Preview
FILED
12/20/2023 4:06 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
CAROLYN SELLERS DEPUTY
NO. DC-22-13312
LAURA GUERRA § IN THE DISTRICT COURT
§
§
VS § DALLAS COUNTY, TEXAS
§
§
JON AUSTIN GASTROCK § 101ST JUDICIAL DISTRICT
DEFENDANT’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, Jon Austin Gastrock (“Defendant”), files his Traditional Motion for Partial
Summary Judgment seeking a dismissal of Plaintiff’s wrongful death claim for the following
reasons:
• Plaintiff’s claims should be dismissed because she lacks standing to bring the
wrongful death claim.
• Plaintiff is estopped from asserting a wrongful death claim because the claim was
brought and settled by the decedent’s son, Rogelio Rodriguez.
I. NATURE AND STAGE OF PROCEEDINGS
1. This is a wrongful death case arising out of an automobile accident that occurred
on the eastbound service road of 200 E. IH-30 (hereafter referred to as the “incident”). On
September 11, 2021, at approximately 8:13pm, Defendant’s vehicle struck decedent Antonio
Rodriguez Duran (“Mr. Duran”). Specifically, Mr. Duran was standing near his parked vehicle in
the middle of the three-lane service road when he was struck. At the time of the incident, Mr.
Duran’s vehicle’s emergency flashers were not operating.
2. Mr. Duran was survived by three children: (1) Rogelio Rodriguez, (2) Antonio
Rodriguez, Jr., and (3) Monica Rodriguez. 1
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Ms. Monica Rodriguez is now deceased and survived by her two children, Donovan Rodriguez and Dominick
Rodriguez.
3. On March 15, 2023, Defendant and Rojelio Rodriguez, son of Mr. Duran, entered
a Full and Final Settlement and Release of All Claims and Indemnity Agreement (hereinafter
referred to as the “settlement”) of the wrongful death action. See Exhibit A, Affidavit of Lauren
Lowes.
4. Plaintiff alleges she is the common-law wife of Mr. Duran. Initially, Plaintiff
participated in settlement discussions with Rojelio Rodriguez and Defendant. See Exhibit A.
However, she chose to pursue her own wrongful death action. Id.
5. Furthermore, Plaintiff filed a wrongful death lawsuit on September 21, 2022 –
outside of the three-month period under the Texas Wrongful Death Statute.
6. Plaintiff then amended her petition to add a property damage claim in addition to
the wrongful death claim. The property damage claim is not addressed in this motion.
7. To date, Plaintiff has not asserted that she is the administrator or executor of Mr.
Duran’s estate.
II. SUMMARY JUDGMENT EVIDENCE
8. This motion is supported by the pleadings on file and the following summary
judgment evidence, which is filed along with this motion and incorporated by reference:
Exhibit A .........................................................................Affidavit of Lauren Lowes
III. ARGUMENTS AND AUTHORITIES
9. This Court should grant Defendant’s traditional motion for partial summary
judgment against Plaintiff because her wrongful death claim is barred because it was already
asserted and settled by the Mr. Duran’s son. Further, the claim is untimely brought by an individual
who is not authorized to bring the claim under the Wrongful Death Statute.
A. Standard of review
10. Under Rule 166a, Texas Rules of Civil Procedure, the party moving for summary
judgment has the burden of establishing that there exists no material fact issue and that movant is
2
entitled to judgment as a matter of law. When a defendant moves for summary judgment on the
basis of an affirmative defense, he must conclusively prove the essential elements of that defense.
Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); see Gibbs v. General Motors Corp., 450 S.W.2d
827, 828 (Tex. 1970). Collateral estoppel is a defense constituting an avoidance and, therefore, is
also an affirmative defense. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 802 (Tex. 1994);
Cuellar v. City of San Antonio, 821 S.W.2d 250, 256 (Tex. App.-San Antonio 1991, writ denied);
Summary judgment may be granted upon a proper plea of collateral estoppel. See Cuellar, 821
S.W.2d at 256.
B. The Wrongful Death Statute lists who can bring an action and when it can be filed
11. Section 71.004 of the Texas Civil Practices and Remedies Code (also known as the
“Wrongful Death Statute”) states the following:
(a) An action to recover damages as provided by this subchapter is
for the exclusive benefit of the surviving spouse, children, and
parents of the deceased.
(b) The surviving spouse, children, and parents of the deceased may
bring the action or one or more of those individuals may bring
the action for the benefit of all.
(c) If none of the individuals entitled to bring an action have begun
the action within three calendar months after the death of the
injured individual, his executor or administrator shall bring and
prosecute the action unless requested not to by all those
individuals.
See Tex. Civ. Prac. & Rem. Code Ann. § 71.004.
C. Plaintiff filed suit after the three-month deadline
12. Plaintiff asserts that she was the common-law spouse of Mr. Duran. Defendant
disputes her assertion that she was Mr. Duran’s spouse in common-law or any other capacity.
However, even if she was his common-law spouse, the Wrongful Death Statute provides that she
is not entitled to bring her claim. As shown in the above section, the Statute states that “[i]f none
of the individuals entitled to bring an action have begun the action within three calendar months
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after the death of the injured individual, his executor or administrator shall bring and prosecute the
action unless requested not to by all those individuals.” Tex. Civ. Pract. & Rem. Code § 71.004(c)
(emphasis added).
13. Courts have found that if no wrongful death action is commenced within three
months after the decedent's death, only the executor or administrator of the estate has standing to
file suit. See Morin v. Ford Motor Co., Nos. 3:07-CV-1700-L, 3:08-CV-779-L, 2009 WL 2486027,
at *2 (N.D. Tex. Aug. 12, 2009) (“Because none of the individuals entitled to bring an action …
commenced a wrongful death action within three calendar months after [the decedent's] death …
, [the personal representative of the estate] is the only person entitled to bring and prosecute this
wrongful death action under the Act.”); Trevino v. U-Haul Int'l, Inc., No. 08-cv-1409, 2009 WL
901136, at *3 (N.D. Ill. Mar. 31, 2009) (holding that Texas wrongful death statute “authorizes any
of the [statutory] beneficiaries to commence a lawsuit within the first three months after the death
of the injured individual .... However, after that initial time period, the Texas statute provides that
only the ‘executor or administrator shall bring and prosecute the action unless requested not to by
all those individuals.”’). In Morin, the Northern District of Texas ruled that a wrongful death action
filed by the decedent's widow almost one year after the decedent's death “was untimely” because
“[a]t that time … only the executor or administrator was entitled to bring and prosecute the action
unless he or she was requested not to do so by all statutory beneficiaries.” Morin, 2009 WL
2486027, at **2, 6.
14. Here, Plaintiff filed her lawsuit on September 21, 2022—a year after the death of
Mr. Duran. Pursuant to Section 71.004(c) of the Wrongful Death Statute, only the executor or
administrator of Mr. Duran’s estate is entitled to file suit under the Texas Wrongful Death statute,
if at all. Plaintiff has not alleged or established that she is the executor or administrator of Mr.
Duran’s estate. Accordingly, Plaintiff lacks standing to sue under the Wrongful Death Statute.
4
D. Only one wrongful death claim can be pursued against Defendant
15. The Wrongful Death Statute states that a wrongful death claim is for the “exclusive”
benefit of the decedent’s surviving spouse, children, and parents. See Tex. Civ. Prac. & Rem. Code
Ann. § 71.004(a)-(b).
16. Texas requires that only one wrongful death claim be brought to address the alleged
negligent death of a person. See Tex. & P. Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652, 654
(1947); see also Dowell v. Quiroz, 462 S.W.3d 578, 586 (Tex. App.—Corpus Christi–Edinburg
2015, no pet.) (holding that there can only be one claim even though the wrongful-death recovery
is apportioned amongst all the beneficiaries named in the Wrongful Death Statute.); see Christian
v. Charter Oak Fire Ins. Co., 847 S.W.2d 458, 460 (Tex. App.–Tyler 1993, writ denied) (“Our law
creates one cause of action in which all spouses, children, and parents may combine to recover
their damages.”); Avila v. St. Luke’s Lutheran Hosp., 948 S.W.2d 841, 850 (Tex. App.–San
Antonio 1997, pet. denied) (“The provision of the act requiring all of the beneficiaries to be parties
was enacted chiefly for the benefit of the defendant in such suit, to protect it against the bringing
of several suits arising out of the same transaction.”).
17. As stated above, the Texas Wrongful Death Statute permits Mr. Duran’s
beneficiaries to assert a wrongful death claim. However, only one wrongful death claim can be
asserted on behalf of all beneficiaries. As the summary judgment evidence shows, Rojelio
Rodriguez settled the wrongful death claim, Plaintiff chose not to participate, and now has pursued
a second action. Therefore, Plaintiff’s wrongful death claim is extinguished. Plaintiff chose to
pursue a second cause of action. To allow Plaintiff to continue with her claim would subvert the
legislative intent behind the Wrongful Death Statute and provide a mechanism for Defendant to
be sued repeatedly regarding the same wrongful death. Accordingly, Defendant respectfully
requests that this Court grant his motion for partial summary judgment and dismiss Plaintiff’s
wrongful death claim.
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IV. CONCLUSION AND PRAYER
For the reasons set forth herein, Defendant Jon Gastrock respectfully requests that this
Court grant his Partial Motion for Summary Judgment, dismiss the wrongful death cause of action
with prejudice; and grant him such other and further relief to which he may show himself to be
entitled.
SCHOUEST, BAMDAS, SOSHEA, BENMAIER
& EASTHAM, PLLC
/s/ Jeremy Williams
JEREMY WILLIAMS
State Bar No. 24090467
jwilliams@sbsb-eastham.com
MATTHEW F. POPP
State Bar No. 24039679
mpopp@sbsb-eastham.com
1001 McKinney Street, Suite 1400
Houston, Texas 77002
Tel: (713) 588-0446
Fax: (713) 574-2942
ATTORNEYS FOR DEFENDANT
JON AUSTIN GASTROCK
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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am a member of SBSB-EASTHAM, PLLC, attorneys
for the Defendant herein, and that I have provided a copy of the foregoing to all counsel of record via
the ECF Filing, this 20th day of December 2023.
Via The ECF Filing System
Via Fax No. (832) 616-5576
Eric R. Reyes
State Bar No. 16794350
312 Harwood Road
Bedford, Texas 76021
Telephone: (817) 332-1522
Facsimile: (817) 332-6224
reyes@ericreyeslaw.com
Counsel for Plaintiff, Laura Guerra
/s/ Jeremy A. Williams
Jeremy A. Williams
7
EXHIBIT A
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.
Charnelle Barnes on behalf of Jeremy Williams
Bar No. 24090467
cbarnes@sbsb-eastham.com
Envelope ID: 82991807
Filing Code Description: Motion - Summary Judgment
Filing Description: DEFS TRADT'L - PARTIAL
Status as of 1/2/2024 1:23 PM CST
Associated Case Party: JONAUSTINGASTROCK
Name BarNumber Email TimestampSubmitted Status
Amy Durocher adurocher@sbsblaw.com 1/2/2024 12:04:11 PM SENT
Jeremy Williams jwilliams@sbsb-eastham.com 1/2/2024 12:04:11 PM SENT
Charnelle Barnes cbarnes@sbsb-eastham.com 1/2/2024 12:04:11 PM SENT
Ross B.Bale rbale@sbsb-eastham.com 1/2/2024 12:04:11 PM SENT
Matthew F.Popp mpopp@sbsb-eastham.com 1/2/2024 12:04:11 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
ERIC REYES REYES@ERICREYESLAW.COM 1/2/2024 12:04:11 PM SENT
Preview
FILED 12/20/2023 4:06 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS CAROLYN SELLERS DEPUTY NO. DC-22-13312 LAURA GUERRA § IN THE DISTRICT COURT § § VS § DALLAS COUNTY, TEXAS § § JON AUSTIN GASTROCK § 101ST JUDICIAL DISTRICT DEFENDANT’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: Defendant, Jon Austin Gastrock (“Defendant”), files his Traditional Motion for Partial Summary Judgment seeking a dismissal of Plaintiff’s wrongful death claim for the following reasons: • Plaintiff’s claims should be dismissed because she lacks standing to bring the wrongful death claim. • Plaintiff is estopped from asserting a wrongful death claim because the claim was brought and settled by the decedent’s son, Rogelio Rodriguez. I. NATURE AND STAGE OF PROCEEDINGS 1. This is a wrongful death case arising out of an automobile accident that occurred on the eastbound service road of 200 E. IH-30 (hereafter referred to as the “incident”). On September 11, 2021, at approximately 8:13pm, Defendant’s vehicle struck decedent Antonio Rodriguez Duran (“Mr. Duran”). Specifically, Mr. Duran was standing near his parked vehicle in the middle of the three-lane service road when he was struck. At the time of the incident, Mr. Duran’s vehicle’s emergency flashers were not operating. 2. Mr. Duran was survived by three children: (1) Rogelio Rodriguez, (2) Antonio Rodriguez, Jr., and (3) Monica Rodriguez. 1 1 Ms. Monica Rodriguez is now deceased and survived by her two children, Donovan Rodriguez and Dominick Rodriguez. 3. On March 15, 2023, Defendant and Rojelio Rodriguez, son of Mr. Duran, entered a Full and Final Settlement and Release of All Claims and Indemnity Agreement (hereinafter referred to as the “settlement”) of the wrongful death action. See Exhibit A, Affidavit of Lauren Lowes. 4. Plaintiff alleges she is the common-law wife of Mr. Duran. Initially, Plaintiff participated in settlement discussions with Rojelio Rodriguez and Defendant. See Exhibit A. However, she chose to pursue her own wrongful death action. Id. 5. Furthermore, Plaintiff filed a wrongful death lawsuit on September 21, 2022 – outside of the three-month period under the Texas Wrongful Death Statute. 6. Plaintiff then amended her petition to add a property damage claim in addition to the wrongful death claim. The property damage claim is not addressed in this motion. 7. To date, Plaintiff has not asserted that she is the administrator or executor of Mr. Duran’s estate. II. SUMMARY JUDGMENT EVIDENCE 8. This motion is supported by the pleadings on file and the following summary judgment evidence, which is filed along with this motion and incorporated by reference: Exhibit A .........................................................................Affidavit of Lauren Lowes III. ARGUMENTS AND AUTHORITIES 9. This Court should grant Defendant’s traditional motion for partial summary judgment against Plaintiff because her wrongful death claim is barred because it was already asserted and settled by the Mr. Duran’s son. Further, the claim is untimely brought by an individual who is not authorized to bring the claim under the Wrongful Death Statute. A. Standard of review 10. Under Rule 166a, Texas Rules of Civil Procedure, the party moving for summary judgment has the burden of establishing that there exists no material fact issue and that movant is 2 entitled to judgment as a matter of law. When a defendant moves for summary judgment on the basis of an affirmative defense, he must conclusively prove the essential elements of that defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); see Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). Collateral estoppel is a defense constituting an avoidance and, therefore, is also an affirmative defense. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 802 (Tex. 1994); Cuellar v. City of San Antonio, 821 S.W.2d 250, 256 (Tex. App.-San Antonio 1991, writ denied); Summary judgment may be granted upon a proper plea of collateral estoppel. See Cuellar, 821 S.W.2d at 256. B. The Wrongful Death Statute lists who can bring an action and when it can be filed 11. Section 71.004 of the Texas Civil Practices and Remedies Code (also known as the “Wrongful Death Statute”) states the following: (a) An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased. (b) The surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all. (c) If none of the individuals entitled to bring an action have begun the action within three calendar months after the death of the injured individual, his executor or administrator shall bring and prosecute the action unless requested not to by all those individuals. See Tex. Civ. Prac. & Rem. Code Ann. § 71.004. C. Plaintiff filed suit after the three-month deadline 12. Plaintiff asserts that she was the common-law spouse of Mr. Duran. Defendant disputes her assertion that she was Mr. Duran’s spouse in common-law or any other capacity. However, even if she was his common-law spouse, the Wrongful Death Statute provides that she is not entitled to bring her claim. As shown in the above section, the Statute states that “[i]f none of the individuals entitled to bring an action have begun the action within three calendar months 3 after the death of the injured individual, his executor or administrator shall bring and prosecute the action unless requested not to by all those individuals.” Tex. Civ. Pract. & Rem. Code § 71.004(c) (emphasis added). 13. Courts have found that if no wrongful death action is commenced within three months after the decedent's death, only the executor or administrator of the estate has standing to file suit. See Morin v. Ford Motor Co., Nos. 3:07-CV-1700-L, 3:08-CV-779-L, 2009 WL 2486027, at *2 (N.D. Tex. Aug. 12, 2009) (“Because none of the individuals entitled to bring an action … commenced a wrongful death action within three calendar months after [the decedent's] death … , [the personal representative of the estate] is the only person entitled to bring and prosecute this wrongful death action under the Act.”); Trevino v. U-Haul Int'l, Inc., No. 08-cv-1409, 2009 WL 901136, at *3 (N.D. Ill. Mar. 31, 2009) (holding that Texas wrongful death statute “authorizes any of the [statutory] beneficiaries to commence a lawsuit within the first three months after the death of the injured individual .... However, after that initial time period, the Texas statute provides that only the ‘executor or administrator shall bring and prosecute the action unless requested not to by all those individuals.”’). In Morin, the Northern District of Texas ruled that a wrongful death action filed by the decedent's widow almost one year after the decedent's death “was untimely” because “[a]t that time … only the executor or administrator was entitled to bring and prosecute the action unless he or she was requested not to do so by all statutory beneficiaries.” Morin, 2009 WL 2486027, at **2, 6. 14. Here, Plaintiff filed her lawsuit on September 21, 2022—a year after the death of Mr. Duran. Pursuant to Section 71.004(c) of the Wrongful Death Statute, only the executor or administrator of Mr. Duran’s estate is entitled to file suit under the Texas Wrongful Death statute, if at all. Plaintiff has not alleged or established that she is the executor or administrator of Mr. Duran’s estate. Accordingly, Plaintiff lacks standing to sue under the Wrongful Death Statute. 4 D. Only one wrongful death claim can be pursued against Defendant 15. The Wrongful Death Statute states that a wrongful death claim is for the “exclusive” benefit of the decedent’s surviving spouse, children, and parents. See Tex. Civ. Prac. & Rem. Code Ann. § 71.004(a)-(b). 16. Texas requires that only one wrongful death claim be brought to address the alleged negligent death of a person. See Tex. & P. Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652, 654 (1947); see also Dowell v. Quiroz, 462 S.W.3d 578, 586 (Tex. App.—Corpus Christi–Edinburg 2015, no pet.) (holding that there can only be one claim even though the wrongful-death recovery is apportioned amongst all the beneficiaries named in the Wrongful Death Statute.); see Christian v. Charter Oak Fire Ins. Co., 847 S.W.2d 458, 460 (Tex. App.–Tyler 1993, writ denied) (“Our law creates one cause of action in which all spouses, children, and parents may combine to recover their damages.”); Avila v. St. Luke’s Lutheran Hosp., 948 S.W.2d 841, 850 (Tex. App.–San Antonio 1997, pet. denied) (“The provision of the act requiring all of the beneficiaries to be parties was enacted chiefly for the benefit of the defendant in such suit, to protect it against the bringing of several suits arising out of the same transaction.”). 17. As stated above, the Texas Wrongful Death Statute permits Mr. Duran’s beneficiaries to assert a wrongful death claim. However, only one wrongful death claim can be asserted on behalf of all beneficiaries. As the summary judgment evidence shows, Rojelio Rodriguez settled the wrongful death claim, Plaintiff chose not to participate, and now has pursued a second action. Therefore, Plaintiff’s wrongful death claim is extinguished. Plaintiff chose to pursue a second cause of action. To allow Plaintiff to continue with her claim would subvert the legislative intent behind the Wrongful Death Statute and provide a mechanism for Defendant to be sued repeatedly regarding the same wrongful death. Accordingly, Defendant respectfully requests that this Court grant his motion for partial summary judgment and dismiss Plaintiff’s wrongful death claim. 5 IV. CONCLUSION AND PRAYER For the reasons set forth herein, Defendant Jon Gastrock respectfully requests that this Court grant his Partial Motion for Summary Judgment, dismiss the wrongful death cause of action with prejudice; and grant him such other and further relief to which he may show himself to be entitled. SCHOUEST, BAMDAS, SOSHEA, BENMAIER & EASTHAM, PLLC /s/ Jeremy Williams JEREMY WILLIAMS State Bar No. 24090467 jwilliams@sbsb-eastham.com MATTHEW F. POPP State Bar No. 24039679 mpopp@sbsb-eastham.com 1001 McKinney Street, Suite 1400 Houston, Texas 77002 Tel: (713) 588-0446 Fax: (713) 574-2942 ATTORNEYS FOR DEFENDANT JON AUSTIN GASTROCK 6 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I am a member of SBSB-EASTHAM, PLLC, attorneys for the Defendant herein, and that I have provided a copy of the foregoing to all counsel of record via the ECF Filing, this 20th day of December 2023. Via The ECF Filing System Via Fax No. (832) 616-5576 Eric R. Reyes State Bar No. 16794350 312 Harwood Road Bedford, Texas 76021 Telephone: (817) 332-1522 Facsimile: (817) 332-6224 reyes@ericreyeslaw.com Counsel for Plaintiff, Laura Guerra /s/ Jeremy A. Williams Jeremy A. Williams 7 EXHIBIT A 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. Charnelle Barnes on behalf of Jeremy Williams Bar No. 24090467 cbarnes@sbsb-eastham.com Envelope ID: 82991807 Filing Code Description: Motion - Summary Judgment Filing Description: DEFS TRADT'L - PARTIAL Status as of 1/2/2024 1:23 PM CST Associated Case Party: JONAUSTINGASTROCK Name BarNumber Email TimestampSubmitted Status Amy Durocher adurocher@sbsblaw.com 1/2/2024 12:04:11 PM SENT Jeremy Williams jwilliams@sbsb-eastham.com 1/2/2024 12:04:11 PM SENT Charnelle Barnes cbarnes@sbsb-eastham.com 1/2/2024 12:04:11 PM SENT Ross B.Bale rbale@sbsb-eastham.com 1/2/2024 12:04:11 PM SENT Matthew F.Popp mpopp@sbsb-eastham.com 1/2/2024 12:04:11 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status ERIC REYES REYES@ERICREYESLAW.COM 1/2/2024 12:04:11 PM SENT