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FILED
11/9/2023 3:46 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Martin Reyes DEPUTY
CAUSE NO. DC-22-16342
SALOME BONAN O, § IN THE DISTRICT COURT
§
Plaintiff, §
§
§
V. §
§ 44TH JUDICIAL DISTRICT
§
A TO B AUTO TRANSPORT LLC, §
and BRIAN KEITH BREWER, §
§
Defendants. § DALLAS COUNTY, TEXAS
DEFENDANT BRIAN KEITH BREWER’S
NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant Brian Keith Brewer files his No-Evidence Motion for Partial Summary
Judgment against Plaintiff Salome Bonano’s cause of action for gross negligence.
I.
SUMMARY OF MOTION
Plaintiffs personal injury lawsuit is based on a minor August 18, 2022, car
accident that occurred on 1-30 in Garland, where the plaintiff changed lanes in heavy,
stop-and-go traffic in front of Defendant Brian Keith Brewer’s tractor-trailer leading to a
low-speed collision. At the time of the accident, Plaintiff was unlicensed. Defendant, a
licensed commercial truck driver, was operating his tractor—trailer in a safe and lawful
manner at all times relevant to the accident.
Defendant moves for partial summary judgment because Plaintiff cannot provide
any evidence to support her boilerplate claim of gross negligence against Defendant. As
shown by this motion, Defendant is entitled to a take-nothing judgment on this claim.
This motion will eliminate an unsubstantiated claim and ready this lawsuit for trial.
DEFENDANT BRIAN KEITH BREWER’S
NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 1
13483129v1 / 13481.003
II.
PROCEDURAL HISTORY
Plaintiff filed this lawsuit on November 29, 2022. TIial is set for January 8, 2024.
Discovery closes on December 8, 2023. Accordingly, this no-evidence motion is ripe.
III.
BACKGROUND
This case arises from an August 18, 2022, car accident that occurred on Interstate
30 in Garland. Plaintiff and Defendant Brewer were driving eastbound in heavy stop-
and-go traffic. Plaintiff, who was unlicensed, changed lanes in front of Defendant
Brewer’s tractor-trailer leading to the low-speed collision. Police did not respond to the
accident. Plaintiff alleges Defendant Brewer failed to control his speed and caused the
collision. Defendant Brewer maintains that he was not afforded an opportunity to avoid
the collision because Plaintiff made an unsafe lane change suddenly and without proper
warning. The dispute in this lawsuit centers on which driver is responsible for the
accident.
Plaintiff, albeit with a boilerplate pleading, alleges that Defendant Brewer’s acts
and/ or omissions constitute gross negligencel There is no credible evidence that
Defendant Brewer was grossly negligent in any respect. As a result, the Court should
dismiss Plaintiff’s gross negligence claims (in contrast to claims for simple negligence)
against Defendant Brewer.
IV.
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
A. No-Evidence Summary Judgment Standard
Rule 166a of the Texas Rules of Civil Procedure governs no-evidence motions for
1
See Plaintiff’s First Amended Petition, Paragraphs 22—24.
DEFENDANT BRIAN KEITH BREWER’S
NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 2
13483129v1 / 13481.003
summary judgment:
(i) No-Evidence Motion. 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 produces summary judgment evidence raising a genuine issue
of material fact.2
A no-evidence summary judgment shifts the burden of proof to the party having the
burden of proof at tria1.3 Defendant Brewer moves the Court for partial summary
judgment under Texas Rule of Civil Procedure 166a(i) dismissing Plaintiff’s gross
negligence claim.
B. Plaintiff Has No Evidence to Support Gross Negligence
To establish a claim for gross negligence and exemplary damages, Plaintiff must
establish the following elements of gross negligence by clear and convincing evidence:
(1) The act or omission, when viewed objectively from the defendant's
standpoint at the time it occurred, involved an extreme degree of risk,
considering the probability and magnitude of the potential harm to others;
and
(2) The defendant had actual, subjective awareness of the risk but proceeded
with conscious indifference to the rights, safety, or welfare of others.4
Unlike ordinary negligence, gross negligence contains both an objective and a subjective
component.5
There is no evidence to support any element of a claim for gross negligence
2
TEX. R. CIV. P. 166a(i).
3
Dyer v. Accredited Home Lenders, Inc., No. o2-11—ooo46-CV, 2012 WL 335858, at *2 (Tex. App—Fort Worth Feb.
2, 2012, pet. denied); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex. App—Austin 1998, no writ).
4 U-Haul Int’l v.
Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); see TEX. CIV. PRAC. & REM. CODE § 41.001(11)(A)-(B).
5 Reeder v. Wood
Cnty. Energy, L.L.C., 395 S.W.3d 7891 796 (Tex. 2012).
DEFENDANT BRIAN KEITH BREWER’S
NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 3
13483129v1 / 13481.003
against Defendant Brewer. Plaintiff cannot create a genuine issue of fact as to the
requisite elements of a gross negligence claim. Further, Plaintiff cannot prove the
objective and subjective components of a gross negligence claim. Plaintiff cannot clear
the onerous bar for gross negligence, which requires proof of "conscious indifference,"
an "extreme degree of risk," and unjustifiabilityfi Accordingly, Plaintiff‘s claim for gross
negligence and exemplary damages should be dismissed.
V.
PRAYER
Defendant Brian Keith Brewer requests the Court grant this No-Evidence Motion
for Partial Summary Judgment. Defendant prays the Court enter a take-nothing
judgment on Plaintiff’ s claims for gross negligence against Defendant Brewer.
Defendant also prays for additional relief to which it may be justly entitled.
Respectfully submitted,
THOMPSON, COE, COUSINS & IRONS, LLP
By
Texas Bar No. 24059232
sriddle@thompsoncoe.com
700 North Pearl Street
25th Floor
Dallas, TX 75201
Telephone: (214) 292-3908
Facsimile: (214) 871-8209
A'I'I‘ORNEY FOR DEFENDANT
BRIAN KEITH BREWER
6 In re
Performance Nutrition, Inc., 239 B.R. 93 at 111; see also Cleaver v. Cleaver, 935 S.W.2d 491, 495 (Tex. App.—
Tyler 1996, writ denied).
DEFENDANT BRIAN KEITH BREWER’S
NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 4
13483129v1 / 13481.003
CERTIFICATE OF SERVICE
I hereby certify that this instrument was served upon all parties on November 9,
2023, pursuant to the Texas Rules of Civil Procedure.
/s/ Scott Riddle
Scott Riddle
DEFENDANT BRIAN KEITH BREWER’S
NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 5
13483129v1 / 13481.003
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.
Diane Trent on behalf of Scott Riddle
Bar No. 24059232
DTrent@thompsoncoe.com
Envelope ID: 81496143
Filing Code Description: No Evidence Motion For Summary Judgment
Filing Description:
Status as of 11/10/2023 9:00 AM CST
Associated Case Party: SALOME BONANO
Name BarNumber Email TimestampSubmitted Status
Jorge Sotelo jorge@shamiehlaw.com 11/9/2023 3:46:31 PM SENT
Nicholas JCoward nic@shamiehlaw.com 11/9/2023 3:46:31 PM SENT
LAURA RIVAS LRIVAS@JALEXLAWF|RM.COM 11/9/2023 3:46:31 PM SENT
Associated Case Party: A TO B AUTO TRANSPORT LLC
Name BarN umber Email TimestampSubmitted Status
Scott Riddle SRiddle@thompsoncoe.com 11/9/2023 3:46:31 PM SENT
Diane Trent DTrent@thompsoncoe.com 11/9/2023 3:46:31 PM SENT
Marissa Marron MMarron@krcl.com 11/9/2023 3:46:31 PM ERROR
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FILED 11/9/2023 3:46 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Martin Reyes DEPUTY CAUSE NO. DC-22-16342 SALOME BONAN O, § IN THE DISTRICT COURT § Plaintiff, § § § V. § § 44TH JUDICIAL DISTRICT § A TO B AUTO TRANSPORT LLC, § and BRIAN KEITH BREWER, § § Defendants. § DALLAS COUNTY, TEXAS DEFENDANT BRIAN KEITH BREWER’S NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant Brian Keith Brewer files his No-Evidence Motion for Partial Summary Judgment against Plaintiff Salome Bonano’s cause of action for gross negligence. I. SUMMARY OF MOTION Plaintiffs personal injury lawsuit is based on a minor August 18, 2022, car accident that occurred on 1-30 in Garland, where the plaintiff changed lanes in heavy, stop-and-go traffic in front of Defendant Brian Keith Brewer’s tractor-trailer leading to a low-speed collision. At the time of the accident, Plaintiff was unlicensed. Defendant, a licensed commercial truck driver, was operating his tractor—trailer in a safe and lawful manner at all times relevant to the accident. Defendant moves for partial summary judgment because Plaintiff cannot provide any evidence to support her boilerplate claim of gross negligence against Defendant. As shown by this motion, Defendant is entitled to a take-nothing judgment on this claim. This motion will eliminate an unsubstantiated claim and ready this lawsuit for trial. DEFENDANT BRIAN KEITH BREWER’S NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 1 13483129v1 / 13481.003 II. PROCEDURAL HISTORY Plaintiff filed this lawsuit on November 29, 2022. TIial is set for January 8, 2024. Discovery closes on December 8, 2023. Accordingly, this no-evidence motion is ripe. III. BACKGROUND This case arises from an August 18, 2022, car accident that occurred on Interstate 30 in Garland. Plaintiff and Defendant Brewer were driving eastbound in heavy stop- and-go traffic. Plaintiff, who was unlicensed, changed lanes in front of Defendant Brewer’s tractor-trailer leading to the low-speed collision. Police did not respond to the accident. Plaintiff alleges Defendant Brewer failed to control his speed and caused the collision. Defendant Brewer maintains that he was not afforded an opportunity to avoid the collision because Plaintiff made an unsafe lane change suddenly and without proper warning. The dispute in this lawsuit centers on which driver is responsible for the accident. Plaintiff, albeit with a boilerplate pleading, alleges that Defendant Brewer’s acts and/ or omissions constitute gross negligencel There is no credible evidence that Defendant Brewer was grossly negligent in any respect. As a result, the Court should dismiss Plaintiff’s gross negligence claims (in contrast to claims for simple negligence) against Defendant Brewer. IV. NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT A. No-Evidence Summary Judgment Standard Rule 166a of the Texas Rules of Civil Procedure governs no-evidence motions for 1 See Plaintiff’s First Amended Petition, Paragraphs 22—24. DEFENDANT BRIAN KEITH BREWER’S NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 2 13483129v1 / 13481.003 summary judgment: (i) No-Evidence Motion. 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 produces summary judgment evidence raising a genuine issue of material fact.2 A no-evidence summary judgment shifts the burden of proof to the party having the burden of proof at tria1.3 Defendant Brewer moves the Court for partial summary judgment under Texas Rule of Civil Procedure 166a(i) dismissing Plaintiff’s gross negligence claim. B. Plaintiff Has No Evidence to Support Gross Negligence To establish a claim for gross negligence and exemplary damages, Plaintiff must establish the following elements of gross negligence by clear and convincing evidence: (1) The act or omission, when viewed objectively from the defendant's standpoint at the time it occurred, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) The defendant had actual, subjective awareness of the risk but proceeded with conscious indifference to the rights, safety, or welfare of others.4 Unlike ordinary negligence, gross negligence contains both an objective and a subjective component.5 There is no evidence to support any element of a claim for gross negligence 2 TEX. R. CIV. P. 166a(i). 3 Dyer v. Accredited Home Lenders, Inc., No. o2-11—ooo46-CV, 2012 WL 335858, at *2 (Tex. App—Fort Worth Feb. 2, 2012, pet. denied); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex. App—Austin 1998, no writ). 4 U-Haul Int’l v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); see TEX. CIV. PRAC. & REM. CODE § 41.001(11)(A)-(B). 5 Reeder v. Wood Cnty. Energy, L.L.C., 395 S.W.3d 7891 796 (Tex. 2012). DEFENDANT BRIAN KEITH BREWER’S NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 3 13483129v1 / 13481.003 against Defendant Brewer. Plaintiff cannot create a genuine issue of fact as to the requisite elements of a gross negligence claim. Further, Plaintiff cannot prove the objective and subjective components of a gross negligence claim. Plaintiff cannot clear the onerous bar for gross negligence, which requires proof of "conscious indifference," an "extreme degree of risk," and unjustifiabilityfi Accordingly, Plaintiff‘s claim for gross negligence and exemplary damages should be dismissed. V. PRAYER Defendant Brian Keith Brewer requests the Court grant this No-Evidence Motion for Partial Summary Judgment. Defendant prays the Court enter a take-nothing judgment on Plaintiff’ s claims for gross negligence against Defendant Brewer. Defendant also prays for additional relief to which it may be justly entitled. Respectfully submitted, THOMPSON, COE, COUSINS & IRONS, LLP By Texas Bar No. 24059232 sriddle@thompsoncoe.com 700 North Pearl Street 25th Floor Dallas, TX 75201 Telephone: (214) 292-3908 Facsimile: (214) 871-8209 A'I'I‘ORNEY FOR DEFENDANT BRIAN KEITH BREWER 6 In re Performance Nutrition, Inc., 239 B.R. 93 at 111; see also Cleaver v. Cleaver, 935 S.W.2d 491, 495 (Tex. App.— Tyler 1996, writ denied). DEFENDANT BRIAN KEITH BREWER’S NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 4 13483129v1 / 13481.003 CERTIFICATE OF SERVICE I hereby certify that this instrument was served upon all parties on November 9, 2023, pursuant to the Texas Rules of Civil Procedure. /s/ Scott Riddle Scott Riddle DEFENDANT BRIAN KEITH BREWER’S NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 5 13483129v1 / 13481.003 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. Diane Trent on behalf of Scott Riddle Bar No. 24059232 DTrent@thompsoncoe.com Envelope ID: 81496143 Filing Code Description: No Evidence Motion For Summary Judgment Filing Description: Status as of 11/10/2023 9:00 AM CST Associated Case Party: SALOME BONANO Name BarNumber Email TimestampSubmitted Status Jorge Sotelo jorge@shamiehlaw.com 11/9/2023 3:46:31 PM SENT Nicholas JCoward nic@shamiehlaw.com 11/9/2023 3:46:31 PM SENT LAURA RIVAS LRIVAS@JALEXLAWF|RM.COM 11/9/2023 3:46:31 PM SENT Associated Case Party: A TO B AUTO TRANSPORT LLC Name BarN umber Email TimestampSubmitted Status Scott Riddle SRiddle@thompsoncoe.com 11/9/2023 3:46:31 PM SENT Diane Trent DTrent@thompsoncoe.com 11/9/2023 3:46:31 PM SENT Marissa Marron MMarron@krcl.com 11/9/2023 3:46:31 PM ERROR