Preview
CAUSE NO. 22-05-06412
NATALIE MARIE O’BRIEN, § IN THE DISTRICT COURT
Plaintiff,
§ MONTGOMERY COUNTY, TEXAS
MERCEDES-BENZ OF THE
WOODLANDS and BIJ MOTORS §
TX, LLC D/B/A MERCEDES-BENZ §
OF THE WOODLANDS and
AUTOSTONE FLOOR SYSTEMS, LLC §
JUDICIAL DISTRICT
DEFENDANT MERCEDES BENZ OF THE WOODLANDS AND
BIJ MOTORS TX, LLC’S NO-EVIDENCE AND TRADITIONAL
MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING
PLAINTIFF’S GROSS NEGLIGENCE CLAIMS
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants Mercedes Benz of The Woodlands and BIJ Motors TX, LLC (collectively for
purposes of this Motion, “MBOTW”) file No-Evidence and Traditional Motion for Partial
Summary Judgment, pursuant to Texas Rule of Civil Procedure 166a (including subpart (i))
seeking a dismissal of Plaintiff’s gross negligence claims ). In support thereof, MBOTW
respectfully shows the Court as follows:
ACKGROUND
On January 22, 2021, Plaintiff Natalie O’Brien drove her Mercedes to MBOTW for the
purpose of having it serviced, and also to pick up another vehicle she and her husband had
purchased for their son. Depo. of N. O’Brien (Ex. “A”) at 19:18-22. Upon arriving at the
dealership, Plaintiff drove into the MBOTW service drive—which is accessed through large
garage-type overhead doors—parked and, after a few minutes, stepped out of her vehicle. As she
did so, without placing her hand on the door or any other part of the vehicle, her feet slipped out
from under her, causing her to fall on her bottom. A series of still-shots from MBOTW’s
surveillance video, showing Plaintiff’s arrival in the service drive and her fall, are as follows:
Plaintiff Inside her Vehicle Prior to Accident
Plaintiff’s Children Exiting Vehicle
Plaintiff Turning and Stepping Out of Vehicle (and Slipping)
Plaintiff Falling to Floor
As a result of her fall, Plaintiff contends she sustained injuries, including a broken tailbone
and injuries to her sacroiliac (“SI”) joints. Plaintiff eventually underwent a right side SI joint
fusion and had her tailbone surgically removed. Plaintiff sues MBOTW for damages she contends
arose as a result of the accident. MBOTW contends that Plaintiff’s injuries and physical conditions
were at least in part preexisting.
Obviously, this is a premises liability case (as there was no ongoing activity in the service
drive, on the part of MBOTW, that caused or is related to the accident). Plaintiff simply contends
the floor was too slippery. Further, there is no question Plaintiff was a business invitee. In this
respect, Plaintiff asserts a premises liability negligence claim and, as specifically relevant to this
Motion, a gross negligence claim.
MBOTW concedes there are genuine issues of fact concerning Plaintiff’s ordinary
negligence-based premises liability claim a jury will need to resolve. But this is not a case of gross
negligence and there is either no evidence to support that claim. Accordingly, MBOTW seeks,
through this Motion, to eliminate Plaintiff’s gross negligence claim prior to trial (currently
scheduled for May 20, 2024).
TANDARDS OF
No-Evidence Motion
As the Court is aware, a defendant is entitled to no-evidence summary judgment when
adequate time for discovery has passed and plaintiff has produced no evidence of one or more
essential elements of its claim. P. 166a(i). Texas Rule of Civil Procedure 166a(i),
“does not require that discovery must have been completed, only that there was ‘adequate time.’”
Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.— Houston [14 Dist.] 2000,
pet. denied).
The Court must grant a no-evidence motion for summary judgment unless the respondent
produces summary judgment evidence raising a genuine issue of material fact.
P. 166a(i). In presenting its summary judgment evidence, the respondent must produce more than
a scintilla of evidence to raise a genuine issue of material fact for each element of its cause of
See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003);
166a(i). “More than a scintilla of evidence exists when the evidence, ‘rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions.’” , 118 S.W.3d
at 751 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). When
the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, there
is no more than a scintilla of evidence. Kindred v. Con/Chem, Inc.
Traditional Motion
As the Court is also aware, defendants are entitled to summary judgment when there is no
genuine issue of material fact and they are entitled to judgment as a matter of law. See
P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). The object of this
rule is to resolve cases with the greatest expedience and at the least expense to the litigants. See
Matlock v. Matlock, 249 S.W.2d 587, 590 (Tex. 1952). In a traditional motion for summary
judgment, the movant assumes the burden to establish that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgt. Co.
S.W.2d 546, 548 (Tex. 1985). If the movant carries its burden, the burden then shifts to the
non-movant to present controverting summary judgment evidence. See Casso v. Brand
S.W.2d 551, 556 (Tex. 1989). Thus, the non-movant must clearly present, by written response,
any reasons seeking to avoid the movant’s entitlement to summary judgment and must present
summary judgment proof to establish a fact issue to defeat a motion for summary judgment.
P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
UMMARY UDGMENT VIDENCE
MBOTW attaches the following evidence in support of this motion and fully incorporate
these exhibits herein as if they were set forth at length:
O’Brien (excerpts) (Ex. “A”);
Video Clip of Plaintiff’s Slip and Fall (Ex. “B”);
Deposition of Fred Gallucci (MBOTW Corporate Rep.) (excerpts) (Ex.
“C”); and
Deposition of Barry Wells (excerpts) (Ex. “D”).
RGUMENT AND UTHORITIES
Plaintiff has no evidence, let alone clear and convincing evidence, of any grossly
negligent act or omission by MBOTW
It is well established that a plaintiff cannot recover exemplary damages unless she proves
clear and convincing evidence that the harm for which the plaintiff seeks recovery of exemplary
damages results from the defendant’s fraud, malice, or gross negligence. T RAC
§ 41.003(a). Gross negligence consists of both objective and subjective elements. U-Haul
Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012) (rendering take-nothing judgment on
plaintiff’s gross negligence claims against defendants). To prevail on a gross negligence claim, a
plaintiff must prove by clear and convincing evidence that: (1) viewed objectively from the
defendant’s standpoint at the time of the event, the act or omission must involve an extreme degree
of risk probability and magnitude of the potential harm to others; and (2) the
defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded in
conscious indifference to the rights, safety, or welfare of others. See Medina v. Zuniga, 593 S.W.3d
RAC §§ 41.001(11)(A), (B).
Under the objective component, “the act or omission complained of must depart from the
ordinary standard of care to such an extent that it creates an extreme degree of risk of harming
others.” Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008). An
“extreme risk” is not a remote possibility or even a high probability of minor harm, but rather the
The video may be viewed at the following link: https://www.dropbox.com/scl/fi/nbzpb969u41tu0a7w0qzz/Ex.-B-
Video-of-Fall.mp4?rlkey=ckgooq7s0dje4ewa90c8bcal3&dl=0
likelihood of the plaintiff’s serious injury. U-Haul Int’l, Inc., 380 S.W.3d at 137. Courts must
examine the risk “prospectively from the perspective of the actor, not in hindsight.” , 271
With regard to the subjective component, the Texas Supreme Court has established that it
is the mental attitude of the defendant that lifts ordinary negligence See
Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). To justify the imposition of exemplary
damages the plaintiff must show the defendant was consciously (i.e. knowingly) indifferent to her
rights, welfare and safety. , 692 S.W.2d at 457 (quoting Burk Royalty Co. v. Walls, 616
S.W.2d 911, 922 (Tex. 1981)). In other words, the plaintiff must show that MBOTW knew about
the peril, but its acts or omissions
Further, gross negligence allegations against a corporation are sustained only when the
plaintiff provides clear and convincing evidence that the corporation: (1) authorizes or ratifies an
agent’s gross negligence; (2) was grossly negligent in hiring an unfit agent; or (3) commits gross
negligence through the actions or inactions of a vice principal. See Qwest Int’l Commc’ns, Inc. v.
AT&T Corp., 167 S.W.3d 324, 326 (Tex. 2005) (per curiam); Mobil Oil Corp. v. Ellender, 968
S.W.2d 917, 921–22 (Tex. 1998). A “vice principal” under Texas law includes: (1) corporate
officers; (2) those who have authority to employ, direct, and discharge employees on behalf of the
employer; (3) those engaged in the performance of nondelegable or absolute duties of the
employer; and (4) those whom the employer has confided the management of the whole or a
department of a division of the employer’s corporation.
Plaintiffs have not produced, and cannot produce, any evidence (let alone clear and
convincing evidence) to establish its gross negligence claim against MBOTW, as no such evidence
exists. There is no evidence of an extreme risk of serious injury or death, nor is there any evidence
that MBOTW knew of any such extreme risk, yet proceeded without care. Along those same lines,
cious indifference or
authorized or ratified an agent’s gross negligence, hired an unfit agent, or committed gross
negligence via a vice principal. Evidence of both the objective and subjective components of gross
negligence is lacking, and thus dismissal of Plaintiffs’ gross negligence is proper. No reasonable
minds can differ on the outcome of Plaintiffs’ gross negligence claims.
In the present case, Plaintiff and its expert contend the floor was too slippery, lacking an
adequate coefficient of friction. In that respect, MBOTW purchased and installed tile
manufactured by AutoStone Floor Systems, LLC (“AutoStone”), whom Plaintiff also sued,
because it was one of the options Mercedes Benz made available to MBOTW when the dealership
Depo. of F. Gallucci (Ex. “C”) at 67:6-9. As shown by the photograph of a
sample of the AutoStone tile that was installed, it is advertised to be slip-resistant:
According to Barry Wells, the corporate representative of AutoStone, the tile, at the time it was
sold, was the highest rated slip and fall floor for automotive service areas.
“D”) at 121:15 – 123:20.
And the tile was still within its seven (7) year warranty period at the time of Plaintiff's slip and
fall. Depo. of F. Gallucci (Ex. “C”) at 122:16-21. The AutoStone corporate representative
concedes that, from a purchaser’s perspective, they would expect the product to continue to have
the characteristics that it had at the time of installation. Depo. of B. Wells (Ex. “D”) at 124:12 –
Plaintiff’s primary theory against MBOTW is that MBOTW must have cleaned the floor
improperly, either not using degreaser in its floor scrubbing machine, using too much degreaser,
or not cleaning the floor sufficiently frequently. AutoStone readily joins in those arguments. In
this respect, Plaintiff concedes she did not slip in a puddle of liquid; she did not notice liquid on
the floor after her fall and her yoga pants were not wet. Depo. of N. O’Brien (Ex. “A”) at 30:19-
31:2. Thus, this case does not involve an issue of a substance on the floor that could have been
seen and cleaned up, but was not.
But Plaintiff’s theories regarding improper cleaning methods are speculative. There is no
actual evidence of excessive degreaser or “soap,” for instance, on the tile. Essentially, Plaintiff
have been why Plaintiff fell, but they have no proof.
Further, and in any event, any alleged failures to “properly clean” or maintain the floor do
not support a gross negligence claim when, as here, there is no evidence of a prior serious injury
or death of a customer (or employee) sustained by falling on the tile. In this regard, Plaintiff points
primarily to the fact another customer, on the day before the accident, fell in a generally similar
manner (though not in the precise location where Plaintiff fell the following day; this other
customer’s vehicle was in the same “lane” but closer to the entrance to the service drive). That
other individual who fell was clearly shaken up, but did not make a claim against MBOTW, nor is
there any evidence that he required any medical treatment. And, importantly, that is the prior
fall by a customer of which management was aware prior to Ms. O’Brien’s fall.
A recent case out of the Houston Court of Appeals, First District, is instructive. In Garcia
v. Service Transport Company, No. 01-21-00235-CV, 2022 WK 3722327 (Tex.App.—Hous. [1
Dist.], August 30, 2022, no pet.), Garcia, a truckdriver who worked for Service Transport
Company (“STC”), fell from the top of his tanker-trailer, resulting in his death. His family
members sued STC contending the company was grossly negligent in various respects, including
that STC failed to protect drivers who were required to work at elevated heights (primarily by
failing to provide fall protection), that the company’s safety policies and training were inadequate,
and that it failed to instruct or warn Garcia of unsafe conditions. . at 1. Plaintiffs contended
those alleged failures resulted in an extreme degree of risk to Garcia.
In response, STC argued, among other things, that no evidence supported plaintiffs’
contentions regarding an extreme degree of risk. Specifically, and as pertinent here, STC relied
on the fact that prior reports of injury showed that although five employees had fallen from trailers,
in four of those prior falls, the only minor injuries were sustained (stiff knee, bruises, etc.) that did
not require medical treatment). One of the prior falls resulted in a broken leg. . at *2. STC
contended that history—which, of course, is much more significant than that in the present case—
did not and could not indicate the presence of a risk of a serious injury or death or that it was
consciously aware of and disregarded the risk. . The plaintiffs replied by arguing that
STC nonetheless had a subjective awareness of an extreme risk associated with climbing on top
10
of, walking on and opening the hatch of a tanker trailer. . The trial court granted summary
judgment for STC. Garcia appealed.
On appeal, the First District Court of Appeals affirmed the summary judgment. Despite
alleged problems with safety training and supervision, and the admitted existence of prior falls and
injuries, the evidence did not create a triable issue regarding gross negligence. In that respect, the
court observed:
We agree with STC that this evidence [related to other falls] does not raise a fact
issue concerning the likelihood of serious injury from climbing tanker ladders to
open the crash box without fall protection equipment. U-Haul Int’l, 380 S.W.3d
at 137 (stating that extreme risk does not mean remote possibility of serious injury
but rather likelihood of serious injury); see also , 593 S.W.3d at 248 (stating
that risk should be examined prospectively from perspective of actor, not in
hindsight). STC correctly states that four of the injuries were minor, and therefore
these four incidents do not establish the existence of an extreme degree of risk.
U-Haul Int’l, 380 S.W.3d at 137 (stating that high probability of minor harm does
not rise to level of extreme risk). The remaining prior fall from a ladder resulted in
a broken leg. Presuming without deciding that a broken leg is a serious injury, this
one injury does not show that a probability of potential harm—or likelihood of
serious injury—exists when drivers climb a tanker ladder to open the crash box.
, 593 S.W.3d at 247; , 380 S.W.3d at 137.
at *10.
In contrast to the evidence in , in the present case, there is no evidence of prior
fall resulting in a physical injury—other than whatever minor injury the gentlemen who fell on the
day before Plaintiff’s accident may have experienced—let alone a serious injury. Crystallized,
Plaintiff’s contention is that one other customer fell and may have been injured, and various
MBOTW employees had slipped on prior occasions, but were not injured. That simply is not
enough to show the presence of a fact issue regarding an extreme risk of serious injury or death.
And it therefore follows that MBOTW would not have had a subjective awareness of the alleged
extreme risk (because one did not exist).
11
ONCLUSION
This case involves a simple slip and fall on tile in which the Plaintiff contends she was
injured. There is no evidence, however, of a history of serious accidents and injuries sufficient to
create a fact issue regarding either the presence of an extreme degree of risk, nor that MBOTW
was consciously and subjectively aware of such risk. Accordingly, there simply is no evidence of
gross negligence and there is no justification for that cause of action to be present in the case at
the time a jury is selected and the case is tried.
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that the
Court grant their no-evidence and traditional motion for partial summary judgment as to Plaintiff’s
gross negligence claims, that those claims be dismissed, and that the Court grant such other and
further relief, at law or in equity, to which Defendants may show themselves justly entitled.
Respectfully submitted,
ERMER EAMAN ROWN PLLC
ARTON KYWAY
Austin, Texas 78746
(512) 472-0288
(512) 472-9280 (Fax)
Gregg R. Brown
State Bar No. 03129010
grb-svc@germer-austin.com
ATTORNEYS FOR DEFENDANTS MERCEDES
BENZ OF THE WOODLANDS, LLC AND BIJ
MOTORS TX, LLC
12
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy was served on all counsel of record, as
indicated below, on the 16 day of April, 2024.
Via E-Mail: eserve@perdueandkidd.com
Michael R. Clinton
777 Post Oak Blvd., Suite 450
Houston, Texas 77056
Attorneys for Plaintiff
Brock Akers
The Akers Firm, PLLC
3401 Allen Parkway, Ste. 101
Attorneys for AutoStone Floor Systems, LLC
Gregg R. Brown
13
1 IN THE DISTRICT COURT
2 MONTGOMERY COUNTY, TEXAS
3 284th JUDICIAL DISTRICT
4 ________________________________
Exhibit A
5 NATALIE MARIE O'BRIEN,
6 Plaintiff,
7 v. Cause No.
8 MERCEDES-BENZ OF THE 22-05-06412
9 WOODLANDS AND BIJ MOTORS
10 TX, LLC D/B/A MERCEDES-BENZ
11 OF THE WOODLANDS,
12 Defendants.
13 ________________________________
14 VIDEOTAPED DEPOSITION OF
15 NATALIE MARIE O'BRIEN
16 DATE: Thursday, October 20, 2022
17 TIME: 10:16 a.m.
18 LOCATION: Law Office of Perdue & Kidd
19 777 Post Oak Boulevard, Suite 450
20 Houston, TX 77056
21 REPORTED BY: Kelly Caldwell, Notary Public
800-567-8658 973-410-4098
1 P R O C E E D I N G S
2 THE REPORTER: Good morning. My name
3 is Kelly Caldwell; I am the reporter assigned by
4 Veritext to take the record of this proceeding. We
5 are now on the record at 10:16 a.m.
6 This is the deposition of Natalie Marie
7 O'Brien taken in the matter of Natalie Marie O'Brien
8 vs. Mercedes-Benz of the Woodlands and BIJ Motors
9 Texas, LLC, d/b/a Mercedes-Benz of the Woodlands on
10 October 20, 2022, at the Law Office of Perdue & Kidd,
11 PC, 777 Post Oak Boulevard, Houston, Texas 77056.
12 I am a notary authorized to take
13 acknowledgments and administer oaths in Texas. This
14 proceeding will also be recorded via video technology
15 by Dan Lapeyrouse.
16 Absent an objection on the record
17 before the witness is sworn, all parties and the
18 witness understand and agree that any certified
19 transcript produced from the recording of this
20 proceeding:
21 - is intended for all uses permitted
22 under applicable procedural and
23 evidentiary rules and laws in the same
24 manner as a deposition recorded by
25 stenographic means; and
800-567-8658 973-410-4098
1 - shall constitute written stipulation
2 of such.
3 At this time will everyone in
4 attendance please identify yourself for the record,
5 beginning with my left.
6 MR. BROWN: Oh. Me. Gregg Brown. I
7 represent Mercedes-Benz of the Woodlands.
8 MR. CLINTON: And Michael Clinton with
9 Perdue & Kidd on behalf of the plaintiff, Natalie
10 O'Brien.
11 THE REPORTER: Thank you. Hearing no
12 objections, I will now swear in the witness.
13 Ms. O'Brien, would you please raise
14 your right hand.
15 WHEREUPON,
16 NATALIE MARIE O'BRIEN,
17 called as a witness, and having been first duly sworn
18 to tell the truth, the whole truth, and nothing but
19 the truth, was examined and testified as follows:
20 THE REPORTER: Thank you. Y'all may
21 begin.
22 EXAMINATION
23 BY MR. BROWN:
24 Q Ms. O'Brien, just for the record, would you
25 please state your full name?
800-567-8658 973-410-4098
1 remember his name.
2 Q For now, I'm just going to write down "car
3 salesman."
4 A Okay. I'm sorry.
5 Q The other guy you spoke with.
6 Any others you can recall?
7 A Can you be more specific, please?
8 Q Well, let me put it this way. One of the
9 things I would be interested in knowing is any
10 conversations you had with any of my client
11 representatives concerning the accident or your
12 injuries.
13 Of the people that we just listed, Walding,
14 Canales, Lange, Metodievs, Lindsey, and the car
15 salesman. Out of that group, with whom have you
16 spoken about the accident or your injuries?
17 A I believe the majority of them.
18 Q So let's go back to the date that this
19 occurred which was January 22 of 2021. Why were you
20 coming to my client's dealership?
21 A Dropping off my car for service and picking
22 up my son's car I had just purchased.
23 Q And what's the name of your son?
24 A Andrew O'Brien.
25 Q That's the one that was born in 2005.
800-567-8658 973-410-4098
1 A No, sir. A few feet away from the vehicle.
2 Where vehicles did not drive on the area, if my memory
3 serves me correctly.
4 Q And what did you say to Richard and what did
5 he say to you?
6 A Everyone was just kind of in shock. He
7 said -- he apologized. Had mentioned that they had
8 complained that the floor was slippery at times.
9 Q Had complaints or complained?
10 A Had complained.
11 Q Anything else?
12 A He moonwalked to show me how slippery the
13 floor was.
14 Q This is Richard. Right?
15 A Yes, sir.
16 Q How old is Richard?
17 A Probably similar in age to myself. Maybe a
18 little older.
19 Q At that point, did you notice whether or not
20 there was any moisture or any other substance on the
21 floor?
22 A Not that I'm aware of.
23 Q During the entire time you were still at my
24 client's dealership after you fell, did you notice
25 whether there was any moisture or foreign substance on
800-567-8658 973-410-4098
1 the floor?
2 A Not that I'm aware of.
3 Q Anything else you can remember about your
4 interactions with Richard on that day?
5 A Can you be more specific, please?
6 Q Sure. So you have this conversation with
7 Richard on the drive a few feet from where the
8 accident happened. You said he apologized. He
9 mentioned that he had some other complaints regarding
10 the slipperiness of the floor, and that he moonwalked.
11 Correct?
12 A Correct.
13 Q I'm asking if you can remember anything else
14 Richard said that day or anything else Richard did
15 that day.
16 A I mentioned to Richard that my back hurt so
17 much that I would be black and blue and he asked -- on
18 my backside -- and he asked if I would send him
19 photos.
20 Q Photos of?
21 A My backside.
22 Q Anything else you can remember him asking or
23 saying?
24 A He gave me the directions to Fred Gallucci's
25 office so I could go and speak to the general manager
800-567-8658 973-410-4098
1 CERTIFICATE OF DEPOSITION OFFICER
2 I, KELLY CALDWELL, the officer before whom
3 the foregoing proceedings were taken, do hereby
4 certify that any witness(es) in the foregoing
5 proceedings, prior to testifying, were duly sworn;
6 that the proceedings were recorded by me and
7 thereafter reduced to typewriting by a qualified
8 transcriptionist; that said digital audio recording of
9 said proceedings are a true and accurate record to the
10 best of my knowledge, skills, and ability; that I am
11 neither counsel for, related to, nor employed by any
12 of the parties to the action in which this was taken;
13 and, further, that I am not a relative or employee of
14 any counsel or attorney employed by the parties
15 hereto, nor financially or otherwise interested in the
16 outcome of this action.
19 <%25543,Signature%>
20 Notary Public in and for the
21 [X] Review of the transcript was requested.
800-567-8658 973-410-4098
1 CERTIFICATE OF TRANSCRIBER
2 I, AMY MCDOWELL, do hereby certify that this
3 transcript was prepared from the digital audio
4 recording of the foregoing proceeding, that said
5 transcript is a true and accurate record of the
6 proceedings to the best of my knowledge, skills, and
7 ability; that I am neither counsel for, related to,
8 nor employed by any of the parties to the action in
9 which this was taken; and, further, that I am not a
10 relative or employee of any counsel or attorney
11 employed by the parties hereto, nor financially or
12 otherwise interested in the outcome of this action.
17 AMY MCDOWELL
800-567-8658 973-410-4098
1 FURTHER CERTIFICATION UNDER RULE 203 TRCP
2 I, KELLY CALDWELL, the officer before whom
3 the foregoing proceedings were taken, do hereby
4 certify:
5 That the deposition transcript was submitted
6 to the witness or to the attorney for the witness for
7 examination and signature on ____________________; or
8 [ ]examination and signature was waived;
9 That the transcript [ ]was/[ ]was not
10 returned by the witness, and if so, on
11 ____________________;
12 That, if returned, the attached Changes and
13 Signature page contains any changes and the reasons
14 therefor;
15 That the transcript was delivered in
16 accordance with Rule 203.3;
17 That the amount of time used by each party
18 at the deposition is as follows:
19 Mr. Brown - 01 HRS: 41 MIN
20 Mr. Clinton - 00 HRS: 06 MIN
21 That $ _______________ is the deposition
22 officer's charges to the _______________ for preparing
23 the original deposition transcript and any copies of
24 exhibits;
25 That a copy of the certificate was served on
800-567-8658 973-410-4098
1 all parties on ____________________, and filed with
2 the Clerk.
3 Certified this _____ day of _______________,
4 202___.
8 KELLY CALDWELL
9 Notary Public in and for the
10 State of Texas
11 Veritext Firm Registration No. 571
800-567-8658 973-410-4098
Exhibit C
Exhibit D
Preview
CAUSE NO. 22-05-06412 NATALIE MARIE O’BRIEN, § IN THE DISTRICT COURT Plaintiff, § MONTGOMERY COUNTY, TEXAS MERCEDES-BENZ OF THE WOODLANDS and BIJ MOTORS § TX, LLC D/B/A MERCEDES-BENZ § OF THE WOODLANDS and AUTOSTONE FLOOR SYSTEMS, LLC § JUDICIAL DISTRICT DEFENDANT MERCEDES BENZ OF THE WOODLANDS AND BIJ MOTORS TX, LLC’S NO-EVIDENCE AND TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING PLAINTIFF’S GROSS NEGLIGENCE CLAIMS TO THE HONORABLE JUDGE OF SAID COURT: Defendants Mercedes Benz of The Woodlands and BIJ Motors TX, LLC (collectively for purposes of this Motion, “MBOTW”) file No-Evidence and Traditional Motion for Partial Summary Judgment, pursuant to Texas Rule of Civil Procedure 166a (including subpart (i)) seeking a dismissal of Plaintiff’s gross negligence claims ). In support thereof, MBOTW respectfully shows the Court as follows: ACKGROUND On January 22, 2021, Plaintiff Natalie O’Brien drove her Mercedes to MBOTW for the purpose of having it serviced, and also to pick up another vehicle she and her husband had purchased for their son. Depo. of N. O’Brien (Ex. “A”) at 19:18-22. Upon arriving at the dealership, Plaintiff drove into the MBOTW service drive—which is accessed through large garage-type overhead doors—parked and, after a few minutes, stepped out of her vehicle. As she did so, without placing her hand on the door or any other part of the vehicle, her feet slipped out from under her, causing her to fall on her bottom. A series of still-shots from MBOTW’s surveillance video, showing Plaintiff’s arrival in the service drive and her fall, are as follows: Plaintiff Inside her Vehicle Prior to Accident Plaintiff’s Children Exiting Vehicle Plaintiff Turning and Stepping Out of Vehicle (and Slipping) Plaintiff Falling to Floor As a result of her fall, Plaintiff contends she sustained injuries, including a broken tailbone and injuries to her sacroiliac (“SI”) joints. Plaintiff eventually underwent a right side SI joint fusion and had her tailbone surgically removed. Plaintiff sues MBOTW for damages she contends arose as a result of the accident. MBOTW contends that Plaintiff’s injuries and physical conditions were at least in part preexisting. Obviously, this is a premises liability case (as there was no ongoing activity in the service drive, on the part of MBOTW, that caused or is related to the accident). Plaintiff simply contends the floor was too slippery. Further, there is no question Plaintiff was a business invitee. In this respect, Plaintiff asserts a premises liability negligence claim and, as specifically relevant to this Motion, a gross negligence claim. MBOTW concedes there are genuine issues of fact concerning Plaintiff’s ordinary negligence-based premises liability claim a jury will need to resolve. But this is not a case of gross negligence and there is either no evidence to support that claim. Accordingly, MBOTW seeks, through this Motion, to eliminate Plaintiff’s gross negligence claim prior to trial (currently scheduled for May 20, 2024). TANDARDS OF No-Evidence Motion As the Court is aware, a defendant is entitled to no-evidence summary judgment when adequate time for discovery has passed and plaintiff has produced no evidence of one or more essential elements of its claim. P. 166a(i). Texas Rule of Civil Procedure 166a(i), “does not require that discovery must have been completed, only that there was ‘adequate time.’” Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.— Houston [14 Dist.] 2000, pet. denied). The Court must grant a no-evidence motion for summary judgment unless the respondent produces summary judgment evidence raising a genuine issue of material fact. P. 166a(i). In presenting its summary judgment evidence, the respondent must produce more than a scintilla of evidence to raise a genuine issue of material fact for each element of its cause of See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); 166a(i). “More than a scintilla of evidence exists when the evidence, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” , 118 S.W.3d at 751 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). When the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, there is no more than a scintilla of evidence. Kindred v. Con/Chem, Inc. Traditional Motion As the Court is also aware, defendants are entitled to summary judgment when there is no genuine issue of material fact and they are entitled to judgment as a matter of law. See P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). The object of this rule is to resolve cases with the greatest expedience and at the least expense to the litigants. See Matlock v. Matlock, 249 S.W.2d 587, 590 (Tex. 1952). In a traditional motion for summary judgment, the movant assumes the burden to establish that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgt. Co. S.W.2d 546, 548 (Tex. 1985). If the movant carries its burden, the burden then shifts to the non-movant to present controverting summary judgment evidence. See Casso v. Brand S.W.2d 551, 556 (Tex. 1989). Thus, the non-movant must clearly present, by written response, any reasons seeking to avoid the movant’s entitlement to summary judgment and must present summary judgment proof to establish a fact issue to defeat a motion for summary judgment. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. UMMARY UDGMENT VIDENCE MBOTW attaches the following evidence in support of this motion and fully incorporate these exhibits herein as if they were set forth at length: O’Brien (excerpts) (Ex. “A”); Video Clip of Plaintiff’s Slip and Fall (Ex. “B”); Deposition of Fred Gallucci (MBOTW Corporate Rep.) (excerpts) (Ex. “C”); and Deposition of Barry Wells (excerpts) (Ex. “D”). RGUMENT AND UTHORITIES Plaintiff has no evidence, let alone clear and convincing evidence, of any grossly negligent act or omission by MBOTW It is well established that a plaintiff cannot recover exemplary damages unless she proves clear and convincing evidence that the harm for which the plaintiff seeks recovery of exemplary damages results from the defendant’s fraud, malice, or gross negligence. T RAC § 41.003(a). Gross negligence consists of both objective and subjective elements. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012) (rendering take-nothing judgment on plaintiff’s gross negligence claims against defendants). To prevail on a gross negligence claim, a plaintiff must prove by clear and convincing evidence that: (1) viewed objectively from the defendant’s standpoint at the time of the event, the act or omission must involve an extreme degree of risk probability and magnitude of the potential harm to others; and (2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others. See Medina v. Zuniga, 593 S.W.3d RAC §§ 41.001(11)(A), (B). Under the objective component, “the act or omission complained of must depart from the ordinary standard of care to such an extent that it creates an extreme degree of risk of harming others.” Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008). An “extreme risk” is not a remote possibility or even a high probability of minor harm, but rather the The video may be viewed at the following link: https://www.dropbox.com/scl/fi/nbzpb969u41tu0a7w0qzz/Ex.-B- Video-of-Fall.mp4?rlkey=ckgooq7s0dje4ewa90c8bcal3&dl=0 likelihood of the plaintiff’s serious injury. U-Haul Int’l, Inc., 380 S.W.3d at 137. Courts must examine the risk “prospectively from the perspective of the actor, not in hindsight.” , 271 With regard to the subjective component, the Texas Supreme Court has established that it is the mental attitude of the defendant that lifts ordinary negligence See Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). To justify the imposition of exemplary damages the plaintiff must show the defendant was consciously (i.e. knowingly) indifferent to her rights, welfare and safety. , 692 S.W.2d at 457 (quoting Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex. 1981)). In other words, the plaintiff must show that MBOTW knew about the peril, but its acts or omissions Further, gross negligence allegations against a corporation are sustained only when the plaintiff provides clear and convincing evidence that the corporation: (1) authorizes or ratifies an agent’s gross negligence; (2) was grossly negligent in hiring an unfit agent; or (3) commits gross negligence through the actions or inactions of a vice principal. See Qwest Int’l Commc’ns, Inc. v. AT&T Corp., 167 S.W.3d 324, 326 (Tex. 2005) (per curiam); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921–22 (Tex. 1998). A “vice principal” under Texas law includes: (1) corporate officers; (2) those who have authority to employ, direct, and discharge employees on behalf of the employer; (3) those engaged in the performance of nondelegable or absolute duties of the employer; and (4) those whom the employer has confided the management of the whole or a department of a division of the employer’s corporation. Plaintiffs have not produced, and cannot produce, any evidence (let alone clear and convincing evidence) to establish its gross negligence claim against MBOTW, as no such evidence exists. There is no evidence of an extreme risk of serious injury or death, nor is there any evidence that MBOTW knew of any such extreme risk, yet proceeded without care. Along those same lines, cious indifference or authorized or ratified an agent’s gross negligence, hired an unfit agent, or committed gross negligence via a vice principal. Evidence of both the objective and subjective components of gross negligence is lacking, and thus dismissal of Plaintiffs’ gross negligence is proper. No reasonable minds can differ on the outcome of Plaintiffs’ gross negligence claims. In the present case, Plaintiff and its expert contend the floor was too slippery, lacking an adequate coefficient of friction. In that respect, MBOTW purchased and installed tile manufactured by AutoStone Floor Systems, LLC (“AutoStone”), whom Plaintiff also sued, because it was one of the options Mercedes Benz made available to MBOTW when the dealership Depo. of F. Gallucci (Ex. “C”) at 67:6-9. As shown by the photograph of a sample of the AutoStone tile that was installed, it is advertised to be slip-resistant: According to Barry Wells, the corporate representative of AutoStone, the tile, at the time it was sold, was the highest rated slip and fall floor for automotive service areas. “D”) at 121:15 – 123:20. And the tile was still within its seven (7) year warranty period at the time of Plaintiff's slip and fall. Depo. of F. Gallucci (Ex. “C”) at 122:16-21. The AutoStone corporate representative concedes that, from a purchaser’s perspective, they would expect the product to continue to have the characteristics that it had at the time of installation. Depo. of B. Wells (Ex. “D”) at 124:12 – Plaintiff’s primary theory against MBOTW is that MBOTW must have cleaned the floor improperly, either not using degreaser in its floor scrubbing machine, using too much degreaser, or not cleaning the floor sufficiently frequently. AutoStone readily joins in those arguments. In this respect, Plaintiff concedes she did not slip in a puddle of liquid; she did not notice liquid on the floor after her fall and her yoga pants were not wet. Depo. of N. O’Brien (Ex. “A”) at 30:19- 31:2. Thus, this case does not involve an issue of a substance on the floor that could have been seen and cleaned up, but was not. But Plaintiff’s theories regarding improper cleaning methods are speculative. There is no actual evidence of excessive degreaser or “soap,” for instance, on the tile. Essentially, Plaintiff have been why Plaintiff fell, but they have no proof. Further, and in any event, any alleged failures to “properly clean” or maintain the floor do not support a gross negligence claim when, as here, there is no evidence of a prior serious injury or death of a customer (or employee) sustained by falling on the tile. In this regard, Plaintiff points primarily to the fact another customer, on the day before the accident, fell in a generally similar manner (though not in the precise location where Plaintiff fell the following day; this other customer’s vehicle was in the same “lane” but closer to the entrance to the service drive). That other individual who fell was clearly shaken up, but did not make a claim against MBOTW, nor is there any evidence that he required any medical treatment. And, importantly, that is the prior fall by a customer of which management was aware prior to Ms. O’Brien’s fall. A recent case out of the Houston Court of Appeals, First District, is instructive. In Garcia v. Service Transport Company, No. 01-21-00235-CV, 2022 WK 3722327 (Tex.App.—Hous. [1 Dist.], August 30, 2022, no pet.), Garcia, a truckdriver who worked for Service Transport Company (“STC”), fell from the top of his tanker-trailer, resulting in his death. His family members sued STC contending the company was grossly negligent in various respects, including that STC failed to protect drivers who were required to work at elevated heights (primarily by failing to provide fall protection), that the company’s safety policies and training were inadequate, and that it failed to instruct or warn Garcia of unsafe conditions. . at 1. Plaintiffs contended those alleged failures resulted in an extreme degree of risk to Garcia. In response, STC argued, among other things, that no evidence supported plaintiffs’ contentions regarding an extreme degree of risk. Specifically, and as pertinent here, STC relied on the fact that prior reports of injury showed that although five employees had fallen from trailers, in four of those prior falls, the only minor injuries were sustained (stiff knee, bruises, etc.) that did not require medical treatment). One of the prior falls resulted in a broken leg. . at *2. STC contended that history—which, of course, is much more significant than that in the present case— did not and could not indicate the presence of a risk of a serious injury or death or that it was consciously aware of and disregarded the risk. . The plaintiffs replied by arguing that STC nonetheless had a subjective awareness of an extreme risk associated with climbing on top 10 of, walking on and opening the hatch of a tanker trailer. . The trial court granted summary judgment for STC. Garcia appealed. On appeal, the First District Court of Appeals affirmed the summary judgment. Despite alleged problems with safety training and supervision, and the admitted existence of prior falls and injuries, the evidence did not create a triable issue regarding gross negligence. In that respect, the court observed: We agree with STC that this evidence [related to other falls] does not raise a fact issue concerning the likelihood of serious injury from climbing tanker ladders to open the crash box without fall protection equipment. U-Haul Int’l, 380 S.W.3d at 137 (stating that extreme risk does not mean remote possibility of serious injury but rather likelihood of serious injury); see also , 593 S.W.3d at 248 (stating that risk should be examined prospectively from perspective of actor, not in hindsight). STC correctly states that four of the injuries were minor, and therefore these four incidents do not establish the existence of an extreme degree of risk. U-Haul Int’l, 380 S.W.3d at 137 (stating that high probability of minor harm does not rise to level of extreme risk). The remaining prior fall from a ladder resulted in a broken leg. Presuming without deciding that a broken leg is a serious injury, this one injury does not show that a probability of potential harm—or likelihood of serious injury—exists when drivers climb a tanker ladder to open the crash box. , 593 S.W.3d at 247; , 380 S.W.3d at 137. at *10. In contrast to the evidence in , in the present case, there is no evidence of prior fall resulting in a physical injury—other than whatever minor injury the gentlemen who fell on the day before Plaintiff’s accident may have experienced—let alone a serious injury. Crystallized, Plaintiff’s contention is that one other customer fell and may have been injured, and various MBOTW employees had slipped on prior occasions, but were not injured. That simply is not enough to show the presence of a fact issue regarding an extreme risk of serious injury or death. And it therefore follows that MBOTW would not have had a subjective awareness of the alleged extreme risk (because one did not exist). 11 ONCLUSION This case involves a simple slip and fall on tile in which the Plaintiff contends she was injured. There is no evidence, however, of a history of serious accidents and injuries sufficient to create a fact issue regarding either the presence of an extreme degree of risk, nor that MBOTW was consciously and subjectively aware of such risk. Accordingly, there simply is no evidence of gross negligence and there is no justification for that cause of action to be present in the case at the time a jury is selected and the case is tried. WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that the Court grant their no-evidence and traditional motion for partial summary judgment as to Plaintiff’s gross negligence claims, that those claims be dismissed, and that the Court grant such other and further relief, at law or in equity, to which Defendants may show themselves justly entitled. Respectfully submitted, ERMER EAMAN ROWN PLLC ARTON KYWAY Austin, Texas 78746 (512) 472-0288 (512) 472-9280 (Fax) Gregg R. Brown State Bar No. 03129010 grb-svc@germer-austin.com ATTORNEYS FOR DEFENDANTS MERCEDES BENZ OF THE WOODLANDS, LLC AND BIJ MOTORS TX, LLC 12 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy was served on all counsel of record, as indicated below, on the 16 day of April, 2024. Via E-Mail: eserve@perdueandkidd.com Michael R. Clinton 777 Post Oak Blvd., Suite 450 Houston, Texas 77056 Attorneys for Plaintiff Brock Akers The Akers Firm, PLLC 3401 Allen Parkway, Ste. 101 Attorneys for AutoStone Floor Systems, LLC Gregg R. Brown 13 1 IN THE DISTRICT COURT 2 MONTGOMERY COUNTY, TEXAS 3 284th JUDICIAL DISTRICT 4 ________________________________ Exhibit A 5 NATALIE MARIE O'BRIEN, 6 Plaintiff, 7 v. Cause No. 8 MERCEDES-BENZ OF THE 22-05-06412 9 WOODLANDS AND BIJ MOTORS 10 TX, LLC D/B/A MERCEDES-BENZ 11 OF THE WOODLANDS, 12 Defendants. 13 ________________________________ 14 VIDEOTAPED DEPOSITION OF 15 NATALIE MARIE O'BRIEN 16 DATE: Thursday, October 20, 2022 17 TIME: 10:16 a.m. 18 LOCATION: Law Office of Perdue & Kidd 19 777 Post Oak Boulevard, Suite 450 20 Houston, TX 77056 21 REPORTED BY: Kelly Caldwell, Notary Public 800-567-8658 973-410-4098 1 P R O C E E D I N G S 2 THE REPORTER: Good morning. My name 3 is Kelly Caldwell; I am the reporter assigned by 4 Veritext to take the record of this proceeding. We 5 are now on the record at 10:16 a.m. 6 This is the deposition of Natalie Marie 7 O'Brien taken in the matter of Natalie Marie O'Brien 8 vs. Mercedes-Benz of the Woodlands and BIJ Motors 9 Texas, LLC, d/b/a Mercedes-Benz of the Woodlands on 10 October 20, 2022, at the Law Office of Perdue & Kidd, 11 PC, 777 Post Oak Boulevard, Houston, Texas 77056. 12 I am a notary authorized to take 13 acknowledgments and administer oaths in Texas. This 14 proceeding will also be recorded via video technology 15 by Dan Lapeyrouse. 16 Absent an objection on the record 17 before the witness is sworn, all parties and the 18 witness understand and agree that any certified 19 transcript produced from the recording of this 20 proceeding: 21 - is intended for all uses permitted 22 under applicable procedural and 23 evidentiary rules and laws in the same 24 manner as a deposition recorded by 25 stenographic means; and 800-567-8658 973-410-4098 1 - shall constitute written stipulation 2 of such. 3 At this time will everyone in 4 attendance please identify yourself for the record, 5 beginning with my left. 6 MR. BROWN: Oh. Me. Gregg Brown. I 7 represent Mercedes-Benz of the Woodlands. 8 MR. CLINTON: And Michael Clinton with 9 Perdue & Kidd on behalf of the plaintiff, Natalie 10 O'Brien. 11 THE REPORTER: Thank you. Hearing no 12 objections, I will now swear in the witness. 13 Ms. O'Brien, would you please raise 14 your right hand. 15 WHEREUPON, 16 NATALIE MARIE O'BRIEN, 17 called as a witness, and having been first duly sworn 18 to tell the truth, the whole truth, and nothing but 19 the truth, was examined and testified as follows: 20 THE REPORTER: Thank you. Y'all may 21 begin. 22 EXAMINATION 23 BY MR. BROWN: 24 Q Ms. O'Brien, just for the record, would you 25 please state your full name? 800-567-8658 973-410-4098 1 remember his name. 2 Q For now, I'm just going to write down "car 3 salesman." 4 A Okay. I'm sorry. 5 Q The other guy you spoke with. 6 Any others you can recall? 7 A Can you be more specific, please? 8 Q Well, let me put it this way. One of the 9 things I would be interested in knowing is any 10 conversations you had with any of my client 11 representatives concerning the accident or your 12 injuries. 13 Of the people that we just listed, Walding, 14 Canales, Lange, Metodievs, Lindsey, and the car 15 salesman. Out of that group, with whom have you 16 spoken about the accident or your injuries? 17 A I believe the majority of them. 18 Q So let's go back to the date that this 19 occurred which was January 22 of 2021. Why were you 20 coming to my client's dealership? 21 A Dropping off my car for service and picking 22 up my son's car I had just purchased. 23 Q And what's the name of your son? 24 A Andrew O'Brien. 25 Q That's the one that was born in 2005. 800-567-8658 973-410-4098 1 A No, sir. A few feet away from the vehicle. 2 Where vehicles did not drive on the area, if my memory 3 serves me correctly. 4 Q And what did you say to Richard and what did 5 he say to you? 6 A Everyone was just kind of in shock. He 7 said -- he apologized. Had mentioned that they had 8 complained that the floor was slippery at times. 9 Q Had complaints or complained? 10 A Had complained. 11 Q Anything else? 12 A He moonwalked to show me how slippery the 13 floor was. 14 Q This is Richard. Right? 15 A Yes, sir. 16 Q How old is Richard? 17 A Probably similar in age to myself. Maybe a 18 little older. 19 Q At that point, did you notice whether or not 20 there was any moisture or any other substance on the 21 floor? 22 A Not that I'm aware of. 23 Q During the entire time you were still at my 24 client's dealership after you fell, did you notice 25 whether there was any moisture or foreign substance on 800-567-8658 973-410-4098 1 the floor? 2 A Not that I'm aware of. 3 Q Anything else you can remember about your 4 interactions with Richard on that day? 5 A Can you be more specific, please? 6 Q Sure. So you have this conversation with 7 Richard on the drive a few feet from where the 8 accident happened. You said he apologized. He 9 mentioned that he had some other complaints regarding 10 the slipperiness of the floor, and that he moonwalked. 11 Correct? 12 A Correct. 13 Q I'm asking if you can remember anything else 14 Richard said that day or anything else Richard did 15 that day. 16 A I mentioned to Richard that my back hurt so 17 much that I would be black and blue and he asked -- on 18 my backside -- and he asked if I would send him 19 photos. 20 Q Photos of? 21 A My backside. 22 Q Anything else you can remember him asking or 23 saying? 24 A He gave me the directions to Fred Gallucci's 25 office so I could go and speak to the general manager 800-567-8658 973-410-4098 1 CERTIFICATE OF DEPOSITION OFFICER 2 I, KELLY CALDWELL, the officer before whom 3 the foregoing proceedings were taken, do hereby 4 certify that any witness(es) in the foregoing 5 proceedings, prior to testifying, were duly sworn; 6 that the proceedings were recorded by me and 7 thereafter reduced to typewriting by a qualified 8 transcriptionist; that said digital audio recording of 9 said proceedings are a true and accurate record to the 10 best of my knowledge, skills, and ability; that I am 11 neither counsel for, related to, nor employed by any 12 of the parties to the action in which this was taken; 13 and, further, that I am not a relative or employee of 14 any counsel or attorney employed by the parties 15 hereto, nor financially or otherwise interested in the 16 outcome of this action. 19 <%25543,Signature%> 20 Notary Public in and for the 21 [X] Review of the transcript was requested. 800-567-8658 973-410-4098 1 CERTIFICATE OF TRANSCRIBER 2 I, AMY MCDOWELL, do hereby certify that this 3 transcript was prepared from the digital audio 4 recording of the foregoing proceeding, that said 5 transcript is a true and accurate record of the 6 proceedings to the best of my knowledge, skills, and 7 ability; that I am neither counsel for, related to, 8 nor employed by any of the parties to the action in 9 which this was taken; and, further, that I am not a 10 relative or employee of any counsel or attorney 11 employed by the parties hereto, nor financially or 12 otherwise interested in the outcome of this action. 17 AMY MCDOWELL 800-567-8658 973-410-4098 1 FURTHER CERTIFICATION UNDER RULE 203 TRCP 2 I, KELLY CALDWELL, the officer before whom 3 the foregoing proceedings were taken, do hereby 4 certify: 5 That the deposition transcript was submitted 6 to the witness or to the attorney for the witness for 7 examination and signature on ____________________; or 8 [ ]examination and signature was waived; 9 That the transcript [ ]was/[ ]was not 10 returned by the witness, and if so, on 11 ____________________; 12 That, if returned, the attached Changes and 13 Signature page contains any changes and the reasons 14 therefor; 15 That the transcript was delivered in 16 accordance with Rule 203.3; 17 That the amount of time used by each party 18 at the deposition is as follows: 19 Mr. Brown - 01 HRS: 41 MIN 20 Mr. Clinton - 00 HRS: 06 MIN 21 That $ _______________ is the deposition 22 officer's charges to the _______________ for preparing 23 the original deposition transcript and any copies of 24 exhibits; 25 That a copy of the certificate was served on 800-567-8658 973-410-4098 1 all parties on ____________________, and filed with 2 the Clerk. 3 Certified this _____ day of _______________, 4 202___. 8 KELLY CALDWELL 9 Notary Public in and for the 10 State of Texas 11 Veritext Firm Registration No. 571 800-567-8658 973-410-4098 Exhibit C Exhibit D