Preview
Electronically Filed
12/16/2020 3:14 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
CAUSE NO. C-2351-19-D
GARCIA’S QUALITY FRUIT & IN THE DISTRICT COURT
PRODUCE, LLC
Plaintiff,
vs. 206" JUDICIAL DISTRICT
CHRIS DAMON, JOHN MEENA, JOSE
GARCIA, EACH INDIVIDUALLY AND
D/B/A PRODUCE CONNECTION, INC.
Defendants HIDALGO COUNTY, TEXAS
DEFENDANTS CHRIS DAMON, JOHN MEENA, JOSE GARCIA, INCORRECTLY
NAMED D/B/A PRODUCE CONNECTION, INC.’S REPLY TO PLAINTIFF’S
RESPONSE TO DEFENDANTS’ TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT AND
MOTION TO STRIKE HEARSAY EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT:
Now come Defendants, CHRIS DAMON, JOHN MEENA, and JOSE GARCIA,
incorrectly named d/b/a Produce Connection, Inc., and file this Reply to Plaintiff's
Response to Defendants Traditional and No Evidence Motion for Summary Judgment
and Motion to Strike Hearsay Evidence, and respectfully show unto the Court as follows:
I PLAINTIFF HAS PRODUCED NO EVIDENCE
1.1 Defendants filed their Traditional and No Evidence Motion for Summary Judgment
(“Motion for Summary Judgment”) seeking a dismissal of the lawsuit in which they are
incorrectly named as individuals and as a d/b/a of a company that Plaintiff did not transact
business with. In the Motion for Summary Judgment, Defendants seek dismissal of this
herein numbered cause while not disputing that Plaintiff did conduct business with the
corporations sued in the following numbered causes:
Cause No. C-1291-20-H — Garcia’s Quality Fruit & Produce, LLC v. John L.
Electronically Filed
12/16/2020 3:14 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
Meena, Individually and d/b/a The Avocado
Connection, Inc., Christopher W. Damon,
Individually & d/b/a The Avocado Connection,
Inc.; and
Cause No. C-1294-20-F Garcia’s Quality Fruit & Produce, LLC v. J ohn L.
Meena, Individually and d/b/a Spring Valley
Produce, Inc., Christopher W Damon,
Individually & d/b/a Spring Valley Produce, Inc.
In the response to the Motion to SummaryJ udgment, Plaintiff filed an affidavit asserting
hearsay evidence as its only proof that it conducted business with Produce Connection,
Inc.
1.2 Personal Knowledge Not Established in Plaintiff's Affidavit. Plaintiff's
Response to Defendants’ Traditional and No Evidence Motion for Summary J udgment
(“Plaintiff's Response”) is supported only by an affidavit. The affidavit executed by Raul
Garcia gives no indication of Mr. Garcia’s connection to this case and how he has
personal knowledge of the hearsay statement asserted therein. Rule 166a(f) of the Texas
Rules of Civil Procedure requires that affidavits supporting summary judgment must “be
made on personal knowledge,” TEX. R. CIV. P. 166a(f), and must “unequivocally
represent the facts as disclosed in the affidavit to be true and within the affiant's personal
knowledge.” Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curiam) (orig.
proceeding). An affidavit must disclose the basis on which the affiant has personal
knowledge of the facts asserted. See Radio Station KSCS v. J ennings, 750 S.W.2d 760,
761-62 (Tex. 1988) (per curiam). The entire affidavit is reviewed to determine whether
the facts asserted therein are based on personal knowledge. Noriega v. Mireles, 925
S.W.2d 261, 264 (Tex.App.— Corpus Christi 1996, writ denied). To determine if personal
knowledge exists, the affiant’s position or job responsibilities may demonstrate the basis
Electronically Filed
12/16/2020 3:14 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
of the personal knowledge. Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d
550, 553 (Tex. App.- Houston [14th Dist.] 2010, no pet.); Hernandez v. W-S Indus. Servs.
Inc., No. 12-14-00404-CV, 2015 WL 5136771, at 3 (Tex.App.—Corpus Christi Aug. 31,
2014, no pet.)(mem. op.). Additionally, the personal knowledge requirement may be
satisfied if the affidavit sufficiently describes the relationship between the affiant and the
case so that it may be reasonably assumed that the affiant has personal knowledge of
the facts stated in the affidavit. Stucki v. Noble, 963 S.W.2d 776, 780 (Tex. App.-San
Antonio 1998, pet. denied); see also Core v. Citibank, NA, No. 13-12-00648-CV, 2015
WL 1631680, at *3 (Tex. App.-Corpus Christi Apr. 9, 2015, pet. denied)(mem. op.)
(same). The affidavit submitted in this case by Plaintiff does not disclose the basis of the
affiant’s personal knowledge nor does it describe the relationship between the affiant and
the case. Plaintiffs affidavit is not competent summary judgment evidence and cannot
be considered as summary judgment evidence. Defendants hereby request thata ruling
be issued that Plaintiffs submitted affidavit cannot be considered by the Courtin its review
of the Motion for SummaryJ udgment.
13 Hearsay Evidence Not Admissible. Additionally, the affidavit submitted in
support of Plaintiffs Response focuses on a hearsay statement as its only evidence
against granting Defendants’ Motion for SummaryJ udgment. This hearsay statement
as
allegedly told to the Plaintiff cannot be considered in reviewing the Motion for Summary
J udgement and any responses to it. Hearsay evidence is inadmissible summary judgment
evidence. A formal objection is hereby made to the inclusion of the hearsay statement
as
evidence in support of Plaintiff's Response. Defendants move to have the hearsay
statement stricken from the evidence included in the affidavit and in Plaintiff's Response.
Electronically Filed
12/16/2020 3:14 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
The hearsay statement included in the affidavit submitted in support of Plaintiff's Response
is as follows:
Jose Garcia represented to me that the purchasers of the avocados were
Produce Connection, Inc., Spring Valley Produce, Inc. and The Avocado
Connection, Inc...”
See Affidavit submitted by Plaintiff on December 14, 2020.
1.4 Texas Courts have held that summary judgment evidence must be presented in a
form that would be admissible at trial. See Okpere v. Nat'l Oilwell Varco, O.P., 524 S.W.3d
818 (Tex.App.— Houston [14" Dist.] 2017); In re Estate of Guerrero, 465 S.W.3d 693, 706
(Tex.App.— Houston [14" Dist.] 2015, pet denied (en banc). The Texas Rules of Evidence
define “hearsay”
as “a statement that 1) the declarant does not make while testifying at the
current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter
asserted in the statement.” See Tex. R. Evid. 801(d) Hearsay is not admissible unless
allowed as an exception under a statute, the Texas Rules of Evidence, or other rules
prescribed under statutory authority. See Tex. R. Evid. 801(d) In the statement
summarized above, the Plaintiff did not make the statement, but asserts that someone else
made the statement. See Exhibit 1 to Plaintiffs Response. The alleged statement was
made outside of Court. This is classic hearsay to which Defendants formally object. An
exception does not apply. Defendants hereby request that a ruling be issued that the
hearsay statement as included above be stricken from Plaintiff's summary judgment
evidence and not be considered by the Court in its review of the Motion for Summary
Judgment. Defendant further requests that Plaintiff be prohibited from referencing the
hearsay statement in any arguments, written responses, and affidavits submitted to the
Electronically Filed
12/16/2020 3:14 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
Court regarding the Motion for Summary Judgment. Docefino v. Randolph, 19 S.W.3d
906, 935 (Tex.App.—Houston [14"" Dist.] 2000, pet. Denied).
1.5 Made by Interested Witness. Defendants further object that any testimony
regarding the alleged statement is made by an interested witness and is not clear,
positive, direct, or free from contradiction. See Tex. R. Civ. P. 166a(c). Not only is Plaintiff
the only person who has testified about the hearsay statement, depositions have been
taken as submitted with Defendants’ Motion for Summary Judgment that state in
contradiction to the Plaintiff's affidavit that the Plaintiff did business with Spring Valley
Produce, Inc. d/b/a Produce Connection, along with The Avocado Connection, Inc. The
alleged hearsay statement is not based on uncontroverted testimonial evidence. See
Tex. R. Civ. P. 166a(c).
1.7 Defendants hereby request that a ruling be issued that the hearsay statement as
summarized in the Plaintiffs Response allegedly made by Jose Garcia and the references
to the statement be stricken from Plaintiff's evidence against Defendants’ summary
judgment evidence and not be considered in any responses to Defendants’ Motion for
Summary Judgment. Defendants further request that Plaintiff be prohibited from
referencing the hearsay statements in any arguments submitted to the Court regarding
the Motion for Summary Judgment. Docefino v. Randolph, 19 S.W.3d 906, 935
(Tex.App.—Houston [14"" Dist.] 2000, pet. Denied).
I. CONCLUSION
a Plaintiff has submitted no evidence to the Court that it has sued the correct
company that it transacted business with by suing Produce Connection, Inc. instead of
suing Spring Valley Produce, Inc. d/b/a Produce Connection. Plaintiff has failed to submit
Electronically Filed
12/16/2020 3:14 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
any evidence that it did business with Produce Connection, Inc. and failed to controvert
the testimony of witnesses who stated that Produce Connection, Inc. does not conduct
business involving the transfer and sale of produce. Further, Plaintiff has failed to produce
evidence supporting any causes of actions against Chris Damon, J ohn Meena, and J ose
Garcia as individuals. Plaintiff's only submitted evidence is an affidavit that does not
demonstrate personal knowledge and is based on a hearsay statement asserted by an
interested party to this litigation. The affidavit should be held to not be competent
summary judgment evidence and should be stricken from the hearing and not reviewed
in regard to considering the Motion for SummaryJ udgment by submission. Without any
evidence, competent
or otherwise, submitted by Plaintiff to support it claims against Chris
Damon,J ohn Meena, andJ ose Garcia, incorrectly named d/b/a Produce Connection, Inc.,
summary judgment should be granted as a matter of law against all of Plaintiff's claims in
this lawsuit.
WHEREFORE, PREMISES CONSIDERED, CHRIS DAMON,
J OHN MEENA, and
JOSE GARCIA, incorrectly named d/b/a PRODUCE CONNECTION, INC. request that
upon hearing a ruling be issued that Plaintiff's submitted affidavit is not competent
summary judgment evidence and cannot be considered, and this Court issue an order
granting the Defendants’ Traditional and No Evidence Motion for Summary J udgment
pursuant to Rule 166a(b) and Rule 166a(i) of the Texas Rules of Civil Procedure, and
grant all other and further relief to which Defendants may be justly entitled.
Respectfully submitted,
Electronically Filed
12/16/2020 3:14 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
DAVIDSON TROILO REAM & GARZA, P.C.
601 N.W. Loop 410, Suite 100
San Antonio, Texas 78216
Telephone: (210) 349-6484
Facsimile: (210) 349-0041
By:_“/s/_Nicondra Chargois-Allen
NICONDRA CHARGOIS-ALLEN
State Bar No. 24031935
Email: nallen@dtrglaw.com
JESSIE LOPEZ
State Bar No. 24041357
Email: jlopez@dtrglaw.com
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
| hereby certify that a true and correct copy of the foregoing document has been
forwarded pursuant to Rule 21a, Texas Rules of Civil Procedure, on this the 16!" day of
December, 2020, as follows:
Mr. Rolando Cantu
LAW OFFICES OF ROLANDO CANTU
1111 W. Nolana Avenue
McAllen, Texas 78504
Hs_Nicondra Chargois-Allen
NICONDRA CHARGOIS-ALLEN
Preview
Electronically Filed 12/16/2020 3:14 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda CAUSE NO. C-2351-19-D GARCIA’S QUALITY FRUIT & IN THE DISTRICT COURT PRODUCE, LLC Plaintiff, vs. 206" JUDICIAL DISTRICT CHRIS DAMON, JOHN MEENA, JOSE GARCIA, EACH INDIVIDUALLY AND D/B/A PRODUCE CONNECTION, INC. Defendants HIDALGO COUNTY, TEXAS DEFENDANTS CHRIS DAMON, JOHN MEENA, JOSE GARCIA, INCORRECTLY NAMED D/B/A PRODUCE CONNECTION, INC.’S REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ TRADITIONAL AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE HEARSAY EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: Now come Defendants, CHRIS DAMON, JOHN MEENA, and JOSE GARCIA, incorrectly named d/b/a Produce Connection, Inc., and file this Reply to Plaintiff's Response to Defendants Traditional and No Evidence Motion for Summary Judgment and Motion to Strike Hearsay Evidence, and respectfully show unto the Court as follows: I PLAINTIFF HAS PRODUCED NO EVIDENCE 1.1 Defendants filed their Traditional and No Evidence Motion for Summary Judgment (“Motion for Summary Judgment”) seeking a dismissal of the lawsuit in which they are incorrectly named as individuals and as a d/b/a of a company that Plaintiff did not transact business with. In the Motion for Summary Judgment, Defendants seek dismissal of this herein numbered cause while not disputing that Plaintiff did conduct business with the corporations sued in the following numbered causes: Cause No. C-1291-20-H — Garcia’s Quality Fruit & Produce, LLC v. John L. Electronically Filed 12/16/2020 3:14 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda Meena, Individually and d/b/a The Avocado Connection, Inc., Christopher W. Damon, Individually & d/b/a The Avocado Connection, Inc.; and Cause No. C-1294-20-F Garcia’s Quality Fruit & Produce, LLC v. J ohn L. Meena, Individually and d/b/a Spring Valley Produce, Inc., Christopher W Damon, Individually & d/b/a Spring Valley Produce, Inc. In the response to the Motion to SummaryJ udgment, Plaintiff filed an affidavit asserting hearsay evidence as its only proof that it conducted business with Produce Connection, Inc. 1.2 Personal Knowledge Not Established in Plaintiff's Affidavit. Plaintiff's Response to Defendants’ Traditional and No Evidence Motion for Summary J udgment (“Plaintiff's Response”) is supported only by an affidavit. The affidavit executed by Raul Garcia gives no indication of Mr. Garcia’s connection to this case and how he has personal knowledge of the hearsay statement asserted therein. Rule 166a(f) of the Texas Rules of Civil Procedure requires that affidavits supporting summary judgment must “be made on personal knowledge,” TEX. R. CIV. P. 166a(f), and must “unequivocally represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge.” Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curiam) (orig. proceeding). An affidavit must disclose the basis on which the affiant has personal knowledge of the facts asserted. See Radio Station KSCS v. J ennings, 750 S.W.2d 760, 761-62 (Tex. 1988) (per curiam). The entire affidavit is reviewed to determine whether the facts asserted therein are based on personal knowledge. Noriega v. Mireles, 925 S.W.2d 261, 264 (Tex.App.— Corpus Christi 1996, writ denied). To determine if personal knowledge exists, the affiant’s position or job responsibilities may demonstrate the basis Electronically Filed 12/16/2020 3:14 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda of the personal knowledge. Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.- Houston [14th Dist.] 2010, no pet.); Hernandez v. W-S Indus. Servs. Inc., No. 12-14-00404-CV, 2015 WL 5136771, at 3 (Tex.App.—Corpus Christi Aug. 31, 2014, no pet.)(mem. op.). Additionally, the personal knowledge requirement may be satisfied if the affidavit sufficiently describes the relationship between the affiant and the case so that it may be reasonably assumed that the affiant has personal knowledge of the facts stated in the affidavit. Stucki v. Noble, 963 S.W.2d 776, 780 (Tex. App.-San Antonio 1998, pet. denied); see also Core v. Citibank, NA, No. 13-12-00648-CV, 2015 WL 1631680, at *3 (Tex. App.-Corpus Christi Apr. 9, 2015, pet. denied)(mem. op.) (same). The affidavit submitted in this case by Plaintiff does not disclose the basis of the affiant’s personal knowledge nor does it describe the relationship between the affiant and the case. Plaintiffs affidavit is not competent summary judgment evidence and cannot be considered as summary judgment evidence. Defendants hereby request thata ruling be issued that Plaintiffs submitted affidavit cannot be considered by the Courtin its review of the Motion for SummaryJ udgment. 13 Hearsay Evidence Not Admissible. Additionally, the affidavit submitted in support of Plaintiffs Response focuses on a hearsay statement as its only evidence against granting Defendants’ Motion for SummaryJ udgment. This hearsay statement as allegedly told to the Plaintiff cannot be considered in reviewing the Motion for Summary J udgement and any responses to it. Hearsay evidence is inadmissible summary judgment evidence. A formal objection is hereby made to the inclusion of the hearsay statement as evidence in support of Plaintiff's Response. Defendants move to have the hearsay statement stricken from the evidence included in the affidavit and in Plaintiff's Response. Electronically Filed 12/16/2020 3:14 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda The hearsay statement included in the affidavit submitted in support of Plaintiff's Response is as follows: Jose Garcia represented to me that the purchasers of the avocados were Produce Connection, Inc., Spring Valley Produce, Inc. and The Avocado Connection, Inc...” See Affidavit submitted by Plaintiff on December 14, 2020. 1.4 Texas Courts have held that summary judgment evidence must be presented in a form that would be admissible at trial. See Okpere v. Nat'l Oilwell Varco, O.P., 524 S.W.3d 818 (Tex.App.— Houston [14" Dist.] 2017); In re Estate of Guerrero, 465 S.W.3d 693, 706 (Tex.App.— Houston [14" Dist.] 2015, pet denied (en banc). The Texas Rules of Evidence define “hearsay” as “a statement that 1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter asserted in the statement.” See Tex. R. Evid. 801(d) Hearsay is not admissible unless allowed as an exception under a statute, the Texas Rules of Evidence, or other rules prescribed under statutory authority. See Tex. R. Evid. 801(d) In the statement summarized above, the Plaintiff did not make the statement, but asserts that someone else made the statement. See Exhibit 1 to Plaintiffs Response. The alleged statement was made outside of Court. This is classic hearsay to which Defendants formally object. An exception does not apply. Defendants hereby request that a ruling be issued that the hearsay statement as included above be stricken from Plaintiff's summary judgment evidence and not be considered by the Court in its review of the Motion for Summary Judgment. Defendant further requests that Plaintiff be prohibited from referencing the hearsay statement in any arguments, written responses, and affidavits submitted to the Electronically Filed 12/16/2020 3:14 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda Court regarding the Motion for Summary Judgment. Docefino v. Randolph, 19 S.W.3d 906, 935 (Tex.App.—Houston [14"" Dist.] 2000, pet. Denied). 1.5 Made by Interested Witness. Defendants further object that any testimony regarding the alleged statement is made by an interested witness and is not clear, positive, direct, or free from contradiction. See Tex. R. Civ. P. 166a(c). Not only is Plaintiff the only person who has testified about the hearsay statement, depositions have been taken as submitted with Defendants’ Motion for Summary Judgment that state in contradiction to the Plaintiff's affidavit that the Plaintiff did business with Spring Valley Produce, Inc. d/b/a Produce Connection, along with The Avocado Connection, Inc. The alleged hearsay statement is not based on uncontroverted testimonial evidence. See Tex. R. Civ. P. 166a(c). 1.7 Defendants hereby request that a ruling be issued that the hearsay statement as summarized in the Plaintiffs Response allegedly made by Jose Garcia and the references to the statement be stricken from Plaintiff's evidence against Defendants’ summary judgment evidence and not be considered in any responses to Defendants’ Motion for Summary Judgment. Defendants further request that Plaintiff be prohibited from referencing the hearsay statements in any arguments submitted to the Court regarding the Motion for Summary Judgment. Docefino v. Randolph, 19 S.W.3d 906, 935 (Tex.App.—Houston [14"" Dist.] 2000, pet. Denied). I. CONCLUSION a Plaintiff has submitted no evidence to the Court that it has sued the correct company that it transacted business with by suing Produce Connection, Inc. instead of suing Spring Valley Produce, Inc. d/b/a Produce Connection. Plaintiff has failed to submit Electronically Filed 12/16/2020 3:14 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda any evidence that it did business with Produce Connection, Inc. and failed to controvert the testimony of witnesses who stated that Produce Connection, Inc. does not conduct business involving the transfer and sale of produce. Further, Plaintiff has failed to produce evidence supporting any causes of actions against Chris Damon, J ohn Meena, and J ose Garcia as individuals. Plaintiff's only submitted evidence is an affidavit that does not demonstrate personal knowledge and is based on a hearsay statement asserted by an interested party to this litigation. The affidavit should be held to not be competent summary judgment evidence and should be stricken from the hearing and not reviewed in regard to considering the Motion for SummaryJ udgment by submission. Without any evidence, competent or otherwise, submitted by Plaintiff to support it claims against Chris Damon,J ohn Meena, andJ ose Garcia, incorrectly named d/b/a Produce Connection, Inc., summary judgment should be granted as a matter of law against all of Plaintiff's claims in this lawsuit. WHEREFORE, PREMISES CONSIDERED, CHRIS DAMON, J OHN MEENA, and JOSE GARCIA, incorrectly named d/b/a PRODUCE CONNECTION, INC. request that upon hearing a ruling be issued that Plaintiff's submitted affidavit is not competent summary judgment evidence and cannot be considered, and this Court issue an order granting the Defendants’ Traditional and No Evidence Motion for Summary J udgment pursuant to Rule 166a(b) and Rule 166a(i) of the Texas Rules of Civil Procedure, and grant all other and further relief to which Defendants may be justly entitled. Respectfully submitted, Electronically Filed 12/16/2020 3:14 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda DAVIDSON TROILO REAM & GARZA, P.C. 601 N.W. Loop 410, Suite 100 San Antonio, Texas 78216 Telephone: (210) 349-6484 Facsimile: (210) 349-0041 By:_“/s/_Nicondra Chargois-Allen NICONDRA CHARGOIS-ALLEN State Bar No. 24031935 Email: nallen@dtrglaw.com JESSIE LOPEZ State Bar No. 24041357 Email: jlopez@dtrglaw.com ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE | hereby certify that a true and correct copy of the foregoing document has been forwarded pursuant to Rule 21a, Texas Rules of Civil Procedure, on this the 16!" day of December, 2020, as follows: Mr. Rolando Cantu LAW OFFICES OF ROLANDO CANTU 1111 W. Nolana Avenue McAllen, Texas 78504 Hs_Nicondra Chargois-Allen NICONDRA CHARGOIS-ALLEN