Motion-Secondary: Shawn Mitchell vs. DA Greedy One ENT, LLC, et al

On September 24, 2018 a Motion-Secondary was filed involving a dispute between Mitchell, Shawn, and Cotton, Jeffrey, Da Greedy One Ent, Llc, for OTHER PERSONAL INJURY in the District Court of Dallas County.

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FILED
DALLAS COUNTY
7/30/2019 4:43 PM
FELICIA PITRE
DISTRICT CLERK

Treva Parker—Ayodele
CAUSE NO. DC18-14520

SHAWN MITCHELL, § IN THE
Plaintiff, §
§ 298TH DISTRICT COURT
V. §
§ DALLAS COUNTY, TEXAS
DA GREEDY ONE ENT, LLC dba §
GREEDY’S SPORTS GRILL §
and JEFFREY COTTON §
Defendants. §

DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
SECOND MOTION FOR
TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW DA GREEDY ONE ENT, LLC and JEFFREY COTTON (hereinafter

“Defendants”), ﬁling this Reply t0 Response t0 Second Motion for N0 Evidence and
Traditional Summary Judgment against Shawn Mitchell and would respectfully show the

Court as follows:

INTRODUCTION
Rule 1666a(i) provides that a party may move for summary judgment 0n the ground

that there is no evidence of one 0r more essential elements 0f a claim 0r defense of an adverse

party “[a]fter adequate time for discovery.” TeX. R. CiV. P. 166a(i). “Whether a nonmovant

has had adequate time for discovery under rule 166a(i) is case speciﬁc.” Madison v.

Williamson, 241 S.W.3d 145, 155 (Tex. App.—H0uston [1st Dist] 2007, pet. denied).

This suit for personal injuries does not involve complex issues or evidence. In

addition, the issue of service 0f process Within the limitations period would not be aided by

additional discovery. The pre-suit discovery commenced December 2017. Trial has been set

for August 6, 2019 for a While now. A ruling 0n a No-Evidence Motion for Summary
Judgment is proper.

REPLY TO RESPONSE TO SECOND MOTION FOR SUMMARY JUDGMENT PAGE 1
A. OBJECTIONS TO SUMMARY JUDGMENT RESPONSE

1. POLICE REPORTS INADMISSIBLE
Defendants assert that the Police Reports attached to the Response t0 Motion for

Summary Judgment as Exhibits B and H must be stricken as hearsay.
A11 statements made by any person other than the reporting ofﬁcer, including Witness

statements relayed to the ofﬁcer must be stricken. TRE 602 (providing that witness may
testify to matter only if there is evidence she has personal knowledge), TRE 801(d) (deﬁning

hearsay), TRE 802 (providing that hearsay is inadmissable).

Further, the report is untrustworthy as it provides a different statement than the

conclusory statement offered by Plaintiff’s Afﬁdavit. The Police Report offers a statement by

Plaintiff that he was allegedly shot after becoming involved in an altercation. This is

controverted by Plaintiff’s afﬁdavit Which states that he was allegedly shot While walking

someone t0 a car. See, TRE 803(8)(c).

2. STATEMENTS IN PLAINTIFF’S AFFIDAVIT MUST BE STRICKEN AS
CONCLUSORY AND VAGUE.
The conclusory statements in Plaintiff’s Afﬁdavit attached as Exhibit F to the

Response should be stricken. In particular, the global and vague statement that “I was asked

t0 escort a customer Outside who was being unruly by my employer and I was walking the

customer t0 his car when the man pulled a gun out ofhis waist band and I was shot by the

man O
9,

Such statement(s) is/ are vague and at best conclusory. They do not raise any fact issue

pertaining to duty 0f either named defendant, breach by any named defendant, or causation 0f
damages. Moreover, statements are factually unsubstantiated and nothing more than

speculation as t0 what might have happened or might have been known, couched in

conclusory statements. See, Coastal Transp. C0. v. Crown Cent. Petroleum C0rp., 136

S.W.3d 227, 231—32 (Tex. 2004) (stating that conclusory testimony offers nothing more than

REPLY TO RESPONSE TO SECOND MOTION FOR SUMMARY JUDGMENT PAGE 2
“bare conclusion” that is “factually unsubstantiated” and that “[0]pinion testimony that is

conclusory 0r speculative is not relevant evidence, because it does not tend to make the
”
existence 0f a material fact ‘more or less probable’ (quoting TeX. R. EVid. 401(a)).

B. UNDISPUTED FACTS

1. Defendants Da Greedy One Ent, LLC and Jeffrey Cotton hereby move the Court

to take judicial notice 0f the pleadings 0n ﬁle in this CAUSE NO. DC18-14520 and in the

related pre-suit discovery case CAUSE NO. DC17—17773.
2. Plaintiff alleges his injury occurred 0n September 25, 2016. See, Petition for

Pre-suit Discovery, Cause Number DC] 7-1 7773 (Paragraph 3).

3. Pre-Suit Discovery Petition ﬁled on December 29, 2017.

4. This Court limited Plaintiff s overly broad pre-suit discovery requests 0n March
14, 2018.

5. The Presuit Discovery case was Non-Suited 0n June 26, 2018. This suit could

have been ﬁled and served within the limitations period with diligence.

6. This suit was not ﬁled until September 24, 2018 at 4:14PM.

7. LIMITATIONS RAN ON SEPTEMBER 25, 2018.
8. Defendant Da Greedy One Ent, LLC was served 0n November 5, 2018,

forty-one (41) days after the limitations periodpassed. See, Answer t0 Interrogatory Number
I.

9. Defendant Jeffrey Cotton was served 0n March 21, 2019, one hundred and

sevemjy-six (1 76) days after the limitations period ran.

10. Plaintiff has no valid explanation for the delay in serving any named Defendant.

Moreover, Plaintiff offers n0 explanation for the ﬁve month delay in obtaining a ruling on the

Rule 106 Motion for Substitute Service. See, Answer t0 Interrogatory Number 1.

11. Defendant Da Greedy One Ent.,LLC dba Greedy’s Sports Grill is a server 0f

alcohol in Texas. See, EXHIBITA, Deposition Transcript 0f Jasmine Aponte at page 10.

REPLY TO RESPONSE TO SECOND MOTION FOR SUMMARY JUDGMENT PAGE 3
12. Plaintiff has no evidence that: alleged shooter was a customer 0f Defendant; or

that alleged shooter was intoxicated at any time; 0r that intoxication was the cause of the

alleged shooting; 0r that the alleged shooting was forseeable; 0r that any particular safety

procedure or training would have prevented the alleged altercation. See, Plaintiff” s Answers t0

Interrogatories (EXHIBIT B), Plaintiff’ s Responses t0 Requests for Production (EXHIBIT C)
and Plaintiff’ s Responses to Requests for Disclosures (EXHIBIT D).

C. CLAIMS AGAINST JEFFREY COTTON MUST BE DISMISSED

Defendants incorporate the statements made in its Second Motion for Summary
Judgment as though fully restated and set forth herein. When a defendant has afﬁrmatively pled

the limitations defense and shown that service was effected after the limitations period expired,

the burden shifts t0 the plaintiff to explain the delay. Proulx v. Wells, 235 S.W.3d 213, 216

(TeX.2007). It is then the plaintiff’s burden to present evidence regarding the efforts that were

made t0 serve the defendant. Id.

Whether a plaintiff exercised due diligence in obtaining the issuance and service 0f

citation is usually a fact issue; however, ifno excuse is oﬂeredfor a delay in procuring service 0f

citation, 0r ifthe lapse offime and the plaintiﬂ’s acts are such as conclusively negate diligence,

a lack ofdiligence will befound as a matter oflaw. Perry v. Kroger Stores, 741 S.W.2d 533, 534

(TeX.App.-Dallas 1987, n0 writ) (emphasis added).

Even if an excuse had been offered, any excuse is not a valid excuse. See, Budget Rent a

Car refers t0 Rodriguez v. Tinsman & Houser, Ina, 13 S.W.3d 47 (Houston [14th Dist] 2018.

(Plaintiff waited 32 days 0n Defendant to sign a waiver, placing service outside of the limitations

period. Case dismissed as excuse does not indicate diligence.)

In the instant case, Plaintiff’s Response offers absolutely n0 explanation for the

REPLY TO RESPONSE TO SECOND MOTION FOR SUMMARY JUDGMENT PAGE 4
ﬁve (5) month delay in obtaining a ruling 0n its Rule 106 Motion for Substitute Service, despite

it being months after the expiration of the limitations period. The service effort is particularly

languid in that a hearing had already been held 0n the late service of Defendant Greedy’s Sports

Grill. As a matter of law, the claims against Jeffrey Cotton must be dismissed as there was a lack

0f diligence in serving him, and there is n0 explanation for the delay.

Defendant urges the Court t0 reconsider its First Motion for Summary Judgment
wherein Plaintiff’s proffered reason for the delay in service was a more than 20 day wait for the

District Clerk t0 issue a citation, albeit the limitations period had already ran. Defendant asserts

that such explanation demonstrates a lack of diligence in service as a matter 0f law.

Jeffrey Cotton was not served until one hundred seventy-six (1 76) days after the

statute ran. Defendant Du Greedy One Ent, LLC was not served untilfonjy—one (41) days

after the statute ran. There exist periods 0f delay in service accompanied by a lack 0f

diligence in service. The claims should be dismissed as service within the limitations period

did not occur.

D. CLAIMS AGAINST BOTH NAMED DEFENDANTS MUST BE
DISMISSED AS THERE IS NO EVIDENCE TO SUPPORT CLAIMS OF
NEGLIGENCE

NO EVIDENCE PLAINTIFF WAS AT WORK OR ACTING WITHIN SCOPE OF
EMPLOYMENT

1. Defendants incorporate by reference as though fully restated herein the statements and
arguments in its Second Motion for Summary Judgment. There is nothing in Plaintiff’s response
which raises a fact issue that he was acting Within the course and scope 0f employment When the
alleged incident occurred. In fact, the only offered statements establish the contrary. Plaintiff
alleges that he was a cook, and that the incident occurred in the parking lot.

2. Plaintiff’s statements about “his employer asking him t0 walk out an unruly customer. .
.”

are conclusory, vague and d0 not raise a fact issue. See, Weirich v IESI Corporation, 2016 WL
4628055 (TeX. App. Austin — 2016). (Vague affidavit in case Where Plaintiff was engaged in the
dangerous activity of being towed offered insufficient conclusory affidavit seemingly based 0n
res ipsa loquitor). See also, TeX. R. Civ. P. 166a(i); Merriman V. XTO Energy, Inc., 407

REPLY TO RESPONSE TO SECOND MOTION FOR SUMMARY JUDGMENT PAGE 5
S.W.3d 244, 248 (Tex. 2013) (stating that in response to no—evidence motion for summary
judgment, nonmovant has burden t0 produce summary judgment evidence raising genuine issue
0f material fact as t0 each Challenged element 0f cause 0f action and holding that nonmovant’s
largely conclusory affidavit was insufficient t0 raise fact issue).

NO EVIDENCE OF LIABILITY UNDER TEXAS DRAM SHOP LAW
Plaintiff’s Response fails to raise a fact issue as t0 the elements which would impose

liability on Defendants pursuant to The Texas Dram Shop Act.

The Texas Dram Shop Act is generally the exclusive means for recovery against a

provider 0f alcohol. Borneman v. Steak & Ale 0f Tex., Inc., 22 S.W.3d 411, 412 (Tex.2000);

See also, TeXAlco. BeV.C0de Ann. 2.03(a—c).1 The requirements set out in the Dram Shop Act
are twofold.

ESTABLISHMENT OF DUTY UNDER DRAM SHOP LAW — First, it must be apparent

t0 the provider at the time the alcohol is provided, sold, 0r served that the patron consuming the

alcohol is obviously intoxicated to the extent that he presents a clear danger to himself and

others. TexAlco. BeV.Code Ann. § 2.02(b)(1) (Vernon 1995). There is n0 evidence t0 raise a

fact issue as t0 this element ofPlaintlff’s claim.

ESTABLISHMENT OF CAUSATION UNDER DRAM SHOP LAW —
Secondly, under the Texas Dram Shop Act, for the alcohol provider t0 be held liable under the

Dram Shop Act, the intoxication 0f the recipient 0f the alcohol must be the proximate cause 0f

the damages suffered. Id.; Borneman, 22 S.W.3d at 413. There is n0 evidence t0 raise a fact

(a) The liability of providers under this chapter for the actions of their employees, customers,
.

members, 0r guests who are 0r become intoxicated is in lieu of common law 0r other statutory
law warranties and duties 0f providers 0f alcoholic beverages.

(b) This chapter does not impose obligations 0n a provider 0f alcoholic beverages other than
those expressly stated in this chapter.

(c) This chapter provides the exclusive cause of action for providing an alcoholic beverage t0 a
person 18 years 0f age 0r older.

REPLY TO RESPONSE TO SECOND MOTION FOR SUMMARY JUDGMENT PAGE 6
issue as t0 this element ofPlaintiff’s claim.

NO BREACH OF DUTY - In the instant case, there is certainly n0 evidence that

anyone from the restaurant served 0r sold the unknown shooter any alcohol. Most importantly,

there is n0 evidence that it was apparent t0 the provider at the time the alcohol is provided, sold,

0r served that the patron consuming the alcohol was obviously intoxicated t0 the extent that he

presents a clear danger to himself and others. See, Plaintiﬁ"s Answers t0 Interrogatories

Numbers 5 — 10. Without evidence of these facts, Plaintiff’s claim of negligence fails as a matter

of law. There is n0 evidence t0 raise a fact issue as t0 this element ofPlaintlff’s claim.

NO EVIDENCE OF CAUSATION -
Secondly, there is n0 evidence that the intoxication

0f the alleged shooter, if at all, was a proximate cause 0f the damages suffered. See, Plaintiﬂ’s

Answers t0 Interrogatories Numbers 5 -
10. This is a requirement for a finding 0f liability under

the Dram Shop Act. There is n0 evidence t0 raise a fact issue as t0 this element 0f Plaintiff’s

claim. Therefore, With no evidence t0 support all elements 0f the statutory exclusive remedy,

there can be no liability on either Defendant.

NO FACTS ASSERTED AGAINST JEFFREY COTTON — In addition, there are n0 facts

0r theories asserted t0 impose any liability on defendant Jeffrey Cotton. The suit against Jeffrey

Cotton should be dismissed based 0n the pleadings alone. The supporting affidavit of Plaintiff

does not mention Jeffrey Cotton. Moreover, there is no discovery response Which sets forth

evidence that Jeffrey Cotton has any liability to Plaintiff.

DEFENDANTS HAVE NO LIABILTY UNDER COMMON LAW
NEGLIGENCE THEORIES AS THERE IS NO EVIDENCE TO SUPPORT
LIABILITY AS TO EITHER DEFENDANT

In a typical negligence case, a plaintiff Will prevail only if he can establish that the

defendant owed a duty 0f care that was breached as a result 0f the defendant’s acts 0r

omissions, and that the type 0f harm that resulted from those acts or omissions was caused by
REPLY TO RESPONSE TO SECOND MOTION FOR SUMMARY JUDGMENT PAGE 7
and reasonably foreseeable by the defendant. Allen v. Connolloy, 158 SW3d 61 (TeX. App.

Houston [14th Dist] — 2005) (While at work during regular business hours, Allen was robbed

and sexually assaulted by an armed assailant. Court held, Employers are not insurers of their

employees’ safety at work; and that Generally, an employer has no legal duty t0 protect

another from the criminal acts of a third person.) Id at 65.

It is undisputed that Plaintiff alleges his injuries were caused by the criminal

conduct 0f a third party. Moreover, the only statements offered by Plaintiff (albeit arguably

inadmissible) state that Plaintiff got into an altercation in the parking lot, and was shot during

the altercation. This is clearly outside 0f the scope 0f Plaintiff’s alleged duties as a cook.

There is no evidence 0f “cause-in-fact” and n0 evidence that the conduct was forseeable. The

only evidence is that the alleged occurrence is the result 0f a superceding cause.

NO LIABILITY FOR ALLEGED FAILURE TO TRAIN OR FAILURE TO
PROVIDE REMEDIAL MEASURES — N0 evidence as to causation (cause-in-fact). There is n0

evidence 0f any specific act 0r omission 0f the named defendants Which would have prevented

the Plaintiff’s alleged injury. The shooter is unknown. The incident did not occur in the

restaurant. There is no evidence the shooter was served alcohol by the restaurant after already

being intoxicated. The allegation is that there was an altercation between the shooter and

someone else. That altercation may have occurred despite any other safety measure. There is no

evidence any particular safety procedure or training would have prevented the shooting.

Therefore, there can be n0 evidence t0 raise a fact issue as t0 cause—in—fact. See, Lively v.

Adventist Health System, 2004 WL 1699913 (TeX. App. Fort Worth 2004). (Nurse employed by

hospital was carjacked and abducted from hospital premises. Directed verdict was proper When

n0 particular safety measure would have prevented the incident.)

It is well established Texas law that employers are not insurers 0f their

employees’ safety at work. See, Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996) (stating

that employers are not insurers 0f their employees’ safety at work but have a duty t0 use

ordinary care to provide a safe work place); Generally, a person has n0 legal duty t0 protect

another from the criminal acts 0f a third person. Walker v. Harris, 924 S.W.2d 375, 377

(Tex.1996). One Who controls the premises has a duty t0 use ordinary care to protect invitees

REPLY TO RESPONSE TO SECOND MOTION FOR SUMMARY JUDGMENT PAGE 8
from criminal acts of third parties if she knows or has reason to know 0f an unreasonable and

foreseeable risk 0f harm t0 the invitees. Timberwalk Apartments v. Cain, 972 S.W.2d 749 at

756 (TeX. 1998). The duty does not arise in the absence 0f a foreseeable risk 0f harm. Id. at

756—59.

Plaintiff’s common law negligence claims fail as a matter 0f law.

CONCLUSION
Defendant Jeffrey Cotton was served one hundred and seventy-six (176) days after the

statute ran. Da Greedy One Ent, LLC was served forty-one (41) days after the limitations period

ran, without any evidence 0f diligence in service on any named defendant. This matter should be

dismissed as n0 defendant has been served within the limitations period. See, Budget Rent—a—Car

System v. Valadez, 558 SW3d 304 (Tex. App. Houston [14th Dist] 2018) (Case dismissed 0n

limitations aﬁer Defendant servedﬁve (5) days aﬁer statute ran). Speciﬁcally, citing Molina v.

Gears, 2018 WL 1404340.

Defendants have no liability under the Texas Dram Shop Act as there is n0 evidence

either named Defendant served alcohol t0 a person Who was so intoxicated they were a danger t0

themselves 0r others. There is n0 evidence the alleged shooter was even a customer 0f the

Defendant restaurant.

Assuming arguendo that the Dram Shop Act does not apply, Plaintiff’s common law
negligence claim fails as a matter of law as there is n0 evidence that: (1) Defendant owed

Plaintiff a duty in the parking lot; 0r (2) either Defendant breached any duty; 0r (3) any alleged

breach was not superseded by the criminal act 0f a third party; 0r (4) the criminal act was legally

forseeable; 0r (5) any alleged act 0r omission of either named Defendant would have prevented

the incident.

WHEREFORE PREMISES CONSIDERED, Jeffrey Cotton and Da Greedy One Ent,

LLC moves the Court to grant this Traditional and No-Evidence Summary Judgment, and render

REPLY TO RESPONSE TO SECOND MOTION FOR SUMMARY JUDGMENT PAGE 9
judgment that Plaintiffs take nothing by way of all claims set forth in their pleadings.

Respectfully submitted,
/s/ David A. Small
LAW OFFICE OF DAVID A. SMALL
Texas State Bar Number 00784987
501 Elm Street, Suite 385
Dallas, Texas 75202
PHONE (214) 965-9400
FACSIMILE (214) 752-7798
EMAIL: DSMALL9400@EARTHLINK.NET
ATTORNEY FOR DEFENDANTS
JEFFREY COTTON AND GREEDYS SPORTS GRILL

CERTIFICATE OF SERVICE

I, David A. Small 0n this 30th day 0f JULY 2019 d0 hereby certify that a true and
correct copy of this document Will be served on counsel for Petitioner Via facsimile, electronic
transmission, 0r otherwise pursuant t0 TRCP 21(a).
CLAY LEWIS JENKINS
STEPHEN L. DANIEL
5 16 West Main Street Waxahachie, Texas 75 165
Fax: 972-938-7676
Email: Stephen@clayjenkins.com
/s/ David A. Small

REPLY TO RESPONSE TO SECOND MOTION FOR SUMMARY JUDGMENT PAGE 10
UNSWORN DECLARATION OF DAVID A. SMALL
STATE OF TEXAS §
COUNTY OF DALLAS §

This declaration is made pursuant t0 TeX.Prac.Rem.Code §132.001(a).

"My name is David A. Small. I am over 18 years 0f age. My address is David A. Small,
Law Ofﬁce 0f David A. Small, 501 Elm Street, Suite 385, Dallas, Texas 75202. I declare under
penalty 0f perjury that the statements contained herein are based 0n my personal knowledge and
are true and correct.

Attached hereto are true and correct copies of the pages from the deposition 0f Jasmine
Aponte, Plaintiffs Answers to Interrogatories, Responses t0 Requests for Production and
Responses to Request for Disclosures and any other attached document as they are purported to
be.

Executed in Dallas County, State of Texas on the lst day 0f JULY, 2019.

Further Afﬁant Sayeth Not.

/s/ David A. Small

REPLY TO RESPONSE TO SECOND MOTION FOR SUMMARY JUDGMENT PAGE 11

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Motion-Secondary: Shawn Mitchell vs. DA Greedy One ENT, LLC, et al

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