Preview
Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Dianira Leal
CAUSE NO. C-5180-21-D
AIDALY JEANETTE CANTU AND § IN THE DISTRICT COURT
BRENDA ANETTE CANTU §
§
Plaintiffs, §
§
VS. § 206TH JUDICIAL DISTRICT
§
JOSE LUIS IBARRA, §
COCA-COLA SOUTHWEST §
BEVERAGES, LLC, AND TEXAS §
COLA LEASING CO., L.L.L.P. §
§
Defendants. § HIDALGO COUNTY, TEXAS
DEFENDANT TEXAS-COLA LEASING COMPANY LP, LLLP’S
MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant Texas-Cola Leasing Company LP, LLLP (“Texas-Cola Leasing”) is entitled to
summary judgment because Plaintiffs cannot sufficiently establish essential elements of their
claims against it. First, Texas-Cola Leasing is in the sole business of leasing motor vehicles to
Coca-Cola Southwest Beverages LLC (“CCSWB”) and was leasing the subject tractor and trailer
to CCSWB at the time of the subject accident. Further, Texas-Cola Leasing did not employ or
otherwise have any relationship (including principal-agent or independent contractor) with
Defendant Jose Luis Ibarra (“Mr. Ibarra”); rather, Mr. Ibarra was employed by CCSWB at all
relevant times. Thus, Texas-Cola Leasing, as a matter of law, cannot be liable for negligently
entrusting the tractor-trailer to Mr. Ibarra and cannot otherwise be vicariously liable for Mr.
Ibarra’s alleged negligence. Additionally, Plaintiffs simply have no evidence of essential
elements of their negligent entrustment, negligence, and negligence per se claims.
DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S
MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 1
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I. INTRODUCTION
This lawsuit arises from a motor vehicle accident that occurred on January 3, 2020, in
Edinburg, Texas. (Exhibit A, ¶ 5.1). Mr. Ibarra was operating a tractor-trailer as an employee of
CCSWB when Plaintiffs’ vehicle struck the back of Mr. Ibarra’s trailer. As a result of the
accident in question, Plaintiffs assert claims against Mr. Ibarra, CCSWB, and Texas-Cola
Leasing. As to Texas-Cola Leasing, Plaintiffs assert claims for negligence and negligence per se
based on respondeat superior and failure to properly train, inspect, maintain, and supervise Mr.
Ibarra; and negligent entrustment. (Id. at ¶¶ 7.1-7.2, 7.7).
Texas-Cola Leasing is entitled to summary judgment on Plaintiffs’ claims under Rule
166a(b) and Rule 166a(i) of the Texas Rules of Civil Procedure. The summary judgment
evidence establishes as a matter of law that: (1) Texas-Cola Leasing is engaged in the business of
leasing motor vehicles; (2) Texas-Cola Leasing, as the owner of the subject tractor and trailer,
was leasing that equipment to CCSWB at the time of the subject accident; (3) Mr. Ibarra was
acting within the course of scope of his employment with CCSWB at the time of the subject
accident; and (4) Texas-Cola Leasing did not exercise any control over Mr. Ibarra during the
performance of his work for CCSWB.
Notwithstanding the fact that an adequate time for discovery has passed, Plaintiffs also
cannot produce any summary judgment evidence to support the essential elements of their
negligence, negligence per se, and negligent entrustment claims against Texas-Cola Leasing.
Accordingly, Texas-Cola Leasing is entitled to summary judgment on all Plaintiffs’ claims
against it as a matter of law.
II. SUMMARY JUDGMENT EVIDENCE
Exhibit A: Plaintiffs’ Original Petition;
DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S
MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 2
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Exhibit B: Affidavit of Eric Murray;
Exhibit B.1: Lease Agreement, to be submitted in camera; and
Exhibit B.2: Management Agreement, to be submitted in camera.
III. BACKGROUND
This lawsuit arises from a motor vehicle accident that occurred on January 3, 2020, in
Edinburg, Texas. (Exhibit A, ¶ 5.1). Plaintiffs allege that the accident occurred as a result of
Plaintiffs and Mr. Ibarra attempting to make a lane change at the same time. (Id. at ¶ 5.3).
Plaintiffs assert claims against Texas-Cola Leasing for negligence, negligence per se, and
negligent entrustment. (Id. at ¶¶ 7.1-8.2). Plaintiffs allege that Mr. Ibarra was an employee of
Texas-Cola Leasing and CCSWB and was acting within the course and scope of his
employment. (Id. at ¶ 5.1). Plaintiffs also allege that Texas-Cola Leasing entrusted the subject
tractor-trailer to Mr. Ibarra at the time of the subject accident. (Id. at ¶ 8.1).
Texas-Cola Leasing is a limited liability limited partnership engaged in the business of
leasing vehicles. (Exhibit B, ¶ 4). It has no employees, but rather is comprised of one general
partner and several limited partners, all of which are corporate entities. (Id.). Texas-Cola
Leasing owned the tractor and trailer involved in this accident and was leasing that equipment to
CCSWB in accordance with a Management Agreement and a Lease Agreement.1 (Id. at ¶ 7).
Pursuant to the Management Agreement, CCSWB is an independent contractor of Texas-
Cola Leasing with respect to the leasing of equipment, and CCSWB’s employees “shall not be
deemed to be employees of [Texas-Cola Leasing]….” (Exhibit B.2, ¶ 4). Likewise, the Lease
1
Following the execution of the Management Agreement and Lease Agreement, Coca-Cola Enterprises, Inc., a
separate entity, merged with another corporate entity and formed Coca-Cola Refreshments USA, Inc. CCSWB
acquired the operations and assets of Coca-Cola Refreshments USA, Inc. and began conducting business on April 1,
2017. (Exhibit B, ¶ 7). CCSWB was assigned the Management Agreement and the Lease Agreement in the
transaction (Id.).
DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S
MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 3
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Agreement provides that CCSWB is required to provide all drivers for the leased vehicles.
(Exhibit B.1, ¶ 6). The Lease Agreement further states, in relevant part:
None of [CCSWB’s] agents, servants or employees shall be deemed to be the
agents, servants or employees of [Texas-Cola Leasing] or any assignee of [Texas-
Cola Leasing], and [Texas-Cola Leasing] shall not be responsible for the acts or
omissions of [CCSWB], or any of its officers, agents or employees.
(Exhibit B.1, ¶ 15).
Texas-Cola Leasing did not employ Mr. Ibarra. (Exhibit B, ¶ 8). On the date of the
subject accident, Mr. Ibarra was employed by CCSWB as a Driver Merchandiser. (Id.). Mr.
Ibarra was acting within the course and scope of his employment with CCSWB at the time of the
subject accident. (Id.). Texas-Cola Leasing did not assign the subject tractor or trailer or the
delivery route to Mr. Ibarra. (Id.). Texas-Cola Leasing also did not have any knowledge
regarding Mr. Ibarra’s commercial driving history, commercial driving qualifications, or
competency as a commercial driver. (Id. at ¶ 9). Due to these undisputed facts, Plaintiffs’
claims against Texas-Cola Leasing are subject to summary judgment.
IV. LEGAL STANDARD
A. Traditional Summary Judgment
A defendant is entitled to summary judgment under Rule 166a(b) when the summary
judgment evidence shows that there is no genuine issue of material fact and that the defendant is
entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). Although evidence favorable to
the non-movant must be taken as true, and all reasonable inferences must be indulged in the non-
movant’s favor, the defendant need only disprove a single element of the plaintiff’s cause of
action to be entitled to summary judgment. Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d
374, 381 (Tex. 2004). Once the defendant establishes its right to summary judgment as a matter
of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material
DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S
MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 4
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fact, thereby precluding summary judgment. See Abdel-Fattah v. PepsiCo, Inc., 948 S.W.2d
381, 383 (Tex. App.—Houston [14th Dist.] 1997, no writ).
B. No-Evidence Summary Judgment
Rule 166a(i) also allows a party to move for summary judgment on the basis that there is
no evidence of one or more essential elements of a claim on which the non-movant has the
burden of proof. Tex. R. Civ. P. 166a(i). When a defendant moves for summary judgment on
no-evidence grounds, the non-movant must 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
claims on which it would have the burden of proof at trial. See Wal-Mart Stores, Inc. v.
Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). “A no evidence motion places the burden on the
non-movant to present evidence raising a genuine fact issue on the challenged elements. If the
non-movant is unable to produce summary judgment evidence raising a genuine issue of material
fact on the challenged elements, the trial court must grant the motion.” Harrill v. A.J.’s Wrecker
Serv., Inc., 27 S.W.3d 191, 193 (Tex. App.—Dallas 2000, pet. dism’d). Under Rule 166a(i), “the
party with the burden of proof at trial will have the same burden of proof in a summary judgment
proceeding.” Galveston Newspapers, Inc. v. Norris, 981 S.W.2d 797, 800 (Tex. App.—Houston
[1st Dist.] 1998, pet. denied).
A party may move for summary judgment under Rule 166a(i) after adequate time for
discovery. See Tex. R. Civ. P. 166a(i). The rule does not require that discovery must have been
completed, only that there was “adequate time.” Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d
140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Whether a non-movant has had
adequate time for discovery under Rule 166a(i) is determined on a case-by-case basis. Tempay,
Inc. v. TNT Concrete & Constr., Inc., 37 S.W.3d 517, 522 (Tex. App.—Austin 2001, pet.
DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S
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denied). Courts have found as little as seven months sufficient time for discovery. See McClure
v. Attebury, 20 S.W.3d 722, 730 (Tex. App.—Amarillo 1999, no pet.); Restaurant Teams Int’l,
Inc. v. MG Secs. Corp., 95 S.W.3d 336, 342 (Tex. App.—Dallas 2002, no pet.); see also
Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 721 (5th Cir. 1995) (per curiam) (nine months
was sufficient time for discovery).
V. ARGUMENT AND AUTHORITIES IN SUPPORT OF TEXAS-COLA
LEASING’S TRADITIONAL MOTION FOR SUMMARY JUDGMENT
A. The summary judgment evidence negates, as a matter of law, essential elements of
Plaintiffs’ negligent entrustment claims against Texas-Cola Leasing.
Plaintiffs allege that Texas-Cola Leasing negligently entrusted the subject tractor and
trailer and the route to Mr. Ibarra even though it knew or should have known that Mr. Ibarra was
“not a competent driver of such vehicle.” (Exhibit A, ¶ 8.1(a)). Plaintiffs must prove the
following six elements to support this claim: (1) Texas-Cola Leasing owned the vehicle being
driven by Mr. Ibarra at the time of the subject accident; (2) Texas-Cola Leasing entrusted that
vehicle to Mr. Ibarra; (3) Mr. Ibarra was an incompetent or reckless driver; (4) Texas-Cola
Leasing knew or should have known that Mr. Ibarra was an incompetent or reckless driver; (5)
Mr. Ibarra was negligent on the occasion in question; and (6) Mr. Ibarra’s negligence
proximately caused Plaintiffs’ alleged damages. See Magee v. G&H Towing Co., 388 S.W.3d
711, 717 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Contrary to Plaintiffs’ allegations, the summary judgment evidence establishes that
CCSWB—not Texas-Cola Leasing—entrusted the subject tractor and trailer to Mr. Ibarra.
(Exhibit B, ¶ 8). It is undisputed that Texas-Cola Leasing owned the subject tractor-trailer
combination that Mr. Ibarra was driving at the time of the subject accident. (Id. at ¶ 6).
However, Texas-Cola Leasing was leasing that tractor and trailer to CCSWB pursuant to the
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Lease Agreement or the Management Agreement. (Id.). In fact, Texas-Cola Leasing did not
employ Mr. Ibarra, assign the tractor and trailer to Mr. Ibarra, or even the assign the subject
delivery route to Mr. Ibarra. (Id. at ¶ 8). Rather, CCSWB—via the Lease Agreement and the
Management Agreement—assumed complete responsibility for the operation of the leased
vehicles. (Exhibit B.1; Exhibit B.2).
Texas-Cola Leasing did not control the performance of Mr. Ibarra’s work. (Exhibit B, ¶
8). Texas-Cola Leasing likewise did not have any knowledge regarding Mr. Ibarra’s commercial
driving history, commercial driving qualifications, or competency as a commercial driver. (Id. at
¶ 9). The responsibility for ensuring Mr. Ibarra was qualified and competent to serve as a
commercial driver rested solely with CCSWB, not Texas-Cola Leasing, as CCSWB was the
“motor carrier” under the Federal Motor Carrier Safety Act. See 49 U.S.C. §§ 13102(14),
31132(1) (defining “motor carriers” as entities either transporting more than 15 passengers in a
vehicle, including the driver, or providing “transportation for compensation” using vehicles that
either weigh more than 10,000 pounds or carry eight or more passengers, including the driver);
see also 49 C.F.R. § 390.5 (defining “for-hire motor carrier” as “a person engaged in the
transportation of goods or passengers for compensation”).
Thus, as a matter of law, the evidence confirms there is no genuine issue of material fact
as to essential elements of Plaintiffs’ negligent entrustment claim against Texas-Cola Leasing.
Specifically, Texas-Cola Leasing did not entrust the subject tractor-trailer to Mr. Ibarra nor did it
have knowledge (actual or constructive) that Mr. Ibarra was an alleged incompetent driver.
Significantly, the United States District Court for the Northern District of Texas, Abilene
Division, granted summary judgment on a negligent entrustment claim against Texas-Cola
Leasing under these same factual circumstances. See McDorman ex rel. Connelly v. Texas-Cola
DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S
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Leasing Co. LP, LLP, 288 F.Supp.2d 796, 802-03 (N.D. Tex. 2003). For all these reasons,
Texas-Cola Leasing is entitled to summary judgment on Plaintiffs’ negligent entrustment claims.
B. The summary judgment evidence conclusively proves, as a matter of law, that
Plaintiffs’ negligence claims are preempted by the Graves Amendment.
Not only does the evidence negate Plaintiffs’ negligent entrustment claims against Texas-
Cola Leasing, the evidence also negates Plaintiffs’ negligence claims based on theories of
vicarious liability and respondeat superior. As an initial matter, based on the evidence, the
Graves Amendment preempts Plaintiffs’ negligence claims against Texas-Cola Leasing. In
particular, the Graves Amendment protects entities like Texas-Cola Leasing from liability by
reason of their ownership of a leased vehicle. 49 U.S.C. § 30106(a). The Graves Amendment
provides, in relevant part:
(a) An owner of a motor vehicle that rents or leases the vehicle to a person (or an
affiliate of the owner) shall not be liable under the law of any State or political
subdivision thereof, by reason by being the owner of the vehicle (or an
affiliate of the owner), for harm to persons or property that results or arises
out of the use, operation, or possession of the vehicle during the period of the
rental or lease, if –
(1) The owner (or an affiliate of the owner) is engaged in the trade or
business of renting or leasing motor vehicles; and
(2) There is no negligence or criminal wrongdoing on the part of the
owner (or an affiliate of the owner).
Id.
Without any allegations or sufficient evidence showing that Texas-Cola Leasing was
itself somehow negligent with respect to the subject accident, Plaintiffs’ causes of action against
Texas-Cola Leasing are barred by the Graves Amendment. As a matter of law, Texas-Cola
Leasing is entitled to summary judgment on Plaintiffs’ negligence claims against it.
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C. The summary judgment evidence negates, as a matter of law, an essential element of
Plaintiffs’ negligence and negligence per se claims against Texas-Cola Leasing based
on vicarious liability and respondeat superior.
Even without the application of the provisions of the Graves Amendment, Plaintiffs’
negligence claims against Texas-Cola Leasing still cannot survive summary judgment. Although
Plaintiffs allege that at the time of this accident, Mr. Ibarra was an employee of Texas-Cola
Leasing acting within the course and scope of his employment for Texas-Cola Leasing, the
evidence confirms that there is no genuine issue of material fact as to the essential element of
duty.
An employer is vicariously liable under the common-law doctrine of respondeat superior
for its employee’s negligent acts if those acts are within the course and scope of his employment.
See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018). As a general rule, an
employer is insulated from liability for the tortious acts of its independent contractors unless the
employer has the right to control the work of the independent contractor. Id.
Whether or not Texas-Cola Leasing had a legal duty to control Mr. Ibarra at the time of
this accident is the threshold inquiry for a negligence cause of action and a question of law for
this Court. See Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017). Without such
a duty to control Mr. Ibarra, Texas-Cola Leasing cannot be held vicariously liable for Mr.
Ibarra’s alleged negligence (even without the application of the Graves Amendment). Id. at 504.
1. Mr. Ibarra was not an agent for Texas-Cola Leasing at the time of the subject
accident.
First, the summary judgment evidence establishes that Mr. Ibarra was not an agent of
Texas-Cola Leasing to support vicarious liability. The Texas Supreme Court recently explained:
Authority to act on the principal’s behalf and control are the two essential
elements of agency. “[T]he key question is whether the principal has the right to
control the agent with respect to the details of that conduct.” Agency is not
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presumed; a party alleging the existence of an agency relationship bears the
burden of proving it.
Exxon Mobile Corp. v. Rincones, 520 S.W.3d 572, 589 (Tex. 2017) (internal citations
omitted).
It is undisputed that Mr. Ibarra was an employee-driver for CCSWB. (Exhibit B, ¶ 8).
Texas-Cola Leasing had no right to control Mr. Ibarra or his work. (Exhibit B, ¶ 8). In fact,
Texas-Cola Leasing’s only connection to Mr. Ibarra is that it owned the subject tractor and trailer
that Mr. Ibarra was driving at the time of the accident. (Id. at ¶ 6). Importantly though, Texas-
Cola Leasing was leasing the tractor and trailer to CCSWB (Mr. Ibarra’s employer) at the time of
the accident, and Texas-Cola Leasing did not assign the tractor, trailer, or delivery route to Mr.
Ibarra (Id.). Texas-Cola Leasing had no control over how Mr. Ibarra performed his work. (Id.
at ¶ 8).
These facts are supported by the Lease Agreement and the Management Agreement
between CCSWB and Texas-Cola Leasing. The Management Agreement delineates that
CCSWB is an independent contractor of Texas-Cola Leasing with respect to the leasing of
equipment and that CCSWB’s employees “shall not be deemed to be employees of [Texas-Cola
Leasing]….” (Exhibit B.2, ¶ 4). The Lease Agreement states that CCSWB is required to
provide all drivers for the leased vehicles. (Exhibit B.1, ¶ 6). The Lease Agreement further
provides:
None of [CCSWB’s] agents, servants or employees shall be deemed to be the
agents, servants or employees of [Texas-Cola Leasing] or any assignee of [Texas-
Cola Leasing], and [Texas-Cola Leasing] shall not be responsible for the acts or
omissions of [CCSWB], or any of its officers, agents or employees.
(Exhibit B.1, ¶ 15).
The summary judgment evidence makes clear, as a matter of law, that there was no
principal-agent relationship between Texas-Cola Leasing and Mr. Ibarra at the time of the
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subject accident to impose vicarious liability on Texas-Cola Leasing for Mr. Ibarra’s alleged
negligence. At most, viewing the evidence in the light most favorable to Plaintiffs, Mr. Ibarra
was an employee of Texas-Cola Leasing’s independent contractor. Such a showing is
insufficient to survive summary judgment on Plaintiffs’ negligence and negligence per se claims.
Accordingly, the essential element of a duty owed is lacking, and Plaintiffs’ negligence and
negligence per se claims based on this principal-agent theory are subject to summary judgment
as a matter of law.
2. Mr. Ibarra was not performing nondelegable duties for Texas-Cola Leasing at
the time of the subject accident.
Likewise, the summary judgment evidence establishes that Mr. Ibarra was not an
independent contractor of Texas-Cola Leasing much less tasked with performing nondelegable
duties for Texas-Cola Leasing to support vicarious liability. Under this theory, when a principal
assigns its responsibility for performing nondelegable duties to an independent contractor, the
principal remains liable for any negligence of the independent contractor in the performance of
that duty as if the independent contractor were an employee. See Fifth Club, Inc. v. Ramirez, 196
S.W.3d 788, 795 (Tex. 2006).
a. Mr. Ibarra was not an independent contractor of Texas-Cola Leasing.
As an initial matter, Mr. Ibarra was not an independent contractor of Texas-Cola Leasing.
Under Texas law, an independent contractor is one “who, in the pursuit of an independent
business, undertakes to do a specific piece of work for other persons, using his own means and
methods, without submitting himself to their control in respect to all its details.” Pitchfork Land
& Cattle Co. v. King, 346 S.W.2d 598, 602-03 (1961).
At the time of the accident, Mr. Ibarra was not performing any work for Texas-Cola
Leasing. (Exhibit B, ¶ 8). Other than leasing the tractor and trailer that Mr. Ibarra was driving to
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CCSWB, Texas-Cola Leasing had no involvement in Mr. Ibarra’s work. (Id.). As such, the
evidence conclusively establishes that Mr. Ibarra was not an independent contractor of Texas-
Cola Leasing at the time of the subject accident as alleged by Plaintiffs.
b. Mr. Ibarra was not performing a nondelegable duty for Texas-Cola
Leasing.
Likewise, Mr. Ibarra was not performing a nondelegable duty for Texas-Cola Leasing at
the time of the subject accident. An independent contractor’s performance of a nondelegable
duty is an exception recognized by Texas law to the general rule that one who employs an
independent contractor is not liable for harm caused by that independent contractor. See Fifth
Club, 196 S.W.3d at 795. A duty is nondelegable when it is imposed by law on the basis of
public safety concerns. Id. When such a duty exists, “the party bearing the duty cannot escape it
by delegating it to an independent contractor.” MBank El Paso, N.A. v. Sanchez, 836 S.W.2d
151, 153 (Tex. 1992).
Despite the fact that Texas-Cola Leasing owed no independent duty to Plaintiffs by virtue
of its leasing of the subject tractor and trailer to CCSWB, Texas-Cola Leasing did not delegate
any duties to Mr. Ibarra much less a nondelegable one. Texas-Cola Leasing’s only connection to
Mr. Ibarra is that it owned the tractor and trailer that Mr. Ibarra was driving at the time of the
accident and was leasing that equipment to Mr. Ibarra’s employer, CCSWB, as part of Texas-
Cola Leasing’s business as a motor vehicle leasing company. (Exhibit B, ¶ 6). Texas-Cola
Leasing did not lease or otherwise assign that tractor and trailer to Mr. Ibarra and had no control
over the equipment’s assignment to Mr. Ibarra. (Id. at ¶ 8).
Regardless, even assuming Plaintiffs can sufficiently show that Texas-Cola Leasing
delegated some duty to Mr. Ibarra by virtue of the Lease Agreement or the Management
Agreement with CCSWB (which is denied), Mr. Ibarra was not performing a nondelegable duty
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for Texas-Cola Leasing at the time of the accident. Nondelegable duties arise in two situations:
(1) when the independent contractor’s work is inherently dangerous or (2) by statute. See Fifth
Club, 196 S.W.3d at 795. Neither of these situations apply here.
First, Mr. Ibarra was not performing inherently dangerous work at the time of the
accident. The Texas Supreme Court has explained, “Inherently dangerous activity stems from
the activity itself rather than the manner of performance….” Id. Although Texas courts do not
appear to have addressed whether the act of driving a commercial vehicle is an inherently
dangerous activity, other jurisdictions have, holding that it was not. See, e.g., Kime v. Hobbs,
562 N.W.2d 705 (Neb. 1997) (holding that transportation of cattle in tractor trailer under normal
conditions is not inherently dangerous activity to impose nondelegable duty); Fike v. Peace, 964
So.2d 651 (Ala. 2007) (shipping of an oversized load transported by motor carrier is not an
inherently dangerous activity). Texas courts likely would agree that such an activity was not
inherently dangerous, but rather the manner of performance could make it dangerous. See, e.g.,
Kolius v. Center Point Energy Houston Elec. LLC, 422 S.W.3d 861 (Tex. App.—Houston [14th
Dist.] 2014, no pet.) (holding that construction company’s act of restoring electric current to
homeowner’s home while it was flooded was not an inherently dangerous activity as working
with electric power lines was not inherently dangerous).
Further, the present matter does not involve a duty imposed by statute with respect to
Texas-Cola Leasing. This theory of liability appears to be premised on the allegation that Texas-
Cola Leasing is a “motor carrier” subject to the Federal Motor Carrier Safety Act (including its
regulations) and had a nondelegable duty under Texas law to ensure that Mr. Ibarra, its alleged
independent contractor, adhered to the Act’s safety standards. However, Texas-Cola Leasing
was not acting as a motor carrier at the time of the accident under federal law. See 49 U.S.C. §§
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13102(14), 31132(1) (defining “motor carriers” as entities either transporting more than 15
passengers in a vehicle, including the driver, or providing “transportation for compensation”
using vehicles that either weigh more than 10,000 pounds or carry eight or more passengers,
including the driver); see also 49 C.F.R. § 390.5 (defining “for-hire motor carrier” as “a person
engaged in the transportation of goods or passengers for compensation”). Rather, Texas-Cola
Leasing, the owner of the tractor and trailer, was merely leasing that equipment to CCSWB as
part of Texas-Cola Leasing’s business of leasing motor vehicles. (Exhibit B, ¶ 6).
Viewing the evidence in the light most favorable to Plaintiffs, the evidence establishes
that, at most, Mr. Ibarra was performing a nondelegable duty on behalf of his actual employer,
CCSWB, a separate legal entity. Such a showing is insufficient to survive summary judgment on
this negligence and negligence per se cause of action against Texas-Cola Leasing. Beyond the
fact that Mr. Ibarra was driving a tractor and trailer owned by Texas-Cola Leasing that were
being leased to Mr. Ibarra’s employer CCSWB, Texas-Cola Leasing had no connection to Mr.
Ibarra for purposes of imposing vicarious liability based on this nondelegable duty theory of
liability. Accordingly, the essential element of duty of care is lacking, and Plaintiffs’ negligence
and negligence per se claims based on this theory of liability are subject to summary judgment as
a matter of law.
D. The summary judgment evidence negates, as a matter of law, an essential element of
Plaintiffs’ negligence claims against Texas-Cola Leasing for failure to properly
train, inspect, maintain, and supervise Mr. Ibarra.
Plaintiffs also allege that Texas-Cola Leasing was negligent by failing to properly train,
inspect, maintain, and supervise Mr. Ibarra. (Exhibit A, ¶7.1-7.2, 7.7). Plaintiffs must prove the
following three elements to support this claim: (1) Texas-Cola Leasing owed Plaintiffs a legal
duty to hire, supervise, train, or retain competent employees; (2) Texas-Cola Leasing breached
DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S
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that duty; and (3) the breach proximately caused Plaintiffs’ injuries. See Wal-Mart Stores, Inc. v.
Sanchez, No. 04–02–00458–CV, 2003 WL 21338174, at *5 (Tex. App.—San Antonio June 11,
2003, pet. denied).
Contrary to Plaintiffs’ allegations, the summary judgment evidence establishes that
CCSWB—not Texas-Cola Leasing—hired, trained, and supervised Mr. Ibarra. (Exhibit B);
Texas-Cola Leasing never hired Mr. Ibarra. (Id.). Thus, as a matter of law, the evidence
confirms there is no genuine issue of material fact as to essential elements of Plaintiffs’
negligence claim based on failure to properly train and supervise Mr. Ibarra. Similarly, under
these same factual circumstances, the plaintiffs in McDorman conceded that Texas-Cola Leasing
was entitled to summary judgment on their negligent hiring claim. See 288 F.Supp.2d at 802.
For all these reasons, Texas-Cola Leasing is entitled to summary judgment on Plaintiffs’
negligence claims.
VI. ARGUMENT AND AUTHORITIES IN SUPPORT OF TEXAS-COLA
LEASING’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
A. Adequate Time for Discovery Has Elapsed.
Adequate time for discovery in this matter has elapsed, and Texas-Cola Leasing properly
brings this No-Evidence Motion for Summary Judgment under Texas Rule of Civil Procedure
166a(i). Plaintiffs’ Original Petition that first asserted claims against Texas-Cola Leasing was
filed on December 30, 2021. The subject accident occurred on January 3, 2020. It has been over
two years since Plaintiffs first asserted claims against Texas-Cola Leasing.
During discovery, the parties have exchanged written discovery, and the depositions of
Plaintiffs and a third-party witness have been taken. Adequate time for discovery has elapsed.
Nonetheless, Plaintiffs lack proof of essential elements of all of their claims against Texas-Cola
Leasing.
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B. There is no evidence of essential elements of Plaintiffs’ negligent entrustment claims.
To succeed on their negligent entrustment claims, Plaintiffs must prove the following
elements: (1) Texas-Cola Leasing owned the vehicle being driven by Mr. Ibarra at the time of the
subject accident; (2) Texas-Cola Leasing entrusted that vehicle to Mr. Ibarra; (3) Mr. Ibarra was
an incompetent or reckless driver; (4) Texas-Cola Leasing knew or should have known that Mr.
Ibarra was an incompetent or reckless driver; (5) Mr. Ibarra was negligent on the occasion in
question; and (6) Mr. Ibarra’s negligence proximately caused Plaintiffs’ alleged damages. See
Magee, 388 S.W.3d at 717.
Although Plaintiffs have had an adequate time to conduct discovery, Plaintiffs have no
evidence to raise a genuine issue of material fact on at least two essential elements. Specifically,
Plaintiffs have no evidence that Texas-Cola Leasing entrusted the subject tractor-trailer to Mr.
Ibarra or that Texas-Cola Leasing had knowledge (actual or constructive) that Mr. Ibarra was an
allegedly incompetent or reckless driver. As such, Texas-Cola Leasing is entitled to summary
judgment on Plaintiffs’ negligent entrustment claims.
C. There is no evidence of an essential element of Plaintiffs’ negligence and negligence
per se claims based on vicarious liability and respondeat superior.
With regard to Plaintiffs’ negligence and negligence per se claims based on respondeat
superior, Plaintiffs must demonstrate the following elements: (1) Texas-Cola Leasing owed a
duty to Plaintiffs; (2) Texas-Cola Leasing breached that duty; (3) Plaintiffs were injured; and (4)
the breach of that duty was a proximate cause of those injuries. See W. Invs., Inc. v. Urena, 162
S.W.3d 547, 550 (Tex. 2005). Whether or not Texas-Cola Leasing had a legal duty to control
Mr. Ibarra at the time of the subject accident is the threshold inquiry for Plaintiffs’ negligence
and negligence per se claims based on vicarious liability and a question of law for this Court.
DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S
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See Pagayon, 536 S.W.3d at 503. Without such a duty to control Mr. Ibarra, Texas-Cola Leasing
cannot be held vicariously liable for Mr. Ibarra’s alleged negligence under Texas law. Id. at 504.
Plaintiffs have no evidence that Texas-Cola Leasing had a legal duty to control Mr. Ibarra
at the time of the accident to, in turn, owed a duty to Plaintiffs. Accordingly, Texas-Cola
Leasing is entitled to summary judgment on Plaintiffs’ negligence and negligence per se claims
based on vicarious liability and respondeat superior.
D. There is no evidence of an essential element of Plaintiffs’ negligence claims for
failure to “properly maintain, inspect, train and supervise” Mr. Ibarra.
With regard to Plaintiffs’ negligence claims based on failure to “properly maintain,
inspect, train and supervise” Mr. Ibarra, Plaintiffs must prove the following elements: (1) Texas-
Cola Leasing owed Plaintiffs a legal duty to hire, supervise, train, or retain competent
employees; (2) Texas-Cola Leasing breached that duty; and (3) the breach proximately caused
Plaintiffs’ alleged injuries. See Wal-Mart Stores, Inc, 2003 WL 21338174 at *5. Plaintiffs have
no evidence that Texas-Cola Leasing hired, supervised, trained, or retained Mr. Ibarra.
Accordingly, Texas-Cola Leasing is entitled to summary judgment on Plaintiffs’ negligence
claims.
VII. CONCLUSION AND PRAYER
In light of the evidence presented, there is no genuine issue of material fact regarding
essential elements of Plaintiffs’ negligent entrustment, negligence, and negligence per se causes
of action against Texas-Cola Leasing. Furthermore, Plaintiffs have no evidence of essential
elements of their negligent entrustment, negligence, and negligence per se claims.
WHEREFORE, PREMISES CONSIDERED, Defendant Texas-Cola Leasing Company,
LP, LLLP, respectfully requests that the Court set this Traditional and No Evidence Motion for
Summary Judgment at the earliest setting following the expiration of 21 days from the filing of
DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S
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this Motion; that upon hearing, the Court grants this Traditional and No Evidence Motion for
Summary Judgment in its entirety; and grant it such other relief both at law and in equity to
which it may show itself justly entitled.
Respectfully submitted,
/s/ David H. Estes
DAVID H. ESTES
Texas Bar No. 24012599
destes@hartlinebarger.com
MORGAN R. TRENARY
Texas Bar No. 24125864
mtrenary@hartlinebarger.com
HARTLINE BARGER LLP
8750 North Central Expressway, Suite 1600
Dallas, Texas 75231
(214) 369-2100
(214) 369-2118 (fax)
ATTORNEYS FOR DEFENDANT TEXAS-
COLA LEASING COMPANY LP, LLLP
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been
forwarded to all counsel of record in accordance with the applicable Texas Rules of Civil
Procedure on this 3rd day of January, 2024.
/s/ David H. Estes
DAVID H. ESTES
DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S
MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 18
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Jennifer White on behalf of David Estes
Bar No. 24012599
jwhite@hartlinebarger.com
Envelope ID: 83063378
Filing Code Description: Motion (No Fee)
Filing Description: Defendant Texas-Cola Leasing Company LP, LLLP's
Motion for Traditional and No-Evidence Summary Judgment
Status as of 1/4/2024 8:48 AM CST
Associated Case Party: AidalyJeanetteCantu
Name BarNumber Email TimestampSubmitted Status
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Associated Case Party: Coca-Cola Southwest Beverages, LLC
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Preview
Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal CAUSE NO. C-5180-21-D AIDALY JEANETTE CANTU AND § IN THE DISTRICT COURT BRENDA ANETTE CANTU § § Plaintiffs, § § VS. § 206TH JUDICIAL DISTRICT § JOSE LUIS IBARRA, § COCA-COLA SOUTHWEST § BEVERAGES, LLC, AND TEXAS § COLA LEASING CO., L.L.L.P. § § Defendants. § HIDALGO COUNTY, TEXAS DEFENDANT TEXAS-COLA LEASING COMPANY LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: Defendant Texas-Cola Leasing Company LP, LLLP (“Texas-Cola Leasing”) is entitled to summary judgment because Plaintiffs cannot sufficiently establish essential elements of their claims against it. First, Texas-Cola Leasing is in the sole business of leasing motor vehicles to Coca-Cola Southwest Beverages LLC (“CCSWB”) and was leasing the subject tractor and trailer to CCSWB at the time of the subject accident. Further, Texas-Cola Leasing did not employ or otherwise have any relationship (including principal-agent or independent contractor) with Defendant Jose Luis Ibarra (“Mr. Ibarra”); rather, Mr. Ibarra was employed by CCSWB at all relevant times. Thus, Texas-Cola Leasing, as a matter of law, cannot be liable for negligently entrusting the tractor-trailer to Mr. Ibarra and cannot otherwise be vicariously liable for Mr. Ibarra’s alleged negligence. Additionally, Plaintiffs simply have no evidence of essential elements of their negligent entrustment, negligence, and negligence per se claims. DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 1 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal I. INTRODUCTION This lawsuit arises from a motor vehicle accident that occurred on January 3, 2020, in Edinburg, Texas. (Exhibit A, ¶ 5.1). Mr. Ibarra was operating a tractor-trailer as an employee of CCSWB when Plaintiffs’ vehicle struck the back of Mr. Ibarra’s trailer. As a result of the accident in question, Plaintiffs assert claims against Mr. Ibarra, CCSWB, and Texas-Cola Leasing. As to Texas-Cola Leasing, Plaintiffs assert claims for negligence and negligence per se based on respondeat superior and failure to properly train, inspect, maintain, and supervise Mr. Ibarra; and negligent entrustment. (Id. at ¶¶ 7.1-7.2, 7.7). Texas-Cola Leasing is entitled to summary judgment on Plaintiffs’ claims under Rule 166a(b) and Rule 166a(i) of the Texas Rules of Civil Procedure. The summary judgment evidence establishes as a matter of law that: (1) Texas-Cola Leasing is engaged in the business of leasing motor vehicles; (2) Texas-Cola Leasing, as the owner of the subject tractor and trailer, was leasing that equipment to CCSWB at the time of the subject accident; (3) Mr. Ibarra was acting within the course of scope of his employment with CCSWB at the time of the subject accident; and (4) Texas-Cola Leasing did not exercise any control over Mr. Ibarra during the performance of his work for CCSWB. Notwithstanding the fact that an adequate time for discovery has passed, Plaintiffs also cannot produce any summary judgment evidence to support the essential elements of their negligence, negligence per se, and negligent entrustment claims against Texas-Cola Leasing. Accordingly, Texas-Cola Leasing is entitled to summary judgment on all Plaintiffs’ claims against it as a matter of law. II. SUMMARY JUDGMENT EVIDENCE Exhibit A: Plaintiffs’ Original Petition; DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 2 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal Exhibit B: Affidavit of Eric Murray; Exhibit B.1: Lease Agreement, to be submitted in camera; and Exhibit B.2: Management Agreement, to be submitted in camera. III. BACKGROUND This lawsuit arises from a motor vehicle accident that occurred on January 3, 2020, in Edinburg, Texas. (Exhibit A, ¶ 5.1). Plaintiffs allege that the accident occurred as a result of Plaintiffs and Mr. Ibarra attempting to make a lane change at the same time. (Id. at ¶ 5.3). Plaintiffs assert claims against Texas-Cola Leasing for negligence, negligence per se, and negligent entrustment. (Id. at ¶¶ 7.1-8.2). Plaintiffs allege that Mr. Ibarra was an employee of Texas-Cola Leasing and CCSWB and was acting within the course and scope of his employment. (Id. at ¶ 5.1). Plaintiffs also allege that Texas-Cola Leasing entrusted the subject tractor-trailer to Mr. Ibarra at the time of the subject accident. (Id. at ¶ 8.1). Texas-Cola Leasing is a limited liability limited partnership engaged in the business of leasing vehicles. (Exhibit B, ¶ 4). It has no employees, but rather is comprised of one general partner and several limited partners, all of which are corporate entities. (Id.). Texas-Cola Leasing owned the tractor and trailer involved in this accident and was leasing that equipment to CCSWB in accordance with a Management Agreement and a Lease Agreement.1 (Id. at ¶ 7). Pursuant to the Management Agreement, CCSWB is an independent contractor of Texas- Cola Leasing with respect to the leasing of equipment, and CCSWB’s employees “shall not be deemed to be employees of [Texas-Cola Leasing]….” (Exhibit B.2, ¶ 4). Likewise, the Lease 1 Following the execution of the Management Agreement and Lease Agreement, Coca-Cola Enterprises, Inc., a separate entity, merged with another corporate entity and formed Coca-Cola Refreshments USA, Inc. CCSWB acquired the operations and assets of Coca-Cola Refreshments USA, Inc. and began conducting business on April 1, 2017. (Exhibit B, ¶ 7). CCSWB was assigned the Management Agreement and the Lease Agreement in the transaction (Id.). DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 3 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal Agreement provides that CCSWB is required to provide all drivers for the leased vehicles. (Exhibit B.1, ¶ 6). The Lease Agreement further states, in relevant part: None of [CCSWB’s] agents, servants or employees shall be deemed to be the agents, servants or employees of [Texas-Cola Leasing] or any assignee of [Texas- Cola Leasing], and [Texas-Cola Leasing] shall not be responsible for the acts or omissions of [CCSWB], or any of its officers, agents or employees. (Exhibit B.1, ¶ 15). Texas-Cola Leasing did not employ Mr. Ibarra. (Exhibit B, ¶ 8). On the date of the subject accident, Mr. Ibarra was employed by CCSWB as a Driver Merchandiser. (Id.). Mr. Ibarra was acting within the course and scope of his employment with CCSWB at the time of the subject accident. (Id.). Texas-Cola Leasing did not assign the subject tractor or trailer or the delivery route to Mr. Ibarra. (Id.). Texas-Cola Leasing also did not have any knowledge regarding Mr. Ibarra’s commercial driving history, commercial driving qualifications, or competency as a commercial driver. (Id. at ¶ 9). Due to these undisputed facts, Plaintiffs’ claims against Texas-Cola Leasing are subject to summary judgment. IV. LEGAL STANDARD A. Traditional Summary Judgment A defendant is entitled to summary judgment under Rule 166a(b) when the summary judgment evidence shows that there is no genuine issue of material fact and that the defendant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). Although evidence favorable to the non-movant must be taken as true, and all reasonable inferences must be indulged in the non- movant’s favor, the defendant need only disprove a single element of the plaintiff’s cause of action to be entitled to summary judgment. Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 4 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal fact, thereby precluding summary judgment. See Abdel-Fattah v. PepsiCo, Inc., 948 S.W.2d 381, 383 (Tex. App.—Houston [14th Dist.] 1997, no writ). B. No-Evidence Summary Judgment Rule 166a(i) also allows a party to move for summary judgment on the basis that there is no evidence of one or more essential elements of a claim on which the non-movant has the burden of proof. Tex. R. Civ. P. 166a(i). When a defendant moves for summary judgment on no-evidence grounds, the non-movant must 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 claims on which it would have the burden of proof at trial. See Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). “A no evidence motion places the burden on the non-movant to present evidence raising a genuine fact issue on the challenged elements. If the non-movant is unable to produce summary judgment evidence raising a genuine issue of material fact on the challenged elements, the trial court must grant the motion.” Harrill v. A.J.’s Wrecker Serv., Inc., 27 S.W.3d 191, 193 (Tex. App.—Dallas 2000, pet. dism’d). Under Rule 166a(i), “the party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding.” Galveston Newspapers, Inc. v. Norris, 981 S.W.2d 797, 800 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). A party may move for summary judgment under Rule 166a(i) after adequate time for discovery. See Tex. R. Civ. P. 166a(i). The rule does not require that discovery must have been completed, only that there was “adequate time.” Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Whether a non-movant has had adequate time for discovery under Rule 166a(i) is determined on a case-by-case basis. Tempay, Inc. v. TNT Concrete & Constr., Inc., 37 S.W.3d 517, 522 (Tex. App.—Austin 2001, pet. DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 5 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal denied). Courts have found as little as seven months sufficient time for discovery. See McClure v. Attebury, 20 S.W.3d 722, 730 (Tex. App.—Amarillo 1999, no pet.); Restaurant Teams Int’l, Inc. v. MG Secs. Corp., 95 S.W.3d 336, 342 (Tex. App.—Dallas 2002, no pet.); see also Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 721 (5th Cir. 1995) (per curiam) (nine months was sufficient time for discovery). V. ARGUMENT AND AUTHORITIES IN SUPPORT OF TEXAS-COLA LEASING’S TRADITIONAL MOTION FOR SUMMARY JUDGMENT A. The summary judgment evidence negates, as a matter of law, essential elements of Plaintiffs’ negligent entrustment claims against Texas-Cola Leasing. Plaintiffs allege that Texas-Cola Leasing negligently entrusted the subject tractor and trailer and the route to Mr. Ibarra even though it knew or should have known that Mr. Ibarra was “not a competent driver of such vehicle.” (Exhibit A, ¶ 8.1(a)). Plaintiffs must prove the following six elements to support this claim: (1) Texas-Cola Leasing owned the vehicle being driven by Mr. Ibarra at the time of the subject accident; (2) Texas-Cola Leasing entrusted that vehicle to Mr. Ibarra; (3) Mr. Ibarra was an incompetent or reckless driver; (4) Texas-Cola Leasing knew or should have known that Mr. Ibarra was an incompetent or reckless driver; (5) Mr. Ibarra was negligent on the occasion in question; and (6) Mr. Ibarra’s negligence proximately caused Plaintiffs’ alleged damages. See Magee v. G&H Towing Co., 388 S.W.3d 711, 717 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Contrary to Plaintiffs’ allegations, the summary judgment evidence establishes that CCSWB—not Texas-Cola Leasing—entrusted the subject tractor and trailer to Mr. Ibarra. (Exhibit B, ¶ 8). It is undisputed that Texas-Cola Leasing owned the subject tractor-trailer combination that Mr. Ibarra was driving at the time of the subject accident. (Id. at ¶ 6). However, Texas-Cola Leasing was leasing that tractor and trailer to CCSWB pursuant to the DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 6 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal Lease Agreement or the Management Agreement. (Id.). In fact, Texas-Cola Leasing did not employ Mr. Ibarra, assign the tractor and trailer to Mr. Ibarra, or even the assign the subject delivery route to Mr. Ibarra. (Id. at ¶ 8). Rather, CCSWB—via the Lease Agreement and the Management Agreement—assumed complete responsibility for the operation of the leased vehicles. (Exhibit B.1; Exhibit B.2). Texas-Cola Leasing did not control the performance of Mr. Ibarra’s work. (Exhibit B, ¶ 8). Texas-Cola Leasing likewise did not have any knowledge regarding Mr. Ibarra’s commercial driving history, commercial driving qualifications, or competency as a commercial driver. (Id. at ¶ 9). The responsibility for ensuring Mr. Ibarra was qualified and competent to serve as a commercial driver rested solely with CCSWB, not Texas-Cola Leasing, as CCSWB was the “motor carrier” under the Federal Motor Carrier Safety Act. See 49 U.S.C. §§ 13102(14), 31132(1) (defining “motor carriers” as entities either transporting more than 15 passengers in a vehicle, including the driver, or providing “transportation for compensation” using vehicles that either weigh more than 10,000 pounds or carry eight or more passengers, including the driver); see also 49 C.F.R. § 390.5 (defining “for-hire motor carrier” as “a person engaged in the transportation of goods or passengers for compensation”). Thus, as a matter of law, the evidence confirms there is no genuine issue of material fact as to essential elements of Plaintiffs’ negligent entrustment claim against Texas-Cola Leasing. Specifically, Texas-Cola Leasing did not entrust the subject tractor-trailer to Mr. Ibarra nor did it have knowledge (actual or constructive) that Mr. Ibarra was an alleged incompetent driver. Significantly, the United States District Court for the Northern District of Texas, Abilene Division, granted summary judgment on a negligent entrustment claim against Texas-Cola Leasing under these same factual circumstances. See McDorman ex rel. Connelly v. Texas-Cola DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 7 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal Leasing Co. LP, LLP, 288 F.Supp.2d 796, 802-03 (N.D. Tex. 2003). For all these reasons, Texas-Cola Leasing is entitled to summary judgment on Plaintiffs’ negligent entrustment claims. B. The summary judgment evidence conclusively proves, as a matter of law, that Plaintiffs’ negligence claims are preempted by the Graves Amendment. Not only does the evidence negate Plaintiffs’ negligent entrustment claims against Texas- Cola Leasing, the evidence also negates Plaintiffs’ negligence claims based on theories of vicarious liability and respondeat superior. As an initial matter, based on the evidence, the Graves Amendment preempts Plaintiffs’ negligence claims against Texas-Cola Leasing. In particular, the Graves Amendment protects entities like Texas-Cola Leasing from liability by reason of their ownership of a leased vehicle. 49 U.S.C. § 30106(a). The Graves Amendment provides, in relevant part: (a) An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason by being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if – (1) The owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) There is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). Id. Without any allegations or sufficient evidence showing that Texas-Cola Leasing was itself somehow negligent with respect to the subject accident, Plaintiffs’ causes of action against Texas-Cola Leasing are barred by the Graves Amendment. As a matter of law, Texas-Cola Leasing is entitled to summary judgment on Plaintiffs’ negligence claims against it. DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 8 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal C. The summary judgment evidence negates, as a matter of law, an essential element of Plaintiffs’ negligence and negligence per se claims against Texas-Cola Leasing based on vicarious liability and respondeat superior. Even without the application of the provisions of the Graves Amendment, Plaintiffs’ negligence claims against Texas-Cola Leasing still cannot survive summary judgment. Although Plaintiffs allege that at the time of this accident, Mr. Ibarra was an employee of Texas-Cola Leasing acting within the course and scope of his employment for Texas-Cola Leasing, the evidence confirms that there is no genuine issue of material fact as to the essential element of duty. An employer is vicariously liable under the common-law doctrine of respondeat superior for its employee’s negligent acts if those acts are within the course and scope of his employment. See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018). As a general rule, an employer is insulated from liability for the tortious acts of its independent contractors unless the employer has the right to control the work of the independent contractor. Id. Whether or not Texas-Cola Leasing had a legal duty to control Mr. Ibarra at the time of this accident is the threshold inquiry for a negligence cause of action and a question of law for this Court. See Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017). Without such a duty to control Mr. Ibarra, Texas-Cola Leasing cannot be held vicariously liable for Mr. Ibarra’s alleged negligence (even without the application of the Graves Amendment). Id. at 504. 1. Mr. Ibarra was not an agent for Texas-Cola Leasing at the time of the subject accident. First, the summary judgment evidence establishes that Mr. Ibarra was not an agent of Texas-Cola Leasing to support vicarious liability. The Texas Supreme Court recently explained: Authority to act on the principal’s behalf and control are the two essential elements of agency. “[T]he key question is whether the principal has the right to control the agent with respect to the details of that conduct.” Agency is not DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 9 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal presumed; a party alleging the existence of an agency relationship bears the burden of proving it. Exxon Mobile Corp. v. Rincones, 520 S.W.3d 572, 589 (Tex. 2017) (internal citations omitted). It is undisputed that Mr. Ibarra was an employee-driver for CCSWB. (Exhibit B, ¶ 8). Texas-Cola Leasing had no right to control Mr. Ibarra or his work. (Exhibit B, ¶ 8). In fact, Texas-Cola Leasing’s only connection to Mr. Ibarra is that it owned the subject tractor and trailer that Mr. Ibarra was driving at the time of the accident. (Id. at ¶ 6). Importantly though, Texas- Cola Leasing was leasing the tractor and trailer to CCSWB (Mr. Ibarra’s employer) at the time of the accident, and Texas-Cola Leasing did not assign the tractor, trailer, or delivery route to Mr. Ibarra (Id.). Texas-Cola Leasing had no control over how Mr. Ibarra performed his work. (Id. at ¶ 8). These facts are supported by the Lease Agreement and the Management Agreement between CCSWB and Texas-Cola Leasing. The Management Agreement delineates that CCSWB is an independent contractor of Texas-Cola Leasing with respect to the leasing of equipment and that CCSWB’s employees “shall not be deemed to be employees of [Texas-Cola Leasing]….” (Exhibit B.2, ¶ 4). The Lease Agreement states that CCSWB is required to provide all drivers for the leased vehicles. (Exhibit B.1, ¶ 6). The Lease Agreement further provides: None of [CCSWB’s] agents, servants or employees shall be deemed to be the agents, servants or employees of [Texas-Cola Leasing] or any assignee of [Texas- Cola Leasing], and [Texas-Cola Leasing] shall not be responsible for the acts or omissions of [CCSWB], or any of its officers, agents or employees. (Exhibit B.1, ¶ 15). The summary judgment evidence makes clear, as a matter of law, that there was no principal-agent relationship between Texas-Cola Leasing and Mr. Ibarra at the time of the DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 10 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal subject accident to impose vicarious liability on Texas-Cola Leasing for Mr. Ibarra’s alleged negligence. At most, viewing the evidence in the light most favorable to Plaintiffs, Mr. Ibarra was an employee of Texas-Cola Leasing’s independent contractor. Such a showing is insufficient to survive summary judgment on Plaintiffs’ negligence and negligence per se claims. Accordingly, the essential element of a duty owed is lacking, and Plaintiffs’ negligence and negligence per se claims based on this principal-agent theory are subject to summary judgment as a matter of law. 2. Mr. Ibarra was not performing nondelegable duties for Texas-Cola Leasing at the time of the subject accident. Likewise, the summary judgment evidence establishes that Mr. Ibarra was not an independent contractor of Texas-Cola Leasing much less tasked with performing nondelegable duties for Texas-Cola Leasing to support vicarious liability. Under this theory, when a principal assigns its responsibility for performing nondelegable duties to an independent contractor, the principal remains liable for any negligence of the independent contractor in the performance of that duty as if the independent contractor were an employee. See Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 795 (Tex. 2006). a. Mr. Ibarra was not an independent contractor of Texas-Cola Leasing. As an initial matter, Mr. Ibarra was not an independent contractor of Texas-Cola Leasing. Under Texas law, an independent contractor is one “who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details.” Pitchfork Land & Cattle Co. v. King, 346 S.W.2d 598, 602-03 (1961). At the time of the accident, Mr. Ibarra was not performing any work for Texas-Cola Leasing. (Exhibit B, ¶ 8). Other than leasing the tractor and trailer that Mr. Ibarra was driving to DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 11 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal CCSWB, Texas-Cola Leasing had no involvement in Mr. Ibarra’s work. (Id.). As such, the evidence conclusively establishes that Mr. Ibarra was not an independent contractor of Texas- Cola Leasing at the time of the subject accident as alleged by Plaintiffs. b. Mr. Ibarra was not performing a nondelegable duty for Texas-Cola Leasing. Likewise, Mr. Ibarra was not performing a nondelegable duty for Texas-Cola Leasing at the time of the subject accident. An independent contractor’s performance of a nondelegable duty is an exception recognized by Texas law to the general rule that one who employs an independent contractor is not liable for harm caused by that independent contractor. See Fifth Club, 196 S.W.3d at 795. A duty is nondelegable when it is imposed by law on the basis of public safety concerns. Id. When such a duty exists, “the party bearing the duty cannot escape it by delegating it to an independent contractor.” MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 153 (Tex. 1992). Despite the fact that Texas-Cola Leasing owed no independent duty to Plaintiffs by virtue of its leasing of the subject tractor and trailer to CCSWB, Texas-Cola Leasing did not delegate any duties to Mr. Ibarra much less a nondelegable one. Texas-Cola Leasing’s only connection to Mr. Ibarra is that it owned the tractor and trailer that Mr. Ibarra was driving at the time of the accident and was leasing that equipment to Mr. Ibarra’s employer, CCSWB, as part of Texas- Cola Leasing’s business as a motor vehicle leasing company. (Exhibit B, ¶ 6). Texas-Cola Leasing did not lease or otherwise assign that tractor and trailer to Mr. Ibarra and had no control over the equipment’s assignment to Mr. Ibarra. (Id. at ¶ 8). Regardless, even assuming Plaintiffs can sufficiently show that Texas-Cola Leasing delegated some duty to Mr. Ibarra by virtue of the Lease Agreement or the Management Agreement with CCSWB (which is denied), Mr. Ibarra was not performing a nondelegable duty DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 12 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal for Texas-Cola Leasing at the time of the accident. Nondelegable duties arise in two situations: (1) when the independent contractor’s work is inherently dangerous or (2) by statute. See Fifth Club, 196 S.W.3d at 795. Neither of these situations apply here. First, Mr. Ibarra was not performing inherently dangerous work at the time of the accident. The Texas Supreme Court has explained, “Inherently dangerous activity stems from the activity itself rather than the manner of performance….” Id. Although Texas courts do not appear to have addressed whether the act of driving a commercial vehicle is an inherently dangerous activity, other jurisdictions have, holding that it was not. See, e.g., Kime v. Hobbs, 562 N.W.2d 705 (Neb. 1997) (holding that transportation of cattle in tractor trailer under normal conditions is not inherently dangerous activity to impose nondelegable duty); Fike v. Peace, 964 So.2d 651 (Ala. 2007) (shipping of an oversized load transported by motor carrier is not an inherently dangerous activity). Texas courts likely would agree that such an activity was not inherently dangerous, but rather the manner of performance could make it dangerous. See, e.g., Kolius v. Center Point Energy Houston Elec. LLC, 422 S.W.3d 861 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding that construction company’s act of restoring electric current to homeowner’s home while it was flooded was not an inherently dangerous activity as working with electric power lines was not inherently dangerous). Further, the present matter does not involve a duty imposed by statute with respect to Texas-Cola Leasing. This theory of liability appears to be premised on the allegation that Texas- Cola Leasing is a “motor carrier” subject to the Federal Motor Carrier Safety Act (including its regulations) and had a nondelegable duty under Texas law to ensure that Mr. Ibarra, its alleged independent contractor, adhered to the Act’s safety standards. However, Texas-Cola Leasing was not acting as a motor carrier at the time of the accident under federal law. See 49 U.S.C. §§ DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 13 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal 13102(14), 31132(1) (defining “motor carriers” as entities either transporting more than 15 passengers in a vehicle, including the driver, or providing “transportation for compensation” using vehicles that either weigh more than 10,000 pounds or carry eight or more passengers, including the driver); see also 49 C.F.R. § 390.5 (defining “for-hire motor carrier” as “a person engaged in the transportation of goods or passengers for compensation”). Rather, Texas-Cola Leasing, the owner of the tractor and trailer, was merely leasing that equipment to CCSWB as part of Texas-Cola Leasing’s business of leasing motor vehicles. (Exhibit B, ¶ 6). Viewing the evidence in the light most favorable to Plaintiffs, the evidence establishes that, at most, Mr. Ibarra was performing a nondelegable duty on behalf of his actual employer, CCSWB, a separate legal entity. Such a showing is insufficient to survive summary judgment on this negligence and negligence per se cause of action against Texas-Cola Leasing. Beyond the fact that Mr. Ibarra was driving a tractor and trailer owned by Texas-Cola Leasing that were being leased to Mr. Ibarra’s employer CCSWB, Texas-Cola Leasing had no connection to Mr. Ibarra for purposes of imposing vicarious liability based on this nondelegable duty theory of liability. Accordingly, the essential element of duty of care is lacking, and Plaintiffs’ negligence and negligence per se claims based on this theory of liability are subject to summary judgment as a matter of law. D. The summary judgment evidence negates, as a matter of law, an essential element of Plaintiffs’ negligence claims against Texas-Cola Leasing for failure to properly train, inspect, maintain, and supervise Mr. Ibarra. Plaintiffs also allege that Texas-Cola Leasing was negligent by failing to properly train, inspect, maintain, and supervise Mr. Ibarra. (Exhibit A, ¶7.1-7.2, 7.7). Plaintiffs must prove the following three elements to support this claim: (1) Texas-Cola Leasing owed Plaintiffs a legal duty to hire, supervise, train, or retain competent employees; (2) Texas-Cola Leasing breached DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 14 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal that duty; and (3) the breach proximately caused Plaintiffs’ injuries. See Wal-Mart Stores, Inc. v. Sanchez, No. 04–02–00458–CV, 2003 WL 21338174, at *5 (Tex. App.—San Antonio June 11, 2003, pet. denied). Contrary to Plaintiffs’ allegations, the summary judgment evidence establishes that CCSWB—not Texas-Cola Leasing—hired, trained, and supervised Mr. Ibarra. (Exhibit B); Texas-Cola Leasing never hired Mr. Ibarra. (Id.). Thus, as a matter of law, the evidence confirms there is no genuine issue of material fact as to essential elements of Plaintiffs’ negligence claim based on failure to properly train and supervise Mr. Ibarra. Similarly, under these same factual circumstances, the plaintiffs in McDorman conceded that Texas-Cola Leasing was entitled to summary judgment on their negligent hiring claim. See 288 F.Supp.2d at 802. For all these reasons, Texas-Cola Leasing is entitled to summary judgment on Plaintiffs’ negligence claims. VI. ARGUMENT AND AUTHORITIES IN SUPPORT OF TEXAS-COLA LEASING’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT A. Adequate Time for Discovery Has Elapsed. Adequate time for discovery in this matter has elapsed, and Texas-Cola Leasing properly brings this No-Evidence Motion for Summary Judgment under Texas Rule of Civil Procedure 166a(i). Plaintiffs’ Original Petition that first asserted claims against Texas-Cola Leasing was filed on December 30, 2021. The subject accident occurred on January 3, 2020. It has been over two years since Plaintiffs first asserted claims against Texas-Cola Leasing. During discovery, the parties have exchanged written discovery, and the depositions of Plaintiffs and a third-party witness have been taken. Adequate time for discovery has elapsed. Nonetheless, Plaintiffs lack proof of essential elements of all of their claims against Texas-Cola Leasing. DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 15 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal B. There is no evidence of essential elements of Plaintiffs’ negligent entrustment claims. To succeed on their negligent entrustment claims, Plaintiffs must prove the following elements: (1) Texas-Cola Leasing owned the vehicle being driven by Mr. Ibarra at the time of the subject accident; (2) Texas-Cola Leasing entrusted that vehicle to Mr. Ibarra; (3) Mr. Ibarra was an incompetent or reckless driver; (4) Texas-Cola Leasing knew or should have known that Mr. Ibarra was an incompetent or reckless driver; (5) Mr. Ibarra was negligent on the occasion in question; and (6) Mr. Ibarra’s negligence proximately caused Plaintiffs’ alleged damages. See Magee, 388 S.W.3d at 717. Although Plaintiffs have had an adequate time to conduct discovery, Plaintiffs have no evidence to raise a genuine issue of material fact on at least two essential elements. Specifically, Plaintiffs have no evidence that Texas-Cola Leasing entrusted the subject tractor-trailer to Mr. Ibarra or that Texas-Cola Leasing had knowledge (actual or constructive) that Mr. Ibarra was an allegedly incompetent or reckless driver. As such, Texas-Cola Leasing is entitled to summary judgment on Plaintiffs’ negligent entrustment claims. C. There is no evidence of an essential element of Plaintiffs’ negligence and negligence per se claims based on vicarious liability and respondeat superior. With regard to Plaintiffs’ negligence and negligence per se claims based on respondeat superior, Plaintiffs must demonstrate the following elements: (1) Texas-Cola Leasing owed a duty to Plaintiffs; (2) Texas-Cola Leasing breached that duty; (3) Plaintiffs were injured; and (4) the breach of that duty was a proximate cause of those injuries. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Whether or not Texas-Cola Leasing had a legal duty to control Mr. Ibarra at the time of the subject accident is the threshold inquiry for Plaintiffs’ negligence and negligence per se claims based on vicarious liability and a question of law for this Court. DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 16 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal See Pagayon, 536 S.W.3d at 503. Without such a duty to control Mr. Ibarra, Texas-Cola Leasing cannot be held vicariously liable for Mr. Ibarra’s alleged negligence under Texas law. Id. at 504. Plaintiffs have no evidence that Texas-Cola Leasing had a legal duty to control Mr. Ibarra at the time of the accident to, in turn, owed a duty to Plaintiffs. Accordingly, Texas-Cola Leasing is entitled to summary judgment on Plaintiffs’ negligence and negligence per se claims based on vicarious liability and respondeat superior. D. There is no evidence of an essential element of Plaintiffs’ negligence claims for failure to “properly maintain, inspect, train and supervise” Mr. Ibarra. With regard to Plaintiffs’ negligence claims based on failure to “properly maintain, inspect, train and supervise” Mr. Ibarra, Plaintiffs must prove the following elements: (1) Texas- Cola Leasing owed Plaintiffs a legal duty to hire, supervise, train, or retain competent employees; (2) Texas-Cola Leasing breached that duty; and (3) the breach proximately caused Plaintiffs’ alleged injuries. See Wal-Mart Stores, Inc, 2003 WL 21338174 at *5. Plaintiffs have no evidence that Texas-Cola Leasing hired, supervised, trained, or retained Mr. Ibarra. Accordingly, Texas-Cola Leasing is entitled to summary judgment on Plaintiffs’ negligence claims. VII. CONCLUSION AND PRAYER In light of the evidence presented, there is no genuine issue of material fact regarding essential elements of Plaintiffs’ negligent entrustment, negligence, and negligence per se causes of action against Texas-Cola Leasing. Furthermore, Plaintiffs have no evidence of essential elements of their negligent entrustment, negligence, and negligence per se claims. WHEREFORE, PREMISES CONSIDERED, Defendant Texas-Cola Leasing Company, LP, LLLP, respectfully requests that the Court set this Traditional and No Evidence Motion for Summary Judgment at the earliest setting following the expiration of 21 days from the filing of DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 17 Electronically Filed 1/4/2024 8:34 AM Hidalgo County District Clerks Reviewed By: Dianira Leal this Motion; that upon hearing, the Court grants this Traditional and No Evidence Motion for Summary Judgment in its entirety; and grant it such other relief both at law and in equity to which it may show itself justly entitled. Respectfully submitted, /s/ David H. Estes DAVID H. ESTES Texas Bar No. 24012599 destes@hartlinebarger.com MORGAN R. TRENARY Texas Bar No. 24125864 mtrenary@hartlinebarger.com HARTLINE BARGER LLP 8750 North Central Expressway, Suite 1600 Dallas, Texas 75231 (214) 369-2100 (214) 369-2118 (fax) ATTORNEYS FOR DEFENDANT TEXAS- COLA LEASING COMPANY LP, LLLP CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record in accordance with the applicable Texas Rules of Civil Procedure on this 3rd day of January, 2024. /s/ David H. Estes DAVID H. ESTES DEFENDANT TEXAS-COLA LEASING CO. LP, LLLP’S MOTION FOR TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT PAGE 18 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. Jennifer White on behalf of David Estes Bar No. 24012599 jwhite@hartlinebarger.com Envelope ID: 83063378 Filing Code Description: Motion (No Fee) Filing Description: Defendant Texas-Cola Leasing Company LP, LLLP's Motion for Traditional and No-Evidence Summary Judgment Status as of 1/4/2024 8:48 AM CST Associated Case Party: AidalyJeanetteCantu Name BarNumber Email TimestampSubmitted Status Hinojosa Law e-service@hinojosalaw.com 1/4/2024 8:34:46 AM SENT Richard Hinojosa richardhinojosa@hinojosalaw.com 1/4/2024 8:34:46 AM SENT Noe A.Gonzalez ngonzalez@hinojosalaw.com 1/4/2024 8:34:46 AM SENT Stephanie Medrano smedrano@hinojosalaw.com 1/4/2024 8:34:46 AM SENT Associated Case Party: Coca-Cola Southwest Beverages, LLC Name BarNumber Email TimestampSubmitted Status David H.Estes destes@hartlinebarger.com 1/4/2024 8:34:46 AM SENT Jennifer White JWhite@hartlinebarger.com 1/4/2024 8:34:46 AM SENT Sarah Frisbee sfrisbee@hartlinebarger.com 1/4/2024 8:34:46 AM SENT Morgan Trenary mtrenary@hartlinebarger.com 1/4/2024 8:34:46 AM SENT