books before the accident. (2 RR 298).
He further admitted that before the accident Rayner was the second worst driver at
falsifying log books. (2 RR 300). He also testified that because Rayner was falsifying
log books it was possible that on the date of the accident he was also “cooking the
books.” (2 RR 330). He further testified that fatigued drivers could catastrophically
injure people. (3 RR 29).
Angie Dunavant was the CFO and safety supervisor of Joe Tex.2 (2 RR 62).
She admitted that she knew the purpose of log books was to keep tired drivers off the
road because bad things could happen. (2 RR 79). She also testified that if Joe Tex
did not take action against drivers that falsified log books it sent a message that Joe
Tex “just didn’t care.” (2 RR 80). She knew prior to the accident that she had drivers
that were falsifying the log books. (2 RR 86). She also knew prior to the accident
that Rayner had been found to have falsified his log books. (2 RR 86-87). She
admitted that Joe Tex made more money off Rayner than other drivers. (2 RR 168).
2 Dunavant’s only qualification to be CFO of a trucking company was that she was a former dental hygienist and Setina’s mother-in-law. (2 RR 71, 254).
12 She also testified that people could get seriously hurt if log books were not properly
kept. (2 RR 186). She also admitted that no disciplinary action was taken against
Rayner. (2 RR 231).
Craig Skidmore, the dispatcher which Joe Tex claimed was its safety manager,
testified that log books were important. (5 RR 11-12).3 Skidmore testified that the
purpose of log books was to keep tired drivers from operating vehicles. (5 RR 33).
He admitted that Joe Tex got paid more if it didn’t follow the law. (5 RR 214). He
testified that he knew that fatigued drivers were a problem and would not be surprised
if thirty to forty percent of accidents were caused by fatigue. (5 RR 15). He admitted
that fatigue plays a part in most accidents. (5 RR 160). He testified that he would not
say fatigue played a part in this accident because it would be bad for everyone. (5 RR
103-104).
Objectively Rayner Knew of the Extreme Risk
Rayner testified that he knew that 18-wheelers could cause catastrophic
injuries. (5 RR 205). He testified that it was important to keep up with the log books
to prevent tired drivers. (5 RR 206). He also testified that if someone were not
keeping his log books properly he would continue to violate those rules unless
3 Both Setina and Dunavant sent letters to the Department of Transportation claiming that Joe Tex had hired Craig Skidmore as safety manager. (P. Ex. 24, 26, Appendices D and E [emphasis added]). Skidmore admitted that he was hired merely as a dispatcher. (5 RR 11-12). Skidmore testified that it was “not right to represent him as the safety manager when he was not.” (5 RR 92).
13 someone put a stop to it. (5 RR 209). He testified that on the day of the accident his
log books were “screwed up again.” (5 RR 294).
Evidence Supports Objective Prong for Gross Negligence
This evidence shows that when viewed from Rayner’s and Joe Tex’s standpoint
at the time of the wreck, fatigued driving involved an extreme degree of risk and
could cause potentially catastrophic harm to others. This clearly met the objective
element for gross negligence. It further showed that Rayner and Joe Tex had actual
subjective awareness of the risk involved.
Joe Tex Proceeds with Conscious Indifference
Despite being aware of the risks involved in having falsified log books and
allowing drivers to drive with them, Joe Tex refused to change. Setina testified that
despite having been fined thousands of dollars by the Department of Transportation
he never even bothered to look at what the violations were. (2 RR 263). He admitted
that Rayner was never written up for his violations. (2 RR 269). He testified that
despite all the violations by Rayner he would still allow him to drive a Joe Tex truck
even today and that there was no time he would have prevented him from doing so.
(2 RR 276-77). He chose to ignore the fact that Rayner had fourteen (14) violations
for missing log books for the month before the accident. (2 RR 280). Despite Joe
Tex’s policy to document disciplinary actions, there was no documentation that
Rayner had ever been disciplined. (2 RR 269). After the DOT audit found significant
14 violations in log books he still refused to get rid of any of the bad offenders. (2 RR
322).
Angie Dunavant testified that she knew Rayner was the second worst
perpetrator in the DOT audit. (2 RR 156). Rayner was cited for nine (9) violations
in the DOT audit before the accident. (2 RR 87). Despite knowing about the
falsification of log books, and that Rayner was the second worst offender, and that
she should take action against offending drivers for falsifying log books, she did not
terminate Rayner. (2 RR 156, 167). She had no documentation that she had ever
discussed the log book violations with Rayner. (2 RR 231). Instead, she told the DOT
that she was going to lay off the drivers responsible for the violations found in the
DOT audit. (2 RR 167; P. Ex. 27, Appendix F). No one was laid off. (2 RR 167).
Rayner Proceeds with Conscious Indifference
Rayner at least admitted that he knew that someone who was falsifying his log
books would probably continue to do so unless someone put a stop to it. (5 RR 209;
247). He testified that “I suck at logs.” (5 RR 218). He had been sloppy with his log
books for years. (5 RR 287). But Joe Tex never bothered to correct the problem. (5
RR 223).
Skidmore, the purported safety manager, even testified that Rayner was good
with his log books. (5 RR 22-23). This despite the DOT audit that clearly showed
that Rayner falsified his log books. (P. Ex. 3). One violation showed that Rayner
15 claimed in his DOT log book that he was off all day in Corpus Christi but in fact
drove 832 miles for 13 hours and 59 minutes to Moriarty, New Mexico. (2 RR 268;
P. Ex. 3, Appendix B p. 2 [emphasis added]). Rayner testified that in the thirty days
prior to the accident he had twelve (12) missing log books. (5 RR 235; P. Ex. 18,
Appendix C [emphasis added]). He was speeding twice. (5 RR 235). He did not get
disciplined for that. (5 RR 239-240). He testified that if his log books were falsified
on the day before the accident you could not tell if he was fatigued. (5 RR 251). He
then testified that his log books at that time were “screwed up again.” (5 RR 294).
Evidence Supports the Subjective Prong for Gross Negligence
Despite an actual awareness of the risks, it is clear from Joe Tex’s actions that,
as Ms. Dunavant said, Joe Tex “just didn’t care.” (2 RR 80). Starting with an owner
that thinks he gets to run the company the way he wants, through falsified log books
on the day of the wreck, the jury could reasonably believe Joe Tex did not care. This
clearly meets the subjective element required to prove gross negligence. The jury
could have reasonably found that Rayner and Joe Tex’s cumulative and continuing
safety violations caused Rayner to be fatigued at the time of the accident that caused
him not to see Dillon’s car in front of him. See Dalworth Trucking Co. V. Bulen, 924
S.W.2d 728, 734 (Tex. App. – Texarkana 1996, no writ).
16 Defendants Had No Credibility
The jury is the one who judges the credibility of the witnesses. In Re J.O.A.,
283 S.W.3d at 346; In Re H.R.M., 209 S.W.2d at 108. It is clear that they reasonably
did not believe that Joe Tex had a system in place to determine whether or not the
drivers were fatigued. See USA Truck, Inc., 189 S.W.3d at 907. This along with the
evidence the fact that Rayner did not see Dillon, and Rayner’s admission that he
could possibly have been fatigued if his books were falsified, the jury could
reasonably believe he was fatigued at the time of the accident because of Joe Tex’s
actions.
Lack of Evidentiary Support for Defendants’ Argument
Despite the overwhelming evidence of gross negligence set forth above, Rayner
and Joe Tex continue to argue that there was no “direct evidence” of fatigue. This
clearly ignores the fact that there is overwhelming circumstantial evidence of fatigue.
“Circumstantial evidence can be used to prove gross negligence.” Boerjan, 436
S.W.3d at 311. Even Rayner admitted that if his log books were wrong the day before
the accident there was no way he could tell the jury he was not fatigued on the day
of the accident. (5 RR 251).
Despite this Defendants argue that to find that Rayner was fatigued the jury
would have to infer that he intentionally falsified his log books. The jury did not
have to infer that he falsified his log books because Rayner admitted that he had done
17 so on numerous occasions, including the day before the accident and the day of the
accident. (5 RR 225, 235, 294). Rayner also admitted on the day of the accident that
he had improperly filled out his log book before he even left that morning. (5 RR
294).
The jury does not even have to make an inference, it simply must believe
Rayner that he falsified his log books. From that, and his admission that there was
no way to tell the jury he was not fatigued, the jury could infer from the accident that
he was fatigued. He did not see Dillon prior to the accident. (5 RR 284-285). Rayner
hit her from behind. (P. Ex. 17, Appendix A). Rayner didn’t even know he’d hit her
until he saw her in the median. (5 RR 284-285). Skidmore testified that fatigue
played a role in most accidents. (5 RR 16). These facts, coupled with the utter lack
of credibility of the Joe Tex witness, would lead a reasonable jury to but one
conclusion: Rayner was fatigued at the time of the accident.
Even still Defendants argue that the jury could not reach that conclusion
because of four uncontroverted facts that affirmatively demonstrated that “fatigue had
nothing to do with the accident.” (Appellants’ brief p. 19). This conclusion is only
based upon Defendants’ belief in the credibility of their own witnesses.
Unfortunately, for Defendants, the jury is the one who determines whether the
evidence is credible or not. Joe Tex and Rayner’s credibility was very much in
18 question.4 The evidence showed that Joe Tex through its CFO and president were
willing to lie to the Department of Transportation, and Rayner was continually
falsifying his log books in violation of federal requirements. (P. Ex. 23, 24; P. Ex. 18,
Appendix C). Therefore the jury had no basis to believe anything they testified to.
Despite this lack of credibility Defendants argue that it was undisputed that the
responding officer did not identify fatigue as a cause of the accident. (Appellant’s
Brief p. 19). While there is no note on the accident report Rayner testified that he did
not really even talk to the officer at the accident scene. (5 RR 255). Therefore, one
would not expect the officer to identify fatigue as a cause of the accident if he didn’t
really speak to Rayner.
Defendants also argue that the testimony of dispatcher Craig Skidmore (who
Joe Tex represented to be their safety manager) that Rayner was not fatigued and did
not appear tired was uncontroverted. (Appellants’ Brief p. 19). Skidmore testified
that he would not say that fatigue was a factor in the accident because it was bad for
everyone. (5 RR 103-104).
4 Setina was not credible. He initially lied to the jury that he was a casual fisherman not a professional with no sponsors like Berkley. (2 RR 253-257; 3 RR 30-34). He was forced to admit that was false when confronted with photos of him in his Berkley-sponsored shirt winning $25,000.00 in a professional tournament. (P. Ex. 35). He also admitted winning over $209,000 as a professional fisherman. (3 RR 34). He also admitted lying to the Department of Transportation that Joe Tex had hired a safety manager to try to get his safety rating changed when it had not. (2 RR 283; P. Ex. 24, 26 [emphasis added]).
19 Defendants also argue that because Rayner’s log book only shows that he was
driving three or four hours on the day of the accident he could not have been
fatigued. (Appellants’ Brief p. 19). Rayner’s own testimony was that if his log books
were falsified the day before the accident there was no way that he could tell the jury
that he was not fatigued. (5 RR 251).
Finally, Defendants argue that because Rayner denied he was fatigued the jury
was required to agree with him. For the reasons set forth above Rayner was not a
credible witness that the jury was required to believe.
The jury is the sole judge of the credibility of the witnesses, did not have to
accept the testimony that Defendants now attempt to rely on, particularly in light of
the fact that it was controverted, and there was little if any credibility attributable to
Joe Tex and Rayner.
CONCLUSION
The evidence clearly supports the required elements for the jury to find gross
negligence. The Defendants were not credible. The evidence was that Defendants
knew of the extreme risk of falsifying log books which allowed fatigued drivers to
cause catastrophic injuries, but simply did not care. Didn’t care enough to get rid of
the worst offenders. Didn’t care enough to even retrain the offending drivers.
Therefore the jury’s verdict should be affirmed.
20 PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee, KRISTA DILLON,
prays that this Court affirm the trial court’s judgment; and for such other and further
relief to which she may show herself to be entitled.
Respectfully submitted,
/s/ John R. Mercy John R. Mercy Texas State Bar No. 13947200 MERCY p CARTER p TIDWELL, L.L.P. 1724 Galleria Oaks Drive Texarkana, TX 75503 Telephone: (903) 794-9419 Facsimile: (903) 794-1268 E-mail: jmercy@texarkanalawyers.com
Brent Goudarzi Texas State Bar No. 00798218 Email: brent@goudarzi-young.com Marty L. Young Texas State Bar No. 24010502 Email: myoung@goudarzi-young.com Geoffrey Hoover Texas State Bar No. 24074437 Email: ghoover@goudarzi-young.com GOUDARZI & YOUNG P.O. Box 910 Gilmer, TX 75644 Telephone: (903) 843-2544 Facsimile: (903) 843-2026
21 CERTIFICATE OF SERVICE
I hereby certify that on December 7, 2015 a true and correct copy of the foregoing Brief of Appellee was served on all counsel of record by the Electronic Service Provider, as follows:
Mr. Samuel V. Houston, III HOUSTON DUNN, PLLC 4040 Broadway, Suite 440 San Antonio, TX 78209 Email: sam@hdappeals.com
Mr. Bryan P. Reese Email: breese@feesmith.com Ms. Jennifer M. Lee Email: jlee@feesmith.com FEE, SMITH, SHARP & VITULLO, L.L.P. Three Galleria Tower 13155 Noel Road, Suite 1000 Dallas, TX 75240
/s/ John R. Mercy John R. Mercy
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4, I hereby certify that the foregoing Brief of Appellee contains 4070 words. This is a computer-generated document created in WordPerfect using 14-point typeface. In making this certificate I am relying on the word count provided by the software used to prepare the document.
22 NO. 06-15-00009-CV IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA DENNIS RAYNER and JOE TEX XPRESS, INC. APPELLANTS
__________________________________________
APPENDIX INDEX ______________________________________________
A - Accident Report Drawing (P. Ex. 17 p. 6)
B - Hours of Service: Record of Duty Status Falsification List (P. Ex. 3 (emphasis added])
C - Joe Tex July 12, 2010 Violation Report (P. Ex. 18 [emphasis added]