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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 TRADITIONAL AND NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW DIAZTECA COMPANY, Third-Party Defendant in the above entitled and
numbered cause (hereinafter “Diazteca”), and files this Traditional and No-Evidence Motion for
Summary Judgment against Five Brothers Jalisco Produce Company, Inc. d/b/a Bonafruit
(hereinafter “Bonafruit”) 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 Bonafruit
located in Pharr, Texas (the “Warehouse”) on April 28, 2021, in which Plaintiff Apolonio Cristanto
Garcia (“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. 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.
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
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services” for its importation and storage of mangos from Mexico. On September 20, 2022,
Bonafruit filed its Third-Party Petition against Diazteca asserting claims of contractual
indemnification and negligence/common law contribution and indemnification. See Bonafruit’s
Third-Party Petition Against Diazteca Company, a copy on file herein. Bonafruit claims that at the
time of the incident, an oral contract existed between Bonafruit and Diazteca which permitted
Diazteca to rent cold storage space at the Warehouse in exchange for Diazteca’s agreement to
accept liability for any loss, expense, damage, or liability resulting from its activities at the
Warehouse. Id. at ¶ 3(B). Bonafruit alleges that the oral contract required Diazteca’s employees to
follow Bonafruit’s safety guidelines and policies regarding the Warehouse and that it restricted
Diazteca’s employees to Unit Four within the Warehouse, which contained the cold storage space
and necessary amenities for Diazteca’s employees. Id. at ¶ 3(C). Bonafruit further alleges that
Plaintiff was employed by Diazteca on the date of the incident, and therefore, under the alleged
oral contract, Diazteca is required to indemnify and hold harmless Bonafruit against Plaintiff’s
claims. Id. at ¶ 3(D).
Diazteca will show that the summary judgment evidence affirmatively proves that:
1. Diazteca did not employ Plaintiff, nor did it direct or control the activities of
Plaintiff on the date of the incident;
2. Diazteca did not agree to indemnify and hold harmless Bonafruit for its activities
at the Warehouse. Should such an alleged indemnification provision exist under the
oral contract, it is unenforceable by law; and
3. In the alternative, Diazteca will show that Bonafruit has failed to put forth evidence
of one or more essential elements of its claims against Diazteca.
Therefore, Bonafruit’s claims against Diazteca should be dismissed as a matter of law and
Diazteca is entitled to summary judgment in its favor regarding the Third-Party Petition claims.
II. STANDARD OF REVIEW
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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
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
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must be granted. Id. This lawsuit has been pending for over 15 months and Bonafruit has not put
forth any evidence to support its claims 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
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 plaintiffs cause of action. See Tex. R. Civ. Proc. 166a(i); Weiss
v. Mechanical Associated Serv., Inc., 989 S.W. 2d 120, 123 (Tex. App.-San Antonio 1999).
A motion for summary judgment can be evaluated as both a traditional and a no-evidence
Motion for Summary Judgment; with a motion being a "no-evidence" motion to the extent it relies
on the specific challenge to one or more essential element of the non-movant's cause of action.
See Amour v. Southwest Toyota, Inc., 20 S.W.3d 165 (Tex. App. – Texarkana, 2000) (pet. rev.
denied). Diazteca is entitled to both traditional and no-evidence summary judgments as to
Bonafruit’s claims.
III. SUMMARY JUDGMENT EVIDENCE
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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; and
Exhibit “B”: Deposition Transcript of Plaintiff Apolonio Cristanto Garcia.
IV. UNDISPUTED FACTS
Diazteca imports and distributes produce from Mexico to the United States where it sells
directly to United States retail supermarket chain stores, wholesalers, distributors, manufacturers,
processors and end-markets. Within Texas, Diazteca imports and distributes mangos from Mexico
to the east coast. To accomplish this operation, Diazteca utilizes warehouses in Pharr, Texas for
“in and out services” whereby the mangos are imported “in” from Mexico to a warehouse where
there are unloaded and briefly stored in cold storage space until they are reloaded for distribution
“out” to the east coast.
Jorge Ruiz (“Mr. Ruiz”), District Manager with Diazteca, oversees Diazteca’s operations
in Texas. As part of his role, Mr. Ruiz identifies warehouses in Pharr, Texas that offer cold storage
space that Diazteca may utilize for in and out services. Mr. Ruiz identified the Warehouse as a
potential warehouse that offered in and out services for Diazteca’s importation and distribution of
mangos in Pharr, Texas. Thereafter, representatives of Diazteca and Bonafruit engaged in
conversations regarding the terms of the in and out services and an oral contract was reached.
Under the oral contract, Bonafruit charged Diazteca per pallet of mangos and Diazteca did not pay
any other fee or cost to Bonafruit. The oral contract assigned the in and out services to be performed
in a specific area of the Warehouse, such oral contract however, did not specifically restrict
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Diazteca or its employees from walking around the Warehouse, did not specifically require
Diazteca or its employees to follow Bonafruit’s safety guidelines and policies regarding the
Warehouse, and did not specifically contain an indemnification provision requiring Diazteca to
indemnify and hold harmless Bonafruit for any loss, expense, damage, or liability resulting from
its activities at the Warehouse. The oral contract was never reduced to writing.
Diazteca does not dispute the existence of an oral contract with Bonafruit. Diazteca does,
however, dispute Bonafruit’s allegations of the terms of the alleged oral contract and Bonafruit’s
assertion that Plaintiff was employed by Diazteca at the time of the incident.
V. ARGUMENTS AND AUTHORITIES
A. Traditional Summary Judgment on Bonafruit’s Contractual Indemnification and
Negligence/Common Law Contribution Claims
1. Diazteca is Entitled to Traditional Summary Judgment in Its Favor on Bonafruit’s
Contractual Indemnification and Negligence/Common Law Contribution Claims
Because There Was No Employer-Employee Relationship and It Did Not Owe Any
Duties to Bonafruit
a. Contractual Indemnification
Bonafruit alleges that Diazteca is liable to it for breach of an oral contract, specifically that
Diazteca agreed to indemnify and hold harmless Bonafruit from any loss or injury occurring from
Diazteca’s operations on the Warehouse premises. Bonafruit alleges that Plaintiff was employed
by Diazteca at the time of the incident and, if Plaintiff sustained injuries and damages as alleged,
Bonafruit seeks to invoke the alleged indemnification provision for which it sues. Notwithstanding
that Diazteca disputes the existence of the alleged indemnification provision under the oral
contract, to assert a claim for indemnification against Diazteca, Bonafruit must prove that there
was an employer-employee relationship between Diazteca and Plaintiff so as to bring Diazteca in
breach of the alleged indemnification provision. The summary judgment evidence conclusively
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negates this element. At his deposition, Plaintiff testified that he was not working for anyone on
the date of the incident. See 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.
Plaintiff was not employed by Diazteca on the date of the incident and has never been
employed by Diazteca. Diazteca never offered Plaintiff a position of employment and has no
employment records pertaining to Plaintiff. Diazteca had no obligation, responsibility, or ability
to control, instruct, train, supervise or direct third parties, like Plaintiff, at the Warehouse. Diazteca
was not responsible for any safety, security, and/or employment matters with respect to third
parties, like Plaintiff, at the Warehouse. Diazteca was not responsible for hiring, supervising,
training, warning, or managing third parties, like Plaintiff, at the Warehouse. Diazteca was not
responsible for maintaining or inspecting the Warehouse premises and did not control or have the
right to control the Warehouse premises.
The summary judgment evidence conclusively negates that Plaintiff was employed by
Diazteca on the date of the incident so as to place Diazteca in breach of the alleged indemnification
provision requiring Diazteca to indemnify and hold harmless Bonafruit for Plaintiff’s claims.
Diazteca is entitled to summary judgment on Bonafruit’s contractual indemnification claim.
b. Negligence/Common Law Contribution
Likewise, Bonafruit specifically pleads that Plaintiff was employed by Diazteca at the time
of the incident and seeks to impose liability on Diazteca for the alleged negligent hiring, retention,
training, and supervision of Plaintiff. Bonafruit must first establish that Diazteca owed it 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 an employer
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owed any of these duties, Bonafruit must prove there was an employer-employee relationship
between Diazteca and Plaintiff. See Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 290
(Tex. 1996). The undisputed evidence establishes the opposite. The summary judgment evidence
conclusively proves that Diazteca did not owe, and could not have owed, any duties to Bonafruit
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 Bonafruit’s negligence/common law contribution claim.
B. Traditional Summary Judgment on Bonafruit’s Claim for Contractual
Indemnification
1. Diazteca is Entitled to Traditional Summary Judgment in Its Favor on Bonafruit’s
Contractual Indemnification Claim Because the Alleged Indemnification Provision
Fails the Texas Fair Notice Requirements
Bonafruit seeks indemnification for the actions of its forklift operator in colliding with
Plaintiff on the date of the incident at issue. “An indemnity agreement is a promise to safeguard
or hold the indemnitee harmless against either existing and/or future loss liability” and provides
the indemnitee with a cause of action to recover against the indemnitor. Dresser Indus., Inc. v.
Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). Most contract provisions involve a certain
degree of risk-shifting, but some provisions involve such an “extraordinary shifting of risk” that
courts impose additional fair notice requirements to make the provision enforceable. Green Int'l,
Inc. v. Solis, 951 S.W.2d 384, 387 (Tex.1997); Dresser, 853 S.W.2d at 508; Amtech Elevator Serv.
Co. v. CSFB 1998–P1 Buffalo Speedway Office Ltd., 248 S.W.3d 373, 377 (Tex.App.-Houston
[1st Dist.] 2007, no pet.). The fair notice requirements are (1) the express negligence doctrine and
(2) the conspicuousness requirement. Amtech Elevator Serv., 248 S.W.3d at 377. The express
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negligence doctrine dictates that a party's intent to be released or indemnified from its own future
negligence must be clear and unambiguous. Green Int'l, 951 S.W.2d at 386. The conspicuousness
requirement means that “something must appear on the face of the [contract] to attract the attention
of a reasonable person.” Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004)
(quoting Dresser, 853 S.W.2d at 508). The fair notice requirements apply when “one party
exculpates itself from its own future negligence.” Green Int'l, 951 S.W.2d at 387; DDD Energy,
Inc. v. Veritas DGC Land, Inc., 60 S.W.3d 880, 885 (Tex.App.-Houston [14th Dist.] 2001, no pet.)
(holding fair notice does not apply “where an indemnitee is seeking indemnification from claims
not based on the negligence of the indemnitee.”). Whether an indemnity provision complies with
the fair-notice requirements is a question of law, and an indemnity provision that fails to satisfy
the requirements is unenforceable as a matter of law. Storage & Processors, Inc. v. Reyes, 134
S.W.3d 190, 192 (Tex. 2004); Dresser Indus., 853 S.W.2d at 509.
In this case, Bonafruit is seeking indemnification by Diazteca for Plaintiff’s claims based
on the negligence of Bonafruit, specifically the negligence of the forklift operator employed by
Bonafruit. To satisfy the express negligence doctrine, “the party seeking indemnity from the
consequences of its own negligence must express that intent in specific terms within the four
corners of the contract.” Dresser Indus, 853 S.W.2d at 508, citing, Ethyl Corp. v. Daniel Constr.
Co., 725 S.W2d 705, 708 (Tex. 1987). As pled in its Third-Party Petition, Bonafruit did not allege
that the indemnity provision covered instances of its negligence. Rather, Bonafruit pled that
Diazteca agreed to accept liability for “any loss, expense, damage, or liability” resulting from
Diazteca’s activities at the Warehouse. The alleged indemnification provision does not expressly
state Bonafruit’s intent to be indemnified for its negligence, which Texas courts have found
insufficient against the express negligence doctrine. See Monsanto Co. v. Owens-Corning
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Fiberglas Corp., 764 S.W.2d 293, 294 (Tex. App. 1988) (finding indemnity provisions that have
been held unenforceable either have not specifically mentioned negligence or have not specified
the extent of coverage that would be applied). Therefore, the indemnity provision fails to expressly
state Bonafruit’s intent to be indemnified from its own negligence rendering it unenforceable.
The alleged indemnification provision also fails to satisfy the conspicuous requirement. To
satisfy the conspicuous requirement, an indemnity provision “must appear on the face of the
contract to attract the attention of a reasonable person when he looks at it.” Dresser Indus., 853
S.W.2d at 508. An indemnity provision may be conspicuous if it contains language in capital
headings or contrasting type and color or appears in a short document. Id. at 511. Tantamount to
the issue of whether the alleged indemnification provision satisfies the conspicuous requirement
is the fact that there is no written contract memorializing the terms of indemnification that
Bonafruit asserts. Therefore, Bonafruit cannot satisfy the conspicuous requirement.
As the alleged indemnification provision does not meet the fair notice requirements,
Diazteca is entitled to summary judgment on Bonafruit’s contractual indemnification claim.
2. Diazteca is Entitled to Traditional Summary Judgment in Its Favor on Bonafruit’s
Contractual Indemnification Claim Because it Did Not Breach the Oral Contract
The elements of a claim for breach of an oral contract are (1) the existence of a valid
contract between plaintiff and defendant, (2) the plaintiff's performance or tender of performance,
(3) the defendant's breach, and (4) the plaintiff's damages as a result of the breach. See Prime
Prods., Inc., 97 S.W.3d at 636. The summary judgment evidence conclusively negates the
necessary element of the existence of a valid contract between Bonafruit and Diazteca and
Diazteca’s breach of the alleged indemnification provision, therefore Diazteca is entitled to
summary judgment on Bonafruit’s contractual indemnification claim.
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C. Traditional Summary Judgment on Bonafruit’s Negligence/Common Law
Contribution Claim
1. Diazteca is Entitled to Traditional Summary Judgment in Its Favor on Bonafruit’s
Negligence/Common Law Contribution Claim Because Bonafruit Has No
Common Law Right to Contribution/Indemnification
Of additional consideration to Bonafruit’s negligence/common law contribution claim is
the principal that there is no common law right to contribution between joint tortfeasors in Texas,
as pled by Bonafruit. Iowa Mfg. Co. v. Weisman Equip. Co., 667 S.W.2d 209, 211 (Tex. App.—
Austin 1983, writ ref’d n.r.e.) (citing Bradshaw v. Baylor University, 52 S.W.2d 1094, 1101 (Tex.
Civ. App. 1932)). A contribution claim can be brought under statute, specifically the Texas Civil
Practices and Remedies Code Chapter 32, which permits: a “person against whom a judgment is
rendered, on payment of the judgment, a right of action to recover payment from each codefendant
against whom judgment is also rendered.” Tex. Civ. Prac. & Rem. Code Ann. § 32.002. Based on
the plain language of section 32.002, a judgment adverse to the party seeking contribution is an
essential prerequisite to contribution under Chapter 32. Beech Aircraft Corp. v. Jinkins, 739
S.W.2d 19, 20 (Tex. 1987).
As there is no recognized common law right to contribution, Diazteca is entitled to
summary judgment on Bonafruit’s negligence/common law contribution claim.
D. No-Evidence Summary Judgment on Bonafruit’s Contractual Indemnification and
Negligence/Common Law Contribution Claims
1. Diazteca is Entitled to No-Evidence Summary Judgment in Its Favor on Bonafruit’s
Contractual Indemnification Claims Because There is No Evidence of One or More
Essential Elements of The Claims
Rule 166a(i) provides an alternative no-evidence summary judgment standard. After
adequate time for discovery, a defendant may move for summary judgment on the grounds there
is no evidence of one or more essential elements of a plaintiffs claim. See Tex. R. Civ. P. 166a(i).
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The portion of Tex. R. Civ. P. 166a(i) providing that a "no-evidence" motion for summary
judgment may be filed "after an adequate time for discovery" has passed does not require that
discovery be completed. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App. –
Houston 2000, pet. denied); see e.g., Restaurant Teams, Int'l v. MG Sec. Corp., 95 S.W.3d 336,
339 (Tex. App. – Dallas 2002, no pet.) (holding that seven months was an adequate amount of
time to conduct discovery); Wolfe v. Fairbanks Capital Corp., No. 2-03- 100-CV, 2004 WL
221212, at * 1 (Tex. App. – Fort Worth Feb. 5, 2004, no pet.) (holding that eleven months was an
adequate amount of time to conduct discovery). A no-evidence motion for summary judgment
filed before the end of the discovery period in the case is not necessarily premature. Specialty
Realtors, Inc., 29 S.W.3d at 145; In Re Mohawk Rubber Co., 982 S.W.2d at 498.
Bonafruit has had sufficient time to conduct discovery. This case involves an alleged injury
that occurred on April 28, 2021. Plaintiff filed his lawsuit against Bonafruit on November 30, 2021
and Bonafruit filed its Third-Party Petition against Diazteca on September 20, 2022. 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.
2. There is No Evidence of Mutual Assent to the Alleged Indemnification Provision
Bonafruit alleges that Diazteca is liable to it for breach of an oral contract, specifically that
Diazteca agreed to indemnify and hold harmless Bonafruit from any loss or injury occurring from
Diazteca’s operations on the Warehouse premises. The elements of a valid contract are: (1) an
offer, (2) acceptance in strict compliance with the terms of the offer, (3) meeting of the minds, (4)
a communication that each party consented to the terms of the contract, (5) execution and delivery
of the contract with intent it become mutual and binding on both parties, and (6) consideration.
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Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex.App.-Houston [14th Dist.] 2000,
no pet.). “In determining the existence of an oral contract, the court looks to the communications
between the parties and to the acts and circumstances surrounding those communications.” See
Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.]
2002, pet. denied). To prove that an offer was made a party must show: (1) the offeror intended to
make an offer; (2) the terms of the offer were clear and definite; and (3) the offeror communicated
the essential terms of the offer to the offeree. KW Const. v. Stephens & Sons Concrete Contractors,
Inc., 165 S.W.3d 874, 883 (Tex. App. 2005). An acceptance must be identical to the offer, or there
is no binding contract. Harris v. Balderas, 27 S.W.3d 71, 77 (Tex. App. 2000).
Without a written instrument to express the intent of the parties, to determine whether
Diazteca agreed to indemnify and hold harmless Bonafruit under the oral contract, the inquiry
centers on whether Bonafruit has presented evidence that there was a meeting of the minds
regarding the alleged indemnification provision, that Diazteca consented to the indemnification
provision, and that Diazteca’s acceptance of the oral contract was identical to Bonafruit’s offer.
To determine whether there was an offer and acceptance, and therefore a “meeting of the minds,”
courts use an objective standard, considering what the parties did and said, not their subjective
states of mind. See Komet v. Graves, 40 S.W.3d 596, 601 (Tex. App. 2001). A meeting of the
minds is a mutual understanding and assent to the expression of the parties' agreement. See
Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex. App. 1999).
Diazteca would therefore, in addition to its traditional grounds for summary judgment,
show that Bonafruit cannot recover from it because the undisputed facts establish that Bonafruit
has not, through pleadings, written discovery, or otherwise, presented any evidence that Diazteca
and Bonafruit had a meeting of the minds regarding the alleged indemnification provision. The
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terms of the oral contract did not restrict Diazteca or its employees from walking around the
Warehouse or using certain restrooms within the Warehouse or require Diazteca or its employees
to follow Bonafruit’s Warehouse safety guidelines or policies. The terms of the oral contract also
did not require Diazteca to agree to accept liability for any loss, expense, damage, or liability
resulting from Diazteca’s activities, or the activities of its employees, at the Warehouse. The terms
of the oral contract did not require Diazteca to agree to indemnify and hold harmless Bonafruit
from any loss or injury occurring from Diazteca or its employees’ operations on the Warehouse
premises. Diazteca did not discuss nor agree to the inclusion of such terms in the oral contract.
Bonafruit has put forth no evidence that Diazteca agreed to accept liability for any loss, expense,
damage, or liability resulting from its activities at the Warehouse nor that Diazteca agreed to
indemnify and hold harmless Bonafruit from any loss or injury occurring from Diazteca’s
operations on the Warehouse premises. Under Tex. R. Civ. P. 166(a)(i), without evidence tending
to establish any (or even one) of these elements, Diazteca is entitled to summary judgment as to
all claims against it on this further basis.
3. There is No Evidence of An Employer-Employee Relationship Between Diazteca and
Plaintiff
Bonafruit alleges that Plaintiff was employed by Diazteca at the time of the incident and,
if Plaintiff sustained injuries and damages as alleged, Bonafruit seeks to invoke the alleged
indemnification provision for which it sues. To assert a claim for indemnification against Diazteca,
Bonafruit must prove that there was an employer-employee relationship between Diazteca and
Plaintiff so as to bring Diazteca in breach of the alleged indemnification provision.
Diazteca would therefore, in addition to its traditional grounds for summary judgment,
show that Bonafruit cannot recover from it because the undisputed facts establish that Bonafruit
has not, through pleadings, written discovery, or otherwise, presented any evidence that Plaintiff
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was employed by Diazteca. Bonafruit has put forth no evidence that Bonafruit controlled or
directed Plaintiff’s 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.
VI. CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Diazteca requests that the Court grant its
Traditional and No-Evidence Motion for Summary Judgment, dismiss Bonafruit’s claims against
it with prejudice, and award it any further relief to which it may be entitled.
Respectfully submitted,
COLVIN, SAENZ, RODRIGUEZ & KENNAMER, LLP
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
-15-
Electronically Submitted
1/16/2024 5:08 PM
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 16,
2024.
Jaime A. Saenz
-16-
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: 83459564
Filing Code Description: Motion (No Fee)
Filing Description: Diazteca's Traditional and No-Evidence Motion for
Summary Judgment - Bonafruit
Status as of 1/17/2024 8:08 AM CST
Associated Case Party: APOLONIOCRISANTOGARCIA
Name BarNumber Email TimestampSubmitted Status
Frank Guerra aida@frankguerralaw.com 1/16/2024 5:08:13 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 1/16/2024 5:08:13 PM SENT
Associated Case Party: DIAZTECA COMPANY
Name BarNumber Email TimestampSubmitted Status
Jaime A.Saenz ja.saenz@rcclaw.com 1/16/2024 5:08:13 PM SENT
Flora Galvan flora.galvan@rcclaw.com 1/16/2024 5:08:13 PM SENT
Taylor Blas tp.blas@rcclaw.com 1/16/2024 5:08:13 PM SENT
Irma Garcia irma.garcia@rcclaw.com 1/16/2024 5:08:13 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Richard DSchell rick@rickschell.com 1/16/2024 5:08:13 PM SENT
AIDA@ @FRANKGUERRALAW.COM AIDA@FRANKGUERRALAW.COM 1/16/2024 5:08:13 PM SENT
Frank Guerra frank@frankguerralaw.com 1/16/2024 5:08:13 PM SENT
Carmen Cisneros carmencisneros@rickschell.com 1/16/2024 5:08:13 PM SENT
Preview
Electronically Submitted 1/16/2024 5:08 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 TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW DIAZTECA COMPANY, Third-Party Defendant in the above entitled and numbered cause (hereinafter “Diazteca”), and files this Traditional and No-Evidence Motion for Summary Judgment against Five Brothers Jalisco Produce Company, Inc. d/b/a Bonafruit (hereinafter “Bonafruit”) 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 Bonafruit located in Pharr, Texas (the “Warehouse”) on April 28, 2021, in which Plaintiff Apolonio Cristanto Garcia (“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. 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. 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 -1- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes services” for its importation and storage of mangos from Mexico. On September 20, 2022, Bonafruit filed its Third-Party Petition against Diazteca asserting claims of contractual indemnification and negligence/common law contribution and indemnification. See Bonafruit’s Third-Party Petition Against Diazteca Company, a copy on file herein. Bonafruit claims that at the time of the incident, an oral contract existed between Bonafruit and Diazteca which permitted Diazteca to rent cold storage space at the Warehouse in exchange for Diazteca’s agreement to accept liability for any loss, expense, damage, or liability resulting from its activities at the Warehouse. Id. at ¶ 3(B). Bonafruit alleges that the oral contract required Diazteca’s employees to follow Bonafruit’s safety guidelines and policies regarding the Warehouse and that it restricted Diazteca’s employees to Unit Four within the Warehouse, which contained the cold storage space and necessary amenities for Diazteca’s employees. Id. at ¶ 3(C). Bonafruit further alleges that Plaintiff was employed by Diazteca on the date of the incident, and therefore, under the alleged oral contract, Diazteca is required to indemnify and hold harmless Bonafruit against Plaintiff’s claims. Id. at ¶ 3(D). Diazteca will show that the summary judgment evidence affirmatively proves that: 1. Diazteca did not employ Plaintiff, nor did it direct or control the activities of Plaintiff on the date of the incident; 2. Diazteca did not agree to indemnify and hold harmless Bonafruit for its activities at the Warehouse. Should such an alleged indemnification provision exist under the oral contract, it is unenforceable by law; and 3. In the alternative, Diazteca will show that Bonafruit has failed to put forth evidence of one or more essential elements of its claims against Diazteca. Therefore, Bonafruit’s claims against Diazteca should be dismissed as a matter of law and Diazteca is entitled to summary judgment in its favor regarding the Third-Party Petition claims. II. STANDARD OF REVIEW -2- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes 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 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 -3- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes must be granted. Id. This lawsuit has been pending for over 15 months and Bonafruit has not put forth any evidence to support its claims 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 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 plaintiffs cause of action. See Tex. R. Civ. Proc. 166a(i); Weiss v. Mechanical Associated Serv., Inc., 989 S.W. 2d 120, 123 (Tex. App.-San Antonio 1999). A motion for summary judgment can be evaluated as both a traditional and a no-evidence Motion for Summary Judgment; with a motion being a "no-evidence" motion to the extent it relies on the specific challenge to one or more essential element of the non-movant's cause of action. See Amour v. Southwest Toyota, Inc., 20 S.W.3d 165 (Tex. App. – Texarkana, 2000) (pet. rev. denied). Diazteca is entitled to both traditional and no-evidence summary judgments as to Bonafruit’s claims. III. SUMMARY JUDGMENT EVIDENCE -4- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes 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; and Exhibit “B”: Deposition Transcript of Plaintiff Apolonio Cristanto Garcia. IV. UNDISPUTED FACTS Diazteca imports and distributes produce from Mexico to the United States where it sells directly to United States retail supermarket chain stores, wholesalers, distributors, manufacturers, processors and end-markets. Within Texas, Diazteca imports and distributes mangos from Mexico to the east coast. To accomplish this operation, Diazteca utilizes warehouses in Pharr, Texas for “in and out services” whereby the mangos are imported “in” from Mexico to a warehouse where there are unloaded and briefly stored in cold storage space until they are reloaded for distribution “out” to the east coast. Jorge Ruiz (“Mr. Ruiz”), District Manager with Diazteca, oversees Diazteca’s operations in Texas. As part of his role, Mr. Ruiz identifies warehouses in Pharr, Texas that offer cold storage space that Diazteca may utilize for in and out services. Mr. Ruiz identified the Warehouse as a potential warehouse that offered in and out services for Diazteca’s importation and distribution of mangos in Pharr, Texas. Thereafter, representatives of Diazteca and Bonafruit engaged in conversations regarding the terms of the in and out services and an oral contract was reached. Under the oral contract, Bonafruit charged Diazteca per pallet of mangos and Diazteca did not pay any other fee or cost to Bonafruit. The oral contract assigned the in and out services to be performed in a specific area of the Warehouse, such oral contract however, did not specifically restrict -5- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes Diazteca or its employees from walking around the Warehouse, did not specifically require Diazteca or its employees to follow Bonafruit’s safety guidelines and policies regarding the Warehouse, and did not specifically contain an indemnification provision requiring Diazteca to indemnify and hold harmless Bonafruit for any loss, expense, damage, or liability resulting from its activities at the Warehouse. The oral contract was never reduced to writing. Diazteca does not dispute the existence of an oral contract with Bonafruit. Diazteca does, however, dispute Bonafruit’s allegations of the terms of the alleged oral contract and Bonafruit’s assertion that Plaintiff was employed by Diazteca at the time of the incident. V. ARGUMENTS AND AUTHORITIES A. Traditional Summary Judgment on Bonafruit’s Contractual Indemnification and Negligence/Common Law Contribution Claims 1. Diazteca is Entitled to Traditional Summary Judgment in Its Favor on Bonafruit’s Contractual Indemnification and Negligence/Common Law Contribution Claims Because There Was No Employer-Employee Relationship and It Did Not Owe Any Duties to Bonafruit a. Contractual Indemnification Bonafruit alleges that Diazteca is liable to it for breach of an oral contract, specifically that Diazteca agreed to indemnify and hold harmless Bonafruit from any loss or injury occurring from Diazteca’s operations on the Warehouse premises. Bonafruit alleges that Plaintiff was employed by Diazteca at the time of the incident and, if Plaintiff sustained injuries and damages as alleged, Bonafruit seeks to invoke the alleged indemnification provision for which it sues. Notwithstanding that Diazteca disputes the existence of the alleged indemnification provision under the oral contract, to assert a claim for indemnification against Diazteca, Bonafruit must prove that there was an employer-employee relationship between Diazteca and Plaintiff so as to bring Diazteca in breach of the alleged indemnification provision. The summary judgment evidence conclusively -6- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes negates this element. At his deposition, Plaintiff testified that he was not working for anyone on the date of the incident. See 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. Plaintiff was not employed by Diazteca on the date of the incident and has never been employed by Diazteca. Diazteca never offered Plaintiff a position of employment and has no employment records pertaining to Plaintiff. Diazteca had no obligation, responsibility, or ability to control, instruct, train, supervise or direct third parties, like Plaintiff, at the Warehouse. Diazteca was not responsible for any safety, security, and/or employment matters with respect to third parties, like Plaintiff, at the Warehouse. Diazteca was not responsible for hiring, supervising, training, warning, or managing third parties, like Plaintiff, at the Warehouse. Diazteca was not responsible for maintaining or inspecting the Warehouse premises and did not control or have the right to control the Warehouse premises. The summary judgment evidence conclusively negates that Plaintiff was employed by Diazteca on the date of the incident so as to place Diazteca in breach of the alleged indemnification provision requiring Diazteca to indemnify and hold harmless Bonafruit for Plaintiff’s claims. Diazteca is entitled to summary judgment on Bonafruit’s contractual indemnification claim. b. Negligence/Common Law Contribution Likewise, Bonafruit specifically pleads that Plaintiff was employed by Diazteca at the time of the incident and seeks to impose liability on Diazteca for the alleged negligent hiring, retention, training, and supervision of Plaintiff. Bonafruit must first establish that Diazteca owed it 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 an employer -7- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes owed any of these duties, Bonafruit must prove there was an employer-employee relationship between Diazteca and Plaintiff. See Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996). The undisputed evidence establishes the opposite. The summary judgment evidence conclusively proves that Diazteca did not owe, and could not have owed, any duties to Bonafruit 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 Bonafruit’s negligence/common law contribution claim. B. Traditional Summary Judgment on Bonafruit’s Claim for Contractual Indemnification 1. Diazteca is Entitled to Traditional Summary Judgment in Its Favor on Bonafruit’s Contractual Indemnification Claim Because the Alleged Indemnification Provision Fails the Texas Fair Notice Requirements Bonafruit seeks indemnification for the actions of its forklift operator in colliding with Plaintiff on the date of the incident at issue. “An indemnity agreement is a promise to safeguard or hold the indemnitee harmless against either existing and/or future loss liability” and provides the indemnitee with a cause of action to recover against the indemnitor. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). Most contract provisions involve a certain degree of risk-shifting, but some provisions involve such an “extraordinary shifting of risk” that courts impose additional fair notice requirements to make the provision enforceable. Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 387 (Tex.1997); Dresser, 853 S.W.2d at 508; Amtech Elevator Serv. Co. v. CSFB 1998–P1 Buffalo Speedway Office Ltd., 248 S.W.3d 373, 377 (Tex.App.-Houston [1st Dist.] 2007, no pet.). The fair notice requirements are (1) the express negligence doctrine and (2) the conspicuousness requirement. Amtech Elevator Serv., 248 S.W.3d at 377. The express -8- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes negligence doctrine dictates that a party's intent to be released or indemnified from its own future negligence must be clear and unambiguous. Green Int'l, 951 S.W.2d at 386. The conspicuousness requirement means that “something must appear on the face of the [contract] to attract the attention of a reasonable person.” Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004) (quoting Dresser, 853 S.W.2d at 508). The fair notice requirements apply when “one party exculpates itself from its own future negligence.” Green Int'l, 951 S.W.2d at 387; DDD Energy, Inc. v. Veritas DGC Land, Inc., 60 S.W.3d 880, 885 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (holding fair notice does not apply “where an indemnitee is seeking indemnification from claims not based on the negligence of the indemnitee.”). Whether an indemnity provision complies with the fair-notice requirements is a question of law, and an indemnity provision that fails to satisfy the requirements is unenforceable as a matter of law. Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser Indus., 853 S.W.2d at 509. In this case, Bonafruit is seeking indemnification by Diazteca for Plaintiff’s claims based on the negligence of Bonafruit, specifically the negligence of the forklift operator employed by Bonafruit. To satisfy the express negligence doctrine, “the party seeking indemnity from the consequences of its own negligence must express that intent in specific terms within the four corners of the contract.” Dresser Indus, 853 S.W.2d at 508, citing, Ethyl Corp. v. Daniel Constr. Co., 725 S.W2d 705, 708 (Tex. 1987). As pled in its Third-Party Petition, Bonafruit did not allege that the indemnity provision covered instances of its negligence. Rather, Bonafruit pled that Diazteca agreed to accept liability for “any loss, expense, damage, or liability” resulting from Diazteca’s activities at the Warehouse. The alleged indemnification provision does not expressly state Bonafruit’s intent to be indemnified for its negligence, which Texas courts have found insufficient against the express negligence doctrine. See Monsanto Co. v. Owens-Corning -9- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes Fiberglas Corp., 764 S.W.2d 293, 294 (Tex. App. 1988) (finding indemnity provisions that have been held unenforceable either have not specifically mentioned negligence or have not specified the extent of coverage that would be applied). Therefore, the indemnity provision fails to expressly state Bonafruit’s intent to be indemnified from its own negligence rendering it unenforceable. The alleged indemnification provision also fails to satisfy the conspicuous requirement. To satisfy the conspicuous requirement, an indemnity provision “must appear on the face of the contract to attract the attention of a reasonable person when he looks at it.” Dresser Indus., 853 S.W.2d at 508. An indemnity provision may be conspicuous if it contains language in capital headings or contrasting type and color or appears in a short document. Id. at 511. Tantamount to the issue of whether the alleged indemnification provision satisfies the conspicuous requirement is the fact that there is no written contract memorializing the terms of indemnification that Bonafruit asserts. Therefore, Bonafruit cannot satisfy the conspicuous requirement. As the alleged indemnification provision does not meet the fair notice requirements, Diazteca is entitled to summary judgment on Bonafruit’s contractual indemnification claim. 2. Diazteca is Entitled to Traditional Summary Judgment in Its Favor on Bonafruit’s Contractual Indemnification Claim Because it Did Not Breach the Oral Contract The elements of a claim for breach of an oral contract are (1) the existence of a valid contract between plaintiff and defendant, (2) the plaintiff's performance or tender of performance, (3) the defendant's breach, and (4) the plaintiff's damages as a result of the breach. See Prime Prods., Inc., 97 S.W.3d at 636. The summary judgment evidence conclusively negates the necessary element of the existence of a valid contract between Bonafruit and Diazteca and Diazteca’s breach of the alleged indemnification provision, therefore Diazteca is entitled to summary judgment on Bonafruit’s contractual indemnification claim. -10- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes C. Traditional Summary Judgment on Bonafruit’s Negligence/Common Law Contribution Claim 1. Diazteca is Entitled to Traditional Summary Judgment in Its Favor on Bonafruit’s Negligence/Common Law Contribution Claim Because Bonafruit Has No Common Law Right to Contribution/Indemnification Of additional consideration to Bonafruit’s negligence/common law contribution claim is the principal that there is no common law right to contribution between joint tortfeasors in Texas, as pled by Bonafruit. Iowa Mfg. Co. v. Weisman Equip. Co., 667 S.W.2d 209, 211 (Tex. App.— Austin 1983, writ ref’d n.r.e.) (citing Bradshaw v. Baylor University, 52 S.W.2d 1094, 1101 (Tex. Civ. App. 1932)). A contribution claim can be brought under statute, specifically the Texas Civil Practices and Remedies Code Chapter 32, which permits: a “person against whom a judgment is rendered, on payment of the judgment, a right of action to recover payment from each codefendant against whom judgment is also rendered.” Tex. Civ. Prac. & Rem. Code Ann. § 32.002. Based on the plain language of section 32.002, a judgment adverse to the party seeking contribution is an essential prerequisite to contribution under Chapter 32. Beech Aircraft Corp. v. Jinkins, 739 S.W.2d 19, 20 (Tex. 1987). As there is no recognized common law right to contribution, Diazteca is entitled to summary judgment on Bonafruit’s negligence/common law contribution claim. D. No-Evidence Summary Judgment on Bonafruit’s Contractual Indemnification and Negligence/Common Law Contribution Claims 1. Diazteca is Entitled to No-Evidence Summary Judgment in Its Favor on Bonafruit’s Contractual Indemnification Claims Because There is No Evidence of One or More Essential Elements of The Claims Rule 166a(i) provides an alternative no-evidence summary judgment standard. After adequate time for discovery, a defendant may move for summary judgment on the grounds there is no evidence of one or more essential elements of a plaintiffs claim. See Tex. R. Civ. P. 166a(i). -11- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes The portion of Tex. R. Civ. P. 166a(i) providing that a "no-evidence" motion for summary judgment may be filed "after an adequate time for discovery" has passed does not require that discovery be completed. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App. – Houston 2000, pet. denied); see e.g., Restaurant Teams, Int'l v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App. – Dallas 2002, no pet.) (holding that seven months was an adequate amount of time to conduct discovery); Wolfe v. Fairbanks Capital Corp., No. 2-03- 100-CV, 2004 WL 221212, at * 1 (Tex. App. – Fort Worth Feb. 5, 2004, no pet.) (holding that eleven months was an adequate amount of time to conduct discovery). A no-evidence motion for summary judgment filed before the end of the discovery period in the case is not necessarily premature. Specialty Realtors, Inc., 29 S.W.3d at 145; In Re Mohawk Rubber Co., 982 S.W.2d at 498. Bonafruit has had sufficient time to conduct discovery. This case involves an alleged injury that occurred on April 28, 2021. Plaintiff filed his lawsuit against Bonafruit on November 30, 2021 and Bonafruit filed its Third-Party Petition against Diazteca on September 20, 2022. 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. 2. There is No Evidence of Mutual Assent to the Alleged Indemnification Provision Bonafruit alleges that Diazteca is liable to it for breach of an oral contract, specifically that Diazteca agreed to indemnify and hold harmless Bonafruit from any loss or injury occurring from Diazteca’s operations on the Warehouse premises. The elements of a valid contract are: (1) an offer, (2) acceptance in strict compliance with the terms of the offer, (3) meeting of the minds, (4) a communication that each party consented to the terms of the contract, (5) execution and delivery of the contract with intent it become mutual and binding on both parties, and (6) consideration. -12- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex.App.-Houston [14th Dist.] 2000, no pet.). “In determining the existence of an oral contract, the court looks to the communications between the parties and to the acts and circumstances surrounding those communications.” See Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). To prove that an offer was made a party must show: (1) the offeror intended to make an offer; (2) the terms of the offer were clear and definite; and (3) the offeror communicated the essential terms of the offer to the offeree. KW Const. v. Stephens & Sons Concrete Contractors, Inc., 165 S.W.3d 874, 883 (Tex. App. 2005). An acceptance must be identical to the offer, or there is no binding contract. Harris v. Balderas, 27 S.W.3d 71, 77 (Tex. App. 2000). Without a written instrument to express the intent of the parties, to determine whether Diazteca agreed to indemnify and hold harmless Bonafruit under the oral contract, the inquiry centers on whether Bonafruit has presented evidence that there was a meeting of the minds regarding the alleged indemnification provision, that Diazteca consented to the indemnification provision, and that Diazteca’s acceptance of the oral contract was identical to Bonafruit’s offer. To determine whether there was an offer and acceptance, and therefore a “meeting of the minds,” courts use an objective standard, considering what the parties did and said, not their subjective states of mind. See Komet v. Graves, 40 S.W.3d 596, 601 (Tex. App. 2001). A meeting of the minds is a mutual understanding and assent to the expression of the parties' agreement. See Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex. App. 1999). Diazteca would therefore, in addition to its traditional grounds for summary judgment, show that Bonafruit cannot recover from it because the undisputed facts establish that Bonafruit has not, through pleadings, written discovery, or otherwise, presented any evidence that Diazteca and Bonafruit had a meeting of the minds regarding the alleged indemnification provision. The -13- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes terms of the oral contract did not restrict Diazteca or its employees from walking around the Warehouse or using certain restrooms within the Warehouse or require Diazteca or its employees to follow Bonafruit’s Warehouse safety guidelines or policies. The terms of the oral contract also did not require Diazteca to agree to accept liability for any loss, expense, damage, or liability resulting from Diazteca’s activities, or the activities of its employees, at the Warehouse. The terms of the oral contract did not require Diazteca to agree to indemnify and hold harmless Bonafruit from any loss or injury occurring from Diazteca or its employees’ operations on the Warehouse premises. Diazteca did not discuss nor agree to the inclusion of such terms in the oral contract. Bonafruit has put forth no evidence that Diazteca agreed to accept liability for any loss, expense, damage, or liability resulting from its activities at the Warehouse nor that Diazteca agreed to indemnify and hold harmless Bonafruit from any loss or injury occurring from Diazteca’s operations on the Warehouse premises. Under Tex. R. Civ. P. 166(a)(i), without evidence tending to establish any (or even one) of these elements, Diazteca is entitled to summary judgment as to all claims against it on this further basis. 3. There is No Evidence of An Employer-Employee Relationship Between Diazteca and Plaintiff Bonafruit alleges that Plaintiff was employed by Diazteca at the time of the incident and, if Plaintiff sustained injuries and damages as alleged, Bonafruit seeks to invoke the alleged indemnification provision for which it sues. To assert a claim for indemnification against Diazteca, Bonafruit must prove that there was an employer-employee relationship between Diazteca and Plaintiff so as to bring Diazteca in breach of the alleged indemnification provision. Diazteca would therefore, in addition to its traditional grounds for summary judgment, show that Bonafruit cannot recover from it because the undisputed facts establish that Bonafruit has not, through pleadings, written discovery, or otherwise, presented any evidence that Plaintiff -14- Electronically Submitted 1/16/2024 5:08 PM Hidalgo County Clerk Accepted by: Sarah Reyes was employed by Diazteca. Bonafruit has put forth no evidence that Bonafruit controlled or directed Plaintiff’s 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. VI. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Diazteca requests that the Court grant its Traditional and No-Evidence Motion for Summary Judgment, dismiss Bonafruit’s claims against it with prejudice, and award it any further relief to which it may be entitled. Respectfully submitted, COLVIN, SAENZ, RODRIGUEZ & KENNAMER, LLP 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 -15- Electronically Submitted 1/16/2024 5:08 PM 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 16, 2024. Jaime A. Saenz -16- 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: 83459564 Filing Code Description: Motion (No Fee) Filing Description: Diazteca's Traditional and No-Evidence Motion for Summary Judgment - Bonafruit Status as of 1/17/2024 8:08 AM CST Associated Case Party: APOLONIOCRISANTOGARCIA Name BarNumber Email TimestampSubmitted Status Frank Guerra aida@frankguerralaw.com 1/16/2024 5:08:13 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 1/16/2024 5:08:13 PM SENT Associated Case Party: DIAZTECA COMPANY Name BarNumber Email TimestampSubmitted Status Jaime A.Saenz ja.saenz@rcclaw.com 1/16/2024 5:08:13 PM SENT Flora Galvan flora.galvan@rcclaw.com 1/16/2024 5:08:13 PM SENT Taylor Blas tp.blas@rcclaw.com 1/16/2024 5:08:13 PM SENT Irma Garcia irma.garcia@rcclaw.com 1/16/2024 5:08:13 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Richard DSchell rick@rickschell.com 1/16/2024 5:08:13 PM SENT AIDA@ @FRANKGUERRALAW.COM AIDA@FRANKGUERRALAW.COM 1/16/2024 5:08:13 PM SENT Frank Guerra frank@frankguerralaw.com 1/16/2024 5:08:13 PM SENT Carmen Cisneros carmencisneros@rickschell.com 1/16/2024 5:08:13 PM SENT