ACCEPTED 03-15-00295-CV 6815982 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/7/2015 11:40:19 PM JEFFREY D. KYLE CLERK
Cause No. 03-15-00295-CV FILED IN IN THE COURT OF APPEALS 3rd COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN 9/8/2015 11:40:19 PM JEFFREY D. KYLE Gerald Kostecka, Clerk Appellant
vs Smoky Mo's Franchise, LLC d/b/a Smokey Mo's BBQ, Appellee
On appeal from the 26th Judicial District Court of Williamson 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 NAMES OF ALL PARTIES TO FINAL JUDGMENT
PLAINTIFF/APPELLANT:
Gerald Kostecka
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
DEFENDANT/APPELLEE:
Smokey Mo's Franchise, LLC d/b/a Smokey Mo's BBQ
Robert A. House Clark & Trevino 1701 Directors Blvd., Suite 920 Austin, Texas 78744 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 Smokey Mo's Franchise, LLC d/b/a Smokey Mo's BBQ'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 premises liability claim challenged by Appellee?
STATEMENT OF FACTS. .. ... ...... ... ...... . . ................................ 2
SUMMARY OF ARGUMENT ....................................................................... 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' premises liability claim challenged by Appellee.
CONCLUSION AND PRAYER FOR RELIEF .. . . . . . . . . . . .9
CERTIFICATE OF SERVICE ...................................................................... 11
APPENDIX ................................................................................................ 12 INDEX OF AUTHORITIES
CASES Page
Adam Dante Corp. v. Sharpe, 483 S.W.2d 452,454 (Tex.1972) ............ 6, 7
Carlisle v. J. Weingarten, Inc., 152 S.W.2d 1073, 1074 (Tex. 1941) ......... 6, 8
Del Lago Partners v. Smith, 307 S.W.3d 762, 767 (Tex. 2010) ................. 6
Ford Motor Company v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) ......... 4
Howe v. Kroger Co., 598 S.W.2d 929, 930-931 (Tex.App.- Dallas 1980, no writ.) ......... 7
In re Mohawk Rubber Company, 982 S.W.2d 494, 498 (Tex. App. Texarkana 1998, orig. proceeding) ...... 4
Lehrer v. Zwernemann, 14 S.W.3d 775, 777 (Tex.App.- Houston [1st Dist.] 2000 pet. denied) ..... 5
Nixon v. Mr. Property Management Company, 690 S.W.2d 546, 548-549 (Tex. 1985) ... 5
Randall v. Dallas Power & Light Company, 752 S.W.2d 4,5 (Tex. 1988 (per curiam) ...... 5
Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975) ......... 6,7
State v. Williams, 940 S.W.2d 583 (Tex. 1996) ................................. 8
Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009) (per curiam) ...... 5
Trico Techs v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) ................... 9 STATUTES, RULES AND REGULATIONS
Texas Rule of Evidence 801 (e )(2)(0) ...................................................................... 7
DOC IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
Gerald Kostecka, Appellant
vs Smokey Mo's Franchise, LLC, d/b/a Smokey Mo's BBQ, Appellee
On appeal from the 26th Judicial District Court of Williamson County, Texas
BRIEF OF APPELLANTS
TO THE HONORABLE COURT OF APPEALS:
Appellant, Gerald Kostecka, submits this brief in support of his appeal
and request for reversal of the trial court's order granting Appellee'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 Appellee Smokey Mo's
Franchise, LLC d/b/a Smokey Mo's BBQ's no-evidence motion for summary
that Appellant take nothing on his premises liability claims against Smokey
Mo's Franchise, LLC d/b/a Smokey Mo's BBQ (hereinafter Appellee).
Appellant brought a premises liability claim against Appellee at the trial court.
c DOC Appellee filed a no-evidence motion for summary judgment which alleged that
Appellant had no evidence for elements of his premises liability claim. The trial
court granted Appellee's no-evidence motion for summary judgment. Appellant
timely perfected his appeal to this Court.
ISSUES PRESENTED ON APPEAL
Did the trial court err in granting Appellee's 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 premises liability claim
challenged by Appellee?
STATEMENT OF FACTS
With respect to the incident which is the basis of this case, on October
12, 2010 Appellant and his wife went to Appellee Smokey Mo's 880
restaurant for dinner. See Plaintiff Gerald Kostecka's Response to Defendant's
Motion for Summary Judgment (hereinafter "Response"), Supplemental
Clerk's Record, Volume 1, P. 7. During the course of the meal, Appellant
reached for the salt shaker on the table. See Response, Supplemental Clerk's
Record, Volume 1, P. 7. When he did, the chair shot out from under Appellant
and Appellant fell to the floor landing on his left knee. Response,
Supplemental Clerk's Record, Volume 1, P. 7. A Smokey Mo's employee
named Aaron told Appellant right after the fall that Appellee knew that the c nature of the bottom of the chair legs and the paint used on the floor created a
dangerous situation for its customers in terms of a chair moving out from
under customers like this particular chair did in Appellant's case. Response,
Supplemental Clerk's Record, Volume 1, P. 7. After that, Appellant spoke with
Matthew of Appellee Smokey Mo's BBQ and Matthew said that he had been
sold the wrong paint for the restaurant floor and that it created an unsafe
condition for the customers and even for the workers in kitchen. Response,
Supplemental Clerk's Record, Volume 1, P. 7. Matthew further said that the
kitchen was so dangerous and slippery that they had to sand texture the floor
and that this was destroying the mops. Response, Supplemental Clerk's
Record, Vol 1, P. 7. Despite this knowledge, Appellee did not warn Appellant
about this dangerous condition prior to his fall. Response, Supplemental
Clerk's Record, Volume 1, P. 7. Appellee failed to exercise ordinary care in
allowing the situation with respect to the chairs and floor in its restaurant to
continue in spite of its knowledge of the danger this situation posed to
customers of Appellee. Response, Supplemental Clerk's Record, Volume 1, P.
7. Appellee also failed to exercise reasonable care in warning Appellant about
this dangerous condition. Response, Supplemental Clerk's Record, Volume 1,
P. 7. As a result of the fall, Appellant sustained substantial injuries to his body
(in particular his left leg and knee) and felt severe pain and suffering DOC Response, Supplemental Clerk's Record, Volume 1, P. 7. As a result of the
fall, Appellant also has experienced substantial physical impairment and
mental anguish. Response, Supplemental Clerk's Record, Volume 1, P. 7.
Such pain and suffering, as well as the physical impairment resulting from the
injuries and mental anguish, continue until this day. Response, Supplemental
Clerk's Record, Volume 1, P. 7.
SUMMARY OF ARGUMENT
Appellant hereby incorporates the factual assertions set forth in the
Statement of Facts set forth above. Appellee contended at the trial court that
Appellants' claims should be dismissed because Appellant has produced no
evidence that raised a fact issue with respect to any of the elements of his
premises liability claim. The non movant 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 non movant 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 non-movant's
4 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.
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. Id. 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
A. The trial court erred in granting Appellee's no-evidence motion for DOC summary judgment inasmuch as Appellant raised a genuine issue
of material fact with respect to each of the elements of Appellant's
premises liability claim challenged by Appellee.
The elements of a cause of action for premises liability brought by an
invitee such as Appellant are ( 1) appellant was an invitee, (2) the appellee was
a possessor of the premises, (3) a condition on the premises posed an
unreasonable risk of harm, (4) the appellee knew or reasonably should have
known of the danger, (5) the appellee breached its duty of ordinary care by (a)
failing to adequately warn the appellant of the condition or (b) failing to make
the condition safe (6) the appellee's breach proximately caused the appellant's
injury. Del Lago Partners v. Smith, 307 S.W.3d 762, 767 (Tex. 201 0).
Appellant has shown through his affidavit that he was a customer in Appellee's
restaurant. This raises a fact issue with respect to whether Appellant was an
invitee of Appellee for purposes of Appellant's premises liability claim. Adam
Dante Corp. v. Sharpe, 483 S.W.2d 452,454 (Tex. 1972). Appellant stated in
his affidavit that he and his wife went to Appellee's restaurant, which provides
more than a scintilla of evidence and raises a fact issue with respect to
whether Appellee was the possessor of the premises for the purposes of
premises liability. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.
1975); Carlisle v. Weingarten, , 152 S.W.2d 1073, 1074 (Tex. 1941); See Howe v. Kroger Co., 598 S.W.2d 929,930-931 (Tex.App.- Dallas1980,
no writ.) Appellant also identified in his affidavit two conversations in which
Appellee's people stated that they were aware of the dangerous condition
which caused Appellant to fall, what the nature of the dangerous condition was
and what Appellee had tried to do in its kitchen to keep its own employees
from falling and injuring themselves. Appellant's description of these
conversations in his affidavit are not hearsay but rather are admissions by a
party/opponent. Tex. R. Evid. 801(e)(2)(D)) This summary judgment proof
provides more than a scintilla of evidence and raises a fact issue with respect
to whether the condition at the restaurant posed an unreasonable risk of harm
and that the harm resulting from the condition was foreseeable. Rosas v.
Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 1975). Had there been any
need for expert testimony (which there was not), these admissions would also
remove the need for that. Clearly, these conversations also provide more than
a scintilla of evidence and thus raise fact issues with respect to whether
Appellee had actual or constructive knowledge that the condition posed an
unreasonable risk of harm. Sharpe, 483 S.W.2d at 454. (Constructive
knowledge is what a person or entity may not actually know but objectively
should know or has reason to know- See Black's Law Dictionary 950, 9th ed.,
2009). Appellee had a duty to exercise ordinary care to keep the premises in reasonably safe condition for its invitees. Carlisle v. J. Weingarten, Inc., 152
S.W.2d 1073, 1074 (Tex. 1941 ). Appellant has brought forth more than a
scintilla of evidence and thus raised material issues of fact with respect to
whether Appellee breached that duty by failing to exercise ordinary care to
reduce or eliminate the risk involving the floor and chairs to Appellant and
those similarly situated. State v. Williams, 940 S.W.2d 583 (Tex. 1996).
Further, Appellant has raised fact issues with respect to whether Appellee
breached the duty of ordinary care by failing to warn Appellant about the
dangerous condition created by the paint on the floor and the restaurant chairs
despite the fact that Appellee was aware of these dangers and risks created
by the condition of the chairs and the floor. /d. Appellant has also brought forth
more than a scintilla of evidence and raised a fact issue with respect to
whether the negligent failure to exercise ordinary care (breach of duty) by
Appellant with respect to the dangerous condition created by the chairs and
floor were a direct and proximate cause of the injuries, harm and damages to
Appellant.
Before the District Court, Appellee sought to characterize the Affidavit of
Gerald Kostecka in support of Plaintiff's Response to Defendant's Motion for
Summary Judgment was very complicated. Actually, the affidavit is very
simple. It states forth what happened at the time of the incident which is the C IKOSTECKA BRIEF APPELLANT 090415.DOC 8 basis of this case and includes a conversation with one of Appellee's
employees shortly after the incident where the employee admitted that
Appellant fell as a result of a dangerous condition concerning which Appellee
was aware. Appellant's affidavit also includes a discussion that he had a few
days after the incident occurred with another person at Smokey Mo's who also
admitted that Appellant fell as a result of a dangerous condition with respect to
which Appellee was aware. In his affidavit, Appellant also discussed the harm
that he sustained as a result of his fall at the restaurant. The testimony in his
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 (very
similar to Apppellant's affidavit in terms of the attributes set forth above in the
preceding sentence) 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 Gerald Kostecka has demonstrated, the trial court erred in
granting Appellee Smokey Mo's Franchise, LLC d/b/a Smokey Mo's BBQ's no-
evidence motion for summary judgment as to Appellant's premises liability claim. Appellant properly raised a material issue of fact with respect to each of
the elements of the premises liability claim brought by Appellant. Accordingly,
the summary judgment issued by the trial court should be reversed and the
cause should be remanded for trial.
WHEREFORE, Appellant Gerald Kostecka asks this Court to rule for
Appellant with respect to the issues he presented for appeal, to reverse the
trial court's granting of Appellee Smokey Mo's Franchise, LLC d/b/a Smokey
Mo's BBQ'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 Appellee, Tex. R.
App. P. 82, and grant Appellant such other and further relief to which he 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 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 4th day of September, 2015.
Robert A. House Clark & Trevino 1701 Directors Blvd, Suite 920 Austin, Texas 78744
_ _____;/s/ Stuart Whitlow_ __ Stuart Whitlow
CERTIFICATE OF PAGE NUMBER COMPLIANCE
I hereby certify that I have counted the words in the brief and that they total1955.
------Is/Stuart Whitlow- - - - - Stuart Whitlow
C \KOSTECKA BRIEF APPELLANT 0904 i 5.DOC APPENDIX
Document
Plaintiff Gerald Kosteck's Response to Defendant's Motion for Summary Judgment
2 1-iled: 12/9/2014 1:09:29 PM Lisa David, District Clerk Williamson County, Texas Ellie Saucedo
t (.. ~ 1\ll-C..;Ho CAUSE NO •..W 115'-SaD
GERALD KOSTECKA, § IN THE DISTRICT COURT Plaintiff § § v. § WILLIAMSON COUNTY, TEXAS SMOKEY MO'S FRANCIDSE, LLC D/B/A § SMOKEY MO'S BBQ, § § § § § Defendant § 26th JUDICIAL DISTRICT
PLAINTIFF GERALD KOSTECKA'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
COMES NOW, Plaintiff Gerald Kostecka and files this his Response to Defendant's No-
Evidence Motion for Summary Judgment, and in support thereof states as follows:
I.
Defendant has filed a No-Evidence Motion for Summary Judgment in this case. Plaintiff
can raise fact issues with respect to each of the elements of its causes of action.
II.
With respect to the incident which is the basis of this case, on October 12, 2010 Plaintiff
and his wife went to Defendant Smokey Me's BBQ restaurant for dinner. See Affidavit of
Gerald Kostecka attached hereto as Exhibit "A" and fully incorporated herein by reference.
During the course of the meal, Plaintiff reached for the salt shaker on the table. See Exhibit "A."
When he did, the chair shot out from under Plaintiff and Plaintiff fell to the floor landing on his
left.knee. See Exhibit "A." A Smokey Mo employee named Aaron told Plaintiff right after the
fall that Defendant knew that the nature of the bottom of the chair legs and the paint used on the
Envelope# 3425618 floor created a dangerous situation for its customers in terms of a chair moving out from under
customers like this particular chair did in Plaintiff's case. See Exhibit "A." After that, Plaintiff
spoke with Matthew at Defendant Smokey Mo's BBQ and he said that he had been sold the
wrong paint for the restaurant floor and-that it created-an unsafe condition for the customers and
even for the workers in kitchen. See Exhibit "A." Matthew further said that the kitchen was so
dangerous and slippery that they had to sand texture the floor and that this was destroying the
mops. See Exhibit "A." Despite this knowledge, Defendant did not warn Plaintiff about this
dangerous condition prior to my falL See Exhibit "A." Defendant failed to exercise ordinary care
in allowing the situation with respect to the chairs and floor in its restaurant to continue in spite
of its knowledge of the danger this situation posed to customers of Defendant. See Exhibit "A."
Defendant also failed to exercise reasonable care in warning Plaintiff about this dangerous
condition. See Exhibit "A." As a result of the fall, Plaintiff sustained substantial injuries to his
body (in particular his left leg and knee) and felt severe pain and suffering. See Exhibit "A" As a
result of the fall, Plaintiff also has experienced substantial physical impairment and mental
anguish. Such pain and suffering, as well as the physical impairment resulting from the injuries
and mental anguish continue until this day. Exhibit "A."
III.
Plaintiff has shown that he was a customer in Defendant's restaurant. As a result,
Defendant had a duty to exercise reasonable care to avoid a foreseeable risk of injury to Plaintiff
and those similarly situated invitees. Defendant breached that duty by failing to exercise
reasonable care to reduce or eliminate the risk involving the floor and chairs to Plaintiff and
those similarly situated. Further, Defendant failed to warn Plaintiff about the dangerous
condition created the paint on the and the restaurant chairs despite fact Defendant was aware of this dangers and risks created by the condition of the chairs and the
floor. The negligent, careless and/or reckless acts and omissions of Defendant with respect to the
dangerous condition created by the chairs and floor were a direct and proximate cause of the
injuries, harm and damages to Plaintiff.
WHEREFORE, PREMISES CONSIDERED, Plaintiff Gerald Kostecka respectfully
submits this Response to Defendant's No-Evidence Motion for Summary Judgment and requests
thatthe Court deny Defendant's No-Evidence Motion for Summary Judgment and that the Court
grant Plaintiff such other relief to which Plaintiff is entitled.
LAW OFFICES OF STUART WHITLOW Stuart Whitlow 1104 S. Mays, Suite 116 Round Rock , Texas 78664 (512) 218-9292 (512) 218-9235 FAX
By: _ _ _ _~/sf_ _ _ _ _ _ _ _ __ Stuart Whitlow SBN: 21378050 Email:stuartwhitlowlaw @yahoo.com ATTORNEY FOR PLAINTIFF GERALD KOSTECKA
IZZO & SEMLER, PLLC 1104 S. Mays, Suite 116 Round Rock, Texas 78664 (512) 218-9292 (512) 218-9235 FAX
By:_ _ _ ___,/s/_ _ _ _ _ _ _ _ __ John Thomas Izzo SBN: 24007426 Email:dahlia@roundrocklaw.com ATTORNEYS FOR PLAINTIFF GERALD KOSTECKA CERTIFICATE OF SERVICE
I hereby certify that I have served opposing counsel, Mr. Steven B. Loomis of Clark, Price & Trevino, Southpark One, Suite 920, 1701 Directors Boulevard, Austin, Texas 78744 in accordance with the Texas Rules of Civil Procedure on this the 9th day of December, 2014.
Stuart Whitlow ~ .............,_ ·.'· ·:;'<
1J._-1 f 17- C;;l lP ::-.~:_·A '---~- :__ _ CAUSE NO.--H-117-C26-
GERALD KOSTEKA, § IN THE DISTRICT COURT Plaintiff § § v. § WILLIAMSON COUNTY, TEXAS SMOKEY MO'S FRANCIUSE, LLC D/B/A § SMOKEY MO'S BBQ, § § § § § Defendant § 26th JUDICIAL DISTRICT
AFFIDAVIT OF GERALD KOSTECKA
Before me, the undersigned notary, appeared a person whose identity is known to me as Gerald Kostecka. After I administered the oath to him, upon his oath he swore as follows:
"My name is Gerald Kostecka 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.
"With respect to the incident which is the basis of this case, on October 12, 2010 my wife and I went to Defendant Smokey Mo's BBQ for dinner. During the course of the meal, I reached for the salt shaker on the table. When I did the chair shot out from under me and I fell to the floor jamming my left knee. A Smokey Mo employee named Aaron told me right after the fall that Defendant knew that the nature of the bottom of the chair legs and the paint used on the floor created a dangerous situation for its customers in terms of a chair moving out from under customers like this particular chair did in my case. After that, I spoke with Matthew at Defendant Smokey Mo's BBQ and he said that he had been sold the wrong paint for the restaurant floor and that it created an unsafe condition for the customers and even for the workers in kitchen. He said that the kitchen was so dangerous that they had to sand texture the floor and that this was destroying the mops. Despite this knowledge, Smokey Mo's did not warn me about this dangerous condition prior to my fall. Smokey Mo's failed to exercise ordinary care in allowing the situation with respect to the chairs and floor in its restaurant to continue in spite of its knowledge of the danger this situation posed to customers of Smokey Mo's. Smokey Mo also failed to exercise reasonable care in warning me about this dangerous condition. As a result of the fall, I sustained substantial injuries to my body (in particular my left leg and knee) and felt severe pain and suffering. As a result of the fall, I also have experienced substantial physical impairment and mental anguish. Such pain and suffering, as well as the physical impairment resulting from the injuries and mental anguish continues until this day.
Envelope# 3425618 ~Mtsaye~ /2 -.?./~~~ --~---.
Gerald ostecka ·
ORN TO AND SUBSCRIBED before me on this 1) day of December, 2014. {jr Notary Public In and For the State of Texas
My Commission Expires: 7~ 3-dol5
® DAHLIA VILLALOBOS Notary PubUc, State of Texas ~ My Commission Expires 07·03·2015 Lisa David DISTRICT CLERK
P 0. Box 24, Georgetown, Texas 78627
5 2 943.1212 Fax 512 943.1222
THE STATE OF TEXAS §
§ 12-1
COUNTY OF WILLIAMSON §
I, LISA DAVID, Clerk of the District Courts of Williamson County, Texas, do hereby
that documents contained in Clerk's Record to which this certification is attached
are true and correct copies of the documents specified by Texas Rule of Appellate Procedure
34.5(a} and all other documents timely requested by a party to this proceeding under Texas
re 34.5
GIVEN UNDER MY HAND AND SEAL at my office in Williamson County, Texas, on
the 18th day of August,
USA DAVID, Clerk
Williamson County District Courts