Diane v. Wade v. David's Landscaping And David's Landscaping, Inc.

Opinion

ACCEPTED 03-15-00511-CV 7910530 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/19/2015 3:17:25 PM JEFFREY D. KYLE CLERK

Cause No. 03-15-00511 FILED IN IN THE COURT OF APPEALS 3rd COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTINAUSTIN, TEXAS 11/19/2015 3:17:25 PM Diane V. Wade, JEFFREY D. KYLE Clerk Appellant

vs.

David's Landscaping and David's Landscaping, Inc., Appellees

On appeal from the 419th Judicial District Court of Travis County, Texas

BRIEF OF APPELLANT

Stuart Whitlow LAW OFFICES OF STUART WHITLOW 1104 S. Mays Street, Suite 116 Round Rock, Texas 78664 (737) 346-1839 (512) 255-5938 (fax) stuartwhitlowlaw@yahoo.com ATTORNEY FOR APPELLANT

ORAL ARGUMENT REQUESTED

C:IWADE BRIEF APPELLANT NAMES OF ALL PARTIES TO FINAL JUDGMENT

PLAINTIFFIAPPELLANT:

Diane Wade

Represented at trial and on appeal by:

Stuart Whitlow LAW OFFICES OF STUART WHITLOW 1104 S. Mays Street, Suite 116 Round Rock, Texas 78664 (737)346-1839 (512) 255-5938 (fax) stuartwhitlowlaw@yahoo.com

DEFENDANTS/APPELLEES·

David's Landscaping and David's Landscaping, Inc.

Robert A. House Clark & Trevino 1701 Directors Blvd., Suite 920 Austin, Texas 78744

C \WADE BRIEF APPELL~NT TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES.. . . .. .. .. vi, vii

STATEMENT OF THE CASE ...... "" . ................. . .. ....... 1

ISSUE PRESENTED ON APPEAL ....................................... 2

Did the trial court err in granting David's Landscaping and David's Landscaping, Inc.'s no-evidence motion for summary judgment inasmuch as Appellant raised a material issue of fact with respect to each of the elements of Appellant's negligence claim challenged by Appellees?

STATEMENT OF FACTS . . . ....... .... ..... .. ..................................... 2

BASIC LAW REGARDING NO-EVIDENCE MOTIONS FOR SUMMARY JUDGME.NT... .. .. .. . .. . .. .. . . . . .. .. . . . . . . . .. .. .. . .. . . .. . .. ........ 4

ARGUMENT.. . ... .. . .. . .. .......................... 5

A. The trial court erred in granting Appellee's no-evidence motion for summary judgment inasmuch as Appellant raised a material issue of fact respect to all of the elements of Appellant's' negligence claim challenged by Appellee.

CONCLUSION AND PRAYER FOR RELIEF. . .. 8

CERTIFICATE OF SERVICE... . ............ . .............. 10

APPENDIX . .. . ... . .... ........ 11

\WADE BRIEF INDEX OF AUTHORITIES

CASES Page

C&H Nationwide v. Thompson, 810 S.W.2d 259, 266-267 (Hou. [1st Dist.] 1991, rev'd in part on other grounds, 903 S.W.2d 315 ...... '" .......... 6

D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).. . . . . . .... 6, 7

Excel Corp. v. Apodaca, 81 S.W.3d 817,820 (Tex. 2002).... . ... . . ....... 6, 7

Ford Motor Company v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) ........ .4

In re Mohawk Rubber Company, 982 S.W.2d 494, 498 (Tex. App Texarkana 1998, orig. proceeding) . .... . .... . ................ 5

Lehrer v. Zwernemann, 14 S W.3d 775, 777 (Tex.App.- Houston [1st Dist.] 2000 pet. denied)... . . .. .. . . .. .. .. . . .. . . . . .. .. .. .. .. . ............... 5

Lowe's Home Ctrs., Inc. v. GSW Marketing, 293 S.W.3d 283, 291 (Houston [14th Dist.] 2009, denied . . . . .. . . . . .. .. . . . .. . . . .. .. ................. 6

Military Highway Water Supply Corp. v. Morin, 156 S.W.3d 569, 570 (Tex. 2005) ..... " """".. .. " ............ " . .. . .. " .. .. .. .. " .. .. . 6

Nixon v. Mr. Property Management Company, 690 S.W.2d 546, 548-549 (Tex. 1985).. . .. . .. . . . .. . .... .. . .... .. .. .. . ...... . . ...... 4, 5

Randall v. Dallas Power & Light Company, 752 S.W.2d 4,5 (Tex. 1988 (per cunam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 4

Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009) (per curiam).... . . . . . .. . .. . . . .. . .. . .. . . . .. . . . .. .. .. .5

Torrington v. Stutzman, 46 S.W.3d 829, 838 (Tex. 2000) .. ... .. ....... 6

C:\WADE BRIEF APPELLANT Trico Techs v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997).... . .. .. . . . . .. 8

C \WADE BRIEF APPELLANT IN THE COURT OF APPEALS THE IRD DISTRICT OF TEXAS AT AUSTIN

Diane V. Wade, Appellant

David's Landscaping and David's Landscaping, Inc., Appellees

On appeal from the 419th Judicial District Court of Travis County, Texas

BRIEF OF APPELLANTS

TO THE HONORABLE COURT OF APPEALS·

Appellant, Diane Wade, submits this brief in support of her appeal

and requests for reversal of the trial court's order granting Appellees' David's

Landscaping and David's Landscaping, Inc.'s no-evidence motion for

summary judgment Appellant asks that this cause be set for submission on

oral argument

STATEMENT OF THE CASE

This is an appeal from an order granting Appellees David's Landscaping

and David Landscaping Inc.'s no-evidence motion for summary that

Appellant take nothing on her negligent claim against David's Landscaping

and David's Landscaping, Inc. (hereinafter sometimes referred to as

C:IWADE BRIEF APPELLANT 111415 DOC Appellees) Appellant brought a negligence claim against Appellees at the trial

court. Appellees filed a no-evidence motion for summary judgment which

alleged that Appellant had no evidence for elements of her negligence claim.

The trial court granted Appellee's no-evidence motion for summary judgment.

Appellant timely perfected her appeal to this Court.

ISSUES PRESENTED ON APPEAL

Did the trial court err in granting Appellees' no-evidence motion for

summary judgment inasmuch as Appellant raised a genuine issue of material

fact with respect to all of the elements of Appellant's negligence claim

challenged by Appellees?

STATEMENT OF FACTS

On November 30, 2011, Appellant Diane V. Wade fell as a result of

landscaping debris left on the sidewalk by Appellees David's Landscaping and

Defendant David's Landscaping, Inc. (hereinafter in this Statement of Facts

referred to collectively as Appellee David's Landscaping) at her rental property

located in a complex at 1125 Christopher Avenue A in Round Rock Williamson

County, Texas 78681-7552. Plaintiff Diane V. Wade's Response to

Defendant's Motion for Summary Judgment, Clerk's Record, Volume 1, P. 20.

The landscaping debris caught under Appellant's shoe and caused her to fall

as she walked on the sidewalk leading from her rental home to the driveway C \WADE BRIEF APPELLANT where she parked her car at the complex where she lived. /d. The landscaping

company for the complex where Appellant lived was Appellee David's

Landscaping. /d. Appellee David's Landscaping frequently came to the

complex where Appellant lived to provide landscaping services and Appellant

saw their trucks at the complex on the evening prior to her fall /d. Since

Appellee David's Landscaping left the debris on the sidewalk, it was aware or

should have been aware of the fact that the landscaping debris were left on

the sidewalk and that they posed a danger to someone walking along the

sidewalk (as people frequently do). /d. Appellee David's Landscaping failed to

exercise ordinary care in allowing the debris to remain on the sidewalk after it

left the complex on the evening before Appellant's faiL /d. Appellee David's

Landscaping did not warn Appellant about the landscaping debris being on the

sidewalk. /d. As a result of the fall, Appellant sustained substantial injuries to

her body and felt severe pain and suffering. /d. As a result of the fall caused by

the landscaping debris, Appellant also has experienced substantial physical

impairment and mental anguish. /d. Such pain and suffering, as well as the

physical impairment resulting from the injuries and mental anguish continue to

this day. !d.

C \WADE BASIC LAW REGARDING NO-EVIDENCE MOTIONS FOR SUMMARY JUDGMENT

Appellant hereby incorporates the factual assertions set forth in the

Statement ofF acts set forth above. Appellees contended at the trial court that

Appellant's claims should be dismissed because Appellant has produced no

evidence that raised a fact issue with respect to any of the elements of her

negligence claim. The nonmovant to a no-evidence motion for summary

judgment must respond to the motion by raising a genuine issue of material

fact with respect to each challenged element. Ford Motor Company v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). This will defeat the no-evidence

motion for summary judgment. !d. The nonmovant raises a genuine issue of

material fact with respect to each challenged element by bringing forth more

than a scintilla of evidence. Ridgway, 135 S.W.3d at 600. The nonmovant

may use both direct and circumstantial evidence to produce more than a

scintilla of evidence. Ridgway, 135 S.W.3d at 600-601. If the nonmovant's

summary judgment proof provides a basis for conflicting inferences, a fact

issue will arise. Randall v. Dallas Power & Light Company, 752 S.W.2d 4, 5 (Tex. 1988) (per curiam). Evidence favorable to the non-movant will be taken

as true, every reasonable inference will be indulged in favor of the non movant,

and any doubts will be resolved in the nonmovant's favor. Nixon v. Mr.

111415 Property Management Company, 690 S.W.2d 546, 548-549 (Tex. 1985);

Lehrer v. Zwernemann, 14 S.W.3d 775, 777 (Tex.App.-Houston [1st Dist]

2000 pet denied). In deciding whether there is a disputed fact issue, the court

considers all the evidence in the light most favorable to the non movant Timpte

Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (per curiam). To

defeat a no-evidence motion for summary judgment, the nonmovant is not

required to marshal its proof. In re Mohawk Rubber Company, 982 S.W.2d

494, 498 (Tex. App. Texarkana 1998, orig proceeding). Marshaling evidence

means organizing all of the evidence in the order that it will be presented at

trial. /d. The non movant's response only needs to point to evidence that raises

a fact issue on the elements which are challenged. /d. In other words, the

nonmovant must only point to facts which raise more than a scintilla of

evidence on the challenged elements. /d.

ARGUMENT

The trial court erred in granting Appellees' no-evidence motion for

summary judgment inasmuch as Appellant raised a genuine issue

of material fact with respect to each of the elements of Appellant's

negligence claim challenged by Appellees.

The elements of a cause of action for negligence brought by an

individual such as Appellant are (1) appellee(s) owed a legal duty of ordinary C \WADE BRIEF APPELLANT 11 DOC care to appellant, (2) appellee(s) breached the duty of ordinary care (3)

appellee's (appellees') breach proximately caused the appellant's injury. 0.

Houston, Inc. Love, S.W.3d 450, 454 (Tex. 2002); Excel Corp. v.

Apodaca, 81 S.W.3d 817, 820 (Tex. 2002); C&H Nationwide v. Thompson,

810 S.W.2d 259, 266-67 (Hou [1st Dist] 1991, rev'd in part on other grounds,

903 S.W.2d 315 (Tex. 1994) Appellant was owed a legal duty by Appellees

and Appellees' breach of that legal duty proximately caused Appellant's

injuries. /d.

Appellant raised a fact issue with respect to the legal duty in the

affidavit attached to her response to Appellee's no-evidence motion for

summary judgment. C&H Nationwide, 810 S.W.2d at 266 -267; Torrington v.

Stutzman, 46 S.W.3d 829, 838 (Tex. 2000); Lowe Home Ctrs., Inc. v. GSW

Marketing, 293 S.W.3d 283, 291 (Hou. [14th] 2009, denied); Military Highway

Water Supply Corp. v. Morin, 156 S.W.3d 569, 570 (Tex. 2005) Appellees

frequently provided landscaping services at the complex where Appellant

lived. Of course, these services generally benefitted Appellant and other

residents who lived at the complex. Appellant has also brought forth summary

judgment proof which raises a fact issue with respect to whether Appellees

breached their duty of ordinary care to Appellant. Appellees left landscaping

debris on the sidewalk that Appellant used to go back and forth from her home C IWADE BRIEF APPELLANT to her vehicle and did not provide her any warning that they had done so.

Clerk's Record, Volume 1 of 1, Page 20. This is despite the fact that they were

aware or should have been aware both that the debris were on the sidewalk

since they left them there, and the obvious reality that these debris could pose

a danger to residents such as Appellant fd.; D. Houston, Inc., 92 S.W.3d at

454; Apodaca, 81 S.W.3d at 820. Appellant has also brought forth more than

a scintilla of evidence and raised a fact issue with respect to whether

Appellees' negligent failure to exercise ordinary care (breach of duty) by

Appellant was a direct and proximate cause of the injuries, harm and damages

to Appellant. /d. Appellant stated in the affidavit attached to the response to

Appellees no-evidence motion for summary judgment that the debris caused

her trip and that as a result she tripped and felL Clerk's Record, Volume 1 of 1,

Page 20. She also stated in that affidavit that the fall caused her to sustain

substantial physical injuries, to experience pain and suffering, to warning

Appellant about this dangerous condition. /d. As a result of the fall, Appellant

sustained substantial injuries to her body, as well as great pain and suffering.

/d. As a result of the fall, Appellant also has experienced substantial physical

impairment and mental anguish /d. Such pain and suffering, as well as the

physical impairment resulting from the injuries and mental anguish, continue

until this day. /d. C \WADE BRIEF APPELLANT DOC Before the District Court, Appellees sought to characterize the affidavit

of Appellant in support of her response to Appellees no-evidence motion for

summary judgment as being very complicated Actually, the affidavit is very

simple. It states forth what happened prior to and at the time of the incident

which is the basis of this case. In her affidavit, Appellant also discussed the

harm that she sustained as a result of her fall on the sidewalk at her complex.

The testimony in her affidavit is positive, direct, credible, clear and free from

contradiction. Even if this was a traditional motion for summary judgment by a

defendant and that defendant was presenting his or her own "interested party"

affidavit (one that very similar to Appellant's affidavit in terms of the attributes

set forth above in this paragraph) in support of its traditional motion for

summary judgment, the defendant's affidavit would support a traditional

motion for summary judgment if the facts in it were not properly controverted

by the plaintiff. Trico Techs v. Montiel, 949 S.W.2d 308, 310 (Tex, 1997).

CONCLUSION AND PRAYER FOR RELIEF

As Appellant Diane V. Wade has demonstrated, the trial court erred in

granting Appellee David's Landscaping and David's Landscaping, Inc.'s no-

evidence motion for summary judgment as to Appellant's negligence claim.

Appellant properly raised a material issue of fact with respect to each of the

elements of the negligence claim brought by Appellant. Accordingly, the C·\WADE BRIEF APPELLANT 8 summary judgment issued by the trial court should be reversed and the cause

should be remanded for trial

WHEREFORE, Appellant Diane V. Wade asks this Court to rule for

Appellant with respect to the issues she presented for appeal, to reverse the

trial court's granting of Appellees David's Landscaping and David's

Landscaping, Inc.'s motion for no-evidence summary judgment and to remand

the cause to the trial court for further proceedings. Appellant further

respectfully requests that this Court assess costs of this appeal against

Appellees, Tex. R. App. P 82, and grant Appellant such other and further

relief to which she may be entitled

Respectfully submitted,

LAW OFFICES OF STUART WHITLOW 1104 S. Mays Street, Suite 116 Round Rock, Texas 78664 (737)346-1837 (512) 255-5938 (fax) stuartwhitlowlaw@yahoo.com

By: /s/ Stuart Whitlow Stuart Whitlow State Bar No. 21378050 ATTORNEY FOR APPELLANT

C \WADE BRIEF APPELLANT 111415 DOC 9 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document has been forwarded to the following counsel of record listed below on this 19th day of November, 2015.

Robert A. House Clark & Trevino 1701 Directors Blvd, Suite 920 Austin, Texas 78744

Stuart Whitlow- - - Stuart Whitlow

CERTIFICATE OF PAGE NUMBER COMPLIANCE

I hereby certify that I have counted the words in the brief and that they total 1821.

------Is/Stuart Whitlow----- Stuart Whitlow

C \WADE BRIEF APPELLANT APPENDIX

Document

Plaintiff Diane Wade's Response to Defendant's Motion for Summary .J ""'l JudgmenL"'J

C:\WADE BRIEF APPELLANT 111415,00C 12/11/2014 4:01:26 PM Amalia Rodriguez-Mendoza District Clerk Travis County 0-1-GN-13-004070

CAUSE NO. D-1-GN-13-004070

DIANEV. WADE, § IN THE DISTRICT COURT Plaintiff § § v. § TRAVIS COUNTY, TEXAS § DAVID'S LANDSCAPING, DAVID'S § I~ANDSCAPING, INC., DAl'\TLY PROPERTIES, § SAAD I~"VESTMENTS, LLC, § WESTWIND RR LIMITED PARTNERSHIP, § AND SKY MANAGEMENT, INC., § Defendants § 419th JUDICIAL DISTRICT

PLAINTIFF DIANE V. WADE'S RESPONSE TO DEI?ENDANT'S MOTION FOR SUMMARY JUDGMENT

COMES NOW, Plaintiff Diane V. Wade sometimes referred to as

"Plaintiff') and files this Response to Defendant's No-Evidence Motion for Summary

Judgment, and in support thereof states as follows:

L

Defendant has filed a No-Evidence Motion for Summary Judgment this case. Plaintiff

can raise fact issues with respect to each of the elements causes of action.

II.

On November 30, 2011, some landscaping debris caught under Plaintiffs shoe and caused her to fall as she walked on the sidewalk leading from her rental home to the driveway where she parked her car at complex where she lived. Affidavit of Diane Wade attached hereto as Exhibit "A" and fully incorporated herein by reference. Plaintiff's address at the complex where she lived was 1125 Christopher Avenue A, Round Rock, Williamson County, Texas. 78681-7552. The landscaping company for the complex where Plaintiff lived, Defendant David's Landscaping, had left the landscaping debris on the sidewalk. See Exhibit "A." This company is also known as Defendant David's Landscaping, Inc. but Plaintiff will refer to this company in this affidavit as Defendant David's Landscaping. See Exhibit " Defendant David' Landscaping frequently came to the complex where Plaintiff lived to provide landscaping services and Plaintiff saw their trucks at the complex on the evening prior to her falL See Exhibit "A." Since David's Landscaping left the debris on the sidewalk, it was aware or should have been aware of the fact that the landscaping debris were left on sidewalk and that they posed a danger to someone walking along the sidewalk (as people frequently do). See Exhibit "A." David's Landscaping failed to exercise ordinary care in allowing the debris to remain on the sidewalk after it left the complex on the evening before Plaintiffs fall. See Exhibit " Def~ndanl s did not warn Plaintff about the landscaping debrs being on the sidewalk. See Exhibit "A. a result of the fall, Plaintiff sustained substantial injuries to her body and felt severe pain and suffering. See Exhibit " a result of the fall caused by the landscaping debris, Plaintiff also has experienced substantial physical impairment and mental anguish. See Exhibit "A." Such pain and suffering, as well as the physical impairment resulting from the injuries and mental anguish continue to this day. See Exhibit "A"

Defendant had a duty to exercise reasonable care to avoid a foreseeable risk injury to

Plaintiff. Defendant breached that duty by failing to reasonable care to reduce or

eliminate the involving debris on the Further, Defendant failed to

warn Plaintiff about the dangerous condition by the landscaping debris on the sidewalk

despite the fact that Defendant was aware this dangers risks created by the existence of

the landscaping debris on sidewalk. The negligent reckless acts and omissions of

Defendant with respect to the dangerous condition created the landscaping debris on the

sidewalk were a direct and proximate cause of the injuries, harm and damages sustained by

Plaintiff.

WHEREFORE, PREMISES CONSIDERED, Diane V. Wade respectfully

submits this Response to Defendant's No-Evidence Motion Summary Judgment and requests

that the Court deny Defendant's No-Evidence Motion for Summary Judgment and that the Court

grant Plaintiff such

18 LAW OFFICES STUART Whitlow 1104 S. Mays, Suite 1 Round Rock , Texas 78~64 12) 8-9292

Stuart Whitlow SBN: 21378050 Email:stuartwhitlowlaw@yahoo.com ATTORNEY FOR PLAINTIFF WADE

IZZO & SEMLER, 1104 S. Mays, Suite 116 Round Rock, Texas 78664 (512) 218-9292 (51

John Thomas Izzo SBN: 24007426 Email :dahlia@ roundrocklaw .com ATTORNEYS FOR PLAINT~ DIANE WADE

CERTIFICATE OF SERVICE

I hereby certify that have served opposing counsel, Robert House of Clark, Price & Trevino, Southpark One, Suite 920, 1701 Direclors Boulevard, Austin, Texas 78744, and Jason L. West of, Brock Person Guerra Reyna, 17339 Redland Road, San Antonio, TX 78247-2304 in accordance with the Texas Rules Civil Procedure on l lth day of December, 2014.

Stuart Whitlow

9 CAUSE NO. D-1-GN-13-004070

DIANE V. WADE, § IN THE DISTRICT COURT Plaintiff § § v. § TRAVIS COUNTY, TEXAS § DAVID'S LANDSCAPING, DAVID'S § LANDSCAPING, INC., DANLY PROPERTIES,§ SAAD INVESTMENTS, LLC, § WESTWIND RR LIMITED PARTNERSHIP, § AND SKY MANAGEMENT, INC.~ § Defendants § 419 1h JUDICIAL DISTRICT

AFFIDAVIT OF DIANE WADE

Before me, the undersigned notary, appeared a person whose identity is known to me as Diane Wade. After I administered the oath to her, upon her she swore as follows:

"My name is Diane Wade and I am competent to testify to the facts set forth below. I am the Plaintiff in the above styled and numbered cause. I am over 21 years of age and have personal knowledge of the facts set forth herein. The facts stated herein are true and correct.

"On November 30, 2011, some landscaping debris caught under my shoe and caused me to fall as I walked on the sidewalk leading from my rental home to the driveway where I parked car. My address at rental home in the complex where I lived was 1 Christopher Avenue A, Round Rock, Williamson County, Texas. 78681 The landscaping company for the complex where I lived, Defendant David's Landscaping, had left the landscaping debris on the sidewalk. This company is also known as Defendant David's Landscaping, Inc. but I will refer to this company in this affidavit as Defendant David's Landscaping. Defendant David's Landscaping frequently carne to the complex where I lived to provide landscaping services and I saw their trucks at the on the evening prior to fall. Since David's Landscaping left the debris on Lhe sidewalk, it was aware or should have been aware the fact that the landscaping debris were left o.n the sidewalk and that they posed a danger to someone walking along the sidewalk (as people frequently do). David's Landscaping failed to exercise ordinary care in allowing the debris to remain on the sidewalk after it left the complex on the evening before my fall. Defendant David's Landscaping did not warn me about the debris being on the sidewalk. As a result of the I sustained substantial injuries to my body and felt severe pain and suffering. a caused by the landscaping debris, I also have experienced substantial physical impairment and mental anguish. pain and suffering, as well as the physical impairment resulting from the injuries and mental anguish continue to this day. "Further, Affiant sayeth not

SWORN TO AND SUBSCRIBED before me on this ofDecember, 2014.

Notary Public In and For the State of Lf:>w S/ ~

MARYN.SMmt a! L(Jr!F.t~J NOTJ\.RYPUBUC#134a51J ·t, PARISH OF ORLEANS, STA'TE OF lOUISIANA • WITH STATE WIDE JURISDICTION • MY COMMISSION IS ISSUED FOR UFS