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FILED
8/22/2023 9:21 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Ricky Brashear DEPUTY
Cause No. DC-23-01413
HIWOT MIRACH, Individually and as Next § IN THE DISTRICT COURT OF
Friend of N.S and A.B., minors §
Plaintiffs §
§ 298th JUDICIAL DISTRICT
V.
g
JULIO ANTONIO VICENTE RODAS § DALLAS COUNTY, TEXAS
Defendant §
PLAINTIFF’S NO EVIDENCE MOTION FOR
PARTIAL SUMMARY JUDGMENT
COME NOW, Plaintiffs, Hiwot Mirach, Individually and as Next Friend of N.S and A.B.,
in the above-styled and numbered cause and files this No Evidence Motion for Partial Summary
Judgment pursuant to Texas Rule of Civil Procedure l66a(i) and moves the Court to dismiss
Defendant Julio Antonio Vicente Rodas’ affirmative defenses of (1) Defendant’s negligence did
not proximately cause or was not the producing cause of Plaintiffs’ damages; (2) Plaintiffs’
contributory negligence; (3) sudden emergency; (4) unavoidable accident; and (5) Plaintiffs’
failure to mitigate. In support thereof, Plaintiff shows the Court as follows:
I. PROCEDURAL HISTORY
1. This is a personal injury suit arising from a motor vehicle accident that occurred on
December 12, 2021, wherein Julio Antonio Vicente Rodas (“Defendant”), among other acts and
omissions of negligence, failed to control his speed and rear-ended the vehicle driven by Hiwot
Mirach (“Plaintiff”), and in which the two minors, N.S. and A.B. were passengers. Plaintiff, Hiwot
Mirach was traveling northbound on Highway 75 in Allen, Texas, when she began slowing for
congested traffic. Her children were also seated and properly restrained in the vehicle. Defendant,
Julio Antonio Vicente Rodas, was also traveling northbound on Highway 75, when he failed to
control his speed and collided into Plaintiff‘s vehicle.
PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 1
InvesIgamrs Narrative Opinion of What Happened rigid Diagrun . Motto Sale
(mach Additional Sheen if Necessary)
UNIT 1 AND UNIT 2 WERE TRAVELING NOR‘I'HBOUN'D OH US HWY 75. UNIT 2
BEGAN SLOWING E‘OR CONGESTED TRAFFIC. UNIT 1 FAILED mo CONTROL
THEIR 5!. AND STRUCK UNIT 2.
T‘HWZ i i
MN9§LT2$L¢§EL§
NORTHBOUND US HWY 75
/ I
/
\l
Texas Peace Officer’s Crash Report Narrative and Diagram (Demonstrative)
Plaintiffs were injured as a result of the crash.
2. Plaintiffs filed their Original Petition on January 30, 2023.1 Plaintiffs pled, and thus this
matter is, an expited action as is defined in Texas Rule of Civil Procedure 169.
3. On March 21, 2023, Defendant filed his Original Answer, which included various
affirmative defenses?
4. Discovery is governed by Rule 190.2. Tex. R. Civ. P. 169(d), 190.2. The parties have
exchanged written discovery. There are no pending discovery requests.
5. The case is currently set for trial setting on October 2, 2023.
II. ARGUMENTS & AUTHORITIES
A. No Evidence Summary Judgment Standard
6. A movant is entitled to no-evidence summary judgment if there is no evidence sufficient to
create a genuine issue of material fact concerning any challenged element of a defendant’s
1
See Plaintiff’s Original Petition, on file with this Honorable Court (“Original Petition”).
2
See Defendant’s Original Answer, on file with this Honorable Court (“Original Answer”).
PLAIN TIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 2
affirmative defense.3 Texas Rule of Civil Procedure 166a(i) sets the standard applicable to no-
evidence summary judgments and provides:
After adequate time for discovery, a party without presenting summary judgment
evidence may move for summary judgment on the ground that there is no
evidence of one or more essential elements of a claim or defense on which an
adverse party would have the burden of proof at trial. The Motion must state the
elements as to which there is no evidence. The Court must grant the Motion
unless the respondent producessummary judgment evidence raising a genuine
issue of material fact.4
7. Thus, under Rule 166a(i), upon Plaintiff’s motion identifying Defendant’s affirmative
defense elements as to which there is no evidence, the burden shifts to the Defendant to produce
evidence sufficient to raise a fact issue on the challenged elements.5
8. Defendant may not rest upon the allegations of her pleadings alone, but must present
evidence that raises a genuine issue of fact as to all essential elements of her claim upon which she
will bear the burden of proof at trial.6
9. The Court must grant Plaintiff’ s motion unless Defendant produces summary judgment
evidence raising a genuine issue of material fact upon each challenged element of the affirmative
defenses addressed herein.7
10. In response to motions for summary judgment, the non-moving party must produce actual
evidence — not simply conjecture and speculation. Conclusory allegations, speculation, and
unsubstantiated assertions are not competent summary judgment evidences Additionally,
3
McFadden v. Am. United Life Ins. Co., 658 S.W.2d 1047, 1048 (Tex. 1983).
4
Tex. R. Civ. P. 166a(i).
5
See id; see also Greathouse v. Alvin Indep. Sch. Dist, 17 S.W.3d 419, 423 (Tex. App.—Houston[1st Dist.] 2000,
no pet.).
6
Frazier v. Yu, 987 S.W.Zd 607 (Tex. App—Fort Worth 1999, pet. denied); King v. Human Serv., 28 S.W.3d 27, 34
(Tex. App—Austin 2000, no pet.).
7
See Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex. App—Houston [14th Dist.] 1999, no pet.).
8
Ryland Group v. Hood, 924 S.W.2d 120, 121 (Tex.l996); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984);
Douglas v. United Serv. Auto. Ass ’n, 79 F.3d 1415, 1429 (5th Cir. 1995) (en banc).
PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 3
subjective beliefs are no more than consulsions and are not competent summary judgment
evidence?
B. An Adequate Time for Discovery Has Passed in This Case
1 1. With regard to no-evidence summary judgments, Courts have held that six to seven months
is an adequate time to conduct discovery.” This is a case governed by the expedited process under
Rules 169 and 190.2. All permissible written discovery has been exchanged. Almost six (6)
months have passed since Defendant filed his answer in this case. Thus, the parties have had
adequate time to conduct discovery. As such, this Court may properly consider this no-evidence
motion for summary judgment since an adequate time for discovery has passed.
C. Defendant Has No Evidence to Support Three of Her Affirmative Defenses
1. Defendant has n0 evidence to support his affirmative defense that his
negligence did not proximately cause or was not the producing cause of
Plaintiff’s damages.
12. In Texas, lack of proximate cause is not one of the delineated affirmative defenses in Rule
94. Tex. R. Civ. P. 94. Plaintiffs, of course, have the burden to prove that Defendant’s breach of
duty (in this case failure to control speed in a rear-end accident, among other breaches) proximately
caused Plaintiffs’ injuries.“ Proximate cause is usually a question of fact for the jury, unless the
evidence is undisputed and only one reasonable inference can be drawn.” The components of
proximate cause are (1) cause-in-fact and (2) foreseeability.” Cause-in-fact, or “but-for”
causation, is Whether the negligent act or omission was a substantial factor in bringing about the
9
Texas Division Tranter v. Carrozza, 876 S.W.2d 312, 342 (Tex.1994) (internal citation omitted».
10
See, e.g., Bullock v. McLean, 2008 WL 3867644, at * 3 (Tex. App—Corpus Christi 2008, no pet.) (holding six
months of discovery is an adequate time for discovery); Rivera v. Countiywide Home Loans, Inc. 262 S.W.3d 834, 844
(Tex. App.—Dallas2008, no pet.) (seven months is an adequate time for discovery).
11
Nabors Drilling, USA v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009).
12
Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 321, 338 (Tex.App. — Houston [14th Dist.] 2015, no pet.)
13
Western Invs. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).
PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 4
injury and Whether the injury would have occurred Without the act or omission.” To prove
foreseeability, the plaintiff must establish that a person of ordinary intelligence should have
anticipated the danger created by the negligent act or omission.”
13. Defendant has no evidence supporting his allegation that his negligent acts or omissions,
including but not limited to failing to control his speed and rear-ending Plaintiffs’ vehicle, were
substantial factors in bringing about Plaintiffs’ injuries as a result of the car accident. Defendant
has no evidence supporting his allegation that Plaintiffs’ injuries as a result of the car accident
would have occurred without his negligent acts or omissions. Defendant has no evident that a
person of ordinary intelligence would not have anticipated the danger created by his negligent acts
or omissions, including but not limited to failing to control his speed and rear-ending Plaintiffs’
vehicle. Accordingly, summary judgment in favor of Plaintiff is proper.
2. Defendant has no evidence to support his alleged affirmative defense of
contributory or comparative negligence.
l4. In Texas, for the affirmative defense of contributory or comparative negligence to apply, a
plaintiff’s responsibility must arise from a negligent act or omission, or some other conduct or
activity that violates an applicable legal standard and causes or contributes to the harm for which
damages is sought.“ A party’s conduct causes or contributes to the harm when it directly causes
the injury for which damages are sought.” The pleadings and evidence must raise the issue of a
party’s causation of or contribution to the harm, and the evidence raised must meet the burden
established by Chapter 33 of the Civil Practices and Remedies Code.”
14
Del Lago Partners v. Smith, 307 S.W.3d 762, 774 (Tex. 2010).
15
Doe v. Boys Clubs, 907 S.W.Zd 472, 477 (Tex. 1995); Travis v. City ofMesquite, 830 S.W.Zd 94, 98 (Tex. 1992).
16
See Tex. Civ. Prac. & Rem. Code §33.003(a); Nabors Well Servs. V. Romero, 456 S.W.3d 553, 559 (Tex. 2015).
17
Tex. Civ. Prac. & Rem. Code §33.003(a)
18
Tex. Civ. Prac. & Rem. Code §33.003(b); Tex. R. Civ. P. 278; B.T. Healthcare, Inc. v. Honeycutt, 196 S.W.3d
296, 300 (Tex.App. — Amarillo 2006, no pet); ExxonMobil Com v. Pagayon, 467 S.W.3d 36, 49-50 (Tex.App. —
Houston [14th Dist] 2015)
PLAIN TIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 5
15. The affirmative defense of contributory negligence requires proof that the plaintiff was
negligent, and that the plaintiffs negligence proximately caused his or her injuries.” Negligence
requires proof of proximate cause, and proximate cause requires proof of both cause in fact and
foreseeability.2° The test for cause in fact, in support of a finding of proximate cause, is whether
the negligent act or omission was a substantial factor in bringing about an injury without which
the harm would not have occurred.“ The foreseeability factor of proximate cause requires that a
person of ordinary intelligence should have anticipated the danger created by a negligent act or
omission.” Because comparative responsibility involves measuring the party's comparative fault
in causing the plaintiffs injuries, it necessitates a preliminary finding that the plaintiff was in fact
contributorily negligent.”
16. Defendant has no evidence supporting his contentions that (1) Plaintiffs performed
negligent act or omission, or were guilty of some other conduct or activity that violated an
applicable legal standard; and in addition, or in the alternative, (2) Defendant has no evidence that
any acts or omissions by Plaintiffs caused or contributed to the harm for which damages is sought.
Accordingly, summary judgment in favor of Plaintiff is proper.
3. Defendant has no evidence to support her alleged affirmative defense that
this collision resulted from a “sudden emergency.”
l7. In Texas, to assert the affirmative defense of sudden emergency, the defendant must show
that: (l) an emergency situation arose suddenly and unexpectedly, (2) the emergency situation was
not proximately caused by the negligent act or omission of the person whose conduct is under
19
Moore v. Kitsmiller, 201 S.W.3d 147 (Tex. App-Tyler 2006, pet. denied).
2°
Id.
21
Id.
22
Id.
23
Id.
PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 6
inquiry, and (3) after an emergency situation arose, that to a reasonable person would have required
immediate action Without time for deliberation, the person acted as a person of ordinary prudence
would have acted under the same or similar circumstances.“
18. Defendant has no evidence supporting his contentions that (l) an emergency situation arose
suddenly and unexpectedly; or in addition and in the alternative, (2) that if after an emergency
situation arose, that the situation required immediate action without time for deliberation, or that
he acted as a person of ordinary prudence would have acted under the same or similar
circumstances. Accordingly, summary judgment in favor of Plaintiff is proper.
4. Defendant has no evidence to support their alleged affirmative defense that
this collision was an “unavoidable accident”.
19. An unavoidable accident is "an event not proximately caused by the negligence of any
party to it."25 Stated another way, it is an accident "that ordinary care and diligence could not have
prevented, or one which could not have been foreseen or prevented by the exercise of reasonable
precautions."26
20. Similarly, Defendant has no evidence supporting his contention that the injuries and
damages caused to the Plaintiff in this case were due to the lack of negligence on his part, that he
could not have prevented, or that he could not have foreseen or prevented by exercise of reasonable
precautions. In fact, the evidence will show otherwise Defendant was negligent, including but
—
not limited to failing to control his speed when he rear-ended Plaintiff‘s vehicle. Accordingly,
Plaintiff moves for no-evidence summary judgment on this defense.
24
Jordan v. Sava, 222$.W.3d 840, 848 (Tex. App-Houston [lst Dist] 2007, no pet).
25
Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995).
26
Otis Elevator Co. v. Shows, 822 s.w.2d 59, 63 (Tex. App-Houston [1st Dist] 1991, writ denied).
PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 7
5. Defendant has no evidence to support his affirmative defense of Plaintiffs’
failure to mitigate.
21. To succeed on an affirmative defense of failure to mitigate, Defendant must show that
Plaintiffs failed to act as a person of ordinary prudence would have in the same or similar
circumstances in care for and treating their injuries that resulted from the injury in question.
Evidence must be presented that Plaintiffs, throught want of care, aggravated or failed to mitigate
the effects of their injuries resulting from the occurrence in question.”
22. Defendant is unable to present any evidence, much less more than a scintilla of evidence,
(1) that Plaintiffs, through want of care, aggravated any injuries suffered as a result of this rear-
end collision by Defendant; or (2) that Plaintiffs failed to mitigate the effects of their injuries
resulting from this rear-end accident. Thus, summary judgment on this affirmative defense in favor
of Plaintiff is proper.
D. Conclusion
23. Because there are no genuine issues of material fact, Plaintiffs are entitled to a no evidence
summary judgment on Defendant’s affirmative defenses as identified herein. Plaintiffs therefore
ask that this Court grant this motion and strike or dismiss Defenant’s affirmative defenses as
identified herein.
III. PRAYER
Wherefore, premises considered, Plaintiff respectfully requests that this Court grant this No
Evidence Motion for Partial Summary Judgment in its entirety and strike or dismiss Defendant’s
affirmative defenses of (1) lack of proximate or producing cause; (2) contributory negligence; (3)
27
See Moulton v. Alamo Ambulance Service, 414 S.W.2d 444 (Tex. 1967); City ofFort Worth v. Satterwhite, 329
S.W.2d 899 (Tex.Civ.App. — Fort Worth 1959, no writ).
PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 8
a sudden emergency; (4) unavoidable accident; and (5) failure to mitigate. Plaintiffs further pray
for any additional relief to which they may be justly entitled.
Respectfully submitted,
By: /é~
NEJAT AHMED
Texas State Bar No. 24034304
nejat@lalawtx.com
JENNIFER B. LeMASTER
Texas State Bar No. 24041063
jennifer@lalawtx.com
JOEY MALDONADO
Texas State Barn No. 24039474
LEMASTER & AHMED PLLC
5 700Tennyson Parkway, Suite 310A
Plano, TX 75024
Telephone: 972.666.7219
Facsimile: 972.483.0413
ATTORNEYS FOR PLAINTIFFS
HIWOT MIRACH, INDIVIDUALLY AND AS
NEXT FRIEND OF N.S AND A.B., MINORS
PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 9
CERTIFICATE OF SERVICE:
I hereby certify that I served a true and correct copy of this document on counsel of
record listed below by method specified on the 22nd day of August, 2023:
Javier Gonzalez Via Eserve: KADallasEservz'ce@kemper. com
The Law Office of Chrysti Bryant javz'er. gonzalez@kemper. com
83 60LBJ Freeway, Suite 410
Dallas, TX 75243
Nejat A. Ahmed
PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 10
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Nejat Ahmed on behalf of Nejat Abubeker Ahmed
Bar No. 24034304
nejat@lalawtx.com
Envelope ID: 78770036
Filing Code Description: No Evidence Motion For Summary Judgment
Filing Description: PARTIAL
Status as of 8/22/2023 10:07 AM CST
Associated Case Party: JULIOANTONIOVICENTE RODAS
Name BarNumber Email TimestampSubmitted Status
Lisa Fenty lisa.fenty@kemper.com 8/22/2023 9:21 :22 AM SENT
Javier Gonzalez javier.gonzalez@kemper.com 8/22/2023 9:21:22 AM SENT
Brenda Wadsworth brenda.wadsworth@kemper.com 8/22/2023 9:21:22 AM SENT
Associated Case Party: HIWOT MIRACH
Name BarNumber Email TimestampSubmitted Status
Jennifer LeMaster jennifer@|a|awtx.com 8/22/2023 9:21 :22 AM SENT
Nejat Ah med nejat@lalawtx.com 8/22/2023 9:21:22 AM SENT
Debbie Johnson debbie@|a|awtx.com 8/22/2023 9:21:22 AM SENT
Tisha Orchosky tisha@|a|awtx.com 8/22/2023 9:21:22 AM SENT
Adriana Bernal adriana@lalawtx.com 8/22/2023 9:21:22 AM SENT
Joey Maldonado joey@lalawtx.com 8/22/2023 9:21:22 AM SENT
Rachel Contreras rachelc@lalawtx.com 8/22/2023 9:21:22 AM SENT
Preview
FILED 8/22/2023 9:21 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Ricky Brashear DEPUTY Cause No. DC-23-01413 HIWOT MIRACH, Individually and as Next § IN THE DISTRICT COURT OF Friend of N.S and A.B., minors § Plaintiffs § § 298th JUDICIAL DISTRICT V. g JULIO ANTONIO VICENTE RODAS § DALLAS COUNTY, TEXAS Defendant § PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT COME NOW, Plaintiffs, Hiwot Mirach, Individually and as Next Friend of N.S and A.B., in the above-styled and numbered cause and files this No Evidence Motion for Partial Summary Judgment pursuant to Texas Rule of Civil Procedure l66a(i) and moves the Court to dismiss Defendant Julio Antonio Vicente Rodas’ affirmative defenses of (1) Defendant’s negligence did not proximately cause or was not the producing cause of Plaintiffs’ damages; (2) Plaintiffs’ contributory negligence; (3) sudden emergency; (4) unavoidable accident; and (5) Plaintiffs’ failure to mitigate. In support thereof, Plaintiff shows the Court as follows: I. PROCEDURAL HISTORY 1. This is a personal injury suit arising from a motor vehicle accident that occurred on December 12, 2021, wherein Julio Antonio Vicente Rodas (“Defendant”), among other acts and omissions of negligence, failed to control his speed and rear-ended the vehicle driven by Hiwot Mirach (“Plaintiff”), and in which the two minors, N.S. and A.B. were passengers. Plaintiff, Hiwot Mirach was traveling northbound on Highway 75 in Allen, Texas, when she began slowing for congested traffic. Her children were also seated and properly restrained in the vehicle. Defendant, Julio Antonio Vicente Rodas, was also traveling northbound on Highway 75, when he failed to control his speed and collided into Plaintiff‘s vehicle. PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 1 InvesIgamrs Narrative Opinion of What Happened rigid Diagrun . Motto Sale (mach Additional Sheen if Necessary) UNIT 1 AND UNIT 2 WERE TRAVELING NOR‘I'HBOUN'D OH US HWY 75. UNIT 2 BEGAN SLOWING E‘OR CONGESTED TRAFFIC. UNIT 1 FAILED mo CONTROL THEIR 5!. AND STRUCK UNIT 2. T‘HWZ i i MN9§LT2$L¢§EL§ NORTHBOUND US HWY 75 / I / \l Texas Peace Officer’s Crash Report Narrative and Diagram (Demonstrative) Plaintiffs were injured as a result of the crash. 2. Plaintiffs filed their Original Petition on January 30, 2023.1 Plaintiffs pled, and thus this matter is, an expited action as is defined in Texas Rule of Civil Procedure 169. 3. On March 21, 2023, Defendant filed his Original Answer, which included various affirmative defenses? 4. Discovery is governed by Rule 190.2. Tex. R. Civ. P. 169(d), 190.2. The parties have exchanged written discovery. There are no pending discovery requests. 5. The case is currently set for trial setting on October 2, 2023. II. ARGUMENTS & AUTHORITIES A. No Evidence Summary Judgment Standard 6. A movant is entitled to no-evidence summary judgment if there is no evidence sufficient to create a genuine issue of material fact concerning any challenged element of a defendant’s 1 See Plaintiff’s Original Petition, on file with this Honorable Court (“Original Petition”). 2 See Defendant’s Original Answer, on file with this Honorable Court (“Original Answer”). PLAIN TIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 2 affirmative defense.3 Texas Rule of Civil Procedure 166a(i) sets the standard applicable to no- evidence summary judgments and provides: After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The Motion must state the elements as to which there is no evidence. The Court must grant the Motion unless the respondent producessummary judgment evidence raising a genuine issue of material fact.4 7. Thus, under Rule 166a(i), upon Plaintiff’s motion identifying Defendant’s affirmative defense elements as to which there is no evidence, the burden shifts to the Defendant to produce evidence sufficient to raise a fact issue on the challenged elements.5 8. Defendant may not rest upon the allegations of her pleadings alone, but must present evidence that raises a genuine issue of fact as to all essential elements of her claim upon which she will bear the burden of proof at trial.6 9. The Court must grant Plaintiff’ s motion unless Defendant produces summary judgment evidence raising a genuine issue of material fact upon each challenged element of the affirmative defenses addressed herein.7 10. In response to motions for summary judgment, the non-moving party must produce actual evidence — not simply conjecture and speculation. Conclusory allegations, speculation, and unsubstantiated assertions are not competent summary judgment evidences Additionally, 3 McFadden v. Am. United Life Ins. Co., 658 S.W.2d 1047, 1048 (Tex. 1983). 4 Tex. R. Civ. P. 166a(i). 5 See id; see also Greathouse v. Alvin Indep. Sch. Dist, 17 S.W.3d 419, 423 (Tex. App.—Houston[1st Dist.] 2000, no pet.). 6 Frazier v. Yu, 987 S.W.Zd 607 (Tex. App—Fort Worth 1999, pet. denied); King v. Human Serv., 28 S.W.3d 27, 34 (Tex. App—Austin 2000, no pet.). 7 See Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex. App—Houston [14th Dist.] 1999, no pet.). 8 Ryland Group v. Hood, 924 S.W.2d 120, 121 (Tex.l996); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Douglas v. United Serv. Auto. Ass ’n, 79 F.3d 1415, 1429 (5th Cir. 1995) (en banc). PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 3 subjective beliefs are no more than consulsions and are not competent summary judgment evidence? B. An Adequate Time for Discovery Has Passed in This Case 1 1. With regard to no-evidence summary judgments, Courts have held that six to seven months is an adequate time to conduct discovery.” This is a case governed by the expedited process under Rules 169 and 190.2. All permissible written discovery has been exchanged. Almost six (6) months have passed since Defendant filed his answer in this case. Thus, the parties have had adequate time to conduct discovery. As such, this Court may properly consider this no-evidence motion for summary judgment since an adequate time for discovery has passed. C. Defendant Has No Evidence to Support Three of Her Affirmative Defenses 1. Defendant has n0 evidence to support his affirmative defense that his negligence did not proximately cause or was not the producing cause of Plaintiff’s damages. 12. In Texas, lack of proximate cause is not one of the delineated affirmative defenses in Rule 94. Tex. R. Civ. P. 94. Plaintiffs, of course, have the burden to prove that Defendant’s breach of duty (in this case failure to control speed in a rear-end accident, among other breaches) proximately caused Plaintiffs’ injuries.“ Proximate cause is usually a question of fact for the jury, unless the evidence is undisputed and only one reasonable inference can be drawn.” The components of proximate cause are (1) cause-in-fact and (2) foreseeability.” Cause-in-fact, or “but-for” causation, is Whether the negligent act or omission was a substantial factor in bringing about the 9 Texas Division Tranter v. Carrozza, 876 S.W.2d 312, 342 (Tex.1994) (internal citation omitted». 10 See, e.g., Bullock v. McLean, 2008 WL 3867644, at * 3 (Tex. App—Corpus Christi 2008, no pet.) (holding six months of discovery is an adequate time for discovery); Rivera v. Countiywide Home Loans, Inc. 262 S.W.3d 834, 844 (Tex. App.—Dallas2008, no pet.) (seven months is an adequate time for discovery). 11 Nabors Drilling, USA v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). 12 Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 321, 338 (Tex.App. — Houston [14th Dist.] 2015, no pet.) 13 Western Invs. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 4 injury and Whether the injury would have occurred Without the act or omission.” To prove foreseeability, the plaintiff must establish that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission.” 13. Defendant has no evidence supporting his allegation that his negligent acts or omissions, including but not limited to failing to control his speed and rear-ending Plaintiffs’ vehicle, were substantial factors in bringing about Plaintiffs’ injuries as a result of the car accident. Defendant has no evidence supporting his allegation that Plaintiffs’ injuries as a result of the car accident would have occurred without his negligent acts or omissions. Defendant has no evident that a person of ordinary intelligence would not have anticipated the danger created by his negligent acts or omissions, including but not limited to failing to control his speed and rear-ending Plaintiffs’ vehicle. Accordingly, summary judgment in favor of Plaintiff is proper. 2. Defendant has no evidence to support his alleged affirmative defense of contributory or comparative negligence. l4. In Texas, for the affirmative defense of contributory or comparative negligence to apply, a plaintiff’s responsibility must arise from a negligent act or omission, or some other conduct or activity that violates an applicable legal standard and causes or contributes to the harm for which damages is sought.“ A party’s conduct causes or contributes to the harm when it directly causes the injury for which damages are sought.” The pleadings and evidence must raise the issue of a party’s causation of or contribution to the harm, and the evidence raised must meet the burden established by Chapter 33 of the Civil Practices and Remedies Code.” 14 Del Lago Partners v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). 15 Doe v. Boys Clubs, 907 S.W.Zd 472, 477 (Tex. 1995); Travis v. City ofMesquite, 830 S.W.Zd 94, 98 (Tex. 1992). 16 See Tex. Civ. Prac. & Rem. Code §33.003(a); Nabors Well Servs. V. Romero, 456 S.W.3d 553, 559 (Tex. 2015). 17 Tex. Civ. Prac. & Rem. Code §33.003(a) 18 Tex. Civ. Prac. & Rem. Code §33.003(b); Tex. R. Civ. P. 278; B.T. Healthcare, Inc. v. Honeycutt, 196 S.W.3d 296, 300 (Tex.App. — Amarillo 2006, no pet); ExxonMobil Com v. Pagayon, 467 S.W.3d 36, 49-50 (Tex.App. — Houston [14th Dist] 2015) PLAIN TIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 5 15. The affirmative defense of contributory negligence requires proof that the plaintiff was negligent, and that the plaintiffs negligence proximately caused his or her injuries.” Negligence requires proof of proximate cause, and proximate cause requires proof of both cause in fact and foreseeability.2° The test for cause in fact, in support of a finding of proximate cause, is whether the negligent act or omission was a substantial factor in bringing about an injury without which the harm would not have occurred.“ The foreseeability factor of proximate cause requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.” Because comparative responsibility involves measuring the party's comparative fault in causing the plaintiffs injuries, it necessitates a preliminary finding that the plaintiff was in fact contributorily negligent.” 16. Defendant has no evidence supporting his contentions that (1) Plaintiffs performed negligent act or omission, or were guilty of some other conduct or activity that violated an applicable legal standard; and in addition, or in the alternative, (2) Defendant has no evidence that any acts or omissions by Plaintiffs caused or contributed to the harm for which damages is sought. Accordingly, summary judgment in favor of Plaintiff is proper. 3. Defendant has no evidence to support her alleged affirmative defense that this collision resulted from a “sudden emergency.” l7. In Texas, to assert the affirmative defense of sudden emergency, the defendant must show that: (l) an emergency situation arose suddenly and unexpectedly, (2) the emergency situation was not proximately caused by the negligent act or omission of the person whose conduct is under 19 Moore v. Kitsmiller, 201 S.W.3d 147 (Tex. App-Tyler 2006, pet. denied). 2° Id. 21 Id. 22 Id. 23 Id. PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 6 inquiry, and (3) after an emergency situation arose, that to a reasonable person would have required immediate action Without time for deliberation, the person acted as a person of ordinary prudence would have acted under the same or similar circumstances.“ 18. Defendant has no evidence supporting his contentions that (l) an emergency situation arose suddenly and unexpectedly; or in addition and in the alternative, (2) that if after an emergency situation arose, that the situation required immediate action without time for deliberation, or that he acted as a person of ordinary prudence would have acted under the same or similar circumstances. Accordingly, summary judgment in favor of Plaintiff is proper. 4. Defendant has no evidence to support their alleged affirmative defense that this collision was an “unavoidable accident”. 19. An unavoidable accident is "an event not proximately caused by the negligence of any party to it."25 Stated another way, it is an accident "that ordinary care and diligence could not have prevented, or one which could not have been foreseen or prevented by the exercise of reasonable precautions."26 20. Similarly, Defendant has no evidence supporting his contention that the injuries and damages caused to the Plaintiff in this case were due to the lack of negligence on his part, that he could not have prevented, or that he could not have foreseen or prevented by exercise of reasonable precautions. In fact, the evidence will show otherwise Defendant was negligent, including but — not limited to failing to control his speed when he rear-ended Plaintiff‘s vehicle. Accordingly, Plaintiff moves for no-evidence summary judgment on this defense. 24 Jordan v. Sava, 222$.W.3d 840, 848 (Tex. App-Houston [lst Dist] 2007, no pet). 25 Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995). 26 Otis Elevator Co. v. Shows, 822 s.w.2d 59, 63 (Tex. App-Houston [1st Dist] 1991, writ denied). PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 7 5. Defendant has no evidence to support his affirmative defense of Plaintiffs’ failure to mitigate. 21. To succeed on an affirmative defense of failure to mitigate, Defendant must show that Plaintiffs failed to act as a person of ordinary prudence would have in the same or similar circumstances in care for and treating their injuries that resulted from the injury in question. Evidence must be presented that Plaintiffs, throught want of care, aggravated or failed to mitigate the effects of their injuries resulting from the occurrence in question.” 22. Defendant is unable to present any evidence, much less more than a scintilla of evidence, (1) that Plaintiffs, through want of care, aggravated any injuries suffered as a result of this rear- end collision by Defendant; or (2) that Plaintiffs failed to mitigate the effects of their injuries resulting from this rear-end accident. Thus, summary judgment on this affirmative defense in favor of Plaintiff is proper. D. Conclusion 23. Because there are no genuine issues of material fact, Plaintiffs are entitled to a no evidence summary judgment on Defendant’s affirmative defenses as identified herein. Plaintiffs therefore ask that this Court grant this motion and strike or dismiss Defenant’s affirmative defenses as identified herein. III. PRAYER Wherefore, premises considered, Plaintiff respectfully requests that this Court grant this No Evidence Motion for Partial Summary Judgment in its entirety and strike or dismiss Defendant’s affirmative defenses of (1) lack of proximate or producing cause; (2) contributory negligence; (3) 27 See Moulton v. Alamo Ambulance Service, 414 S.W.2d 444 (Tex. 1967); City ofFort Worth v. Satterwhite, 329 S.W.2d 899 (Tex.Civ.App. — Fort Worth 1959, no writ). PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 8 a sudden emergency; (4) unavoidable accident; and (5) failure to mitigate. Plaintiffs further pray for any additional relief to which they may be justly entitled. Respectfully submitted, By: /é~ NEJAT AHMED Texas State Bar No. 24034304 nejat@lalawtx.com JENNIFER B. LeMASTER Texas State Bar No. 24041063 jennifer@lalawtx.com JOEY MALDONADO Texas State Barn No. 24039474 LEMASTER & AHMED PLLC 5 700Tennyson Parkway, Suite 310A Plano, TX 75024 Telephone: 972.666.7219 Facsimile: 972.483.0413 ATTORNEYS FOR PLAINTIFFS HIWOT MIRACH, INDIVIDUALLY AND AS NEXT FRIEND OF N.S AND A.B., MINORS PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 9 CERTIFICATE OF SERVICE: I hereby certify that I served a true and correct copy of this document on counsel of record listed below by method specified on the 22nd day of August, 2023: Javier Gonzalez Via Eserve: KADallasEservz'ce@kemper. com The Law Office of Chrysti Bryant javz'er. gonzalez@kemper. com 83 60LBJ Freeway, Suite 410 Dallas, TX 75243 Nejat A. Ahmed PLAINTIFF’S NO EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 10 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Nejat Ahmed on behalf of Nejat Abubeker Ahmed Bar No. 24034304 nejat@lalawtx.com Envelope ID: 78770036 Filing Code Description: No Evidence Motion For Summary Judgment Filing Description: PARTIAL Status as of 8/22/2023 10:07 AM CST Associated Case Party: JULIOANTONIOVICENTE RODAS Name BarNumber Email TimestampSubmitted Status Lisa Fenty lisa.fenty@kemper.com 8/22/2023 9:21 :22 AM SENT Javier Gonzalez javier.gonzalez@kemper.com 8/22/2023 9:21:22 AM SENT Brenda Wadsworth brenda.wadsworth@kemper.com 8/22/2023 9:21:22 AM SENT Associated Case Party: HIWOT MIRACH Name BarNumber Email TimestampSubmitted Status Jennifer LeMaster jennifer@|a|awtx.com 8/22/2023 9:21 :22 AM SENT Nejat Ah med nejat@lalawtx.com 8/22/2023 9:21:22 AM SENT Debbie Johnson debbie@|a|awtx.com 8/22/2023 9:21:22 AM SENT Tisha Orchosky tisha@|a|awtx.com 8/22/2023 9:21:22 AM SENT Adriana Bernal adriana@lalawtx.com 8/22/2023 9:21:22 AM SENT Joey Maldonado joey@lalawtx.com 8/22/2023 9:21:22 AM SENT Rachel Contreras rachelc@lalawtx.com 8/22/2023 9:21:22 AM SENT