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Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Valerie Moreno
CAUSE NO. C-4647-22-E
MONICA CERVANTES §
§ IN THE DISTRICT COURT OF
Plaintiff, §
§
V. §
§ HIDALGO COUNTY, TEXAS
DANIELLE VILLELA, BEST WESTERN §
INTERNATIONAL, INC., and JAY §
BHAKTA PROPERTIES §
§
Defendants. § 275th JUDICIAL DISTRICT
DEFENDANT BEST WESTERN INTERNATIONAL, INC.’S
TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW BEST WESTERN INTERNATIONAL, INC. (hereinafter “Defendant Best
Western”), Defendant in the above-entitled and numbered cause, and files this Traditional and No-
Evidence Motion for Summary Judgment, and in support thereof, would respectfuly show the
Court as follows:
I. SUMMARY OF MOTION
Plaintiff Monica Cervantes (hereinafter “Plaintiff”) brings negligence claims against
Defendant Best Western and the other Defendants arising out of an incident that occurred on May
22, 2021, in which Plaintiff and Defendant Danielle Villela (hereinafter “Defendant Villela”)
became engaged in a physical altercation while working for the the owners of a hotel located at
1005 Fairfield Boulevard known as the the Best Western Town Center Inn (hereinafter the
“Hotel”) in Weslaco, Hidalgo County, Texas. Surveillance video from the hotel owner reveals that
Plaintiff and Defendant Villela were working at the front desk of the Hotel when they began to
strike one another with their arms and hands. See, Defendant Jay Bhakta’s Supplemental
Disclosures, Exhibit “A”, (Video of the Incident), a copy on file herein. Plaintiff mistakenly alleges
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that at the time of the incident, Defendant Villela was employed by Defendant Best Western and
that Defendant Villela was in the course and scope of her employment with Defendant Best
Western. The summary judgment evidence instead affirmatively proves that Defendant Best
Western is not the owner, operator, or manager of the Hotel and is not the employer for either
Plaintiff or Defendant Villela. Therefore, Plaintiff’s claims against Defendant Best Western should
be dismissed as a matter of law and Defendant Best Western is entitled to summary judgment in
its favor.
II. STANDARD OF REVIEW
TRADITIONAL SUMMARY JUDGMENT
Cases that involve unmeritorious claims should be dismissed by summary judgment. City
of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Traditional summary
judgment is proper when a defendant establishes that there is no genuine issue as to any material
fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life
and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). ). “A fact is ‘material’ only
if it affects the ultimate outcome of the suit under the governing law.” Rayon v. Energy Specialties,
Inc., 121 S.W.3d 7, 11 (Tex. App.—Fort Worth 2002, no pet.). “A material fact issue is ‘genuine’
only if the evidence is such that a reasonable jury could find the fact in favor of the nonmoving
party.” Id. at 11-12. “Less than a scintilla of evidence exists when the evidence is so weak as to
do no more than create a mere surmise or suspicion of a fact.” Id. at 12 (citing Kindred v.
Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
A defendant who conclusively negates at least one of the essential elements of each of the
plaintiff’s cause of action, or who conclusively establishes all the elements of an affirmative
defense is entitled to summary judgment. Cathy v. Booth, 900 S.W.2d 339, 341 (Tex. 1995);
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Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Montgomery v. Kennedy, 669 S.W.2d
309, 310-11 (Tex.1994).
NO-EVIDENCE SUMMARY JUDGMENT
A defendant may move for a no-evidence summary judgment after an adequate time for
discovery has passed. TEX. R. CIV. P. 166a(i). The motion must state the elements of the
plaintiff’s claim for which there is no evidence. Id. If the plaintiff fails to produce summary
judgment evidence raising a genuine issue of material fact as to each challenged element, summary
judgment must be granted. Id. This lawsuit has been pending for over 10 months and Plaintiff has
not put forth any evidence to support its claims against Defendant Best Western.
Under the No-Evidence Summary Judgment standard, the party with the burden of proof
at trial will have the same burden of proof in a summary judgment proceeding. Esco Oil & Gas,
Inc. v. Sooner Pipe & Supply Corp., 96 S.W. 2d193, 197 n.3 (Tex. App.-Houston [1st Dist.] 1998)
(commenting that under Rule 166a(i), “the plaintiff as the non-movant has the burden to raise a
triable issue on each element essential to the plaintiff’s case against each defendant”)).
A court properly grants a no evidence summary judgment if the non-movant fails to bring
forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an
essential element of the non-movant’s claim. See Tex. R. Civ. P. 166a(i); Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W. 2d 706, 711 (Tex. 1997). Less than a scintilla of
evidence exists when the evidence is “so weak as to do no more than create a mere surmise or
suspicion” of a fact, and legal effect is that there is no evidence to raise a genuine issue of act on
one or more specified elements of plaintiffs cause of action. See Tex. R. Civ. Proc. 166a(i); Weiss
v. Mechanical Associated Serv., Inc., 989 S.W. 2d 120, 123 (Tex. App.-San Antonio 1999).
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A Motion for Summary Judgment can be evaluated as both a traditional and a no-evidence
Motion for Summary Judgment; with a motion being a "no-evidence" motion to the extent it relies
on the specific challenge to one or more essential element of the non-movant's cause of action.
See Amour v. Southwest Toyota, Inc., 20 S.W.3d 165 (Tex. App. – Texarkana, 2000) (pet. rev.
denied). Defendant Best Western is entitled to both traditional and no-evidence summary
judgments as to Plaintiff’s negligence claims.
III. SUMMARY JUDGMENT EVIDENCE
Defendant Best Western’s Motion for Summary Judgment is based upon the pleadings on
file with the Court and documents filed contemporaneously with this Motion upon which
Defendant Best Western relies as summary judgment evidence pursuant to Texas Rule of Civil
Procedure 166a(b), (c), and (d). The attached exhibits are incorporated in this Motion by reference.
Specifically, this Motion is supported by and incorporates the following:
Exhibit “A”: Video of the incident;
Exhibit “B”: Sworn Declaration of Dave Panas, Managing Director for
Operations, Best Western International, Inc.; and
Exhibit “C”: Membership Agreement.
IV. UNDISPUTED FACTS
Defendant Best Western is an Arizona non-profit membership organization comprised of
separate and independent hotel property owners. See Exhibit “B,” Declaration of Dave Panas at ¶
3. Each member hotel is a separate and distinct business entity. Id. Each individual member handles
the management, operations, and day-to-day activities of its own hotel. Id. at ¶ 4. Each
independently owned and operated hotel owner sets its own room rates and hires its own staff. Id.
Defendant Best Western does not hire, train, supervise, pay, or fire any of the individual members’
hotel’s employees. Id. at ¶ 5-6.
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The Hotel where the incident alleged in this lawsuit occurred is owned by Creative Hotel
Group, LLC (“Creative Hotel”), a third-party entity. Id. at ¶ 12. Jayesh “Jay” Bhakta owns a
twenty-five percent (25%) interest in Creative Hotel, and he is also listed as a manager on Creative
Hotel’s Certificate of Formation. Id. Creative Hotel Creative Hotel entered into a Membership
Agreement (Exhibit “C”) with Defendant Best Western to affiliate the Hotel with the Best Western
brand, which states in pertinent part that:
BEST WESTERN HAS NO RESPONSIBILITY FOR THE USE, CONDITION,
MAINTENANCE, POLICIES, PRACTICES, OR OPERATION OF THE HOTEL,
NOR THE SAFETY OF THE DESIGN OF ANY STRUCTURE OR PRODUCT.
BEST WESTERN HAS NO CONTROL OVER OR RESPONSIBILITY FOR ANY
DECISION RELATED TO OR AFFECTING THE EMPLOYMENT OR
SUPERVISION OF ANY PERSON EMPLOYED AT OR PROVIDING SERVICES
IN CONNECTION WITH THE HOTEL.
Id. at ¶ 15; see also Exhibit “C.”
At the time of the incident, neither Plaintiff nor Defendant Villela were employees of
Defendant Best Western. See Exhibit “B” at ¶¶ 17, 19. Defendant Best Western had no control or
responsibility related to Plaintiff or Defendant Villela. Id. at ¶ 21. Each individual member is
responsible for safety, security, and employment matters at its own hotel. Id. at ¶¶ 14, 22. Defendant
Best Western is not responsible for any safety, security, and/or employment matters with respect to the
Hotel or the operation of the Hotel. Id.
V. ARGUMENTS AND AUTHORITIES
A. Negligence, Respondeat Superior, and Gross Negligence
Plaintiff asserts causes of action against Defendant Best Western for negligence, gross
negligence, and respondeat superior based on the proposition that Defendant Best Western
employed Defendant Villela. An employer is negligent if the employer hires, retains, or supervises
an employee whom the employer knows, or by the exercise of reasonable care should have known,
is unfit or incompetent, and whose unfitness or incompetence creates an unreasonable risk of harm
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to others because of the employee's job-related duties. Mindi M. v. Flagship Hotel, Ltd, 439 S.W.3d
551, 557 (Tex. App. 2014), review granted, judgment vacated, and remanded by agreement sub
nom. Flagship Hotel, Ltd. v. Mindi M., No. 14-0696, 2015 WL 13954087 (Tex. Apr. 10, 2015).
As with any negligence case, the plaintiff must prove the existence of a legal duty, a breach of that
duty, and damages proximately caused as a result of the breach. Id; see also IHS Cedars Treatment
Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). The existence of a duty is a
question of law for the court to decide from the facts surrounding the occurrence in question.
Allright San Antonio Parking Inc. v. Kendrick, 981 S.W.2d 250, 252 (Tex. App. 1998). The
plaintiff must establish both the existence and the violation of a duty owed to the plaintiff by the
defendant to establish liability in tort. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523,
525 (Tex. 1990).
B. Defendant Best Western Is Entitled to Traditional Summary Judgment in its Favor
Because it Did Not Owe Any Duties to Plaintiff
Plaintiff’s Original Petition specifically pleads that Defendant Villela was employed by
Defendant Best Western at the time of the incident. To sustain an ordinary negligence cause of
action against Defendant Best Western, Plaintiff must establish that Defendant Best Western owed
her a legal duty, that Defendant Best Western breached that duty, and that the breach proximately
caused Plaintiff’s damages. See Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013). In
the same vein, Plaintiff’s pleading seeks to impose liability on Defendant Best Western for the
alleged negligent hiring, retention, training, and supervision of Defendant Villela. To do so,
Plaintiff would have to prove that there was an employer-employee relationship between
Defendant Villela and Defendant Best Western. See Golden Spread Council, Inc. v. Akins, 926
S.W.2d 287, 290 (Tex. 1996). The undisputed evidence establishes the opposite.
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The summary judgment evidence conclusively establishes that Defendant Best Western
did not owe, and could not have owed, any duties to Plaintiff. Without a legal duty, a defendant
cannot be held liable in tort. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). The
existence of duty is a question of law for the Court to decide. Id. Texas law generally imposes no
duty to take action to prevent harm to others absent certain special relationships or circumstances.
Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000). Defendant Best Western did not
own, oversee, manage, or control the Hotel. See Exhibit “B.” Defendant Best Western did not
employ either Plaintiff or Defendant Villela. Id. Defendant Best Western had no employees at the
Hotel, and had no responsibility or duty to train or supervise any of the employees working there.
Id. Defendant Best Western did not hire employees for the Hotel. Id. Defendant Best Western did
not oversee safety, security, or employment matters related to the Hotel. Id. Texas courts have
acknowledged Defendant Best Western’s role as a nonprofit association of independently owned
and operated hotels. See Gardner v. Best W. Int'l, Inc., 929 S.W.2d 474, 476 (Tex. App. 1996),
writ denied (Feb. 21, 1997).
Moreover, there are no special relationships or circumstances which would give rise to a
duty owed by Defendant Best Western in this matter. Generally, there is no duty to control the
conduct of third persons. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.
1990). This general rule does not apply when a special relationship exists between the actor and
the third person which imposes a duty upon the actor to control the third person's conduct. Id.
These include the relationship between employer and employee, parent and child, and independent
contractor and contractee under special circumstances. See Exxon Corp. v. Quinn, 726 S.W.2d 17,
20 (Tex.1987) (contractee may be liable for an independent contractor's conduct “when he retains
the right to control the contractor's work”); see also Restatement (Second) of Torts §§ 316–20
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(1965). There is no evidence of any special relationship between Plaintiff, Defendant Villela, and
Defendant Best Western to impose any type of duty on the part of Defendant Best Western.
Defendant Best Western did not retain any control over Creative Hotel, the Hotel at issue, Plaintiff,
or Defendant Villela.
While not mandatory authority, but certainly persuasive authority, a Pennsylvania court
granted Best Western International, Inc.’s motion for summary judgment in a similar case, finding
that Defendant Best Western did not exercise the necessary control over one of the independent
member hotels to find it liable for a patron’s assault. See Myszkowski v. Penn Stroud Hotel, Inc.,
430 Pa. Super. 315, 634 A.2d 622 (1993) (Nonprofit corporation with which hotel had marketing
agreement under which corporation allowed hotel to use its name and participate in its reservation
network did not exercise necessary control over hotel day-to-day operations to establish master-
servant relationship; hotel managed day-to-day operations of business and made all decisions
incidental to its operation, agreement specifically provided that relationship was that of
independent contractor, hotel paid fixed annual fee and had right to end relationship for any reason
at any time, and fact that corporation set certain standards to maintain uniform quality of service
only addressed result of work and not manner in which it was conducted).
Defendant Best Western did not employ or control the activities of Defendant Villela at the
time of the incident. Likewise, Defendant Best Western did not own or control the premises of the
Hotel. The summary judgment evidence conclusively negates the necessary element of duty,
therefore Defendant Best Western is entitled to summary judgment on Plaintiff’s negligence and
respondeat superior claims. As "a finding of ordinary negligence is a prerequisite to a finding of
gross negligence," the claim for gross negligence is also barred. Shell Oil Co. v. Humphrey, 880
S.W.2d 170, 174 (Tex.App.-Houston [14th Dist.] 1994, 18 writ denied).
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C. Defendant Best Western is Entitled to No-Evidence Summary Judgment in its Favor
Because There is No Evidence of One or More Essential Elements of Plaintiff’s Claims
Rule 166a(i) provides an alternative no-evidence summary judgment standard. After
adequate time for discovery, a defendant may move for summary judgment on the grounds there
is no evidence of one or more essential elements of a plaintiffs claim. See Tex. R. Civ. P. 166a(i).
The portion of Tex. R. Civ. P. 166a(i) providing that a "no-evidence" motion for summary
judgment may be filed "after an adequate time for discovery" has passed does not require that
discovery be completed. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App. –
Houston 2000, pet. denied); see e.g., Restaurant Teams, Int'l v. MG Sec. Corp., 95 S.W.3d 336,
339 (Tex. App. – Dallas 2002, no pet.) (holding that seven months was an adequate amount of
time to conduct discovery); Wolfe v. Fairbanks Capital Corp., No. 2-03- 100-CV, 2004 WL
221212, at * 1 (Tex. App. – Fort Worth Feb. 5, 2004, no pet.) (holding that eleven months was an
adequate amount of time to conduct discovery). A no-evidence motion for summary judgment
filed before the end of the discovery period in the case is not necessarily premature. Specialty
Realtors, Inc. v. Fuqua, 29 S.W.3d at 145; In Re Mohawk Rubber Co., 982 S.W.2d at 498.
Plaintiff has had sufficient time to conduct discovery. This case involves an alleged injury
that occurred on May 22, 2021. This lawsuit was filed on December 2, 2022. Plaintiff, Defendant
Best Western and Defendant Bhakta have served Initial Disclosures and engaged in written
discovery. More than adequate time has passed for discovery to have taken place.
Defendant Best Western would therefore, in the alternative to its traditional grounds for
summary judgment, show that Plaintiff cannot recover from it for her alleged injuries because the
undisputed facts establish that Plaintiff has not, through pleadings, written discovery, or otherwise,
presented any evidence of the following elements of her claims:
Duty;
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Breach of duty giving rise to negligence; and
Causation.
Under Tex.R.Civ.P. 166(a)(i), without evidence tending to establish any (or even one) of these
elements, Defendant Best Western is entitled to summary judgment as to all claims against it on
this further basis.
V. CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant Best Western requests that the
Court grant its Motion for Summary Judgment, dismiss Plaintiff’s claims against it with prejudice,
and award it any further relief to which it may be entitled.
Respectfully submitted,
COLVIN, SAENZ, RODRIGUEZ & KENNAMER
By: /s/ Taylor Blas
Jaime A. Saenz
State Bar No. 17514859
Email: ja.saenz@rcclaw.com
Taylor P. Blas
State Bar No. 24136635
Email: tp.blas@rcclaw.com
COLVIN, SAENZ, RODRIGUEZ &
KENNAMER, L.L.P.
1201 East Van Buren
Brownsville, Texas 78520
(956) 542-7441
(956) 541-2170 Fax
Attorneys for Defendant Best Western
International, Inc.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served upon all
counsel of record.
Richard A. Hinojosa
Email: richardhinojosa@hinojosalaw.com; e-service@hinojosalaw.com
HINOJOSA LAW, PLLC
3904 Brandt Street
Houston, Texas 77006
Attorney for Plaintiff Monica Cervantes
Victor V. Vicinaiz
Email: vvicinaiz@rofllp.com
Zuleida Lopez-Habbouche
Email: zlopez@rofllp.com
ROERIG, OLIVEIRA & FISHER, LLP
10225 N. Tenth Street
McAllen, Texas 78504
Attorneys for Defendant Jay Bhakta Properties
by e-service through the Texas e-filing system, electronic transmission, certified mail, return
receipt requested, facsimile transmission, and/or hand delivery pursuant to the Texas Rules of Civil
Procedure on the 6th of November, 2023.
/s/ Taylor P. Blas
Page 11
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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.
Irma Garcia on behalf of Taylor Blas
Bar No. 24136635
irma.garcia@rcclaw.com
Envelope ID: 81328387
Filing Code Description: Motion for Summary Judgment
Filing Description: Def. Best Western's Traditional and No-Evidence
Motion for Summary Judgment
Status as of 11/6/2023 11:31 AM CST
Associated Case Party: Monica Cervantes
Name BarNumber Email TimestampSubmitted Status
Hinojosa Law e-service@hinojosalaw.com 11/6/2023 11:10:11 AM SENT
Richard Hinojosa richardhinojosa@hinojosalaw.com 11/6/2023 11:10:11 AM SENT
Stephanie Medrano smedrano@hinojosalaw.com 11/6/2023 11:10:11 AM SENT
Associated Case Party: Best Western International, Inc.
Name BarNumber Email TimestampSubmitted Status
Jaime Saenz ja.saenz@rcclaw.com 11/6/2023 11:10:11 AM SENT
Taylor Blas tp.blas@rcclaw.com 11/6/2023 11:10:11 AM SENT
Flora Galvan flora.galvan@rcclaw.com 11/6/2023 11:10:11 AM SENT
Irma Garcia irma.garcia@rcclaw.com 11/6/2023 11:10:11 AM SENT
Associated Case Party: Jay Bhakta Properties
Name BarNumber Email TimestampSubmitted Status
Victor V.Vicinaiz vvicinaiz@rofllp.com 11/6/2023 11:10:11 AM SENT
Zuleida Lopez-Habbouche zlopez@rofllp.com 11/6/2023 11:10:11 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
NOE GONZALAEZ ngonzalez@hinojosalaw.com 11/6/2023 11:10:11 AM SENT
MORGAN G morgang@rofllp.com 11/6/2023 11:10:11 AM SENT
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.
Irma Garcia on behalf of Taylor Blas
Bar No. 24136635
irma.garcia@rcclaw.com
Envelope ID: 81328387
Filing Code Description: Motion for Summary Judgment
Filing Description: Def. Best Western's Traditional and No-Evidence
Motion for Summary Judgment
Status as of 11/6/2023 11:31 AM CST
Case Contacts
MORGAN G morgang@rofllp.com 11/6/2023 11:10:11 AM SENT
ANA F anaf@rofllp.com 11/6/2023 11:10:11 AM ERROR
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Preview
Electronically Filed 11/6/2023 11:10 AM Hidalgo County District Clerks Reviewed By: Valerie Moreno CAUSE NO. C-4647-22-E MONICA CERVANTES § § IN THE DISTRICT COURT OF Plaintiff, § § V. § § HIDALGO COUNTY, TEXAS DANIELLE VILLELA, BEST WESTERN § INTERNATIONAL, INC., and JAY § BHAKTA PROPERTIES § § Defendants. § 275th JUDICIAL DISTRICT DEFENDANT BEST WESTERN INTERNATIONAL, INC.’S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW BEST WESTERN INTERNATIONAL, INC. (hereinafter “Defendant Best Western”), Defendant in the above-entitled and numbered cause, and files this Traditional and No- Evidence Motion for Summary Judgment, and in support thereof, would respectfuly show the Court as follows: I. SUMMARY OF MOTION Plaintiff Monica Cervantes (hereinafter “Plaintiff”) brings negligence claims against Defendant Best Western and the other Defendants arising out of an incident that occurred on May 22, 2021, in which Plaintiff and Defendant Danielle Villela (hereinafter “Defendant Villela”) became engaged in a physical altercation while working for the the owners of a hotel located at 1005 Fairfield Boulevard known as the the Best Western Town Center Inn (hereinafter the “Hotel”) in Weslaco, Hidalgo County, Texas. Surveillance video from the hotel owner reveals that Plaintiff and Defendant Villela were working at the front desk of the Hotel when they began to strike one another with their arms and hands. See, Defendant Jay Bhakta’s Supplemental Disclosures, Exhibit “A”, (Video of the Incident), a copy on file herein. Plaintiff mistakenly alleges Page 1 Electronically Filed 11/6/2023 11:10 AM Hidalgo County District Clerks Reviewed By: Valerie Moreno that at the time of the incident, Defendant Villela was employed by Defendant Best Western and that Defendant Villela was in the course and scope of her employment with Defendant Best Western. The summary judgment evidence instead affirmatively proves that Defendant Best Western is not the owner, operator, or manager of the Hotel and is not the employer for either Plaintiff or Defendant Villela. Therefore, Plaintiff’s claims against Defendant Best Western should be dismissed as a matter of law and Defendant Best Western is entitled to summary judgment in its favor. II. STANDARD OF REVIEW TRADITIONAL SUMMARY JUDGMENT Cases that involve unmeritorious claims should be dismissed by summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Traditional summary judgment is proper when a defendant establishes that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). ). “A fact is ‘material’ only if it affects the ultimate outcome of the suit under the governing law.” Rayon v. Energy Specialties, Inc., 121 S.W.3d 7, 11 (Tex. App.—Fort Worth 2002, no pet.). “A material fact issue is ‘genuine’ only if the evidence is such that a reasonable jury could find the fact in favor of the nonmoving party.” Id. at 11-12. “Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact.” Id. at 12 (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). A defendant who conclusively negates at least one of the essential elements of each of the plaintiff’s cause of action, or who conclusively establishes all the elements of an affirmative defense is entitled to summary judgment. Cathy v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Page 2 Electronically Filed 11/6/2023 11:10 AM Hidalgo County District Clerks Reviewed By: Valerie Moreno Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1994). NO-EVIDENCE SUMMARY JUDGMENT A defendant may move for a no-evidence summary judgment after an adequate time for discovery has passed. TEX. R. CIV. P. 166a(i). The motion must state the elements of the plaintiff’s claim for which there is no evidence. Id. If the plaintiff fails to produce summary judgment evidence raising a genuine issue of material fact as to each challenged element, summary judgment must be granted. Id. This lawsuit has been pending for over 10 months and Plaintiff has not put forth any evidence to support its claims against Defendant Best Western. Under the No-Evidence Summary Judgment standard, the party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding. Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 96 S.W. 2d193, 197 n.3 (Tex. App.-Houston [1st Dist.] 1998) (commenting that under Rule 166a(i), “the plaintiff as the non-movant has the burden to raise a triable issue on each element essential to the plaintiff’s case against each defendant”)). A court properly grants a no evidence summary judgment if the non-movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the non-movant’s claim. See Tex. R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W. 2d 706, 711 (Tex. 1997). Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact, and legal effect is that there is no evidence to raise a genuine issue of act on one or more specified elements of plaintiffs cause of action. See Tex. R. Civ. Proc. 166a(i); Weiss v. Mechanical Associated Serv., Inc., 989 S.W. 2d 120, 123 (Tex. App.-San Antonio 1999). Page 3 Electronically Filed 11/6/2023 11:10 AM Hidalgo County District Clerks Reviewed By: Valerie Moreno A Motion for Summary Judgment can be evaluated as both a traditional and a no-evidence Motion for Summary Judgment; with a motion being a "no-evidence" motion to the extent it relies on the specific challenge to one or more essential element of the non-movant's cause of action. See Amour v. Southwest Toyota, Inc., 20 S.W.3d 165 (Tex. App. – Texarkana, 2000) (pet. rev. denied). Defendant Best Western is entitled to both traditional and no-evidence summary judgments as to Plaintiff’s negligence claims. III. SUMMARY JUDGMENT EVIDENCE Defendant Best Western’s Motion for Summary Judgment is based upon the pleadings on file with the Court and documents filed contemporaneously with this Motion upon which Defendant Best Western relies as summary judgment evidence pursuant to Texas Rule of Civil Procedure 166a(b), (c), and (d). The attached exhibits are incorporated in this Motion by reference. Specifically, this Motion is supported by and incorporates the following: Exhibit “A”: Video of the incident; Exhibit “B”: Sworn Declaration of Dave Panas, Managing Director for Operations, Best Western International, Inc.; and Exhibit “C”: Membership Agreement. IV. UNDISPUTED FACTS Defendant Best Western is an Arizona non-profit membership organization comprised of separate and independent hotel property owners. See Exhibit “B,” Declaration of Dave Panas at ¶ 3. Each member hotel is a separate and distinct business entity. Id. Each individual member handles the management, operations, and day-to-day activities of its own hotel. Id. at ¶ 4. Each independently owned and operated hotel owner sets its own room rates and hires its own staff. Id. Defendant Best Western does not hire, train, supervise, pay, or fire any of the individual members’ hotel’s employees. Id. at ¶ 5-6. Page 4 Electronically Filed 11/6/2023 11:10 AM Hidalgo County District Clerks Reviewed By: Valerie Moreno The Hotel where the incident alleged in this lawsuit occurred is owned by Creative Hotel Group, LLC (“Creative Hotel”), a third-party entity. Id. at ¶ 12. Jayesh “Jay” Bhakta owns a twenty-five percent (25%) interest in Creative Hotel, and he is also listed as a manager on Creative Hotel’s Certificate of Formation. Id. Creative Hotel Creative Hotel entered into a Membership Agreement (Exhibit “C”) with Defendant Best Western to affiliate the Hotel with the Best Western brand, which states in pertinent part that: BEST WESTERN HAS NO RESPONSIBILITY FOR THE USE, CONDITION, MAINTENANCE, POLICIES, PRACTICES, OR OPERATION OF THE HOTEL, NOR THE SAFETY OF THE DESIGN OF ANY STRUCTURE OR PRODUCT. BEST WESTERN HAS NO CONTROL OVER OR RESPONSIBILITY FOR ANY DECISION RELATED TO OR AFFECTING THE EMPLOYMENT OR SUPERVISION OF ANY PERSON EMPLOYED AT OR PROVIDING SERVICES IN CONNECTION WITH THE HOTEL. Id. at ¶ 15; see also Exhibit “C.” At the time of the incident, neither Plaintiff nor Defendant Villela were employees of Defendant Best Western. See Exhibit “B” at ¶¶ 17, 19. Defendant Best Western had no control or responsibility related to Plaintiff or Defendant Villela. Id. at ¶ 21. Each individual member is responsible for safety, security, and employment matters at its own hotel. Id. at ¶¶ 14, 22. Defendant Best Western is not responsible for any safety, security, and/or employment matters with respect to the Hotel or the operation of the Hotel. Id. V. ARGUMENTS AND AUTHORITIES A. Negligence, Respondeat Superior, and Gross Negligence Plaintiff asserts causes of action against Defendant Best Western for negligence, gross negligence, and respondeat superior based on the proposition that Defendant Best Western employed Defendant Villela. An employer is negligent if the employer hires, retains, or supervises an employee whom the employer knows, or by the exercise of reasonable care should have known, is unfit or incompetent, and whose unfitness or incompetence creates an unreasonable risk of harm Page 5 Electronically Filed 11/6/2023 11:10 AM Hidalgo County District Clerks Reviewed By: Valerie Moreno to others because of the employee's job-related duties. Mindi M. v. Flagship Hotel, Ltd, 439 S.W.3d 551, 557 (Tex. App. 2014), review granted, judgment vacated, and remanded by agreement sub nom. Flagship Hotel, Ltd. v. Mindi M., No. 14-0696, 2015 WL 13954087 (Tex. Apr. 10, 2015). As with any negligence case, the plaintiff must prove the existence of a legal duty, a breach of that duty, and damages proximately caused as a result of the breach. Id; see also IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Allright San Antonio Parking Inc. v. Kendrick, 981 S.W.2d 250, 252 (Tex. App. 1998). The plaintiff must establish both the existence and the violation of a duty owed to the plaintiff by the defendant to establish liability in tort. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). B. Defendant Best Western Is Entitled to Traditional Summary Judgment in its Favor Because it Did Not Owe Any Duties to Plaintiff Plaintiff’s Original Petition specifically pleads that Defendant Villela was employed by Defendant Best Western at the time of the incident. To sustain an ordinary negligence cause of action against Defendant Best Western, Plaintiff must establish that Defendant Best Western owed her a legal duty, that Defendant Best Western breached that duty, and that the breach proximately caused Plaintiff’s damages. See Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013). In the same vein, Plaintiff’s pleading seeks to impose liability on Defendant Best Western for the alleged negligent hiring, retention, training, and supervision of Defendant Villela. To do so, Plaintiff would have to prove that there was an employer-employee relationship between Defendant Villela and Defendant Best Western. See Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996). The undisputed evidence establishes the opposite. Page 6 Electronically Filed 11/6/2023 11:10 AM Hidalgo County District Clerks Reviewed By: Valerie Moreno The summary judgment evidence conclusively establishes that Defendant Best Western did not owe, and could not have owed, any duties to Plaintiff. Without a legal duty, a defendant cannot be held liable in tort. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). The existence of duty is a question of law for the Court to decide. Id. Texas law generally imposes no duty to take action to prevent harm to others absent certain special relationships or circumstances. Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000). Defendant Best Western did not own, oversee, manage, or control the Hotel. See Exhibit “B.” Defendant Best Western did not employ either Plaintiff or Defendant Villela. Id. Defendant Best Western had no employees at the Hotel, and had no responsibility or duty to train or supervise any of the employees working there. Id. Defendant Best Western did not hire employees for the Hotel. Id. Defendant Best Western did not oversee safety, security, or employment matters related to the Hotel. Id. Texas courts have acknowledged Defendant Best Western’s role as a nonprofit association of independently owned and operated hotels. See Gardner v. Best W. Int'l, Inc., 929 S.W.2d 474, 476 (Tex. App. 1996), writ denied (Feb. 21, 1997). Moreover, there are no special relationships or circumstances which would give rise to a duty owed by Defendant Best Western in this matter. Generally, there is no duty to control the conduct of third persons. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). This general rule does not apply when a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct. Id. These include the relationship between employer and employee, parent and child, and independent contractor and contractee under special circumstances. See Exxon Corp. v. Quinn, 726 S.W.2d 17, 20 (Tex.1987) (contractee may be liable for an independent contractor's conduct “when he retains the right to control the contractor's work”); see also Restatement (Second) of Torts §§ 316–20 Page 7 Electronically Filed 11/6/2023 11:10 AM Hidalgo County District Clerks Reviewed By: Valerie Moreno (1965). There is no evidence of any special relationship between Plaintiff, Defendant Villela, and Defendant Best Western to impose any type of duty on the part of Defendant Best Western. Defendant Best Western did not retain any control over Creative Hotel, the Hotel at issue, Plaintiff, or Defendant Villela. While not mandatory authority, but certainly persuasive authority, a Pennsylvania court granted Best Western International, Inc.’s motion for summary judgment in a similar case, finding that Defendant Best Western did not exercise the necessary control over one of the independent member hotels to find it liable for a patron’s assault. See Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa. Super. 315, 634 A.2d 622 (1993) (Nonprofit corporation with which hotel had marketing agreement under which corporation allowed hotel to use its name and participate in its reservation network did not exercise necessary control over hotel day-to-day operations to establish master- servant relationship; hotel managed day-to-day operations of business and made all decisions incidental to its operation, agreement specifically provided that relationship was that of independent contractor, hotel paid fixed annual fee and had right to end relationship for any reason at any time, and fact that corporation set certain standards to maintain uniform quality of service only addressed result of work and not manner in which it was conducted). Defendant Best Western did not employ or control the activities of Defendant Villela at the time of the incident. Likewise, Defendant Best Western did not own or control the premises of the Hotel. The summary judgment evidence conclusively negates the necessary element of duty, therefore Defendant Best Western is entitled to summary judgment on Plaintiff’s negligence and respondeat superior claims. As "a finding of ordinary negligence is a prerequisite to a finding of gross negligence," the claim for gross negligence is also barred. Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex.App.-Houston [14th Dist.] 1994, 18 writ denied). Page 8 Electronically Filed 11/6/2023 11:10 AM Hidalgo County District Clerks Reviewed By: Valerie Moreno C. Defendant Best Western is Entitled to No-Evidence Summary Judgment in its Favor Because There is No Evidence of One or More Essential Elements of Plaintiff’s Claims Rule 166a(i) provides an alternative no-evidence summary judgment standard. After adequate time for discovery, a defendant may move for summary judgment on the grounds there is no evidence of one or more essential elements of a plaintiffs claim. See Tex. R. Civ. P. 166a(i). The portion of Tex. R. Civ. P. 166a(i) providing that a "no-evidence" motion for summary judgment may be filed "after an adequate time for discovery" has passed does not require that discovery be completed. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App. – Houston 2000, pet. denied); see e.g., Restaurant Teams, Int'l v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App. – Dallas 2002, no pet.) (holding that seven months was an adequate amount of time to conduct discovery); Wolfe v. Fairbanks Capital Corp., No. 2-03- 100-CV, 2004 WL 221212, at * 1 (Tex. App. – Fort Worth Feb. 5, 2004, no pet.) (holding that eleven months was an adequate amount of time to conduct discovery). A no-evidence motion for summary judgment filed before the end of the discovery period in the case is not necessarily premature. Specialty Realtors, Inc. v. Fuqua, 29 S.W.3d at 145; In Re Mohawk Rubber Co., 982 S.W.2d at 498. Plaintiff has had sufficient time to conduct discovery. This case involves an alleged injury that occurred on May 22, 2021. This lawsuit was filed on December 2, 2022. Plaintiff, Defendant Best Western and Defendant Bhakta have served Initial Disclosures and engaged in written discovery. More than adequate time has passed for discovery to have taken place. Defendant Best Western would therefore, in the alternative to its traditional grounds for summary judgment, show that Plaintiff cannot recover from it for her alleged injuries because the undisputed facts establish that Plaintiff has not, through pleadings, written discovery, or otherwise, presented any evidence of the following elements of her claims: Duty; Page 9 Electronically Filed 11/6/2023 11:10 AM Hidalgo County District Clerks Reviewed By: Valerie Moreno Breach of duty giving rise to negligence; and Causation. Under Tex.R.Civ.P. 166(a)(i), without evidence tending to establish any (or even one) of these elements, Defendant Best Western is entitled to summary judgment as to all claims against it on this further basis. V. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant Best Western requests that the Court grant its Motion for Summary Judgment, dismiss Plaintiff’s claims against it with prejudice, and award it any further relief to which it may be entitled. Respectfully submitted, COLVIN, SAENZ, RODRIGUEZ & KENNAMER By: /s/ Taylor Blas Jaime A. Saenz State Bar No. 17514859 Email: ja.saenz@rcclaw.com Taylor P. Blas State Bar No. 24136635 Email: tp.blas@rcclaw.com COLVIN, SAENZ, RODRIGUEZ & KENNAMER, L.L.P. 1201 East Van Buren Brownsville, Texas 78520 (956) 542-7441 (956) 541-2170 Fax Attorneys for Defendant Best Western International, Inc. Page 10 Electronically Filed 11/6/2023 11:10 AM Hidalgo County District Clerks Reviewed By: Valerie Moreno CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served upon all counsel of record. Richard A. Hinojosa Email: richardhinojosa@hinojosalaw.com; e-service@hinojosalaw.com HINOJOSA LAW, PLLC 3904 Brandt Street Houston, Texas 77006 Attorney for Plaintiff Monica Cervantes Victor V. Vicinaiz Email: vvicinaiz@rofllp.com Zuleida Lopez-Habbouche Email: zlopez@rofllp.com ROERIG, OLIVEIRA & FISHER, LLP 10225 N. Tenth Street McAllen, Texas 78504 Attorneys for Defendant Jay Bhakta Properties by e-service through the Texas e-filing system, electronic transmission, certified mail, return receipt requested, facsimile transmission, and/or hand delivery pursuant to the Texas Rules of Civil Procedure on the 6th of November, 2023. /s/ Taylor P. Blas Page 11 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. Irma Garcia on behalf of Taylor Blas Bar No. 24136635 irma.garcia@rcclaw.com Envelope ID: 81328387 Filing Code Description: Motion for Summary Judgment Filing Description: Def. Best Western's Traditional and No-Evidence Motion for Summary Judgment Status as of 11/6/2023 11:31 AM CST Associated Case Party: Monica Cervantes Name BarNumber Email TimestampSubmitted Status Hinojosa Law e-service@hinojosalaw.com 11/6/2023 11:10:11 AM SENT Richard Hinojosa richardhinojosa@hinojosalaw.com 11/6/2023 11:10:11 AM SENT Stephanie Medrano smedrano@hinojosalaw.com 11/6/2023 11:10:11 AM SENT Associated Case Party: Best Western International, Inc. Name BarNumber Email TimestampSubmitted Status Jaime Saenz ja.saenz@rcclaw.com 11/6/2023 11:10:11 AM SENT Taylor Blas tp.blas@rcclaw.com 11/6/2023 11:10:11 AM SENT Flora Galvan flora.galvan@rcclaw.com 11/6/2023 11:10:11 AM SENT Irma Garcia irma.garcia@rcclaw.com 11/6/2023 11:10:11 AM SENT Associated Case Party: Jay Bhakta Properties Name BarNumber Email TimestampSubmitted Status Victor V.Vicinaiz vvicinaiz@rofllp.com 11/6/2023 11:10:11 AM SENT Zuleida Lopez-Habbouche zlopez@rofllp.com 11/6/2023 11:10:11 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status NOE GONZALAEZ ngonzalez@hinojosalaw.com 11/6/2023 11:10:11 AM SENT MORGAN G morgang@rofllp.com 11/6/2023 11:10:11 AM SENT 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. Irma Garcia on behalf of Taylor Blas Bar No. 24136635 irma.garcia@rcclaw.com Envelope ID: 81328387 Filing Code Description: Motion for Summary Judgment Filing Description: Def. Best Western's Traditional and No-Evidence Motion for Summary Judgment Status as of 11/6/2023 11:31 AM CST Case Contacts MORGAN G morgang@rofllp.com 11/6/2023 11:10:11 AM SENT ANA F anaf@rofllp.com 11/6/2023 11:10:11 AM ERROR HORDYN EMMERT hordyn.emmert@roystonlaw.com 11/6/2023 11:10:11 AM SENT