Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 03/31/2015 4:47:38 PM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-14-00899-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/31/2015 4:47:38 PM KEITH HOTTLE CLERK 04-14-00899-CV In the Fourth Court of Appeals
S ITTING AT S AN A NTONIO LETICIA ZEPEDA VASQUEZ, Individually and on Behalf of the Estate of
Jose Abraham Vasquez, Jr., Appellant ,
v.
LEGEND NATURAL GAS III, LP; LEGEND NATURAL GAS, LLC;
LEWIS ENERGY GROUP, LP; LEWIS PETRO PROPERTIES, INC.;
ROSETTA RESOURCES OPERATING, LP; VIRTEX HOLDINGS,
LLP; VIRTEX OPERATING CO., INC.; ENTERPRISE PRODUCTS
HOLDINGS, LLC; ENTERPRISE PRODUCTS COMPANY; and XTO
ENERGY, INC., Appellees
Appealed From the 81 st District Court La Salle County, Texas Trial Court Cause No. 14-07-0019-CVL APPELLANT’S OPENING BRIEF
J EFFREY L. D ORRELL State Bar No. 00787386 jdorrell@hanszenlaporte.com 11767 Katy Freeway, Suite 850 Houston, Texas 77079 Telephone: 713-522-9444 FAX: 713-524-2580 ATTORNEY FOR APPELLANT APPELLANT REQUESTS ORAL ARGUMENT
*2 IDENTITY OF PARTIES & COUNSEL Appellant certifies that the following is a complete list of the parties,
the attorneys, and any other person who has any interest in the outcome of
this matter:
PARTIES COUNSEL
Leticia Zepeda Vasquez, Jeffrey Lee Dorrell
Appellant H. Mark Burck
Daniel Dutko Hanszen Laporte, LLP 11767 Katy Freeway, Suite 850 Houston, Texas 77079 Telephone: 713-522-9444 FAX: 713-524-2580 Attorney for Appellant Legend Natural Gas III, LP, Isaac J. Huron
and Legend Natural Gas, LLC Davis, Cedillo & Mendoza, Inc.
Appellees McCombs Plaza, Suite 500
755 E. Mulberry Avenue San Antonio, Texas 78213 Telephone: 210-822-6666 FAX: 210-822-1151 Attorney for Legend Natural Gas III, LP, and Legend Natural Gas, LLC Lewis Energy Group, LP, and David L. Ortega
Lewis Petro Properties, Inc. Naman Howell Smith & Lee, PLLC
Appellees 1001 Reunion Place, Suite 600
San Antonio, Texas 78216 Telephone: 210-731-6300 FAX: 210-785-2953 Attorney for Lewis Energy Group, LP, and Lewis Petro Properties, Inc. ii *3 XTO Energy, Inc. Jose E. Garcia
Appellee Garcia & Villareal
4311 N. McColl Road McAllen, Texas 78504 Telephone: 956-630-0081 FAX: 956-630-3631 Attorney for XTO Energy, Inc.
Rosetta Resources Oper., LP William A. Abernethy
Appellee Donnell, Abernethy & Kieschnick, P.C.
555 N. Carancahua, Suite 1770 Corpus Christi, Texas 78401 Telephone: 361-888-5551 FAX: 361-880-5618 Attorney for Rosetta Resources Oper., LP Virtex Operating Co., Inc., and Christopher Lowrance
Virtex Holdings, LLP Royston, Rayzor, Vickery & Williams, LLP
Appellees 802 Carancahua, Suite 1300
Corpus Christi, Texas 78401 Telephone: 361-884-8808 FAX: 361-884-7261 Attorney for Virtex Operating Co., Inc., and Virtex Holdings, LLP Enterprise Products Holdings, E. Michael Rodriguez
LLC, and Enterprise Products Atlas, Hall & Rodriguez, LLP
Co. P.O. Box 6369 (78523-6369)
Appellees 50 W. Morrison Road, Suite A
Brownsville, Texas 78520 Telephone: 956-574-9333 FAX: 956-574-9337 Attorney for Enterprise Products Holdings, LLC, and Enterprise Products Co. iii *4 T ABLE OF ONTENTS Page IDENTITY OF PARTIES AND COUNSEL ...….………………………. ii
TABLE OF CONTENTS …………………………………………………. iv
INDEX OF AUTHORITIES ……………………………………………… v
STATEMENT OF THE CASE …………………………………………… 2
STANDARD OF REVIEW ……...………………………………………… 3
ISSUE PRESENTED FOR REVIEW …………………………………… 4
STATEMENT OF FACTS .……………………………..…………………. 5
SUMMARY OF ARGUMENT ……………………………………………. 6
ARGUMENT ..…………………….………………………………………… 7
Issue 1. Did defendants have a legal duty to act to prevent
Vasquez’s death from the dangerous situation on Krueger Road that defendants themselves negligently created? …………………………………………….. 7
CONCLUSION …...…………………………………………………… 10
PRAYER ….…………………………………………………………… 11
CERTIFICATE OF SERVICE ……………………………………… 12
CERTIFICATE OF WORD COUNT COMPLIANCE .…………… 14
APPENDIX ……………………………………………………………
iv *5 INDEX OF AUTHORITIES CASES
Page Abalos v. Oil Development Co. of Texas ,
544 S.W.2d 627 (Tex. 1976) ………………………………………… 9
Buchanan v. Rose ,
159 S.W.2d 109 (Tex. 1942) ………………………………………… 9
Cactus Drilling Co. v. Williams ,
525 S.W.2d 902 (Tex. Civ. App.—Amarillo 1975, writ ref’d n.r.e.)… 9
Chrysler Corp. v. Dallas Power & Light Co .,
522 S.W.2d 742 (Tex. Civ. App.—Eastland 1975, writ ref’d n.r.e.).… 9
City of Austin v. Liberty Mut. Ins .,
431 S.W.3d 817 (Tex. App.—Austin 2014, no pet.) ………………… 3
Courville v. Home Transportation Co ,
497 S.W.2d 788 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e.).. 9
Dailey v. Thorpe ,
445 S.W.3d 785 (Tex. App.—Houston [1st Dist.] 2014, no pet.).…… 3
Dallas Ry. & Terminal Co. v. Archer ,
167 S.W.2d 290 (Tex. Civ. App.—Dallas 1942, writ ref’d w.o.m.) …. 9
Devoll v. Demonbreun ,
2014 Tex. App. LEXIS 13865 at *4
(Tex. App.—San Antonio December 31, 2014, n.p.h.) ……………… 3
GoDaddy.com, LLC v. Toups ,
429 S.W.3d 752 (Tex. App.—Beaumont 2014, pet. denied) ………… 3
San Benito Bank & Trust Co. v. Travels ,
31 S.W.3d 312 (Tex. App.—Corpus Christi 2000) ………………….. 9
SmithKline Beecham Corp. v. Doe ,
903 S.W.2d 347 (Tex. 1995) ……………………………………… 8-9
Wooley v. Schaffer ,
447 S.W.3d 71 (Tex. App.—Houston [14th Dist.]
2014, pet. filed) ……………………………………………………. 3, 7
v *6 RULES
T IV . P. 91a .……………………………………………… Passim
vi *7 04-14-00899-CV
LETICIA ZEPEDA VASQUEZ, Individually and on Behalf of the Estate of
Jose Abraham Vasquez, Jr., Appellant
v.
LEGEND NATURAL GAS III, LP; LEGEND NATURAL GAS, LLC;
LEWIS ENERGY GROUP, LP; LEWIS PETRO PROPERTIES, INC.;
ROSETTA RESOURCES OPERATING, LP; VIRTEX HOLDINGS,
LLP; VIRTEX OPERATING CO., INC.; ENTERPRISE PRODUCTS
HOLDINGS, LLC; ENTERPRISE PRODUCTS COMPANY; and XTO
ENERGY, INC., Appellees
APPELLANT’S OPENING BRIEF
Appellant Leticia Zepeda Vasquez files her opening brief. Appellant
will be referred to individually by name, or as “plaintiff,” as she was
designated below. Appellees Legend Natural Gas III, LP; Legend
Natural Gas, LLC; Lewis Energy Group, LP; Lewis Petro Properties,
Inc.; Rosetta Resources Operating, LP; Virtex Holdings, LLP; Virtex
Operating Company, Inc.; Enterprise Products Holdings, LLC;
Enterprise Products Company; and XTO Energy, Inc., will be referred to
individually by name, or collectively as “defendants,” as they were
designated below.
S TATEMENT OF THE C ASE Nature of the case . On July 21, 2014, plaintiff sued the ten defendants
for negligence and gross negligence. (CR 5-6.) On October 2, 2014,
plaintiff filed her first amended original petition asserting the same claims.
( Tab C , CR 84-86.) The various defendants generally denied, raised
affirmative defenses, and counterclaimed. (CR 8-56.) The defendants’
affirmative defenses and counterclaims are not at issue in this appeal.
Course of proceedings . No trial was held. Defendants Legend
Natural Gas III, LP, and Legend Natural Gas, LLC, filed a motion to dismiss
plaintiff’s claims Under T IV . P. 91a. (CR 62.) A similar motion
was included in the body of the answer filed by defendants Lewis Energy
Group, LP, and Lewis Petro Properties. (CR 52-53.) On October 16, 2014,
the trial court held an oral hearing on defendants’ motions to dismiss.
Trial court disposition . The trial court granted defendants’ motions to
dismiss on November 20, 2014, but failed to dispose of certain other claims.
(CR 147-48.) Plaintiff filed a premature notice of appeal. (CR 159.) On
January 5, 2015, the trial court entered a final order granting all defendants’
motions to dismiss and severing the undisposed claims. (2d SCR 7-8.) ( Tab
A .) On January 29, 2015, plaintiff filed an amended notice of appeal of the
new order. (2d SCR 1.)
S TANDARD OF R EVIEW This Court reviews the trial court’s dismissal of Vasquez’s claims
pursuant to T IV . P. 91a de novo . Devoll v. Demonbreun , 2014 Tex.
App. LEXIS 13865 at *4 (Tex. App.—San Antonio December 31, 2014,
n.p.h.); Wooley v. Schaffer , 447 S.W.3d 71, 75 (Tex. App.—Houston [14th
Dist.] 2014, pet. filed); Dailey v. Thorpe , 445 S.W.3d 785, 787 (Tex.
App.—Houston [1st Dist.] 2014, no pet.); City of Austin v. Liberty Mut.
Ins ., 431 S.W.3d 817, 822 (Tex. App.—Austin 2014, no pet.);
GoDaddy.com, LLC v. Toups , 429 S.W.3d 752, 754 (Tex. App.—Beaumont
2014, pet. denied).
I SSUE P RESENTED FOR R EVIEW Issue 1: Did defendants have a legal duty to act to prevent
Vasquez’s death from the dangerous situation on Krueger Road that
defendants themselves negligently created?
S TATEMENT OF F ACTS On August 4, 2012, Jose Vasquez was tragically killed when his
vehicle flipped over in an accident that could have been avoided if not for
the negligence of defendants. (CR 82.) Vasquez was operating his vehicle
on Krueger Road in La Salle County, Texas, when he was blinded by a dust
cloud and drove into a ditch. ( Id .) Once a safe, paved road for the public
(CR 83), Kruger Road has now become dangerously dilapidated as a result
of defendants’ negligent use of the road to operate their oil and gas wells in
the area. (CR 81-82.) The road now has potholes, crevices, bumps, and the
road has no markings to determine the proper lanes of travel. (CR 83, 85.)
Defendants’ negligent operation of their trucks and businesses
includes sending hundreds or thousands of trucks every year—some over
legal weight limits—driving “recklessly” or at too high a rate of speed down
Krueger Road. (CR 83.) Defendants knew that their operations had created
the dangerous conditions on Krueger Road that eventually killed Jose
Vasquez. (CR 83-85.) Defendants did nothing either to repair Krueger
Road or warn others of the dangerous conditions they have negligently
created. (CR 83-85.)
S UMMARY OF THE A RGUMENT The trial court was bound to take plaintiff’s factual allegations pled as
true and liberally construe them in her favor. The trial court implicitly found
that defendants owed no legal duty to Jose Vasquez when it dismissed his
widow’s claims under T IV . P. 91a because her claims allegedly had
“no basis in law.” However, Texas courts have long recognized at least two
species of duty when a defendant creates a dangerous condition. If the
defendant created the dangerous condition negligently , he has a duty to
repair it. If the defendant created the dangerous condition without being
negligent, he nevertheless still has a duty to warn those who may be injured
as a result. The trial court erred when it failed to recognize defendants’ duty
to repair or to warn Jose Vasquez of the unreasonably dangerous condition
their trucks had negligently created.
A RGUMENT Argument and Authorities—Issue 1 Issue 1: Did defendants have a legal duty to act to prevent
Vasquez’s death from the dangerous situation on Krueger Road that
defendants themselves negligently created?
Yes. However, the trial court implicitly found that there could be no
such duty when it dismissed plaintiff’s claims pursuant to Rule 91a as
having “no basis in law.”
Rule 91a allows a party to move to dismiss a baseless cause of action
on the grounds that it has no basis in law or fact. T EX . R. C IV . P. 91a.1. In
the case at bar, fact issues are not in dispute—the trial court’s order is
expressly limited to dismissal because the claims allegedly had “no basis in
law.” ( Tab A .)
A cause of action has no basis in law if the allegations, taken as
true, together with inferences reasonably drawn from them, do
not entitle the claimant to the relief sought.
T EX . R. C IV . P. 91a.1. The trial court must decide a Rule 91a motion to
dismiss based solely on the pleading of the cause of action, together with
any exhibits permitted by Rule 59. T IV . P. 91a.6.
In conducting our [Rule 91a] review, … we must construe the
pleadings liberally in favor of the plaintiff, look to the pleader’s
intent, and accept as true the factual allegations in the
pleadings…. Wooley v. Schaffer , 447 S.W.3d 71, 76 (Tex. App.—Houston [14th Dist.]
2014, pet. filed) [emphasis added].
Thus, factual allegations the trial court was obliged to “take as true”
and liberally construe in favor of plaintiff included:
(i) It takes 1200 trucks to bring one oil or gas well into production;
( Tab C , CR 81)
(ii) It takes 350 trucks a year to maintain one oil or gas well; ( Tab
C , CR 81)
(iii) The service life of roads in areas around oil or gas wells is
reduced more than 30% per year due to well operations; ( Tab C , CR 81-82)
(iv) Defendants knew that La Salle County could not repair Krueger
Road as fast as defendants destroyed it; ( Tab C , CR 82) (v) Some of defendants’ trucks travelled at an unsafe speed; ( Tab
C , CR 83)
(vi) Some of defendants’ trucks travelled “recklessly;” ( Tab C , CR
84)
(vii) Some of defendants’ trucks were overweight; ( Tab C , CR 83,
85)
(viii) Krueger Road was once a safe, paved road for the public; ( Tab , CR 83)
(ix) Krueger Road is now in a dangerously dilapidated condition,
with potholes, crevices, and bumps; ( Tab C , CR 83, 85) (x) Defendants knew they had created Krueger Road’s dangerously
dilapidated condition; ( Tab C , CR 83, 85) (xi) It was foreseeable that Vasquez (or others) could be injured
while in the lawful exercise of his right to drive on Krueger Road; ( Tab C , CR 83) and
(xii) Defendants did nothing either to repair Krueger Road or warn
others of the dangerous conditions defendants had created there. ( Tab C , CR 83)
Texas courts have long held that if a party creates a dangerous
condition, he has a duty to prevent injury to others if it is reasonably
foreseeable that others in the exercise of their lawful rights may be injured
by the dangerous condition he created. SmithKline Beecham Corp. v. Doe ,
903 S.W.2d 347, 353 (Tex. 1995); Buchanan v. Rose , 159 S.W.2d 109, 110
(1942); San Benito Bank & Trust Co. v. Travels , 31 S.W.3d 312, 319 (Tex.
App.—Corpus Christi 2000).
[I]t may be said generally, on the one hand, that if a party
negligently creates a dangerous situation it then becomes his
duty to do something about it to prevent injury to others if it
reasonably appears or should appear to him that others in the
exercise of their lawful rights may be injured thereby.
Buchanan , 159 S.W.2d at 110; see also Abalos v. Oil Development Co. of
Texas , 544 S.W.2d 627, 632-33 (Tex. 1976); Cactus Drilling Co. v.
Williams , 525 S.W.2d 902, 911 (Tex. Civ. App.—Amarillo 1975, writ ref’d
n.r.e.); Chrysler Corp. v. Dallas Power & Light Co ., 522 S.W.2d 742, 744
(Tex. Civ. App.—Eastland 1975, writ ref’d n.r.e.); Courville v. Home
Transportation Co , 497 S.W.2d 788, 790-91 (Tex. Civ. App.—Beaumont
1973, writ ref’d n.r.e.); Dallas Ry. & Terminal Co. v. Archer , 167 S.W.2d
290, 293 (Tex. Civ. App.—Dallas 1942, writ ref’d w.o.m.).
Nor does it absolve a defendant of all duty if he creates the dangerous
condition on a “public way”— even if he does so without being negligent :
We think it may also be said that if one by his own acts, although
without negligence on his part, creates a dangerous situation in
or along a public way and it reasonably appears that another in
the lawful use of such way in the exercise of ordinary care for his
own safety may be injured by the dangerous situation so created,
the one creating the same must give warning of the danger or be
responsible for the consequences. To illustrate: One who in the
exercise of a lawful right, and without negligence on his part,
makes an excavation across a street or sidewalk or on his
premises in close proximity to a public way, or parks a vehicle in
a road, or otherwise obstructs the road with a foreign substance,
is bound to give warning of the danger created thereby.
Buchanan , 159 S.W.2d at 110 [citations omitted]. Although the duty may
be different—to warn others of the dangerous condition as opposed to a duty
to repair the condition—there is nevertheless still a duty.
Defendants owed the Buchanan duties to Jose Vasquez. When they
breached their duties, defendants caused Jose Vasquez’s death.
C ONCLUSION The trial court was bound to take plaintiff’s factual allegations pled as
true and liberally construe them in her favor. The trial court implicitly found
that defendants owed no legal duty to Jose Vasquez when it dismissed his
widow’s claims under T IV . P. 91a as having “no basis in law.”
Because Texas courts have long recognized a duty when a defendant creates
a dangerous condition, the trial court erred when it failed to recognize
defendants’ duty to repair or to warn Jose Vasquez of the unreasonably
dangerous condition defendants’ trucks had created.
P RAYER
For these reasons, appellant Leticia Zepeda Vasquez prays that the
Court reverse the trial court’s dismissal of her claims and causes of action
against defendants as having “no basis in law,” and remand to the trial court
for a trial.
Respectfully submitted,
By: /s/ Jeffrey L. Dorrell
Jeffrey L. Dorrell
State Bar No. 00787386
jdorrell@hanszenlaporte.com
11767 Katy Freeway, Suite 850
Houston, Texas 77079
Telephone: 713-522-9444
FAX: 713-524-2580
ATTORNEYS FOR APPELLANT LETICIA ZEPEDA VASQUEZ
CERTIFICATE OF SERVICE I hereby certify that on 3-31 , 2015, a true and correct copy of the
foregoing was sent by:
Hand delivery
Certified mail
Telephonic document transfer
X E-service in accordance with T EX . R. A PP . P. 9.5(b)
in accordance with T A PP . P. 9.5(c) to the following counsel of record:
Mr. William A. Abernethy
Donnell, Abernethy & Kieschnick, P.C.
555 N. Carancahua, Suite 1770
Corpus Christi, Texas 78401
Telephone: 361-888-5551
FAX: 361-880-5618
COUNSEL FOR DEFENDANT ROSETTA RESOURCES
OPERATING, LP.
Mr. David L. Ortega
Naman Howell Smith & Lee, PLLC
1001 Reunion Place, Suite 600
San Antonio, Texas 78216
Telephone: 210-731-6300
FAX: 210-785-2953
COUNSEL FOR DEFENDANTS LEWIS ENERGY GROUP, LP, and
LEWIS PETRO PROPERTIES, INC.
Mr. Christopher Lowrance
Royston, Rayzor, Vickery & Williams, L.L.P.
802 Carancahua, Suite 1300
Corpus Christi, Texas 78401
Telephone: 361-884-8808
FAX: 361-884-7261
COUNSEL FOR DEFENDANTS VIRTEX OPERATING CO., INC.,
and VIRTEX HOLDINGS, LLP
Mr. Isaac J. Huron
Davis, Cedillo & Mendoza, Inc.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78213
Telephone: 210-822-6666
FAX: 210-822-1151
COUNSEL FOR DEFENDANTS LEGEND NATURAL GAS III, LP,
and LEGEND NATURAL GAS, LLC
Mr. E. Michael Rodriguez
Atlas, Hall & Rodriguez, L.L.P.
P.O. Box 6369 (78523-6369)
50 W. Morrison Road, Suite A
Brownsville, Texas 78520
Telephone: 956-574-9333
FAX: 956-574-9337
COUNSEL FOR DEFENDANTS ENTERPRISE PRODUCTS
HOLDINGS, LLC, and ENTERPRISE PRODUCTS CO.
Mr. Jose E. Garcia
Garcia & Villareal
4311 N. McColl Road
McAllen, Texas 78504
Telephone: 956-630-0081
FAX: 956-630-3631
COUNSEL FOR DEFENDANT XTO ENERGY, INC.
/s/ Jeffrey L. Dorrell
JEFFREY L. DORRELL
CERTIFICATE OF WORD COUNT COMPLIANCE In compliance with T A PP . P. 9.4, relying on the word count
function in the word processing software used to produce this document, I
certify that the number of words in this document including footnotes
(excluding captions, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of
compliance, and appendix) is 1,343.
/s/ Jeffrey L. Dorrell
JEFFREY L. DORRELL
04-14-00899-CV
LETICIA ZEPEDA VASQUEZ, Individually and on Behalf of the Estate of Jose
Abraham Vasquez, Jr., Appellant
v.
LEGEND NATURAL GAS III, LP; LEGEND NATURAL GAS, LLC; LEWIS
ENERGY GROUP, LP; LEWIS PETRO PROPERTIES, INC.; ROSETTA
RESOURCES OPERATING, LP; VIRTEX HOLDINGS, LLP; VIRTEX
OPERATING CO., INC.; ENTERPRISE PRODUCTS HOLDINGS, LLC;
ENTERPRISE PRODUCTS COMPANY; and XTO ENERGY, INC.,
Appellees APPELLANT’S APPENDIX LIST OF DOCUMENTS 1. January 5, 2015, Order Appealed From …………………………… Tab A
2. T IV . P. 91a. …………..…………………………………… Tab B
3. Plaintiff’s First Amended Original Petition ..……………………… Tab C