Preview
Received and E-Filed for Record
5/31/2019 7:46 AM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Megan Shiflett
NO. 18-11-15195
DAWN FOLEY AND § IN THE DISTRICT COURT OF
JAVAR FOLEY §
vs. § MONTGOMERY COUNTY, TEXAS
§
WASTE CONNECTIONS US, INC., §
WASTE CONNECTIONS LONE STAR, §
INC., WASTE CONNECTIONS §
MANAGEMENT SERVICES, INC., §
WASTE CONNECTIONS US §
HOLDINGS, INC. § 284th JUDICIAL DISTRICT
PLAINTIFFS’ BRIEF REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR NEW
TRIAL
TO THE HONORABLE JUDGE KRISTIN BAYS:
Plaintiffs Dawn Foley and Javar Foley file this Reply in Support of Plaintiffs’ Motion
for New Trial.
1. The Court committed reversible error when it granted summary judgment in
Defendants’ favor on grounds it did not plead. To dispose of the plaintiff’s entire case, a
defendant’s motion for summary judgment must identify or address each of the plaintiff’s claims
and the essential elements of those claims on which it contends that no genuine issues of material
fact exists. Garza v. CTX Mortg. Co., LLC, 285 S.W.3d 919, 923 (Tex. App.—Dallas 2009, no
pet.); see also, Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). A defendant
may not be granted summary judgment on a cause of action it did not address in its
summary judgment motion. Id.; Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476, 487
(Tex.App.—Houston [1st Dist.] 2007, pet. denied).
2. A defendant who does not amend or supplement its motion for summary
judgment to address claims asserted in a plaintiff's amended pleading is generally not entitled to
a summary judgment on the plaintiff’s entire case. Rotating Services Indus., Inc. v. Harris, 245
S.W.3d 476, 487 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Blancett v.
Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex.App.-Houston [1st Dist] 2005, no pet.); see
Smith v. Atl. Richfield Co., 927 S.W.2d 85, 88 (Tex.App.-Houston [1st Dist.] 1996, writ denied).
The portion of a final summary judgment rendered on the plaintiff’s entire case under these
circumstances must generally be reversed because the judgment grants more relief than
requested. Id., see Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200 (Tex.2001); Blancett, 177
S.W.3d at 592; Postive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex.App.-Houston [1st
Dist.] 1999, no pet.).
3. Texas jurisprudence is clear, “The motion for summary judgment must stand
or fall on the grounds it specifically and expressly sets forth…” McConnell v. Southside
Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see also, Garza v. CTX Mortg. Co., LLC,
285 S.W.3d 919, 923 (Tex. App.—Dallas 2009, no pet.) (“…we cannot affirm
a summary judgment on grounds other than those specified in the motion.”).
4. Further, Rule 166a of the Texas Rules of Civil Procedure provides that “the
judgment sought shall be rendered forthwith ... on the issues expressly set out in the motion or in
an answer or any other response.” Tex. R. Civ. P. 166a(c). Applying this rule in a comparable
situation, the Fourth Court of Appeals held that a “trial court could not have granted summary
judgment on grounds that were not included in the [summary judgment] motion, and likewise
[the Court of Appeals] cannot uphold it on unstated grounds.” Roberts v. Southwest Texas
Methodist Hosp., 811 S.W.2d 141, 145 (Tex.App.—San Antonio 1991, writ denied). The Court
further explained that, “[w]hen a motion for summary judgment asserts grounds A and B, it
cannot be upheld on grounds C and D, which were not asserted, even if the summary
judgment proof supports them.” Id. at 145; see also McConnell v. Southside Indep. Sch.
Dist., 858 S.W.2d at 342.
5. Here, the Court granted summary judgment and ordered that Plaintiffs take
nothing of or from Defendants. However, the sole grounds upon which summary motion could
have been granted was on Plaintiffs’ respondeat superior claims, because that was the only issue
expressly set out in Defendants’ Traditional Motion for Summary Judgment.1 As in Garza, the
Court is required to review the claims asserted in Plaintiffs’ First Amended Petition and compare
them against the claims in Defendants’ summary judgment motion. In addition to Plaintiff’s
respondeat superior claims, Plaintiffs plead independent causes of action against Defendants for
negligent entrustment and negligent hiring, training, supervision of its managers who hire, train
and monitor its drivers, and those claims were not part of Defendants’ summary judgment
motion.2 Defendants have not amended their summary judgment address claims asserted in a
Plaintiffs’ amended pleading and therefore Defendants were not entitled to summary judgment
on the Plaintiffs’ entire case. Harris, 245 S.W.3d at 487.
6. The Court lacked any authority to render summary judgment on a different
ground than the one raised in Defendants’ motion and the Court’s take-nothing judgment cannot
be sustained. The Court should vacate its order.
7. It should be noted that Defendants’ Response to Plaintiffs’ Motion for New Trial
produces new evidence for the first time and argues only that the summary judgment should be
upheld as to Plaintiffs’ respondeat superior claims.3 Good cause exists to vacate the take-
nothing judgment and to reconsider Defendants’ motion for summary judgment and order a new
1
Defs.’ Mot. for Summ. J., Mar. 18, 2019, a true and correct copy of which is on file with this
Honorable Court.
2
Pls.’ First Am. Pet., Mar. 21, 2019, a true and correct copy of which is on file with this
Honorable Court.
3
See Ex. A. to Defs. Resp to Pls. Mtn for New Trial.
trial.
Respectfully submitted,
Meriwether Law Firm, PLLC
/s/ Sydney Meriwether
SYDNEY MERIWETHER
State Bar No. 24078715
3100 Timmons Lane, Suite 310
Houston, Texas 77027
P: (713) 322-9993
F: (713) 583-3114
Email: sydney@meriwetherlaw.com
Email: jessica@meriwetherlaw.com
ATTORNEY FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has been
forwarded to all counsel in accordance with the Texas Rules of Civil Procedure on this, the 31st
day of May 2019, as follows:
/s/ Sydney Meriwether
SYDNEY MERIWETHER
Via E-Serve and/or Facsimile: (713) 599-0777
GALLOWAY, JOHNSON, TOMPKINS
BURR & SMITH
Thomas J. Smith
State Bar No. 00788932
tsmith@gallowaylawfirm.com
Kelly C. Hartmann
State Bar No. 24055631
khartmann@gallowaylawfirm.com
Daniel D. Schick
State Bar No. 24098387
dschick@gallowaylawfirm.com
1301 McKinney, Suite 1400
Houston, Texas 77010
Phone: (713) 599-0700
Fax: (713) 599-0777
Preview
Received and E-Filed for Record 5/31/2019 7:46 AM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Megan Shiflett NO. 18-11-15195 DAWN FOLEY AND § IN THE DISTRICT COURT OF JAVAR FOLEY § vs. § MONTGOMERY COUNTY, TEXAS § WASTE CONNECTIONS US, INC., § WASTE CONNECTIONS LONE STAR, § INC., WASTE CONNECTIONS § MANAGEMENT SERVICES, INC., § WASTE CONNECTIONS US § HOLDINGS, INC. § 284th JUDICIAL DISTRICT PLAINTIFFS’ BRIEF REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR NEW TRIAL TO THE HONORABLE JUDGE KRISTIN BAYS: Plaintiffs Dawn Foley and Javar Foley file this Reply in Support of Plaintiffs’ Motion for New Trial. 1. The Court committed reversible error when it granted summary judgment in Defendants’ favor on grounds it did not plead. To dispose of the plaintiff’s entire case, a defendant’s motion for summary judgment must identify or address each of the plaintiff’s claims and the essential elements of those claims on which it contends that no genuine issues of material fact exists. Garza v. CTX Mortg. Co., LLC, 285 S.W.3d 919, 923 (Tex. App.—Dallas 2009, no pet.); see also, Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). A defendant may not be granted summary judgment on a cause of action it did not address in its summary judgment motion. Id.; Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476, 487 (Tex.App.—Houston [1st Dist.] 2007, pet. denied). 2. A defendant who does not amend or supplement its motion for summary judgment to address claims asserted in a plaintiff's amended pleading is generally not entitled to a summary judgment on the plaintiff’s entire case. Rotating Services Indus., Inc. v. Harris, 245 S.W.3d 476, 487 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex.App.-Houston [1st Dist] 2005, no pet.); see Smith v. Atl. Richfield Co., 927 S.W.2d 85, 88 (Tex.App.-Houston [1st Dist.] 1996, writ denied). The portion of a final summary judgment rendered on the plaintiff’s entire case under these circumstances must generally be reversed because the judgment grants more relief than requested. Id., see Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200 (Tex.2001); Blancett, 177 S.W.3d at 592; Postive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex.App.-Houston [1st Dist.] 1999, no pet.). 3. Texas jurisprudence is clear, “The motion for summary judgment must stand or fall on the grounds it specifically and expressly sets forth…” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see also, Garza v. CTX Mortg. Co., LLC, 285 S.W.3d 919, 923 (Tex. App.—Dallas 2009, no pet.) (“…we cannot affirm a summary judgment on grounds other than those specified in the motion.”). 4. Further, Rule 166a of the Texas Rules of Civil Procedure provides that “the judgment sought shall be rendered forthwith ... on the issues expressly set out in the motion or in an answer or any other response.” Tex. R. Civ. P. 166a(c). Applying this rule in a comparable situation, the Fourth Court of Appeals held that a “trial court could not have granted summary judgment on grounds that were not included in the [summary judgment] motion, and likewise [the Court of Appeals] cannot uphold it on unstated grounds.” Roberts v. Southwest Texas Methodist Hosp., 811 S.W.2d 141, 145 (Tex.App.—San Antonio 1991, writ denied). The Court further explained that, “[w]hen a motion for summary judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which were not asserted, even if the summary judgment proof supports them.” Id. at 145; see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d at 342. 5. Here, the Court granted summary judgment and ordered that Plaintiffs take nothing of or from Defendants. However, the sole grounds upon which summary motion could have been granted was on Plaintiffs’ respondeat superior claims, because that was the only issue expressly set out in Defendants’ Traditional Motion for Summary Judgment.1 As in Garza, the Court is required to review the claims asserted in Plaintiffs’ First Amended Petition and compare them against the claims in Defendants’ summary judgment motion. In addition to Plaintiff’s respondeat superior claims, Plaintiffs plead independent causes of action against Defendants for negligent entrustment and negligent hiring, training, supervision of its managers who hire, train and monitor its drivers, and those claims were not part of Defendants’ summary judgment motion.2 Defendants have not amended their summary judgment address claims asserted in a Plaintiffs’ amended pleading and therefore Defendants were not entitled to summary judgment on the Plaintiffs’ entire case. Harris, 245 S.W.3d at 487. 6. The Court lacked any authority to render summary judgment on a different ground than the one raised in Defendants’ motion and the Court’s take-nothing judgment cannot be sustained. The Court should vacate its order. 7. It should be noted that Defendants’ Response to Plaintiffs’ Motion for New Trial produces new evidence for the first time and argues only that the summary judgment should be upheld as to Plaintiffs’ respondeat superior claims.3 Good cause exists to vacate the take- nothing judgment and to reconsider Defendants’ motion for summary judgment and order a new 1 Defs.’ Mot. for Summ. J., Mar. 18, 2019, a true and correct copy of which is on file with this Honorable Court. 2 Pls.’ First Am. Pet., Mar. 21, 2019, a true and correct copy of which is on file with this Honorable Court. 3 See Ex. A. to Defs. Resp to Pls. Mtn for New Trial. trial. Respectfully submitted, Meriwether Law Firm, PLLC /s/ Sydney Meriwether SYDNEY MERIWETHER State Bar No. 24078715 3100 Timmons Lane, Suite 310 Houston, Texas 77027 P: (713) 322-9993 F: (713) 583-3114 Email: sydney@meriwetherlaw.com Email: jessica@meriwetherlaw.com ATTORNEY FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing has been forwarded to all counsel in accordance with the Texas Rules of Civil Procedure on this, the 31st day of May 2019, as follows: /s/ Sydney Meriwether SYDNEY MERIWETHER Via E-Serve and/or Facsimile: (713) 599-0777 GALLOWAY, JOHNSON, TOMPKINS BURR & SMITH Thomas J. Smith State Bar No. 00788932 tsmith@gallowaylawfirm.com Kelly C. Hartmann State Bar No. 24055631 khartmann@gallowaylawfirm.com Daniel D. Schick State Bar No. 24098387 dschick@gallowaylawfirm.com 1301 McKinney, Suite 1400 Houston, Texas 77010 Phone: (713) 599-0700 Fax: (713) 599-0777