Preview
Received and E-Filed for Record
7/31/2019 2:09 PM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Patricia Morrill
CAUSE NO. 18-11-15195
DAWN FOLEY AND § IN THE DISTRICT COURT OF
JAVAR FOLEY §
Plaintiffs §
§
v. § MONTGOMERY COUNTY, TEXAS
§
§
WASTE CONNECTIONS US, INC., §
WASTE CONNECTIONS LONE STAR, §
INC., WASTE CONNECTIONS §
MANAGEMENT SERVICES, INC., §
WASTE CONNECTIONS US §
HOLDINGS, INC. §
Defendants § 284th JUDICIAL DISTRICT
DEFENDANTS WASTE CONNECTIONS US, INC.’S, WASTE CONNECTIONS LONE
STAR, INC.’S, WASTE CONNECTIONS MANAGEMENT SERVICES, INC.’S,
AND WASTE CONNECTIONS US HOLDINGS, INC.’S REPLY TO PLAINTIFFS’
RESPONSE TO AMENDED TRADITIONAL MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF THIS COURT:
COMES NOW Defendants Waste Connections US, Inc., Waste Connections Lone Star,
Inc., Waste Connections Management Services, Inc., and Waste Connections US Holding, Inc.
(collectively “Defendants”) and file their Reply to Plaintiffs Dawn Foley and Javar Foley’s
(collectively “Plaintiffs”) Response to Defendants’ Amended Traditional Motion for Summary
Judgment and, in support hereof, respectfully show the Court as follows:
I.
SUMMARY OF REPLY
1. Plaintiffs’ Response misrepresents the procedural history of this matter and
Defendants’ motion, makes only conclusory statements without supporting evidence, improperly
objects to valid affidavits, and ultimately presents no evidence to contradict Defendants’
summary judgment evidence. Plaintiffs have still not put forth any evidence to support the crux
of their argument—that an employment relationship existed between any of the Defendants’ and
1
Nicholas Lewis (“Lewis). This Honorable Court previously determined this fact when it granted
Defendants’ initial Motion for Summary Judgment, where Plaintiffs made the same arguments in
opposition. Plaintiffs’ Response to Defendants’ Amended Motion for Summary Judgment does
not address Defendants’ arguments pertaining to their negligent entrustment claim. Thus,
Plaintiffs’ make no argument against summary judgment on that claim.
2. Plaintiffs failed to timely file their lawsuit in Louisiana against Progressive Waste
Solutions of LA, Inc. (“Progressive”)—who was Lewis’ employer and registered owner of the
vehicle he was operating—and are now trying to take advantage of Texas’ two-year statute of
limitations against four separate entities with no legitimate connection to the accident. Plaintiffs’
disregard or ignorance of this simple fact should not act as a pass for them to continue to
prosecute a frivolous and baseless lawsuit. Accordingly, this Honorable Court should grant
Defendants’ Amended Motion for Summary Judgment.
II.
OBJECTIONS TO PLAINTIFF’S PROFFREED EVIDENCE
3. “The Texas Supreme Court has held that the testimony of a witness lacking
personal knowledge amounts to no evidence.”1 Defendants object to Plaintiffs’ use of the
crash report, as Plaintiffs have not established its authenticity or reliability. The report is nothing
more than inadmissible hearsay, as Plaintiffs do not offer an affidavit from anyone establishing it
as a business record. Rather, Plaintiffs’ attorney is the one who attempts to attest that it is “true
and correct.” Texas courts have consistently held that, lacking proper authentication, police
1
Balderas v. Saenz, No. 04-11-00873-CV, 2013 Tex. App. LEXIS 787, *9-10 (Tex. App.—San Antonio Jan. 30,
2013, pet. denied); see Ketlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Ortega v. CACH, LLC, 396 S.W.3d 622,
636 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (J. Frost dissenting); Huff v. Hirsch, No. 01-09-00517-CV,
2010 Tex. App. LEXIS 6831, *12-13 (Tex. App.—Houston [1st Dist.] Aug. 19, 2010, no pet.).
2
reports are nothing more than inadmissible hearsay. 2 Furthermore, Plaintiffs also attempt to rely
on hearsay within hearsay in proffering the officer’s out-of-court statement that the owner of the
vehicle was “Waist Connections.” However, the officer’s statement is hearsay within hearsay,
and even if the crash report, itself, was admissible (which Defendants deny), the officer’s written
statements therein, are still not.3
Hearsay within hearsay is not admissible unless each part of the
combined statements conforms with an exception to the general
rule excluding hearsay. . . . When a police report contains a
hearsay statement, the statement must fall under some hearsay
exception of its own because neither the public records and reports
exception, nor the records of regularly conducted activities
exception, protects hearsay within hearsay.4
Thus, Defendants object to the police report, and all statements contained therein, as
inadmissible hearsay.
4. Defendants also object to all photographs contained in Plaintiffs’ Response.
Plaintiffs have not, in any way, established the authenticity of the photographs, when they were
taken, or who they were taken by. Thus, they are not competent or reliable summary judgment
evidence.
5. Lastly, Defendants object to Plaintiffs’ attempted, improper use of various
insurance documents. Pursuant to Texas Rule of Evidence 411, evidence of insurance is not
admissible to prove a party was negligent or otherwise acted wrongfully. Thus, Defendants’
insurance policy, is not admissible and should not be considered by the Court. Furthermore,
Plaintiffs’ Exhibit B is also inadmissible hearsay and is further inadmissible as evidence pursuant
2
See Richardson v. Potter's House of Dallas, Inc., No. 05-16-00646-CV, 2017 Tex. App. LEXIS 1647, *11-12
(Tex. App.—Dallas Feb. 27, 2017, pet. denied) (mem. op.); McClesky v. Smades, 245 S.W.2d 269; Brown & Root
v. Haddad, 180 S.W.2d 339; Ward v. Wallace, Tex. Civ. App., 175 S.W.2d 611, error refused, w.m.
3
Benson v. Chalk, 536 S.W.3d 886, 895 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); see Kratz v. Exxon
Corp., 890 S.W.2d 899, 905 (Tex. App.—El Paso 1994, no pet.).
4
Benson, 536 S.W.3d at 895.
3
to Texas Rule of Evidence 408. Plaintiffs have not established this document’s veracity or
attached any affidavit establishing that it is what it is besides the self-serving affidavit of
Plaintiffs’ attorney. Furthermore, it was a statement made during pre-suit negotiations.5 Thus,
these documents are inadmissible for summary judgment (and trial) purposes.
III.
REPLY TO PLAINTIFFS’ RESPONSE
A. THE AFFIDAVITS OF SUSAN NETHERTON AND MICHELLE LUKENS ARE
PROPER AFFIDAVITS AND COMPETENT SUMMARY JUDGMENT
EVIDENCE.
6. Plaintiffs’ contentions that Ms. Netherton’s and Ms. Lukens’ affidavits are
conclusory and recite only factual conclusions are incorrect and ignore the statements made in
their affidavits. Specifically, their challenge to the affidavits are similar to one rejected by the
Fourteenth Court of Appeals in Pipkin v. Kroger Texas, L.P. There, Kroger challenged
statements in an affidavit regarding water being on the floor and no caution sign being present as
factual conclusions.6 However, the court rejected Kroger’s assertions, finding that the plaintiff
had provided statements showing he had personal knowledge of the information attested to in his
affidavit.7 Finding that the statements contained in the affidavit where “facts which could be
rebutted,” the court rejected Kroger’s arguments against the affidavit.8
7. In her affidavit, Ms. Netherton attested she has personal knowledge of the facts
and statements in her affidavit.9 She is familiar with the employment status of individuals
employed by the various subsidiaries of Waste Connections, Inc., by way of her position as Vice
5
Tex. R. Evid. 408(a)(2).
6
Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 670 (Tex. App.—Houston [14th Dist.] 2012, pet. denied)
7
Id. (“Roman states that he was present at the Kroger, he was shopping with his father, there was water on the
floor, and there was ‘no caution 'wet floor sign' displayed.’ We conclude that these statements are sufficient to
state facts which could be rebutted.”).
8
Id.
9
Ex. A to Defs. Am. Mot. for Summ. J.
4
President of People, Training and Development 10 Ms. Netherton also conducted research into
Lewis’ employment status.11 Further, she explained that Progressive was the specific entity who
set the parameters over aspects of Lewis’ job.12 Thus, Ms. Netherton’s affidavit was based upon
facts which could have been rebutted, were not her own subjective beliefs, and were not merely
factual conclusions.13
8. Likewise, Ms. Lukens’ affidavit also attests to facts that could be rebutted. She
confirmed that she is personally familiar with the facts therein.14 Ms. Lukens is personally
familiar with the ownership, leasing, and vending of vehicles owned and operated by the various
operating subsidiaries of the overarching parent company, Waste Connections, Inc., by way of
her position as Fleet Maintenance Coordinator.15 She personally conducted research into
whether the specific vehicle Plaintiffs allege was involved in the incident was owned, leased,
vended, or operated by any of the Defendants (which it was not).16 Ms. Lukens affidavit is
simply further confirmation of the facts established by Mr. Buddy Gonlag’s affidavit (which
Plaintiffs do not challenge) and the registration certificate of the vehicle.17 Thus, Ms. Lukens’
affidavit was based upon facts which could have been rebutted, were not her own subjective
beliefs, and were not merely factual conclusions.18
10
Id.
11
Id.
12
Id.
13
Pipkin, 383 S.W.3d at 670; Rivera v. White, 234 S.W.3d 802, 808 (Tex. App.—Texarkana 2007, no pet.) (holding
that, although allof the affiant'sstatements were "to some degree conclusory, each furnishe[d] some factual
information that could have been rebutted" and, therefore, were not merely conclusory, but contained enough
underlying facts to support a summary judgment award); Rizkallah v. Conner, 952 S.W.2d 580, 588 (Tex. App.—
Houston [1st Dist.] 1997, no writ.).
14
Ex. C to Defs. Am. Mot. for Summ. J.
15
Id.
16
Id.
17
Id.; Ex. B and B-1 to Defs. Am. Mot. for Summ. J.
18
Pipkin, 383 S.W.3d at 670; Rivera, 234 S.W.3d at 808; Rizkallah, 952 S.W.2d at 588 (Tex. App.—Houston [1st
Dist.] 1997, no writ.).
5
9. Accordingly, this Honorable Court should reject Plaintiffs’ arguments against Ms.
Netherton’s and Ms. Lukens’ affidavits, as this Honorable Court previously did when Plaintiffs
made the same argument against Ms. Netherton’s affidavit when it granted Defendants’ initial
Motion for Summary Judgment, and deny their motion to strike same.
B. THIS HONORABLE COURT’S PRIOR GRANT OF SUMMARY JUDGMENT
ON PLAINTIFFS’ RESPONDEAT SUPERIOR CLAIM WAS SUBSTANTIVELY
CORRECT AND PROPER.
10. This Honorable Court previously correctly granted Defendants’ initial Motion for
Summary Judgment that addressed Plaintiffs’ then-sole claim of respondeat superior. Although
Plaintiffs assert that a motion for new trial was granted, they fail to point out that this was done
after this Honorable Court realized Defendants’ Motion for Summary Judgment had been
inadvertently set by the clerk for submission twice, and that Defendants’ passing on the notice of
submission only removed one entry from the docket. Defendants withdrew their initial motion
from submission due to Plaintiffs adding new claims, and advised Plaintiffs that they were doing
so. At the hearing on Plaintiffs’ Motion for New Trial, no arguments were heard pertaining to
any substantive challenge to the grant of summary judgment. Rather, all parties and this
Honorable Court understood an honest mistake was made, this Honorable Court presumed
Defendants’ would reset their Motion for Summary Judgment, and the case was reinstated.
11. Accordingly, any insinuation by Plaintiffs that a new trial was granted due to a
substantive defect of the evidence mischaracterizes the history of this case.
C. PLAINTIFFS STILL FAIL TO PRESENT ANY EVIDENCE THAT
ESTABLISHES ANY OF THE DEFENDANTS WERE THE EMPLOYER OF
LEWIS OR IN ANY WAY CONTROVERT THE AFFIDAVIT OF SUSAN
NETHERTON.
12. In regards to Plaintiffs’ respondeat superior claim, nothing substantively has
changed since this Honorable Court initially granted summary judgment on it. Plaintiffs still
6
present no competent evidence that in any way shows that any entity besides Progressive was the
employer of Lewis at the time of the incident. They also fail to offer any evidence or controvert
the affidavit of Ms. Netherton, which unequivocally establishes Progressive was the specific,
legal entity that set Lewis’ wage rate, set his work schedule, owed him the wages for these hours
worked, and had the right to hire or fire him. Rather, Plaintiffs continue to argue in conclusory
fashion that each and every single “Waste Connections” entity, no matter where located, are all
one in the same, and that every single one of these Waste Connections entities is also equally the
employer of Lewis. This is simply not factually correct, nor is it the law or the case. They also
offer no competent summary judgment or affidavits to support such an overbroad and sweeping
statement.
13. Plaintiffs’ assertion that the Defendants denied Nicholas Lewis’ employment
“only after Plaintiffs filed their lawsuit and in contradiction to all pre-suit representations” is
completely false and a gross misrepresentation to this Honorable Court. Defendants never
claimed Lewis was their employee. Further, inadmissible pre-suit negotiations between a claims
adjuster for a general policy (that was not in the first name of any Defendants) that covered a
subsidiary as an additional insured and Plaintiffs prior Louisiana counsel when they may have
had a claim against Progressive are not determinative of employment status. Plaintiffs failed to
file suit against Progressive in Louisiana prior to their prescription period (Louisiana’s version of
the statute of limitations) lapsing, and thereafter pre-suit negotiations ended. However,
Progressive was always the employer of Lewis. Regardless, Plaintiffs do not provide any facts
or evidence to support any argument that Defendants “denied Nicholas Lewis’ employment only
after Plaintiffs filed suit.” Thus, this statement is nothing more than an unsubstantiated,
conclusory allegation that misrepresents the facts to this Honorable Court.
7
14. At their argument’s core, Plaintiffs are attempting to have this Honorable Court
go down a slippery slope and find that a parent company, who is not the employer of an alleged
negligent actor, should be liable for all its subsidiaries’ employees’ actions, no matter where they
are located or how far removed they are from the subsidiary. Defendants are not attempting to
avoid liability via corporate formality. Plaintiffs had full ability, and were represented by a
licensed-Louisiana attorney, to timely file suit in a Louisiana court against Progressive. Nothing
prevented them or their Louisiana counsel from doing so. Their recent naming of Progressive as
a defendant confirms this. Plaintiffs should not now be allowed to continue their attempt to
impose liability where there is none against improper parties to this lawsuit.
15. As Plaintiffs have not provided even a scintilla of evidence that any entity, other
than Progressive, was the employer of Lewis, they have failed to raise a genuine issue of material
fact on their respondeat superior claim. Accordingly, summary judgment remains appropriate
on this cause of action.
D. DEFENDANTS DID ADDRESS PLAINTIFFS’ NEGLIGENT HIRING,
TRAINING, AND SUPERVISION CLAIM; PLAINTIFFS STYLISTIC
PLEADING DOES NOT REMOVE ITS UNDERLYING PREREQUISITE OF AN
EMPLOYMENT RELATIONSHIP.
16. Despite Plaintiffs’ statements, Defendants did specifically address their negligent
hiring, training, and supervision claim in their Amended Motion for Summary Judgment.19
Plaintiffs’ allegations that Defendants’ managers were negligent in hiring, training, and
supervising its truck drivers does not change what their claim substantively is—i.e. that Lewis
was negligently hired, trained, and supervised. Further, and most importantly, their attempt to
stylistically plead their negligent hiring, training, and supervision claim does not change the fact
that it still requires the existence of an employment relationship with the alleged negligent
19
See Def.’ Am. Mot. for Summ. J., at Part V.C.
8
employee (Lewis, in this case).20 This is a prerequisite to imposing liability on such a claim
under both Louisiana21 and Texas law.22
17. As discussed herein and in Defendants’ Amended Motion for Summary
Judgment, Plaintiffs are unable to establish that any of the Defendants were the employer of
Lewis. Rather, as established by the summary judgment evidence, and as this Honorable Court
previously found when it granted Defendants’ initial Motion for Summary Judgment,
Progressive was Lewis’ employer. Thus, the proper defendant, arguendo, for Plaintiffs’
negligent hiring, training, and supervision claim would be Progressive. Accordingly, summary
judgment is appropriate on Plaintiffs’ second set of causes of actions.
E. PLAINTIFFS MAKE NO ARGUMENT IN SUPPORT OF THEIR NEGLIGENT
ENTRUSTMENT CAUSE OF ACTION.
18. Plaintiffs offer no response, argument, or evidence against Defendants’ arguments
pertaining to their negligent entrustment claim and Exhibits B and B-1. As established by
Defendants’ summary judgment evidence, which included the registration certificate for the
vehicle Lewis was operating, Progressive was the titled owner of the vehicle. As Plaintiffs’ do
not attempt to contest this fact, Mr. Gonlag’s affidavit, or the registration certificate for the
vehicle at issue, summary judgment is appropriate on their negligent entrustment claim.
20
Cote v. City of Shreveport, 46,571 (La. App. 2d Cir. 09/21/11), 73 So. 3d 435, 440; Griffin v. Kmart Corp., 00-
1334 (La. App. 5th Cir. 11/28/00), 776 So. 2d 1226, 1231.
21
Id.
22
Golden Spread Council, Inc. # 562 of the BSA v. Akins, 926 S.W.2d 287, 290 (Tex. 1996) (“The court of appeals
concluded that GSC owed a duty based on the principle of negligent hiring. . . . The fundamental problem with
that conclusion is that GSC did not hire Estes. Thus, the facts of this case do not fit within the boundaries of
the negligent hiring doctrine.”); Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex. App.—Houston [1st Dist.]
1999, pet. denied).
9
F. PLAINTIFFS’ REQUEST FOR A CONTINUANCE SHOULD BE DENIED AS
THE INFORMATION SOUGHT DOES NOT PERTAIN TO THE UNDERLYING
ISSUE OF AN EMPLOYMENT RELATIONSHIP WITH LEWIS.
19. Plaintiffs’ request for a continuance should be denied, as the information they
reference is not material to the central, underlying issue in this case—the lack of an employment
relationship between the Defendants and Lewis. Their request for a continuance is focused
around their veiled negligent hiring, supervision, and training claim. However, as discussed
above, this cause of action still requires the presence of an employer-employee relationship.23
Information and discovery pertaining to Defendants’ training policies is not relevant to the fact
that Lewis was solely employed by Progressive and not the Defendants. Plaintiffs make no
request to conduct discovery pertaining to the undisputable fact that Lewis was employed by
Progressive at the time of the incident. This Honorable Court already found as such when it
denied Plaintiffs’ similar request for a continuance in their response to Defendants’ initial
Motion for Summary Judgment.
20. Furthermore, Plaintiffs had ample time prior to filing suit to determine who the
proper party to their lawsuit was—something that should have been readily apparent to them at
the time of the accident as Progressive’s name was on the side of the truck. 24 “A trial court
considering a continuance request may presume that a plaintiff investigated his own case prior to
filing the lawsuit.”25 Plaintiffs’ were represented by counsel in Louisiana (specifically Mr. Jacob
P. Van Wynen of LEEFE, GIBBS, SULLIVAN, AND DUPRE LLC) and had two years to investigate
their claims. Further, Plaintiffs have named Progressive as a defendant in their latest petition.
As such, Plaintiffs should not be allowed to continue their baseless lawsuit against entities that
23
See supra notes 19-22 and accompanying text.
24
Ex. 1 to Defs.’ Reply, Photograph.
25
Renfro v. Renfro, Cause No. 05-08-01414-CV, 2009 Tex. App. LEXIS 7747, *4 (Tex. App.—Dallas Oct. 2, 2009,
no pet.) (citing Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 236 (Tex. App.--Dallas 2000, pet. denied))
(mem. op.).
10
they cannot demonstrate have the requisite employment relationship with Lewis. Thus, their
request should be denied.
IV.
CONCLUSION
21. Defendants are entitled to summary judgment as the evidence conclusively
establishes that none of the Defendants were the employer of or had any employment
relationship with Lewis. Plaintiffs present no competent, admissible evidence to in any way
dispute this fact. Therefore, Defendants’ cannot be vicariously liable for any of Lewis’ alleged
actions or directly liable under a theory of negligent hiring, training, and supervision, as a matter
of law, and summary judgment is appropriate. Further, Plaintiffs offer no argument against
Defendants’ evidence that establishes Progressive was the registered owner of the vehicle. Thus,
summary judgment remains appropriate on their negligent entrustment claim.
22. The affidavits of Ms. Netherton and Ms. Lukens are not conclusory or mere
factual conclusions. Rather, they contain factual information that could have been rebutted.
Accordingly, they are proper summary judgment evidence, and Plaintiffs’ motion to strike them
should be denied.
23. Lastly, Plaintiffs’ request for a continuance should be denied, as the information
they reference does not pertain to the central, underlying issue of the lack of an employment
relationship between Lewis and Defendants. Plaintiffs had two years before filing this suit,
while they were represented by an attorney, to confirm Progressive was Lewis’ employer—a
simple fact Defendants have never denied. They should not be allowed to continue their baseless
lawsuit against improper parties.
24. Accordingly, the Court should grant the Defendants’ Amended Motion for
Traditional Summary Judgment.
11
V.
PRAYER
WHEREFORE PREMISES CONSIDERED, Defendants Waste Connections US, Inc.,
Waste Connections Lone Star, Inc., Waste Connections Management Services, Inc., and Waste
Connections US Holding, Inc. pray that this Honorable Court (1) grant their Amended
Traditional Motion for Summary Judgment; (2) order that Plaintiffs’ claim against them be
dismissed with prejudice as a matter of law; and (3) grant such further and other relief, special or
general, at law or in equity, to which Defendants may show themselves justly entitled.
Respectfully submitted,
GALLOWAY, JOHNSON, TOMPKINS
BURR & SMITH
/s/ Kelly C. Hartmann
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
ATTORNEYS FOR DEFENDANTS
WASTE CONNECTIONS US, INC.,
WASTE CONNECTIONS LONE STAR,
INC., WASTE CONNECTIONS
MANAGEMENT SERVICES, INC.,
AND WASTE CONNECTIONS US
HOLDING, INC.
12
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
by and through the Court approved electronic filing manager via email to participating parties
and/or via hand delivery, facsimile, certified mail return receipt requested and/or U.S. First Class
Mail to all known counsel of record on this 31st day of July, 2019, as follows:
Via E-Service:
Sydney Meriweather
MERIWEATHER LAW FIRM, PLLC
3100 Timmons Lane, Suite 310
Houston, Texas 77027
ATTORNEY FOR PLAINTIFFS
/s/ Daniel D. Schick
Daniel D. Schick
13
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Received and E-Filed for Record 7/31/2019 2:09 PM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Patricia Morrill CAUSE NO. 18-11-15195 DAWN FOLEY AND § IN THE DISTRICT COURT OF JAVAR FOLEY § Plaintiffs § § v. § MONTGOMERY COUNTY, TEXAS § § WASTE CONNECTIONS US, INC., § WASTE CONNECTIONS LONE STAR, § INC., WASTE CONNECTIONS § MANAGEMENT SERVICES, INC., § WASTE CONNECTIONS US § HOLDINGS, INC. § Defendants § 284th JUDICIAL DISTRICT DEFENDANTS WASTE CONNECTIONS US, INC.’S, WASTE CONNECTIONS LONE STAR, INC.’S, WASTE CONNECTIONS MANAGEMENT SERVICES, INC.’S, AND WASTE CONNECTIONS US HOLDINGS, INC.’S REPLY TO PLAINTIFFS’ RESPONSE TO AMENDED TRADITIONAL MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF THIS COURT: COMES NOW Defendants Waste Connections US, Inc., Waste Connections Lone Star, Inc., Waste Connections Management Services, Inc., and Waste Connections US Holding, Inc. (collectively “Defendants”) and file their Reply to Plaintiffs Dawn Foley and Javar Foley’s (collectively “Plaintiffs”) Response to Defendants’ Amended Traditional Motion for Summary Judgment and, in support hereof, respectfully show the Court as follows: I. SUMMARY OF REPLY 1. Plaintiffs’ Response misrepresents the procedural history of this matter and Defendants’ motion, makes only conclusory statements without supporting evidence, improperly objects to valid affidavits, and ultimately presents no evidence to contradict Defendants’ summary judgment evidence. Plaintiffs have still not put forth any evidence to support the crux of their argument—that an employment relationship existed between any of the Defendants’ and 1 Nicholas Lewis (“Lewis). This Honorable Court previously determined this fact when it granted Defendants’ initial Motion for Summary Judgment, where Plaintiffs made the same arguments in opposition. Plaintiffs’ Response to Defendants’ Amended Motion for Summary Judgment does not address Defendants’ arguments pertaining to their negligent entrustment claim. Thus, Plaintiffs’ make no argument against summary judgment on that claim. 2. Plaintiffs failed to timely file their lawsuit in Louisiana against Progressive Waste Solutions of LA, Inc. (“Progressive”)—who was Lewis’ employer and registered owner of the vehicle he was operating—and are now trying to take advantage of Texas’ two-year statute of limitations against four separate entities with no legitimate connection to the accident. Plaintiffs’ disregard or ignorance of this simple fact should not act as a pass for them to continue to prosecute a frivolous and baseless lawsuit. Accordingly, this Honorable Court should grant Defendants’ Amended Motion for Summary Judgment. II. OBJECTIONS TO PLAINTIFF’S PROFFREED EVIDENCE 3. “The Texas Supreme Court has held that the testimony of a witness lacking personal knowledge amounts to no evidence.”1 Defendants object to Plaintiffs’ use of the crash report, as Plaintiffs have not established its authenticity or reliability. The report is nothing more than inadmissible hearsay, as Plaintiffs do not offer an affidavit from anyone establishing it as a business record. Rather, Plaintiffs’ attorney is the one who attempts to attest that it is “true and correct.” Texas courts have consistently held that, lacking proper authentication, police 1 Balderas v. Saenz, No. 04-11-00873-CV, 2013 Tex. App. LEXIS 787, *9-10 (Tex. App.—San Antonio Jan. 30, 2013, pet. denied); see Ketlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Ortega v. CACH, LLC, 396 S.W.3d 622, 636 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (J. Frost dissenting); Huff v. Hirsch, No. 01-09-00517-CV, 2010 Tex. App. LEXIS 6831, *12-13 (Tex. App.—Houston [1st Dist.] Aug. 19, 2010, no pet.). 2 reports are nothing more than inadmissible hearsay. 2 Furthermore, Plaintiffs also attempt to rely on hearsay within hearsay in proffering the officer’s out-of-court statement that the owner of the vehicle was “Waist Connections.” However, the officer’s statement is hearsay within hearsay, and even if the crash report, itself, was admissible (which Defendants deny), the officer’s written statements therein, are still not.3 Hearsay within hearsay is not admissible unless each part of the combined statements conforms with an exception to the general rule excluding hearsay. . . . When a police report contains a hearsay statement, the statement must fall under some hearsay exception of its own because neither the public records and reports exception, nor the records of regularly conducted activities exception, protects hearsay within hearsay.4 Thus, Defendants object to the police report, and all statements contained therein, as inadmissible hearsay. 4. Defendants also object to all photographs contained in Plaintiffs’ Response. Plaintiffs have not, in any way, established the authenticity of the photographs, when they were taken, or who they were taken by. Thus, they are not competent or reliable summary judgment evidence. 5. Lastly, Defendants object to Plaintiffs’ attempted, improper use of various insurance documents. Pursuant to Texas Rule of Evidence 411, evidence of insurance is not admissible to prove a party was negligent or otherwise acted wrongfully. Thus, Defendants’ insurance policy, is not admissible and should not be considered by the Court. Furthermore, Plaintiffs’ Exhibit B is also inadmissible hearsay and is further inadmissible as evidence pursuant 2 See Richardson v. Potter's House of Dallas, Inc., No. 05-16-00646-CV, 2017 Tex. App. LEXIS 1647, *11-12 (Tex. App.—Dallas Feb. 27, 2017, pet. denied) (mem. op.); McClesky v. Smades, 245 S.W.2d 269; Brown & Root v. Haddad, 180 S.W.2d 339; Ward v. Wallace, Tex. Civ. App., 175 S.W.2d 611, error refused, w.m. 3 Benson v. Chalk, 536 S.W.3d 886, 895 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); see Kratz v. Exxon Corp., 890 S.W.2d 899, 905 (Tex. App.—El Paso 1994, no pet.). 4 Benson, 536 S.W.3d at 895. 3 to Texas Rule of Evidence 408. Plaintiffs have not established this document’s veracity or attached any affidavit establishing that it is what it is besides the self-serving affidavit of Plaintiffs’ attorney. Furthermore, it was a statement made during pre-suit negotiations.5 Thus, these documents are inadmissible for summary judgment (and trial) purposes. III. REPLY TO PLAINTIFFS’ RESPONSE A. THE AFFIDAVITS OF SUSAN NETHERTON AND MICHELLE LUKENS ARE PROPER AFFIDAVITS AND COMPETENT SUMMARY JUDGMENT EVIDENCE. 6. Plaintiffs’ contentions that Ms. Netherton’s and Ms. Lukens’ affidavits are conclusory and recite only factual conclusions are incorrect and ignore the statements made in their affidavits. Specifically, their challenge to the affidavits are similar to one rejected by the Fourteenth Court of Appeals in Pipkin v. Kroger Texas, L.P. There, Kroger challenged statements in an affidavit regarding water being on the floor and no caution sign being present as factual conclusions.6 However, the court rejected Kroger’s assertions, finding that the plaintiff had provided statements showing he had personal knowledge of the information attested to in his affidavit.7 Finding that the statements contained in the affidavit where “facts which could be rebutted,” the court rejected Kroger’s arguments against the affidavit.8 7. In her affidavit, Ms. Netherton attested she has personal knowledge of the facts and statements in her affidavit.9 She is familiar with the employment status of individuals employed by the various subsidiaries of Waste Connections, Inc., by way of her position as Vice 5 Tex. R. Evid. 408(a)(2). 6 Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 670 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) 7 Id. (“Roman states that he was present at the Kroger, he was shopping with his father, there was water on the floor, and there was ‘no caution 'wet floor sign' displayed.’ We conclude that these statements are sufficient to state facts which could be rebutted.”). 8 Id. 9 Ex. A to Defs. Am. Mot. for Summ. J. 4 President of People, Training and Development 10 Ms. Netherton also conducted research into Lewis’ employment status.11 Further, she explained that Progressive was the specific entity who set the parameters over aspects of Lewis’ job.12 Thus, Ms. Netherton’s affidavit was based upon facts which could have been rebutted, were not her own subjective beliefs, and were not merely factual conclusions.13 8. Likewise, Ms. Lukens’ affidavit also attests to facts that could be rebutted. She confirmed that she is personally familiar with the facts therein.14 Ms. Lukens is personally familiar with the ownership, leasing, and vending of vehicles owned and operated by the various operating subsidiaries of the overarching parent company, Waste Connections, Inc., by way of her position as Fleet Maintenance Coordinator.15 She personally conducted research into whether the specific vehicle Plaintiffs allege was involved in the incident was owned, leased, vended, or operated by any of the Defendants (which it was not).16 Ms. Lukens affidavit is simply further confirmation of the facts established by Mr. Buddy Gonlag’s affidavit (which Plaintiffs do not challenge) and the registration certificate of the vehicle.17 Thus, Ms. Lukens’ affidavit was based upon facts which could have been rebutted, were not her own subjective beliefs, and were not merely factual conclusions.18 10 Id. 11 Id. 12 Id. 13 Pipkin, 383 S.W.3d at 670; Rivera v. White, 234 S.W.3d 802, 808 (Tex. App.—Texarkana 2007, no pet.) (holding that, although allof the affiant'sstatements were "to some degree conclusory, each furnishe[d] some factual information that could have been rebutted" and, therefore, were not merely conclusory, but contained enough underlying facts to support a summary judgment award); Rizkallah v. Conner, 952 S.W.2d 580, 588 (Tex. App.— Houston [1st Dist.] 1997, no writ.). 14 Ex. C to Defs. Am. Mot. for Summ. J. 15 Id. 16 Id. 17 Id.; Ex. B and B-1 to Defs. Am. Mot. for Summ. J. 18 Pipkin, 383 S.W.3d at 670; Rivera, 234 S.W.3d at 808; Rizkallah, 952 S.W.2d at 588 (Tex. App.—Houston [1st Dist.] 1997, no writ.). 5 9. Accordingly, this Honorable Court should reject Plaintiffs’ arguments against Ms. Netherton’s and Ms. Lukens’ affidavits, as this Honorable Court previously did when Plaintiffs made the same argument against Ms. Netherton’s affidavit when it granted Defendants’ initial Motion for Summary Judgment, and deny their motion to strike same. B. THIS HONORABLE COURT’S PRIOR GRANT OF SUMMARY JUDGMENT ON PLAINTIFFS’ RESPONDEAT SUPERIOR CLAIM WAS SUBSTANTIVELY CORRECT AND PROPER. 10. This Honorable Court previously correctly granted Defendants’ initial Motion for Summary Judgment that addressed Plaintiffs’ then-sole claim of respondeat superior. Although Plaintiffs assert that a motion for new trial was granted, they fail to point out that this was done after this Honorable Court realized Defendants’ Motion for Summary Judgment had been inadvertently set by the clerk for submission twice, and that Defendants’ passing on the notice of submission only removed one entry from the docket. Defendants withdrew their initial motion from submission due to Plaintiffs adding new claims, and advised Plaintiffs that they were doing so. At the hearing on Plaintiffs’ Motion for New Trial, no arguments were heard pertaining to any substantive challenge to the grant of summary judgment. Rather, all parties and this Honorable Court understood an honest mistake was made, this Honorable Court presumed Defendants’ would reset their Motion for Summary Judgment, and the case was reinstated. 11. Accordingly, any insinuation by Plaintiffs that a new trial was granted due to a substantive defect of the evidence mischaracterizes the history of this case. C. PLAINTIFFS STILL FAIL TO PRESENT ANY EVIDENCE THAT ESTABLISHES ANY OF THE DEFENDANTS WERE THE EMPLOYER OF LEWIS OR IN ANY WAY CONTROVERT THE AFFIDAVIT OF SUSAN NETHERTON. 12. In regards to Plaintiffs’ respondeat superior claim, nothing substantively has changed since this Honorable Court initially granted summary judgment on it. Plaintiffs still 6 present no competent evidence that in any way shows that any entity besides Progressive was the employer of Lewis at the time of the incident. They also fail to offer any evidence or controvert the affidavit of Ms. Netherton, which unequivocally establishes Progressive was the specific, legal entity that set Lewis’ wage rate, set his work schedule, owed him the wages for these hours worked, and had the right to hire or fire him. Rather, Plaintiffs continue to argue in conclusory fashion that each and every single “Waste Connections” entity, no matter where located, are all one in the same, and that every single one of these Waste Connections entities is also equally the employer of Lewis. This is simply not factually correct, nor is it the law or the case. They also offer no competent summary judgment or affidavits to support such an overbroad and sweeping statement. 13. Plaintiffs’ assertion that the Defendants denied Nicholas Lewis’ employment “only after Plaintiffs filed their lawsuit and in contradiction to all pre-suit representations” is completely false and a gross misrepresentation to this Honorable Court. Defendants never claimed Lewis was their employee. Further, inadmissible pre-suit negotiations between a claims adjuster for a general policy (that was not in the first name of any Defendants) that covered a subsidiary as an additional insured and Plaintiffs prior Louisiana counsel when they may have had a claim against Progressive are not determinative of employment status. Plaintiffs failed to file suit against Progressive in Louisiana prior to their prescription period (Louisiana’s version of the statute of limitations) lapsing, and thereafter pre-suit negotiations ended. However, Progressive was always the employer of Lewis. Regardless, Plaintiffs do not provide any facts or evidence to support any argument that Defendants “denied Nicholas Lewis’ employment only after Plaintiffs filed suit.” Thus, this statement is nothing more than an unsubstantiated, conclusory allegation that misrepresents the facts to this Honorable Court. 7 14. At their argument’s core, Plaintiffs are attempting to have this Honorable Court go down a slippery slope and find that a parent company, who is not the employer of an alleged negligent actor, should be liable for all its subsidiaries’ employees’ actions, no matter where they are located or how far removed they are from the subsidiary. Defendants are not attempting to avoid liability via corporate formality. Plaintiffs had full ability, and were represented by a licensed-Louisiana attorney, to timely file suit in a Louisiana court against Progressive. Nothing prevented them or their Louisiana counsel from doing so. Their recent naming of Progressive as a defendant confirms this. Plaintiffs should not now be allowed to continue their attempt to impose liability where there is none against improper parties to this lawsuit. 15. As Plaintiffs have not provided even a scintilla of evidence that any entity, other than Progressive, was the employer of Lewis, they have failed to raise a genuine issue of material fact on their respondeat superior claim. Accordingly, summary judgment remains appropriate on this cause of action. D. DEFENDANTS DID ADDRESS PLAINTIFFS’ NEGLIGENT HIRING, TRAINING, AND SUPERVISION CLAIM; PLAINTIFFS STYLISTIC PLEADING DOES NOT REMOVE ITS UNDERLYING PREREQUISITE OF AN EMPLOYMENT RELATIONSHIP. 16. Despite Plaintiffs’ statements, Defendants did specifically address their negligent hiring, training, and supervision claim in their Amended Motion for Summary Judgment.19 Plaintiffs’ allegations that Defendants’ managers were negligent in hiring, training, and supervising its truck drivers does not change what their claim substantively is—i.e. that Lewis was negligently hired, trained, and supervised. Further, and most importantly, their attempt to stylistically plead their negligent hiring, training, and supervision claim does not change the fact that it still requires the existence of an employment relationship with the alleged negligent 19 See Def.’ Am. Mot. for Summ. J., at Part V.C. 8 employee (Lewis, in this case).20 This is a prerequisite to imposing liability on such a claim under both Louisiana21 and Texas law.22 17. As discussed herein and in Defendants’ Amended Motion for Summary Judgment, Plaintiffs are unable to establish that any of the Defendants were the employer of Lewis. Rather, as established by the summary judgment evidence, and as this Honorable Court previously found when it granted Defendants’ initial Motion for Summary Judgment, Progressive was Lewis’ employer. Thus, the proper defendant, arguendo, for Plaintiffs’ negligent hiring, training, and supervision claim would be Progressive. Accordingly, summary judgment is appropriate on Plaintiffs’ second set of causes of actions. E. PLAINTIFFS MAKE NO ARGUMENT IN SUPPORT OF THEIR NEGLIGENT ENTRUSTMENT CAUSE OF ACTION. 18. Plaintiffs offer no response, argument, or evidence against Defendants’ arguments pertaining to their negligent entrustment claim and Exhibits B and B-1. As established by Defendants’ summary judgment evidence, which included the registration certificate for the vehicle Lewis was operating, Progressive was the titled owner of the vehicle. As Plaintiffs’ do not attempt to contest this fact, Mr. Gonlag’s affidavit, or the registration certificate for the vehicle at issue, summary judgment is appropriate on their negligent entrustment claim. 20 Cote v. City of Shreveport, 46,571 (La. App. 2d Cir. 09/21/11), 73 So. 3d 435, 440; Griffin v. Kmart Corp., 00- 1334 (La. App. 5th Cir. 11/28/00), 776 So. 2d 1226, 1231. 21 Id. 22 Golden Spread Council, Inc. # 562 of the BSA v. Akins, 926 S.W.2d 287, 290 (Tex. 1996) (“The court of appeals concluded that GSC owed a duty based on the principle of negligent hiring. . . . The fundamental problem with that conclusion is that GSC did not hire Estes. Thus, the facts of this case do not fit within the boundaries of the negligent hiring doctrine.”); Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). 9 F. PLAINTIFFS’ REQUEST FOR A CONTINUANCE SHOULD BE DENIED AS THE INFORMATION SOUGHT DOES NOT PERTAIN TO THE UNDERLYING ISSUE OF AN EMPLOYMENT RELATIONSHIP WITH LEWIS. 19. Plaintiffs’ request for a continuance should be denied, as the information they reference is not material to the central, underlying issue in this case—the lack of an employment relationship between the Defendants and Lewis. Their request for a continuance is focused around their veiled negligent hiring, supervision, and training claim. However, as discussed above, this cause of action still requires the presence of an employer-employee relationship.23 Information and discovery pertaining to Defendants’ training policies is not relevant to the fact that Lewis was solely employed by Progressive and not the Defendants. Plaintiffs make no request to conduct discovery pertaining to the undisputable fact that Lewis was employed by Progressive at the time of the incident. This Honorable Court already found as such when it denied Plaintiffs’ similar request for a continuance in their response to Defendants’ initial Motion for Summary Judgment. 20. Furthermore, Plaintiffs had ample time prior to filing suit to determine who the proper party to their lawsuit was—something that should have been readily apparent to them at the time of the accident as Progressive’s name was on the side of the truck. 24 “A trial court considering a continuance request may presume that a plaintiff investigated his own case prior to filing the lawsuit.”25 Plaintiffs’ were represented by counsel in Louisiana (specifically Mr. Jacob P. Van Wynen of LEEFE, GIBBS, SULLIVAN, AND DUPRE LLC) and had two years to investigate their claims. Further, Plaintiffs have named Progressive as a defendant in their latest petition. As such, Plaintiffs should not be allowed to continue their baseless lawsuit against entities that 23 See supra notes 19-22 and accompanying text. 24 Ex. 1 to Defs.’ Reply, Photograph. 25 Renfro v. Renfro, Cause No. 05-08-01414-CV, 2009 Tex. App. LEXIS 7747, *4 (Tex. App.—Dallas Oct. 2, 2009, no pet.) (citing Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 236 (Tex. App.--Dallas 2000, pet. denied)) (mem. op.). 10 they cannot demonstrate have the requisite employment relationship with Lewis. Thus, their request should be denied. IV. CONCLUSION 21. Defendants are entitled to summary judgment as the evidence conclusively establishes that none of the Defendants were the employer of or had any employment relationship with Lewis. Plaintiffs present no competent, admissible evidence to in any way dispute this fact. Therefore, Defendants’ cannot be vicariously liable for any of Lewis’ alleged actions or directly liable under a theory of negligent hiring, training, and supervision, as a matter of law, and summary judgment is appropriate. Further, Plaintiffs offer no argument against Defendants’ evidence that establishes Progressive was the registered owner of the vehicle. Thus, summary judgment remains appropriate on their negligent entrustment claim. 22. The affidavits of Ms. Netherton and Ms. Lukens are not conclusory or mere factual conclusions. Rather, they contain factual information that could have been rebutted. Accordingly, they are proper summary judgment evidence, and Plaintiffs’ motion to strike them should be denied. 23. Lastly, Plaintiffs’ request for a continuance should be denied, as the information they reference does not pertain to the central, underlying issue of the lack of an employment relationship between Lewis and Defendants. Plaintiffs had two years before filing this suit, while they were represented by an attorney, to confirm Progressive was Lewis’ employer—a simple fact Defendants have never denied. They should not be allowed to continue their baseless lawsuit against improper parties. 24. Accordingly, the Court should grant the Defendants’ Amended Motion for Traditional Summary Judgment. 11 V. PRAYER WHEREFORE PREMISES CONSIDERED, Defendants Waste Connections US, Inc., Waste Connections Lone Star, Inc., Waste Connections Management Services, Inc., and Waste Connections US Holding, Inc. pray that this Honorable Court (1) grant their Amended Traditional Motion for Summary Judgment; (2) order that Plaintiffs’ claim against them be dismissed with prejudice as a matter of law; and (3) grant such further and other relief, special or general, at law or in equity, to which Defendants may show themselves justly entitled. Respectfully submitted, GALLOWAY, JOHNSON, TOMPKINS BURR & SMITH /s/ Kelly C. Hartmann 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 ATTORNEYS FOR DEFENDANTS WASTE CONNECTIONS US, INC., WASTE CONNECTIONS LONE STAR, INC., WASTE CONNECTIONS MANAGEMENT SERVICES, INC., AND WASTE CONNECTIONS US HOLDING, INC. 12 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served by and through the Court approved electronic filing manager via email to participating parties and/or via hand delivery, facsimile, certified mail return receipt requested and/or U.S. First Class Mail to all known counsel of record on this 31st day of July, 2019, as follows: Via E-Service: Sydney Meriweather MERIWEATHER LAW FIRM, PLLC 3100 Timmons Lane, Suite 310 Houston, Texas 77027 ATTORNEY FOR PLAINTIFFS /s/ Daniel D. Schick Daniel D. 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