United Parcel Service, Inc. and Roland Leal v. Robert Scott Rankin, Individually, Rachelle Rankin, Individually and as Next Friend for Avery Rankin, Kara Rankin, and Samuel Rankin, Minors ( 2015 )

ACCEPTED
04-014-00494-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
2/19/2015 3:49:16 PM
KEITH HOTTLE
NO. 04-14-00494-CV CLERK
IN THE FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
United Parcel Service, Inc. and Roland Leal,
Appellants,
v.
Robert Scott Rankin, Individually, Rachelle Rankin, Individually and As Next
Friend for Avery Rankin, a Minor, As Next Friend for Kara Rankin, a Minor
and As Next Friend for Samuel Rankin, a Minor
Appellees.
On Appeal from the 224th Judicial District Court, Bexar County, Texas
Honorable Cathy Stryker, Presiding Judge
Trial Court Cause No. 2011-CI-07922
APPELLANTS’ REPLY BRIEF
W. Randall Bassett Ricardo R. Reyna
Pro Hac Vice Pending State Bar No. 16794845
Bradley W. Pratt Audrey A. Haake
Pro Hac Vice Pending State Bar No. 08658100
King & Spalding, LLP Brock Person Guerra Reyna, P.C.
1180 Peachtree Street, N.E. 17339 Redland Road
Atlanta, GA 30309-3521 San Antonio, Texas 78247-2302
Telephone: (404) 572-4600 Telephone: (210) 979-0100
Facsimile: (404) 572-5100 Facsimile: (210) 979-7810
rbassett@kslaw.com
bpratt@kslaw.com
H. Victor Thomas
State Bar No. 19851500
Thomas Michael Gutting
State Bar No. 24067640
King & Spalding, LLP
1100 Louisiana, Suite 4000
Houston, Texas 77002
Telephone: (713) 751-3200
Facsimile: (713) 751-3290
vthomas@kslaw.com
tgutting@kslaw.com
Counsel for Appellants United Parcel Service, Inc. and Roland Leal
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
ARGUMENT ............................................................................................................. 6
A.  The Interpretation and Application of the Transportation Code is
a Question of Law that Should Have Been Decided by the Trial
Court, Not the Jury. ............................................................................... 6
B.  Defendants Did Not Invite Error or Waive their Objections to the
Negligence Per Se Questions and Instructions. .................................. 10
C.  The Plaintiffs’ and Jury’s Interpretation of Section 541.102(2) Is
Incorrect; “Residences” Means Not Just the Dwellings, but also
the Land Being Used For Living Purposes. ........................................ 12
D.  Even under Plaintiffs’ Interpretation of Section 541.102(2), the
Evidence Is Legally and Factually Insufficient to Support the
Jury’s Finding that the Car Was Parked Outside of a “Residence
District.” .............................................................................................. 19
1.  The Google photograph is insufficient proof............................ 20
2.  The Lori Carroll Affidavit is insufficient proof; in fact, its
admission was reversible error.................................................. 25
E.  Defendants Did Not Waive their Objection to the Trial Court’s
Erroneous Submission of an Unsupported Negligence Per Se
Claim and Such Error is Reversible. ................................................... 27
F.  The Jury’s Findings in Questions 2 and 3 (Proximate Cause) and
Question 4 (Mr. Rankin Was Only 50% Responsible) Are Not
Supported by Sufficient Evidence. ...................................................... 31
CERTIFICATE OF COMPLIANCE .................................................................................. 35
CERTIFICATE OF FILING AND SERVICE....................................................................... 35
APPENDIX.................................................................................................................. 36
1
TABLE OF AUTHORITIES
Page(s)
Cases
Aaron Rents, Inc. v. Travis Cent. Appraisal Dist.,
212 S.W.3d 665 (Tex. App.—Austin 2006, no pet.) ............................................ 6
Ace Fire Underwriters Ins. Co. v. Simpkins,
380 S.W.3d 291 (Tex. App.—Fort Worth 2012, no pet.)..................................... 9
Benge v. Williams,
01-12-00578-CV, 2014 WL 6462352 (Tex. App.—Houston [1st
Dist.] Nov. 18, 2014, no. pet. h.) ........................................................................ 30
C.M. Asfahl Agency v. Tensor, Inc.,
135 S.W.3d 768 (Tex. App.—Houston [1st Dist.] 2004, no pet.) ........................ 7
CHCA Woman's Hosp., L.P. v. Lidji,
403 S.W.3d 228 (Tex. 2013) .............................................................................. 12
Ex parte City of Corpus Christi,
427 S.W.3d 400 (Tex. App.—Corpus Christi 2013, pet. denied
(Apr. 25, 2014)) .................................................................................................... 6
Crown Life Ins. Co. v. Casteel,
22 S.W.3d 378 (Tex. 2000)................................................................................. 28
In re Dep’t of Family Protective Servs.,
273 S.W.3d 637 (Tex. 2009) .............................................................................. 10
In re Expunction of S.S.A.,
319 S.W.3d 796 (Tex. App.—El Paso 2010, no pet.) ........................................ 12
Floeck v. Hoover,
52 N.M. 193, 195 P.2d 86 (1948) ...........................................................21, 23, 24
Gordon v. Cozart,
110 So. 2d 75 (Fla. 2nd DCA 1959) ................................................................... 18
Hayes v. Blake, No. 03-00-00065-CV,
2000 WL 1028206 (Tex. App.—Austin July 27, 2000, no pet.) ..................6, 7, 9
2
Heritage Hous. Dev., Inc. v. Carr,
199 S.W.3d 560 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ...................... 29
Hines v. Brandon Steel Decks, Inc.,
886 F.2d 299 (11th Cir. 1989) ............................................................................ 27
Marshall v. Mullin,
320 P.2d 258 (Or. 1958) ..................................................................................... 18
McFarland v. Boisseau,
365 S.W.3d 449 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ...................... 28
McGill v. Baumgart,
288 N.W. 799 (Wis. 1939) .................................................................................. 18
Mo. Pac. R.R. Co. v. Limmer,
180 S.W.3d 803 (Tex. App.—Houston [14th Dist.] 2005), rev’d on
other grounds, 299 S.W.3d 78 (Tex. 2009) ........................................................ 30
Mooneyhan v. Benedict,
284 S.W.2d 741 (Tex. Civ. App.—Austin 1955, writ ref’d n.r.e)...................... 22
Moughon v. Wolf,
576 S.W.2d 603 (Tex. 1978) ................................................................................ 8
Nat’l Plan Administrators, Inc. v. Nat’l Health Ins. Co.,
150 S.W.3d 718 (Tex. App.—Austin 2004), rev’d on other
grounds, 235 S.W.3d 695 (Tex. 2007).................................................................. 6
Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se.
Texas, Inc.,
975 S.W.2d 546 (Tex. 1998) .............................................................................. 23
Owens Corning v. Carter,
997 S.W.2d 560 (Tex. 1999) ............................................................11, 12, 14, 15
Ragsdale v. Progressive Voters League,
801 S.W.2d 880 (Tex. 1990) .............................................................................. 10
Romero v. KPH Consolidation, Inc.,
166 S.W.3d 212 (Tex. 2005) .............................................................................. 29
3
State v. Zeus,
56 N.J. Super. 323 (Cty. Ct. 1959) ( New Jersey) .............................................. 18
Sullivan v. Dollar Tree Stores, Inc.,
623 F.3d 770 (9th Cir. 2010) .............................................................................. 27
Texas Mut. Ins. Co. v. Morris,
287 S.W.3d 401 (Tex. App.—Houston [14th Dist.] 2009), judg-
ment rev’d, 383 S.W.3d 146 (Tex. 2012) ........................................................... 30
Thoms v. Dowdy,
112 S.E.2d 868 (Va. 1960) ................................................................................. 18
Thota v. Young,
366 S.W.3d 678 (Tex. 2012) .............................................................................. 28
Turner v. Cruz,
2010 WL 5545392 (Tex. App.—San Antonio Dec. 29, 2010, no
pet.) ..................................................................................................................... 32
Zavala v. Burlington N. Santa Fe Corp.,
355 S.W.3d 359 (Tex. App.—El Paso 2011, no pet.) ........................................ 21
Zeus Enters., Inc. v. Alphin Aircraft, Inc.,
190 F.3d 238 (4th Cir. 1999) .............................................................................. 27
Statutes
TEX. CIV. PRAC. & REM. CODE §33.001................................................................... 31
TEX. CIV. PRAC. & REM. CODE § 71.051.................................................................. 14
TEX. GOV. CODE § 311.023 (4) ................................................................................ 14
TEX. PROP. CODE § 27.001 ....................................................................................... 14
TEX. TRANSP. CODE ANN. § 541.102(3) ................................................................... 13
TEX. TRANSP. CODE § 541.102(2) .....................................................................passim
TEX. TRANSP. CODE § 545.301(a) ............................................................................ 7
4
Other Authorities
FED. R. EVID. 803 ...............................................................................................26, 27
TEX. R. CIV. P. 278 ..................................................................................................... 9
TEX. R. EVID. 401 ..................................................................................................... 25
5
ARGUMENT
A. The Interpretation and Application of the Transportation Code is a
Question of Law that Should Have Been Decided by the Trial Court,
Not the Jury.
The trial court erred by requiring the jury to interpret and apply Tex. Transp.
Code § 541.102(2) (which the court acknowledged was “remarkably vague,”
RR 9:199), rather than interpreting the statute and applying it to the undisputed
facts.
Plaintiffs argue that the standard of review for this complaint is abuse of
discretion, not de novo. That is incorrect. The interpretation of an ordinance or
statute is a question of law, and it is error for a trial court to submit this question of
law to the jury. See Ex parte City of Corpus Christi, 427 S.W.3d 400, 405 n. 3
(Tex. App.—Corpus Christi 2013, pet. denied (Apr. 25, 2014)). A question of
legal error is reviewed de novo. Aaron Rents, Inc. v. Travis Cent. Appraisal Dist.,
212 S.W.3d 665, 669 (Tex. App.—Austin 2006, no pet.). Likewise, questions of
law contained in jury instructions are reviewed de novo. See Nat’l Plan
Administrators, Inc. v. Nat’l Health Ins. Co., 150 S.W.3d 718, 730 (Tex. App.—
Austin 2004), rev’d on other grounds, 235 S.W.3d 695 (Tex. 2007).
Appellants’ Brief cited the closely analogous decision of Hayes v. Blake,
No. 03-00-00065-CV, 2000 WL 1028206, *3-4 (Tex. App.—Austin July 27, 2000,
no pet.), which explained, “whether the ordinance applies to the subdivision
[where the incident occurred] is a question of law,” and concluded, as a matter of
law, that the ordinance did not apply because the subdivision was located in a
6
“limited purpose territory.” Plaintiffs do not address or distinguish this decision
because they cannot. Under the Hayes authority, the trial court erred in submitting
to the jury the legal question of whether 109 Ranger Creek Road [where the
incident occurred] was located in a “residence district,” as defined by section
541.102(2).
The trial court also erred in submitting the negligence per se questions and
instructions in Questions 1 and 2 because the evidence did not support them. The
standard of review for this complaint is also de novo, not abuse of discretion. See
C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 780 (Tex. App.—Houston
[1st Dist.] 2004, no pet.) (whether legally sufficient evidence supports submitting a
theory of recovery to the jury presents a question of law that is reviewed de novo).
As discussed below, whether the Court adopts Plaintiffs’ or Defendants’
interpretation of the statute, the evidence did not support submitting these
questions to the jury.
Plaintiffs argue that the submission of Question 1 to the jury is supported by
the comment to PJC 5.1, which provides that when the court is uncertain as to
whether the violation of a statute is negligence per se, it would be better to submit
both a separate question asking if the statutory conduct was committed, and a
broad form question. See Comment to PJC 5.1. This is a red herring. Neither the
trial court nor the parties had any uncertainty as to whether a violation of TEX.
TRANSP. CODE § 545.301(a) (which prohibits parking a car on the roadway
“outside” of a “residence district”) would constitute negligence per se. Rather, the
7
only uncertainty was as to the meaning of a “residence district” as defined by
section 541.102(2) (e.g., whether “residences” meant dwellings or residential lots),
which the trial court erroneously required the jury to decide.
Plaintiffs also argue that PJC 5.1 and decisions such as Moughon v. Wolf,
576 S.W.2d 603, 605 (Tex. 1978) indicate that, when violation of a statute is
disputed, it is appropriate to ask the jury whether the defendant violated the statute
which establishes a standard of care. Moughon, 576 S.W.2d at 605, gives, as an
example, a jury question that asks whether the defendant failed to keep his vehicle
within the right half of the roadway (a pure fact question). Moughon is
inapplicable because it does not indicate that it is appropriate to require the jury to
interpret and apply a statutory definition, such as “residence district”; it only
indicates that the jury may be asked a question of fact – whether the defendant
engaged in certain conduct.
Instead of requiring the jury to decide a thorny legal question, the trial court
should have: (1) interpreted “residences” as used in section 541.102(2) to mean
not just the dwellings, but also the residential improvements and land being used
for living purposes; (2) held, as a matter of law, based on the uncontested Survey
of five adjoining residential lots at 107, 109, 111, and 115 (Lots 1 and 2) of Ranger
Creek Road that residence 109 was not outside a “residence district” (RR 17 (Pls’
Ex. 26)); and (3) denied the submission of any negligence per se questions or
instructions.
8
Plaintiffs also argue that the trial court may not take judicial notice of
whether 109 Ranger Creek was within a “residence district,” but, once again, this
is a red herring. Defendants did not ask the trial court to take judicial notice of any
fact, but rather asked that it determine the legal status of the address because that
status had been conclusively proved through the uncontroverted Survey evidence.
See Hayes, 2000 WL 1028206, at * 3-4. Only questions of fact are to be submitted
to the jury. See Tex. R. Civ. P. 278. “When facts are conclusively established,
there is no need to submit those issues to the jury.” Ace Fire Underwriters Ins. Co.
v. Simpkins, 380 S.W.3d 291, 303 (Tex. App.—Fort Worth 2012, no pet.).
Next, Plaintiffs argue that whether the car was “stopped, parked, or
standing” at the time of the incident was a disputed fact that the jury had to
determine. This argument misunderstands the issue. If the car was not stopped, it
was not in violation of the Transportation Code as a matter of law, and there is no
basis for negligence per se. If it was stopped, it is undisputed that it was stopped at
109 Ranger Creek Road. Therefore, the Court should not have submitted Question
1. It should have interpreted the statute, applied it to the undisputed fact that the
accident occurred at 109 Ranger Creek Road, and determined that address is
outside a “residence district.” (Alternatively, if there was a genuine dispute for the
jury to resolve, Plaintiffs should have asked the trial court to simply ask the jury
whether the car was stopped when the accident occurred. This would have avoided
the error of requiring the jury to construe an ambiguous statute.)
9
Regardless, on the actual trial record, there was no genuine question of fact
for the jury to determine in this regard because there was no evidence the car was
moving when the accident occurred, and Mr. Leal’s testimony that he was parked
is clear and uncontradicted. Although Plaintiffs argue that Mr. Leal was
inconsistent as to whether, when the accident occurred, he was in the car, the key
was in the ignition, and the truck was running, Mr. Leal never strayed from his
testimony that the car was parked when Mr. Rankin collided. RR 5:67. Where, as
here, “the testimony of an interested witness is not contradicted by any other
witness, or attendant circumstances, and the same is clear, direct and positive, and
free from contradiction, inaccuracies, and circumstances tending to cast suspicion
thereon, it is taken as true, as a matter of law.” Ragsdale v. Progressive Voters
League, 801 S.W.2d 880, 882 (Tex. 1990).
B. Defendants Did Not Invite Error or Waive their Objections to the
Negligence Per Se Questions and Instructions.
The doctrine of invited error applies when a party requests that a trial court
make a specific ruling and then complains about the ruling on appeal. In re Dep’t
of Family Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009).
Plaintiffs argue that Defendants waived and invited the trial court’s error in
submitting Question 1 by stating during the charge conference, “if they want to
argue to the jury in closing that the statute should be interpreted their way they are
free to do that under the statutory definitions, and we’re free to argue our
interpretation of the statute.” Not so. The trial court clearly understood that
Defendants adamantly opposed the submission of the negligence per se claim.
10
Defendants objected to Questions 1 and 2 in the charge conference, and moved for
a directed verdict on the negligence per se claim. See II CR 105-108; II CR 145
(Objection No. 3); RR 10:46-47.
Moreover, the quoted statement is misleading. Plaintiffs take it out of
context to suggest a completely different, and inaccurate, meaning and omit the
final clause, which provides part of its context.
At the charge conference, Plaintiffs requested that the trial court submit an
additional instruction with Question 1 that defined a “residence” as a dwelling
house that Plaintiffs argued was supported by Owens Corning v. Carter, 997
S.W.2d 560 (Tex. 1999). 10 RR 14. Defendants objected to this definition,
arguing, among other things: (1) the requested definition was contrary to a correct
interpretation of section 541.102(2); (2) the definition stated in Owens Corning
was not relevant because it involved the interpretation of a different statute, and
(3) defining the term “residences” using Owens Corning was erroneous and
unnecessary because Plaintiffs were free to argue their interpretation of the statute
during closing. 10 RR 14-19. The entire quotation states, “I mean, if they want to
argue to the jury in closing that the statute should be interpreted their way, they are
free to do that under the statutory definitions, and we’re free to argue our
interpretation of the statute, but you shouldn’t – I think it would inject error in this
case if you put in the definition from a case [Owens Corning] that doesn’t -- . . . .”
10 RR 18-19 (emphasis added). None of these arguments invited the trial court to
submit Question 1; they simply persuaded the trial court not to submit a definition
11
of “residence” from Owens Corning that was unrelated to the Transportation Code,
and Defendants are not complaining on appeal about the trial court’s refusal to
submit that definition.
C. The Plaintiffs’ and Jury’s Interpretation of Section 541.102(2) Is
Incorrect; “Residences” Means Not Just the Dwellings, but also the
Land Being Used For Living Purposes.
Plaintiffs argue that, even if UPS is correct that the trial court should have
interpreted and applied section 541.102 instead of the jury, such error is harmless
because the jury correctly interpreted the statute. None of Plaintiffs’ contentions
supporting this argument has merit.
Strikingly, Plaintiffs failed to respond in any way to Defendants’ core
argument that basic principles of statutory construction require giving different
meaning to the word “residences” and the words “structures” and “dwelling
houses” because the Legislature deliberately used the former in the “residence
district” provision and the latter in the “urban district” provision within the same
statute, section 541.102. “The aim of statutory construction is to determine and
give effect to the Legislature’s intent, which is generally reflected in the statute’s
plain language. We analyze statutory language in context, considering the specific
section at issue as well as the statute as a whole.” CHCA Woman's Hosp., L.P. v.
Lidji, 403 S.W.3d 228, 231-232 (Tex. 2013) (citations omitted). Courts construing
statutes “should [] read every word, phrase, and expression in a statute as if it were
deliberately chosen, and likewise presume that words excluded from the statute are
done so purposefully.” In re Expunction of S.S.A., 319 S.W.3d 796, 798-799 (Tex.
12
App.—El Paso 2010, no pet.) (citing Gables Realty Ltd. P’ship v. Travis Central
Appraisal Dist., 81 S.W.3d 869, 873 (Tex. App.—Austin 2002, pet. denied)).
Thus, selection of different terms within the same section of the same
Transportation Code demonstrates, on the plain language of the Code itself, that
those terms mean different things and that Defendants’ interpretation is correct.
Contrast section 541.102, subsection 2 (“residence district”):
“Residence district” means the territory adjacent to and including a
highway, if at least 300 feet of the highway frontage is primarily
improved with (a) residences or (b) buildings used for business
purposes and residences.
TEX. TRANSP. CODE ANN. § 541.102(2) (emphasis added), with 541.102,
subsection 3 (“urban district”):
“Urban district” means the territory adjacent to and including a
highway, if the territory: . . . (B) is improved with structures that are
used for business, industry, or dwelling houses and located at
intervals of less than 100 feet for a distance of at least one-quarter
mile on either side of the highway.
TEX. TRANSP. CODE ANN. § 541.102(3) (emphasis added). This clear difference in
the plain language of the statute must be given effect. Had the Legislature
intended that only the “structures” or “dwelling houses” be considered in
subsection 2, it would have used those terms as it did in subsection 3. Plaintiffs
have no response to this argument except to offer an unsupported assertion that
“residences” and “dwelling houses” are “the same thing” and refer only to
dwellings. (Appellees’ Br. at 24.) That assertion asks the Court to reject well-
known and long-standing principles of statutory construction. The Legislature’s
13
use of these different terms in subsection (2) (“residences”) and subsection (3)
(“structures” and “dwelling houses”) makes no sense if these terms have exactly
the same meaning. The plain language of the statute is dispositive.
The Government Code provides that in construing a statute, a court may
consider laws on the same or similar subjects. See TEX. GOV. CODE § 311.023 (4).
Other Texas statutes use the term “residence” to refer to both the structure and the
land. For example, section 27.001(7) of the Property Code states: “Residence
means the real property and improvements . . . .” TEX. PROP. CODE § 27.001
(emphasis added). Similarly, section 11.13(j)(1) of the Tax Code defines a
“residence homestead” as “a structure . . . (together with the land, not to exceed 20
acres, and improvements used in the residential occupancy of the structure, if the
structure and the land and improvements have identical ownership) . . . .” TEX.
TAX CODE § 11.13(j)(1) (emphasis added). Plaintiffs argue that these statutes
would not make sense or accomplish their purpose if the term residence meant only
the structure. That is exactly the point. These statutes use the term “residence,”
precisely because the Legislature intended to encompass more than mere structures
or dwelling houses.
Plaintiffs incorrectly argue that Owens Corning v. Carter, 997 S.W.2d 560,
570-71 (Tex. 1999) indicates that “residences,” as used in section 541.102(2),
means “dwelling houses.” However, Owens Corning did not address whether the
term “residences” as used in section 541.102(2) encompasses only dwelling
houses. Rather, that case involved the interpretation of a different statute – section
14
71.051 of the Texas Civil Practice and Remedies Code (the Forum Non
Conveniens statute). Section 71.051(e) provides that a court may not dismiss a
claim for forum non conveniens under subsection (b) “if the plaintiff is a legal
resident of this state.” Section 71.051(h)(1) defines “legal resident” as an
individual who intends the specified political subdivision to be his “permanent
residence.” The Texas Supreme Court noted that Black’s Law Dictionary provided
that “residence” means the place where one actually lives or has his home; a
person’s dwelling place. The Court therefore concluded that a “permanent
residence,” as used in section 71.051(h)(1), “requires a home and fixed place of
habitation to which a person intends to return when away.” Id. at 571 (emphasis
added). Thus, the Court equates “residence” with a “place of habitation.” That
holding supports Defendants’ position because “place of habitation,” which means
the “place where someone lives,”1 encompasses both the house and the lot or land
that are inhabited.
Moreover, to the extent that Owens Corning approved the use of dictionaries
to interpret statutory terms, both the Cambridge Dictionary for American English
and the Oxford’s Dictionary also define “residence” as “the place where someone
lives.”2 “The place where someone lives” is a broad term that includes not just a
building, but also the lot and its residential improvements (such as fences,
driveways, landscaping, yards, play areas, houses, garages, walkways, etc.) that are
1
See http://www.merriam-webster.com/dictionary/habitation
2
See http://dictionary.cambridge.org/us/dictionary/american-english/residence and
http://www.oxforddictionaries.com/us/definition/american_english/residence.
15
used for living purposes. When mail is delivered to a residence, it is not said to be
undelivered until a person removes it from their mailbox and physically passes the
threshold of their dwelling house.
Plaintiffs also argue that Defendants’ interpretation of section 541.102(2)
would not provide fair notice to motorists that they are within a residence district.
The opposite is true. Residential lots with improvements (like mailboxes, fences,
driveways, and yards) that have more than 150 feet of highway frontage can easily
be identified by motorists. This is certainly true here, as the Court can see from
examining the photograph of Ranger Creek Road on page 13 of Appellants’ Brief.
A delivery driver or other motorist would have no trouble safely looking ahead and
recognizing the mailboxes, driveways, gates, and residences along the roadway for
far greater than 300 feet. (See Defs’ Ex. 99E.)
By contrast, the Plaintiffs’ interpretation is impractical and makes it virtually
impossible for motorists to recognize and obey the law under real-world
conditions. Drivers cannot be expected to accurately (much less safely) calculate,
while driving on the roadway, the footage of the structures set back from the road
and potentially obscured by trees or shrubbery, and then determine whether their
sum is greater or less than 150 feet within a 300 foot section. The Legislature
could not have intended commercial drivers to perform this difficult calculation in
determining whether it is legal for them to park when making deliveries or
collecting garbage.
16
Plaintiffs also argue that under UPS’s interpretation of section 541.102, “if
there were two houses on the entire 350,000 acre 666 Ranch in King County,
Texas, it would qualify as a residence district.” That argument ignores a key
aspect of Defendants’ interpretation, namely, that “residence” includes the
dwelling and the improved land near the dwelling that is actually being used for
residential purposes. The statute must be read in its entirety, and the rest of the
residence district definition explains that the territory adjacent to the highway
frontage should be “primarily improved with” residences. Thus, the King Ranch
would not qualify as a residence district because the vast majority of the Ranch is
being used to raise cattle, and is not “primarily improved with” residences. In any
event, bad facts make bad law. The Court should be more concerned with the
much more common circumstance of larger lots with modest homes which may be
found throughout the State of Texas, and whether Plaintiffs’ tortured reading of the
Transportation Code could suddenly render deliveries, garbage pick-up, mail, and
school bus stops suddenly illegal at all of these residences.
Finally, Plaintiffs argue that the weight of non-Texas decisions supports
their interpretation that the term “residences,” as used in section 541.102(2) of the
Texas Transportation Code, means only the dwelling houses. This argument is
flawed, because as a decision that Plaintiffs cites explains: “An investigation of
the law pertaining to [these statutes] reveals that there are few cases and little
harmony on the subject. . . . This lack of harmony is due in large part to the wide
divergence in statutory language used by the various states in defining residence,
17
or residential district, but there are also conflicts between jurisdictions with similar
or identical statutes.” Gordon v. Cozart, 110 So. 2d 75, 76 (Fla. 2nd DCA 1959).
More important, there is a significant difference between the language of the
statutes applied in most of the decisions that Plaintiffs cite and the Texas statute.
Five of the eight non-Texas decisions that Plaintiffs cite involved statutes using the
term “dwellings” – not “residences,” as in the Texas statute,3 and thus held that
“dwellings” means only houses, and not the land, because that is how that term is
defined.4 This is a material distinction that, once recognized, actually shows that
these cases support Defendants’ interpretation – i.e., “dwellings” means houses,
whereas “residences” means residential lots. As discussed above, section 541.102
of the Texas Transportation Code recognizes the distinction between “residences”
and “dwellings” by using one term (“residences”) in subsection 2 (which defines
“residence district”) and another (“dwelling houses”) in subsection 3 (which
3
Appellees’ Brief at 21-23, cites Marshall v. Mullin, 320 P.2d 258, 261-62 (Or. 1958) (ORS
483.020 states: “(1) ‘Residence district’ means the territory contiguous to a highway not comprising a
business district when the frontage of such highway for a distance of 300 feet or more is mainly occupied
by dwellings or by dwellings and buildings used for business.”); McGill v. Baumgart, 288 N.W. 799,
802 (Wis. 1939) (“residence district”, as used in sec. 85.40(7), of the Wisconsin statutes, is defined in sec.
85.10(29), Stats., as “The territory contiguous to a highway not comprising a business district where the
frontage on such highway for a distance of three hundred feet or more is mainly occupied by dwellings or
by dwellings and buildings in use for business.”); Thoms v. Dowdy, 112 S.E.2d 868, 869 (Va. 1960)
(Code, § 46.1-1(24), defines a residence district as “The territory contiguous to a highway not comprising
a business district where seventy-five per centum or more of the total frontage, on both sides of the
highway, for a distance of three hundred feet or more is occupied by dwellings or by dwellings and
buildings in use for business purposes.”); State v. Zeus, 56 N.J. Super. 323 (Cty. Ct. 1959) ( New Jersey
statute states: “Residence district' or ‘residential district’ means the territory contiguous to a highway not
comprising a business district when the frontage on the highway for a distance of three hundred feet or
more is mainly occupied by dwellings, or by dwellings and buildings in use for business.' ); State v.
Bastian, 78 N.J. Super. 49 (Cty. Ct. 1962) (same).
4
“Dwelling” is “a shelter (as a house) in which people live.”
http://www.merriam-webster.com/dictionary/dwelling
18
defines “urban district”). If the Texas Legislature had intended residences to mean
only dwelling houses, it would have used the term dwelling houses just as it did in
subsection 3, and just as these other states did in their statutes defining a residence
district. But that is not what the Texas Legislature did; it deliberately used
“residences” instead.
Significantly, Plaintiffs state on page 40 of their Appellees’ Brief that the
jury saw maps and photographs that showed residences on either side of 109
Ranger Creek Road and that “the Rankins never contested that there were houses
on either side of 109 Ranger Creek Road; it is simply something that was not in
dispute.” This is further supported by the uncontested Survey showing adjacent
residential lots for over 300 feet. RR 17 (Pls’ Ex. 26). Therefore, if this Court
concludes, as it should, that under section 541.102(2) residences includes the
frontage lots primarily improved for residential purposes, then, as a matter of law,
109 Ranger Creek Road is within a “residence district,” and the jury’s finding in
Question 1 should be reversed.
D. Even under Plaintiffs’ Interpretation of Section 541.102(2), the
Evidence Is Legally and Factually Insufficient to Support the Jury’s
Finding that the Car Was Parked Outside of a “Residence District.”
Appellees’ Brief points to only two pieces of evidence that they claim
support their contention that there was less than 150 feet of structural frontage
within 300 feet of 109 Ranger Creek Road: (1) the aerial Google photograph,
Defs’ Exhibit 93A, and (2) the Lori Carroll Affidavit.
19
1. The Google photograph is insufficient proof.
Plaintiffs did not present this Court with the Google photograph, either in
their brief or an appendix. It is easy to see why. The grainy, distant aerial
photograph is incompetent evidence for accurately calculating the structural
footage, as required for Plaintiffs to meet their burden:
This aerial Google photograph has multiple defects that make it insufficient
to estimate, much less accurately prove, the dimensions and relative proportions of
the structures. First, the photo was taken from more than 3,340 feet above and the
objects shown are very small. Second, a significant part of the highway frontage
within 300 feet to both the West and the East of 109 Ranger Creek Road is
20
obscured by trees, making it impossible to see all of the structures, much less
determine their dimensions. Third, the accident occurred on July 15, 2009, but the
photo is dated 2013. There is no evidence in the record that the photograph shows
the structures that existed when the accident occurred. Plaintiffs failed to respond
to this argument in their brief because they failed to present the jury with any such
proof. Fourth, the scale shown on the map is only for 900 feet to the West of 109
Ranger Creek Road, and there is no scale shown for 300 feet to either the West or
East of that address (and, indeed, no designation of that statutorily significant
portion at all). The jury had no way to accurately calculate the structural footage
within the relevant portion of highway frontage. At best, the jury could only guess
from the photo whether the frontage of the structures was not more than 150 feet to
both the East and the West of 109 Ranger Creek Road. “Evidence that is so slight
as to make any inference a guess is in legal effect no evidence.” Zavala v.
Burlington N. Santa Fe Corp., 355 S.W.3d 359, 370 (Tex. App.—El Paso 2011, no
pet.).
It is therefore no surprise that several courts (cited in Appellants’ Brief) have
held that “[a] photograph cannot be relied upon as proof in itself of the dimensions
of the depicted object or objects, and cannot be made properly available to
establish the relative proportions of such objects . . . .” See, e.g., Floeck v. Hoover,
52 N.M. 193, 195 P.2d 86, 88 (1948). Plaintiffs argue that these decisions should
be disregarded because photographic technology was allegedly different when
these cases were decided. This is an odd assertion given the quality of the Google
21
photograph (reproduced above), which the Court can now see is grainy, obscured
by trees and other impediments, taken from thousands of feet above the structures
that should be measured, and not scaled in a manner useful to making this kind of
structural footage measurement or scaled at the place to be measured. In any
event, the accuracy of Plaintiffs’ assertion is highly questionable. This Court can
take judicial notice of the fact that photos taken in the 1940s, such as those widely
published in Life Magazine, are not significantly less accurate or detailed than the
Google photograph above.
Plaintiffs also argue that Texas courts take a different view of photographic
evidence than these courts. However, neither decision cited by Plaintiffs actually
supports that contention. In Mooneyhan v. Benedict, 284 S.W.2d 741, 743 (Tex.
Civ. App.—Austin 1955, writ ref’d n.r.e), the Court of Appeals held that the trial
court did not err in declining to take judicial notice that the speed limit where the
collision occurred was 45 miles per hour because there was no evidence that the
collision occurred in either a business or residential district. The court noted that
“from photographs of the vicinity which are in the record the territory adjacent to
the highway appears to be open country.” Id. at 743. Thus, at most, Mooneyhan
indicated in dicta that photographs may constitute some evidence that the territory
adjacent to a highway is not occupied with any structures. Mooneyhan’s holding
in no way holds that a distant aerial photograph, like the Google photo, may be
relied on to prove the dimensions and relative proportions of building structures.
22
In Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se. Texas,
Inc., 975 S.W.2d 546, 563 (Tex. 1998), photographs of abortion clinics that were
being protested were offered into evidence to prove there was a need for a buffer
zone to insure access into the clinics and to protect the clinics’ operations from
interference by the protesters’ noise. There is no indication that the parties or the
court attempted to rely on these photographs to prove the dimensions or relative
proportions of objects shown in the photographs.
Just because a photograph may be used as evidence for one purpose does not
mean that it is sufficient proof for every purpose. Plaintiffs cite no decision that a
distant aerial photograph, such as Exhibit 93A, is sufficient to prove the
dimensions and relative proportions of objects shown in the photograph.
The standard of proof that Plaintiffs were required to meet under their
(incorrect) interpretation of the statute is explained in Floeck v. Hoover, 52 N.M.
193, 195 P.2d 86, 89 (1948). The New Mexico Supreme Court observed that the
New Mexico statute’s use of the terms “dwellings” and “buildings” meant a
residence district is determined by measuring those dwellings and buildings.5 The
court held that the trial court correctly refused an instruction of the statutory
definition of “residence district” because plaintiff did not offer sufficient,
competent proof of the measurements of the frontage of all of the buildings. Id. at
89. A witness testified that the footage of the buildings at issue was approximately
410 to 415 feet, “but he did not give the dimensions of any of the buildings.” Id.
5
Again, this is a critical difference from the Texas statute, which deliberately uses the term
“residences” instead of “dwellings.”
23
The New Mexico Supreme Court held: “The burden of proof was upon the
plaintiff to show by actual measurements that the area occupied by the buildings,
to the exclusion of the vacant yard space, was more than 50 percent of the 300 feet
area. He failed to meet such burden.” Id. (emphasis added). Thus, actual, not
approximate, measurements must be shown. Plaintiffs failed to meet this burden.
Plaintiffs argue, without any supporting authority, that Defendants invited
error and are estopped from arguing that the Google photograph is insufficient to
support the jury’s finding that the car was parked outside of a residence because
Defendants introduced it. Respectfully, this is nonsense. Defendants introduced
the Google photo to show that 109 Ranger Creek Road was surrounded by
residences (places where families lived), and, indeed, that is exactly what the
former resident of 109 Ranger Creek Road confirmed in her testimony when
presented with that photograph. By introducing the Google photograph for that
purpose, Defendants did not concede that Plaintiffs’ interpretation of section
541.102(2) is correct, or that the photograph was sufficient to prove the dimensions
of the structures shown therein. That a photograph may be adequate proof for one
purpose does not mean that it is adequate for all purposes.
Plaintiffs claim that because Defendants never argued at trial that the Google
photograph was inadequate, Plaintiffs were denied the opportunity to offer
additional evidence to cure this defect. This claim ignores the Plaintiffs’ burden of
proof. Texas law does not require Defendants to point out at trial that the Google
photograph was insufficient to prove the dimensions of the structures. Rather, it is
24
Plaintiffs’ responsibility to evaluate the sufficiency of the Google photograph to
prove their negligence per se claim.
2. The Lori Carroll Affidavit is insufficient proof; in fact, its
admission was reversible error.
Plaintiffs also argue that the jury’s finding in Question 1 is supported by the
affidavit of Lori Carroll. This is a surprising argument, given that Plaintiffs
simultaneously argue that the erroneous admission of that affidavit was harmless
because it was unimportant to Plaintiffs’ case. Plaintiffs cannot have it both ways.
To this day, Plaintiffs have not offered a single argument as to why the
Carroll Affidavit is relevant. Evidence is only relevant if it makes the existence of
some fact of consequence to the determination of the matter more probable or less
probable. TEX. R. EVID. 401. All parties agree the Carroll Affidavit states that 109
Ranger Creek Road is not within a residence district in the city limit of Boerne,
Texas, but also that 109 Ranger Creek Road is not within the Boerne city limits.
RR 13 (Pls’ Ex. 15). Section 541.102(2) does not state that an area must be within
a city limit to qualify as a “residence district.” The Texas Transportation Code
governs roads everywhere in the state, not just roads within city limits (indeed,
section 541.102(2) actually refers to the “highway”). The Affidavit, therefore,
conveys nothing about the issue before this jury. In fact, when Plaintiffs argued to
the trial court that the affidavit proved that 109 Ranger Creek Road was in a
“residence district,” the trial court disagreed, stating: “that’s not what she said.
“She said it was not in the city.” RR 9:196-97.
25
Thus, it appears that Plaintiffs’ only purpose in presenting this official-
sounding affidavit was to confuse the jury, and mislead it into believing,
incorrectly, that an address had to be within the city limit to qualify as a “residence
district” under the Transportation Code. Plaintiffs’ assertion that the affidavit was
unimportant and not harmful is belied by the record. See RR 9:196-97 (colloquy
between Plaintiffs’ counsel and the trial court regarding the affidavit, in which
counsel emphasized the importance of the affidavit and the court observed that
Plaintiffs were “enthusiastic” about it).
Plaintiffs were indeed enthusiastic about the Carroll Affidavit. They chose
to read the Affidavit into the record, without cross examination, context, or
rebuttal, to rest their case. Indeed, unlike ordinary testimony, the Carroll Affidavit
was a trial exhibit that the jury could review. They cannot now credibly claim this
was not harmful evidence.
The affidavit was also inadmissible hearsay. Plaintiffs argue that the
affidavit was admissible under Texas Rule of Evidence 803(8)(C) because it
allegedly states facts that resulted from an investigation made pursuant to authority
granted by law. See Appellant’s Brief at 33.6 However, the Carroll Affidavit does
not meet this hearsay exception for several reasons.
First, the Affidavit did not result from an independent government
investigation, but rather was prepared for a civil lawsuit in which the government
6
Plaintiffs’ argument on page 33 of their brief quotes all of Rule 803(8), but appears only to argue
that the third exception, under provision (C), applies.
26
is not even a party. Second, the preparation of affidavits to support a party’s
position in a civil lawsuit is not part of the authority granted by law to Ms. Carroll.
Finally, Ms. Carroll’s statement that 109 Ranger Creek Road was not within
any business or residence district of the City is not a factual finding, but is a
conclusion of law based on her uncross-examined interpretation of section
541.102(2). Rule 803(8) only excepts “factual findings” from the hearsay rule, not
conclusions based on the interpretation of a law or statute. In this regard, the
United States Court of Appeals has held that the corresponding federal rule, Fed.
R. Evid. 803(8)(C), “does not provide for the admissibility of the legal conclusions
contained within an otherwise admissible public report.” Hines v. Brandon Steel
Decks, Inc., 886 F.2d 299, 302 (11th Cir. 1989); see also Sullivan v. Dollar Tree
Stores, Inc., 623 F.3d 770, 777 (9th Cir. 2010) and Zeus Enters., Inc. v. Alphin
Aircraft, Inc., 190 F.3d 238, 243 (4th Cir. 1999).
For these reasons, the Carroll affidavit does not support the jury’s finding in
Question 1 and the trial court reversibly erred in admitting it.
E. Defendants Did Not Waive their Objection to the Trial Court’s
Erroneous Submission of an Unsupported Negligence Per Se Claim
and Such Error is Reversible.
Plaintiffs wrongly contend that Defendants did not preserve their complaint
that the trial court erred in submitting the Plaintiffs’ negligence per se claim to the
jury in Questions 1 and 2. To the contrary, Defendants objected both in writing
and orally to the submission of Questions 1 and 2 and their instructions on the
ground that the evidence was insufficient to support their submission. II CR 145-
27
46 (Objections Nos. 3 and 5); RR 10:46-47. Defendants’ counsel also objected
that the trial court’s submission of the unsupported negligence per se claim in
Questions 1 and 2 may adversely prejudice the jury answer’s to the proportionate
responsibility question. RR 10:50.
These objections are clearly adequate under Texas law. In Thota v. Young,
366 S.W.3d 678, 689-91 (Tex. 2012), the Texas Supreme Court held that: (1) a no
evidence objection is all that is necessary to preserve a complaint regarding the
submission of a claim that is not supported by the evidence, and (2) a party is not
required to point out to the trial court the problems that submitting a unsupported
claim creates, which are discussed in Crown Life Ins. Co. v. Casteel, 22 S.W.3d
378, 388 (Tex. 2000). The Texas courts of appeals agree that an objection to the
submission of an unsupported claim or theory “also preserves error for any impact
the wrongful inclusion has on the other charge questions,” including the
proportionate responsibility question and damage questions. McFarland v.
Boisseau, 365 S.W.3d 449, 453-54 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(citing Mo. Pac. R.R. Co. v. Limmer, 180 S.W.3d 803, 822 (Tex. App.—Houston
[14th Dist.] 2005), rev’d on other grounds, 299 S.W.3d 78 (Tex. 2009) and
Schrock v. Sisco, 229 S.W.3d 392, 395 (Tex. App.—Eastland 2007, no pet.)).
Plaintiffs also argue that any error in submitting the unsupported negligence
per se claim is not reversible error because the jury could not have been
significantly influenced by the negligence per se claim in assessing proportionate
28
responsibility in Question 4. This argument is not supported by Texas law or the
trial record.
In Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225-28 (Tex.
2005), the Texas Supreme Court held that the submission of a claim for liability
that is not supported by the evidence is generally reversible if it cannot be
determined whether that submission affected the jury’s answer to the proportionate
responsibility question. “[U]nless the appellate court is ‘reasonably certain that
the jury was not significantly influenced by issues erroneously submitted to it,’ the
error is reversible.” Id. at 227-28 (emphasis added). “Even if the jury could still
have made the same apportionment of fault, the error in the question is
nevertheless reversible . . . .” Id. at 226. The Supreme Court held that the
submission of an unsupported malicious credentialing claim was reversible error
because it had no certainty that this claim did not influence the jury in the
apportionment question. Id. at 227-28. “If the jury’s apportionment of liability
could have been affected by an issue on which the trial court charged the jury but
on which there was legally insufficient evidence, a new trial on the entire
negligence claim is required.” Heritage Hous. Dev., Inc. v. Carr, 199 S.W.3d 560,
570 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Romero).
Plaintiffs argue that Romero is distinguishable because it involved the
submission of an unsupported intentional tort, and that there is no reversible error
when the unsupported claim is a negligence claim. To the contrary, Romero makes
no such distinction and the Courts of Appeals have not limited Romero to
29
unsupported intentional torts. See, e.g., Limmer, 180 S.W.3d at 828-29 (in case
where the jury was required to apportion responsibility between the parties, the
Court of Appeals held that error in submitting an invalid negligence theory to jury
was reversible because the court was not reasonably certain that the jury was not
influenced by that theory); Benge v. Williams, 01-12-00578-CV, 2014 WL
6462352, at *25 (Tex. App.—Houston [1st Dist.] Nov. 18, 2014, no. pet. h.)
(holding that allowing the jury to consider an invalid negligence theory was
reversible error because the court of appeals could not say that the jury was not
significantly influenced by the invalid theory).7
This Court should find reversible error here because it cannot be certain that
the jury, in apportioning responsibility between Mr. Leal and Mr. Rankin, was not
influenced by its findings in Questions 1 and 2 that Mr. Leal failed to comply with
the law and that this caused Mr. Rankin’s injury. Generally, people consider
someone who breaks the law more culpable than someone who is merely negligent.
The jury heard evidence that Mr. Leal was an experienced, trained driver who
made deliveries for a living. In finding that Mr. Leal parked illegally, the jury
likely concluded that Mr. Leal knew or should have known that he was breaking
the law. This Court cannot be reasonably certain that the jury did not hold
Mr. Leal more culpable or responsible for his violation of the law than if they had
7
Plaintiffs also cite Texas Mut. Ins. Co. v. Morris, 287 S.W.3d 401, 431 (Tex. App.—Houston
[14th Dist.] 2009), judgment rev’d, 383 S.W.3d 146 (Tex. 2012). Not only was that decision reversed,
but it is not relevant because there was no proportionate responsibility question, and there was no
possibility that the unsupported negligence theories influenced the jury’s answers to other questions in the
charge. Id. at 430.
30
merely found ordinary negligence. The consequences of this error are enormous
because if the jury had found Mr. Leal 1% less responsible, the Rankins claims
would have been barred. See TEX. CIV. PRAC. & REM. CODE §33.001.
F. The Jury’s Findings in Questions 2 and 3 (Proximate Cause) and
Question 4 (Mr. Rankin Was Only 50% Responsible) Are Not
Supported by Sufficient Evidence.
Plaintiffs argue that Defendants waived the argument that the evidence is
insufficient to support the jury’s finding in Questions 2 and 3 that the negligence of
Roland Leal proximately caused the occurrence because their Proposed Jury
Charge included questions regarding negligence and proximate cause. However,
Defendants’ Proposed Jury Charge states:
Defendants object to the submission of each of the Plaintiffs’ claims
against them because such are not supported by legally sufficient
evidence. Defendants reserve their right at the charge conference(s)
to object to any of the questions or instructions proposed herein.
Defendants do not concede that any of these questions or instructions
that submit Plaintiffs’ claims will be supported by the evidence.
II CR 120. Defendants included the negligence questions in their proposed charge
solely to explain their position as to the correct legal form of these questions, not
because they agreed that they should be submitted. And Defendants clearly
objected to Questions 2 and 3 in the charge conference. RR 10:47-48.
Plaintiffs assert that there are testimony, video, and photographs that
indicate “it was very difficult to see a truck parked in that exact location until mere
seconds before coming upon it.” Appellees’ Brief at 45. However, none of the
Plaintiffs’ record cites support their assertion. Plaintiffs reference their Exhibits 22
and 29, but these exhibits were not admitted and are not in the record. RR 1:30-31.
31
Plaintiffs also reference six photographs (Defendants’ Exhibits 99F, 99G, and
144E-144H), but none of them indicates that the package car (which was parked in
the same location as Mr. Leal parked his car) was difficult to see. To the contrary,
Defendants’ Exhibits 144A-E, contained in the Appendix to this brief, show that
the car is plainly visible from 200 to 1000 feet away.
A motorist “is not required to anticipate negligence or other unlawful
conduct on the part of another.” Turner v. Cruz, 2010 WL 5545392, *4 (Tex.
App.—San Antonio Dec. 29, 2010, no pet.). According to Plaintiffs’ counsel, to
not see the car, Mr. Rankin would have had to have been looking down at the
pavement for over a minute. RR 10:103. He kept no lookout for construction,
stopped vehicles, or people or animals crossing the road. Extreme negligence of
this kind is not foreseeable and Mr. Leal had no duty to anticipate it. Appellees’
Brief does not address this argument.
When the actions of Mr. Rankin and Mr. Leal are compared, no jury could
reasonably conclude that Mr. Rankin was not more responsible for the accident
than Mr. Leal. Mr. Rankin could see that there were residences on the road where
vehicles enter and exit the roadway, and regularly stop to deliver mail or pick-up
garbage, but he kept no lookout and rode with his head down for over a minute.
RR 5:118-19; RR 6:196, 198-99; RR 10:103. In contrast, Mr. Leal parked his car
to make a delivery that took less than two minutes, with the hazard lights flashing,
where it was visible for thousands of feet, and only partially obstructed one lane
(leaving 20 feet of open roadway). RR 9:90-91, 95, 103. The jury’s finding of
32
equal responsibility was based, not on the evidence, but on the erroneous
negligence per se jury instructions and on sympathy for the Rankins.
Respectfully submitted,
KING & SPALDING LLP
/s/ H. Victor Thomas
W. Randall Bassett
Pro Hac Vice Pending
Bradley W. Pratt
Pro Hac Vice Pending
King & Spalding, LLP
1180 Peachtree Street, N.E.
Atlanta, Georgia 30309
Telephone: (404) 572-4600
Facsimile: (404) 572-5100
H. Victor Thomas
Texas Bar No. 19851500
Thomas Michael Gutting
Texas Bar No. 24067640
King & Spalding, LLP
1100 Louisiana, Suite 4000
Houston, Texas 77002-5213
Telephone: (713) 751-3200
Facsimile: (713) 751-3290
and
33
Ricardo R. Reyna
State Bar No. 16794845
Audrey A. Haake
State Bar No. 08658100
BROCK PERSON GUERRA REYNA, P.C.
17339 Redland Road
San Antonio, Texas 78247-2302
Telephone: (210) 979-0100
Facsimile: (210) 979-7810
Counsel for Appellants United Parcel
Service, Inc. and Roland Leal
34
CERTIFICATE OF COMPLIANCE
I certify that on February 19, 2015, that this Reply Brief was produced on a
computer and contains 7,414 words, excluding the caption, table of contents, index
of authorities, and Appendix, and thus does not exceed the 7,500 word limit
provided for by Tex. R. App. P. 9.4(i).
/s/ H. Victor Thomas
H. Victor Thomas
CERTIFICATE OF FILING AND SERVICE
I certify that on February 19, 2015, I used the Court’s electronic case filing
system to file this Reply Brief and to serve this document on the counsel for
appellees:
Doug Perrin
Mark Perrin
The Perrin Law Firm
325 N. Saint Paul St., Suite 600
Dallas, TX 75201-3828
Peter D. Marketos
Reese Gordon Marketos LLP
750 N. Saint Paul St., Suite 610
Dallas, Texas 75201
/s/ H. Victor Thomas
H. Victor Thomas
35
Appendix of Photographs of
Parked UPS Package Car
(Defendants’ Exhibits 144A-H).
36
37
38
39
40
41
42
43