Legal Document: APOLONIO CRISANTO GARCIA VS. FIVE BROTHERS JALISCO PRODUCE COMPANY, INC D/B/A BONAFRUIT

On November 30, 2021 a Motion - Diazteca's Traditional and No-Evidence MSJ (Plaintiff) was filed involving a dispute between Garcia, Apolonio Crisanto, and Five Brothers Jalisco Produce Company, Inc D B A Bonafruit, for Injury or Damage - Other (OCA) in the District Court of Hidalgo County.

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Electronically Submitted
1/30/2024 2:24 PM
Hidalgo County Clerk
Accepted by: Sarah Reyes

CAUSE NO. CL-21-3953-I

APOLONIO CRISTANTO GARCIA, § IN THE COUNTY COURT
Plaintiff §
§
VS. §
§
FIVE BROTHERS JALISCO PRODUCE § AT LAW NO. 9
COMPANY, INC. d/b/a BONAFRUIT, §
Defendant/Third-Party Plaintiff §
§
DIAZTECA COMPANY, §
Third-Party Defendant/Defendant § HIDALGO COUNTY, TEXAS

DIAZTECA COMPANY’S SUPPLEMENTAL TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW DIAZTECA COMPANY, Defendant in the above entitled and numbered

cause (“Diazteca”), and files this Traditional and No-Evidence Motion for Summary Judgment

against Plaintiff Apolonio Cristanto Garcia (“Plaintiff”) and in support thereof, would respectfully

show the Court as follows:

I. SUMMARY OF THE MOTION

This matter arises out of an incident that occurred at a warehouse owned by Defendant Five

Brothers Jalisco Produce Company, Inc. d/b/a Bonafruit (hereinafter “Bonafruit”) located in Pharr,

Texas (the “Warehouse”) on April 28, 2021, in which Plaintiff was running through the Warehouse

when he was struck by a forklift owned by Bonafruit and operated by an employee of Bonafruit.

See Defendant Bonafruit’s Initial Disclosures, Exhibit “A”, Video of the Incident, a copy on file

herein. Diazteca is an importer and distributor of produce from Mexico to the United States. At

the time of the incident, Diazteca used cold storage space at the Warehouse for “in and out”

services for the purpose of importing and storing mangos from Mexico prior to their distribution

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to the United States. On the date of the incident, Diazteca did not employ Plaintiff, nor control or

direct his activities at the Warehouse.

On November 30, 2021, Plaintiff filed his lawsuit against Bonafruit asserting claims of

premises liability and negligence. See Plaintiff’s Original Petition, a copy on file herein. On

January 18, 2023, Plaintiff filed his Second Amended Petition naming Diazteca as a Defendant.

Plaintiff alleges that he was employed by Diazteca on the date of the incident and that Diazteca

negligently trained, supervised, and failed to inform Plaintiff of authorized access points in the

Warehouse. See Plaintiff’s Second Amended Petition, ¶¶ 5.2, 8.2, a copy on file herein.

The summary judgment evidence affirmatively proves that there was no employer-

employee relationship between Diazteca and Plaintiff on the date of the incident. Likewise,

Plaintiff has failed to put forth any evidence of one or more essential elements of his claim against

Diazteca. Therefore, Plaintiff’s claim against Diazteca should be dismissed as a matter of law and

Diazteca is entitled to summary judgment in its favor.

II. STANDARD OF REVIEW

A. 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

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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);

Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Montgomery v. Kennedy, 669 S.W.2d

309, 310-11 (Tex. 1994).

B. 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. Plaintiff’s claim against Diazteca has been pending for one year and during

this time Plaintiff has not put forth any evidence to support his claim against Diazteca.

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

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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 fact on

one or more specified elements of plaintiff’s 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).

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 elements 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). Diazteca is entitled to both traditional and no-evidence summary judgments as to

Plaintiff’s claim.

III. SUMMARY JUDGMENT EVIDENCE

Diazteca’s Motion for Summary Judgment is based upon the pleadings on file with the

Court and documents filed contemporaneously with this Motion upon which Diazteca 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”: Deposition Transcript of Plaintiff Apolonio Cristanto Garcia; and

Exhibit “C”: Affidavit of Jorge Ruiz.

IV. ARGUMENTS AND AUTHORITIES

A. Diazteca is Entitled to Traditional Summary Judgment in Its Favor Because It Did
Not Owe Any Duties to Plaintiff

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Plaintiff alleges that he was employed by Diazteca at the time of the incident and seeks to

impose liability on Diazteca for its alleged negligent supervision and training of Plaintiff. Plaintiff

alleges that on April 28, 2021, he entered the premises of the Warehouse for the purpose of his

employment with Diazteca. See Plaintiff’s Second Amended Petition, ¶ 5.2. Surveillance video of

the incident reveals that Plaintiff was running through the Warehouse when he was struck by a

forklift owned by Bonafruit and operated by an employee of Bonafruit. See Exhibit “A.” Plaintiff

alleges that his collision with the forklift was due to negligence on the part of Diazteca for: (1)

failing to properly supervise; (2) failing to train; and (3) failing to inform its employees of

authorized access. See Plaintiff’s Second Amended Petition, ¶ 8.2.

Plaintiff must first establish that Diazteca owed him a legal duty to hire, train, and supervise

competent employees. This duty is imposed on employers as a matter of law. Castillo v. Gared,

Inc., 1 S.W.3d 781, 786 (Tex. App. 1999). To prove Diazteca owed any of these duties, Plaintiff

must prove there was an employer-employee relationship between himself and Diazteca. See

Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996). The undisputed evidence

establishes the opposite. At his deposition, Plaintiff testified that he was not working for anyone

on the date of the incident. Exhibit “B”, Deposition Transcript of Apolonio Cristanto Garcia, p.

21:17-18. Plaintiff testified that Diazteca was a company at the Warehouse, but he was not familiar

with Diazteca. Id. at p. 23:16-21. By his own admission, Plaintiff and Diazteca did not have an

employer-employee relationship.

Plaintiff was not employed by Diazteca on the date of the incident and has never been

employed by Diazteca. Affidavit of Jorge Ruiz, Exhibit “C”, ¶ 11. Diazteca never offered Plaintiff

a position of employment and has no employment records pertaining to Plaintiff. Id. Diazteca had

no obligation, responsibility, or ability to control, instruct, train, supervise or direct third parties,

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like Plaintiff, at the Warehouse. Id. at ¶ 13. Diazteca was not responsible for any safety, security,

and/or employment matters with respect to third parties, like Plaintiff, at the Warehouse. Id.

Diazteca was not responsible for hiring, supervising, training, warning, or managing third parties,

like Plaintiff, at the Warehouse. Id Diazteca was not responsible for maintaining or inspecting the

Warehouse premises and did not control or have the right to control the Warehouse premises. Id.

at ¶ 14.

The summary judgment evidence conclusively proves that Diazteca did not owe, and could

not have owed, any duties to Plaintiff with regard to the incident at issue because Plaintiff was not

employed by Diazteca. 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. The summary judgment evidence conclusively negates the necessary element

of duty, therefore Diazteca is entitled to summary judgment on Plaintiff’s claim.

B. Diazteca is Entitled to No-Evidence Summary Judgment in Its Favor Because There
is No Evidence of One or More Essential Elements of Plaintiff’s Claim

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

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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., 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 April 28, 2021. Plaintiff filed his Original Petition against Bonafruit on November

30, 2021, and filed his Second Amended Petition naming Diazteca as a Defendant on January 18,

2023. Plaintiff, Bonafruit and Diazteca have served Initial Disclosures, engaged in written

discovery, and depositions have been conducted. Trial is set for April 15, 2024. More than

adequate time has passed for discovery to have taken place.

Diazteca would therefore, in addition to its traditional grounds for summary judgment,

show that Plaintiff cannot recover from it because the undisputed facts establish that Plaintiff has

not, through pleadings, written discovery, or otherwise, presented any evidence that Plaintiff was

employed by Diazteca. Plaintiff has put forth no evidence that Diazteca controlled or directed his

activities at the Warehouse on the date of the incident. Under Tex. R. Civ. P. 166(a)(i), without

evidence tending to establish the employer-employee relationship element, Diazteca is entitled to

summary judgment as to all claims against it on this further basis.

V. CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Diazteca requests that the Court grant its

Motion for Summary Judgment, dismiss Plaintiff’s claim against it with prejudice, and award it

any further relief to which it may be entitled.

Respectfully submitted,

COLVIN, SAENZ, RODRIGUEZ & KENNAMER, LLP

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Electronically Submitted
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Hidalgo County Clerk
Accepted by: Sarah Reyes

By:
Jaime A. Saenz
Texas Bar No. 17514859
Email: ja.saenz@rcclaw.com
1201 E. Van Buren Street
Brownsville, Texas 78520
Telephone: (956) 542-7441
Facsimile: (956) 541-2170

ATTORNEYS FOR THIRD-PARTY
DEFENDANT/DEFENDANT DIAZTECA
COMPANY

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Hidalgo County Clerk
Accepted by: Sarah Reyes

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served upon all counsel

of record, to-wit:

Frank Guerra
Frank Guerra Law Firm, PLC
1122 Pecan Boulevard
McAllen, Texas 78501
Attorneys for Plaintiff

Richard D. Schell
Law Offices of Richard D. Schell
1801 South 2nd Street, Suite 460
McAllen, Texas 78503
Attorneys for Defendant Bonafruit

by e-service through the Texas e-filing system, certified mail, return receipt requested, facsimile

transmission, and/or hand delivery pursuant to the Texas Rules of Civil Procedure on January 30,

2024.

Jaime A. Saenz

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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 Jaime Saenz
Bar No. 17514859
irma.garcia@rcclaw.com
Envelope ID: 83950606
Filing Code Description: Motion (No Fee)
Filing Description: Diazteca's Supplemental Traditional and No-Evidence
Motion for Summary Judgment (Bonafruit)
Status as of 1/30/2024 2:38 PM CST

Associated Case Party: DIAZTECA COMPANY

Name BarNumber Email TimestampSubmitted Status

Flora Galvan flora.galvan@rcclaw.com 1/30/2024 2:24:06 PM SENT

Taylor Blas tp.blas@rcclaw.com 1/30/2024 2:24:06 PM SENT

Irma Garcia irma.garcia@rcclaw.com 1/30/2024 2:24:06 PM SENT

Jaime A.Saenz ja.saenz@rcclaw.com 1/30/2024 2:24:06 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

AIDA@ @FRANKGUERRALAW.COM AIDA@FRANKGUERRALAW.COM 1/30/2024 2:24:06 PM SENT

Carmen Cisneros carmencisneros@rickschell.com 1/30/2024 2:24:06 PM SENT

Richard DSchell rick@rickschell.com 1/30/2024 2:24:06 PM SENT

Frank Guerra frank@frankguerralaw.com 1/30/2024 2:24:06 PM SENT

Associated Case Party: FIVE BROTHERS JALISCO PRODUCE COMPANY, INC
D/B/A BONAFRUIT

Name BarNumber Email TimestampSubmitted Status

Rick Schell rick@rickschell.com 1/30/2024 2:24:06 PM SENT

Associated Case Party: APOLONIOCRISANTOGARCIA

Name BarNumber Email TimestampSubmitted Status

Frank Guerra aida@frankguerralaw.com 1/30/2024 2:24:06 PM SENT

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Document Filed Date

January 30, 2024

Case Filing Date

November 30, 2021

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