NO. 06-15-00009-CV

IN THE COURT OF APPEALS FOR THE

SIXTH DISTRICT OF TEXAS

AT TEXARKANA

DENNIS RAYNER and

JOE TEX XPRESS, INC. APPELLANTS

V.

KRISTA DILLON APPELLEE

Appeal from the District Court of Hopkins County, Texas

62nd Judicial District 

Honorable Will Biard Presiding

BRIEF OF APPELLEE

John R. Mercy

Texas State Bar No. 13947200

MERCY p CARTER p TIDWELL, L.L.P.

1724 Galleria Oaks Drive

Texarkana, TX 75503

Telephone: (903) 794-9419

Facsimile: (903) 794-1268

E-mail: jmercy@texarkanalawyers.com

Brent Goudarzi

Texas State Bar No. 00798218 

Email: brent@goudarzi-young.com

Marty L. Young

Texas State Bar No. 24010502

Email: myoung@goudarzi-young.com

Geoffrey Hoover

Texas State Bar No. 24074437

Email: ghoover@goudarzi-young.com

GOUDARZI & YOUNG

P.O. Box 910

Gilmer, TX 75644

Telephone: (903) 843-2544

Facsimile: (903) 843-2026

ATTORNEYS FOR APPELLEE

Oral Argument Requested

ACCEPTED

06-15-00009-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

12/7/2015 12:06:42 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/7/2015 12:06:42 PM DEBBIE AUTREY Clerk
IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellee

lists below the names and addresses of all parties to the trial court’s final judgment

together with their counsel in the trial court. This list is provided so that the justices

of this Court may evaluate possible disqualification and recusal, and so that the Clerk

of the Court of Appeals may notify all parties of this Court’s final judgment.

Dennis Rayner and

Joe Tex Xpress, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellants

Bryan P. Reese

Jennifer M. Lee

FEE, SMITH, SHARP & VITULLO, L.L.P.

Three Galleria Tower

13155 Noel Road, Suite 1000

Dallas, TX 75240.. . . . . . . . . . . . . . . . . Trial and Appellate Counsel for Appellants

Samuel V. Houston, III

HOUSTON DUNN, PLLC

4040 Broadway, Suite 440

San Antonio, TX 78209.. . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellants

Krista Dillon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellee

Brent Goudarzi

Marty Young

Geoffrey Hoover

GOUDARZI & YOUNG

P.O. Box 910

Gilmer, TX 75644. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellee

John C. Ginn

SMITH MCDOWELL GINN

P.O. Box 493

Sulphur Springs, TX 75483.. . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellee

i
John R. Mercy

MERCY p CARTER p TIDWELL, L.L.P.

1724 Galleria Oaks Drive

Texarkana, TX 75503. . . . . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellee

ii
TABLE OF CONTENTS

Page

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Response to Issue Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Gross Negligence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Objective and Subjective Elements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Evidentiary Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Objectively Joe Tex Knew of the Extreme Risk.. . . . . . . . . . . . . . . . . . . . . 11

Objectively Rayner Knew of the Extreme Risk. . . . . . . . . . . . . . . . . . . . . . 13

Evidence Supports Objective Prong for Gross Negligence. . . . . . . . . . . . . 14

Joe Tex Proceeds with Conscious Indifference. . . . . . . . . . . . . . . . . . . . . . 14

Rayner Proceeds with Conscious Indifference. . . . . . . . . . . . . . . . . . . . . . . 15

Evidence Supports the Subjective Prong for Gross Negligence.. . . . . . . . . 16

iii
Defendants Had No Credibility.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lack of Evidentiary Support for Defendants’ Argument. . . . . . . . . . . . . . . 17

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Appendix:

A - Accident Report Drawing (P. Ex. 17 p. 6)

B - Hours of Service: Record of Duty Status Falsification List

(P. Ex. 3 [emphasis added])

C - Joe Tex July 12, 2010 Violation Report (P. Ex. 18 [emphasis added])

D - 4.30.10 Joe Tex letter (P. Ex. 26 [emphasis added])

E - 7.1.10 Joe Tex letter (P. Ex. 24 [emphasis added])

F - Joe Tex letter (P. Ex. 27 [emphasis added])

iv
INDEX OF AUTHORITIES

Cases: Page

Boerjan v. Rodrigues, 

436 S.W.3d 307 (Tex. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17

Columbia Medical Center of Las Colinas, Inc. v. Hogue, 

271 S.W.3d 238 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Dalworth Trucking Co. V. Bulen, 

924 S.W.2d 724 (Tex. App. – Texarkana 1996, no writ). . . . . . . . . . . . . . . 16

In Re H.R.M., 

209 S.W.3d 105 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 17

In Re J.O.A., 

283 S.W.3d 336 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

State v. Addington, 

588 S.W.2d 569 (Tex. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State v. K.E.W.,

315 S.W.3d 16 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Transportation Ins. Co. V. Moriel,

879 S.W.2d 10 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U-Haul International, Inc. v. Waldrip, 

380 S.W.3d 118 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

USA Truck, Inc. v. West, 

189 S.W.3d 904, 907 (Tex. App. – Texarkana 2006, no writ). . . . . . . . 10, 17

v
Statutes:

TEX. CIV. PRAC. & REM. CODE ANN.

 § 41.001(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

 § 41.001(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

 § 41.003(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Code of Federal Regulations:

 49 CFR 395. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

 49 CFR 395.3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

vi
NO. 06-15-00009-CV

IN THE COURT OF APPEALS FOR THE

SIXTH DISTRICT OF TEXAS

AT TEXARKANA

DENNIS RAYNER and

JOE TEX XPRESS, INC. APPELLANTS

V.

KRISTA DILLON APPELLEE

BRIEF OF APPELLEE

TO THE HONORABLE COURT OF APPEALS:

COMES NOW Appellee, KRISTA DILLON, and files this her brief in

response to Appellants’ brief, and would show unto the Court the following.

STATEMENT OF THE CASE

Nature of the case: This is a truck wreck case.1 .

Trial court: Honorable WillBiard, 62

nd

Judicial District, Hopkins

County

Parties: Plaintiffs: Dennis Rayner

Joe Tex Xpress, Inc.

Defendant: Krista Dillon

1 Appellant, Dennis Rayner, will be referred to as “Rayner”, Appellant, Joe Tex Xpress, Inc,

will be referred to as “Joe Tex”, Rayner and Joe Tex will be referred to collectively as “Defendants”,

and Appellee, Krista Dillon, will be referred to as “Dillon.” The Clerk’s Record will be cited as

(CR _); the Reporter’s Record will be cited as (_ RR _); and exhibits will be cited as (P. Ex. _).

1
Trial: The case was tried for seven days to a jury.

Verdict: The jury found Rayner and Joe Tex liable and

awarded $1,110,629.76 in actual damages. (CR

3011-13). The jury also found Rayner and Joe Tex

grossly negligent, awarding $2,000.00 in exemplary

damages against Rayner and $3,000,000.00 in

exemplary damages against Joe Tex. (CR 3014-15,

3022-23). The trial court reduced the exemplary

damages against Joe Tex to $1,679,295.52 and

entered judgment. (CR 3032).

Post-Trial Motions: Defendants filed a motion for new trial which was

overruled by operation of law. This appeal ensued.

2
RESPONSE TO ISSUE PRESENTED

Responsive Issue

Where the evidence included acknowledgment that:

• maintaining accurate log books was required

under federal law, 

• the purpose of log books was to prevent fatigued

drivers from driving 18-wheelers, 

• the Department of Transportation had found Joe

Tex in violation of the law, 

• Rayner was the second most cited driver for Joe

Tex, 

• Joe Tex paid a significant fine for making false

reports of duty status on log books

• Rayner was missing ten log books during the

month before the accident, 

• Rayner’s log books for the day before and the

day of the accident were falsified,

• The jury heard evidence that Joe Tex and Rayner

were not credible; and

• Rayner ran Dillon off the road because he didn’t

see her.

There was clear and convincing evidence to support the

jury’s finding of gross negligence against Rayner and

Joe Tex. 

3
STATEMENT OF FACTS

Joe Tex claimed that Rayner was one of “the best hands he ever had.” (2 RR

300). At the trial Rayner admitted that he received a four-year sentence for leaving

the scene of a hit-and-run accident, “sucked at logs”, falsified hislog books, had been

found to have falsified his log books repeatedly, falsified his log books on the day

before and the day of the accident, had been sloppy with log books for years and

didn’t ever get disciplined. (5 RR 218, 225, 235, 245, 278, 294, 299, 331). Despite

thisJoe Setina, president and owner of Joe Tex, would still let Rayner drive a Joe Tex

truck even today. (2 RR 276).

On July 23, 2010, Rayner hit Dillon’s Chevy Malibu from behind and ran her

off Interstate 30. (P. Ex. 17, Appendix A). He claimed that he never saw her until

after her car was hurdling through the median. (5 RR 284-285). Rayner claimed that

Dillon was in his blind spot even though she was in front of him. (5RR 284-285). 

At trial Rayner and Joe Tex accepted full responsibility for the accident. (2 RR 248;

5 RR 202). The jury agreed that it was Rayner’s fault. (CR 3006).

The trucking industry is heavily regulated under the Federal Motor Carrier

Safety Act. (See 49 CFR 395). Because driving an 18-wheeler while fatigued is

extremely dangerous, the Federal Motor Carrier Safety Administration has

promulgated specific regulations that restrict the number of driving/working hours. 

(49 CFR 395.3; 5 RR 204). These regulations require drivers to keep log books

4
detailing the hours that they work, are driving, on duty, sleeping, and off duty. (49

CFR 395). The purpose of these regulations is to protect the public from the known

extreme danger of fatigued drivers. (2 RR 79). Joe Tex knew all this. (2 RR 256; 3

RR 27-28).

But Joe Tex had a systemic problem in violating federal regulations designed

to prevent fatigue. In April 2010, just three months before this accident, Joe Tex was

audited by the Department of Transportation. (P. Ex. 3 and Appendix B). The DOT

audit of a random thirty-day period showed that Joe Tex had 48 violations, of which

34 were critical violations. (2 RR 91; 3 RR 57). Rayner was the second worst

offender during the DOT audit time frame. (2 RR 156, 300). In that thirty-day period

Rayner had 9 violations. (P. Ex. 3, 29; Appendix B). As a result of the DOT audit

Joe Tex had its rating reduced from satisfactory to conditional, and was fined

$17,000.00. (2 RR 143, 150, 261, 275; 7 RR 134). 

Rayner admitted that he did not keep proper log books and that it was known

by Joe Tex. (5 RR 223, 239-240, 278). He further testified that no action was ever

taken against him because of his log book violations. (5 RR 223, 239-240). He

continued to not properly maintain log books right through the accident. (5 RR 294).

During the month prior to the accident he had 12 missing log books, had inaccurate

log books on the day before and the day of the accident and admitted to pre-filling out

his log books before beginning to work even on the day of the accident. (5 RR 235,

5
294-295). (P. Ex. 18, Appendix C). Rayner and Joe Tex admitted that accurate log

books were critical in determining whether a driver wasfatigued.(2 RR 79, 233, 256;

5 RR 12, 31, 206). But Rayner admitted that because of the inaccuracies in his log

books that if his log books were wrong on the day before that the jury could not tell

that he was not fatigued. (5 RR 251). He did admit that the times on his log books

for the day of the accident were “screwed up again”. (5 RR) 294).

Based on the above evidence the jury found both Rayner and Joe Tex grossly

negligent.

6
STATEMENT REGARDING ORAL ARGUMENT

The Court should grant oral argument for the following reasons:

a) Oral argument would give the Court a more complete

understanding of the facts presented in this appeal. Tex. R. App.

P. 39.1(c).

b) Oral argument would significantly aid the Court in deciding the

case. Tex. R. App. P. 39.1(d).

7
SUMMARY OF THE ARGUMENT

After having been cited and fined by the DOT for 48 violations in a thirty-day

period three months before this accident, Joe Tex made no attempt to correct the log

book falsifications.

Joe Tex knew of the risks of falsifying log books and that it would lead to

fatigued drivers. Joe Tex knew that the risk would lead to catastrophic injuries. But

Joe Tex did not appear to care.

Joe Tex didn’t fire drivers that falsified log books. Joe Tex didn’t discipline

drivers that falsified log books. Joe Tex didn’t follow its own policies regarding

preventing falsifying log books.

As a result on July 23, 2010, Krista Dillon was run over by a Joe Tex driver. 

A Joe Tex driver who continually falsified log books. A Joe Tex driver who falsified

his log books the day before the accident. A Joe Tex driver who falsified his log

book on the day of the accident. A Joe Tex driver who claimed to not see Dillon in

front of him until he had run her off the road.

This evidence complete with the total lack of credibility of Rayner and Joe Tex

support the jury’s finding of gross negligence.

8
ARGUMENT AND AUTHORITIES

“It’s my call. It’s my company. I can kind of do what I

want.” – Joe Setina (3 RR 27)

With just such a cavalier attitude, Setina, as president of Joe Tex, put drivers

on the road. Joe Tex knew it was catastrophically dangerous to have fatigued drivers

on the road. Despite this, Joe Tex did not require its drivers to maintain proper log

books nor train them to do so. Joe Tex did not enforce its own policies regarding log

books. Joe Tex did not discipline drivers for failure to properly fill out log books. 

Joe Tex did not check to see if drivers’ log books accurately reflected whether they

were fatigued or not. Joe Tex lied to the DOT about having hired a safety manager. 

Joe Tex lied to the DOT regarding having taken disciplinary action against the “worst

offending drivers.” It is against this background thatRayner and Joe Tex now attempt

to argue there was not evidence of gross negligence. 

Gross Negligence

Gross negligence must be proved by a clear and convincing evidence. Clear

and convincing evidence is that measure or degree of proof that will produce in the

mind of the trier of fact a firm belief or conviction as to the truth of the allegation

sought to be established. TEX.CIV.PRAC.&REM.CODEANN. § 41.001(2). While the

proof must be of a heavier weight than merely the greater weight of the credible

9
evidence, there is no requirement that the evidence must be unequivocal or

undisputed. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). 

Objective and Subjective Elements

Exemplary damages may be awarded if the proof shows that the harm suffered

resulted from gross negligence. TEX.CIV. PRAC.&REM.CODE ANN. § 41.003(a)(3). 

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 20 (Tex. 1994). USA Truck, Inc.

v. West, 189 S.W.3d 904, 907 (Tex. App. – Texarkana 2006, no writ). “Gross

negligence” means an act or omission: (A) which when viewed objectively from the

standpoint of the actor at the time of its occurrence involves an extreme degree of

risk, considering the probability and magnitude of the harm to others; and (B) of

which the actor had actual subjective awareness of the risk involved but nevertheless

proceeds with conscious indifference to the rights, safety, or welfare of others. TEX.

CIV. PRAC. & REM. CODE ANN. § 41.001(11). Under the objective element, an

extreme risk is “not a remote possibility of injury or even a high probability of minor

harm, but rather the likelihood of serious injury to the plaintiff.” Boerjan v.

Rodrigues, 436 S.W.3d 307, 311 (Tex. 2014). Under the subjective element “actual

awareness means the defendant knew about the peril, but its acts or omissions

demonstrated that it did not care.” Id. Circumstantial evidence may suffice to prove

either element. Id.

10
Evidentiary Review

In evaluating the legal sufficiency of the evidence, this Court must determine

whether the evidence is such that a fact finder could reasonably form a firm belief or

conviction that its finding was true. State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).

Columbia Medical Center of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex.

2008). This Court must review the evidence in the light more favorable to the jury’s

finding of gross negligence. U-Haul International, Inc. v. Waldrip, 380 S.W.3d 118,

138 (Tex. 2012). This Court must resolve any disputed facts in favor of the finding

if a reasonable fact finder could have done so. K.E.W., 315 S.W.3d at 20. This

Court must disregard evidence contrary to the finding unless a reasonable fact finder

could not. Id. The jury, not the appellate court, isthe sole judge of the credibility and

demeanor of the witnesses. In Re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

In forming a factual sufficiency review this Court must determine whether on

the entire record a fact finder could reasonably form a firm conviction or belief that

its finding was true. In Re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). This Court

though may still not substitute its judgment for that of the jury. Id.

Objectively Joe Tex Knew of the Extreme Risk

Joe Setina, the president of Joe Tex, admitted that an improperly driven 18-

wheeler can cause serious damage to people. (2 RR 256). He admitted that he knew

fatigue was a big problem that could cause catastrophic injuries. (2 RR 256). He

11
further admitted that the way to keep up with drivers’ fatigue was by monitoring the

log books. (2 RR 256). He further testified that he recognized the problem with

drivers being tired and causing accidents. (3 RR 66). He also admitted that he knew

that falsifying the log books was a “bad thing.” (2 RR 259). He further admitted that

he knew Joe Tex drivers were falsifying log books before the accident. (2 RR 298). 

He further admitted that before the accident Rayner was the second worst driver at

falsifying log books. (2 RR 300). He also testified that because Rayner wasfalsifying

log books it was possible that on the date of the accident he was also “cooking the

books.” (2 RR 330). He further testified that fatigued drivers could catastrophically

injure people. (3 RR 29). 

Angie Dunavant was the CFO and safety supervisor of Joe Tex.

2

(2 RR 62). 

She admitted that she knew the purpose of log books wasto keep tired drivers off the

road because bad things could happen. (2 RR 79). She also testified that if Joe Tex

did not take action against drivers that falsified log books it sent a message that Joe

Tex “just didn’t care.” (2 RR 80). She knew prior to the accident thatshe had drivers

that were falsifying the log books. (2 RR 86). She also knew prior to the accident

that Rayner had been found to have falsified his log books. (2 RR 86-87). She

admitted that Joe Tex made more money off Rayner than other drivers. (2 RR 168). 

2 Dunavant’s only qualification to be CFO of a trucking company was that she was a former

dental hygienist and Setina’s mother-in-law. (2 RR 71, 254).

12
She also testified that people could get seriously hurt if log books were not properly

kept. (2 RR 186). She also admitted that no disciplinary action was taken against

Rayner. (2 RR 231).

Craig Skidmore, the dispatcher which Joe Tex claimed wasits safety manager, 

testified that log books were important. (5 RR 11-12).3 Skidmore testified that the

purpose of log books was to keep tired drivers from operating vehicles. (5 RR 33).

He admitted that Joe Tex got paid more if it didn’t follow the law. (5 RR 214). He

testified that he knew thatfatigued drivers were a problemand would not be surprised

if thirty to forty percent of accidents were caused by fatigue. (5 RR 15). He admitted

that fatigue plays a part in most accidents. (5 RR 160). He testified that he would not

say fatigue played a part in this accident because it would be bad for everyone. (5 RR

103-104).

Objectively Rayner Knew of the Extreme Risk

Rayner testified that he knew that 18-wheelers could cause catastrophic

injuries. (5 RR 205). He testified that it was important to keep up with the log books

to prevent tired drivers. (5 RR 206). He also testified that if someone were not

keeping his log books properly he would continue to violate those rules unless

3

 Both Setina and Dunavant sent letters to the Department of Transportation claiming that

Joe Tex had hired Craig Skidmore as safetymanager. (P. Ex. 24, 26, Appendices D and E [emphasis

added]). Skidmore admitted that he was hired merely as a dispatcher. (5 RR 11-12). Skidmore

testified that it was “not right to represent him as the safety manager when he was not.” (5 RR 92).

13
someone put a stop to it. (5 RR 209). He testified that on the day of the accident his

log books were “screwed up again.” (5 RR 294).

Evidence Supports Objective Prong for Gross Negligence

This evidence showsthat when viewed fromRayner’s and Joe Tex’sstandpoint

at the time of the wreck, fatigued driving involved an extreme degree of risk and

could cause potentially catastrophic harm to others. This clearly met the objective

element for gross negligence. It further showed that Rayner and Joe Tex had actual

subjective awareness of the risk involved. 

Joe Tex Proceeds with Conscious Indifference

Despite being aware of the risks involved in having falsified log books and

allowing drivers to drive with them, Joe Tex refused to change. Setina testified that

despite having been fined thousands of dollars by the Department of Transportation

he never even bothered to look at what the violations were. (2 RR 263). He admitted

that Rayner was never written up for his violations. (2 RR 269). He testified that

despite all the violations by Rayner he would still allow him to drive a Joe Tex truck

even today and that there was no time he would have prevented him from doing so. 

(2 RR 276-77). He chose to ignore the fact that Rayner had fourteen (14) violations

for missing log books for the month before the accident. (2 RR 280). Despite Joe

Tex’s policy to document disciplinary actions, there was no documentation that

Rayner had ever been disciplined. (2 RR 269). After the DOT audit found significant

14
violations in log books he still refused to get rid of any of the bad offenders. (2 RR 

322).

Angie Dunavant testified that she knew Rayner was the second worst

perpetrator in the DOT audit. (2 RR 156). Rayner was cited for nine (9) violations

in the DOT audit before the accident. (2 RR 87). Despite knowing about the

falsification of log books, and that Rayner was the second worst offender, and that

she should take action against offending drivers for falsifying log books, she did not

terminate Rayner. (2 RR 156, 167). She had no documentation that she had ever

discussed the log book violations with Rayner. (2 RR 231). Instead, she told the DOT

that she was going to lay off the drivers responsible for the violations found in the

DOT audit. (2 RR 167; P. Ex. 27, Appendix F). No one was laid off. (2 RR 167). 

Rayner Proceeds with Conscious Indifference

Rayner at least admitted that he knew that someone who was falsifying his log

books would probably continue to do so unless someone put a stop to it. (5 RR 209;

247). He testified that “I suck at logs.” (5 RR 218). He had been sloppy with his log

books for years. (5 RR 287). But Joe Tex never bothered to correct the problem. (5

RR 223). 

Skidmore, the purported safety manager, even testified that Rayner was good

with his log books. (5 RR 22-23). This despite the DOT audit that clearly showed

that Rayner falsified his log books. (P. Ex. 3). One violation showed that Rayner

15
claimed in his DOT log book that he was off all day in Corpus Christi but in fact

drove 832 miles for 13 hours and 59 minutes to Moriarty, New Mexico. (2 RR 268;

P. Ex. 3, Appendix B p. 2 [emphasis added]). Rayner testified that in the thirty days

prior to the accident he had twelve (12) missing log books. (5 RR 235; P. Ex. 18,

Appendix C [emphasis added]). He was speeding twice. (5 RR 235). He did not get

disciplined for that. (5 RR 239-240). He testified that if his log books were falsified

on the day before the accident you could not tell if he was fatigued. (5 RR 251). He

then testified that his log books at that time were “screwed up again.” (5 RR 294). 

Evidence Supports the Subjective Prong for Gross Negligence

Despite an actual awareness of the risks, it is clear from Joe Tex’s actions that,

as Ms. Dunavant said, Joe Tex “just didn’t care.” (2 RR 80). Starting with an owner

that thinks he gets to run the company the way he wants, through falsified log books

on the day of the wreck, the jury could reasonably believe Joe Tex did not care. This

clearly meets the subjective element required to prove gross negligence. The jury

could have reasonably found that Rayner and Joe Tex’s cumulative and continuing

safety violations caused Rayner to be fatigued at the time of the accident that caused

him not to see Dillon’s car in front of him. See Dalworth Trucking Co. V. Bulen, 924

S.W.2d 728, 734 (Tex. App. – Texarkana 1996, no writ).

16
Defendants Had No Credibility

The jury is the one who judges the credibility of the witnesses. In Re J.O.A.,

283 S.W.3d at 346; In Re H.R.M., 209 S.W.2d at 108. It is clear that they reasonably

did not believe that Joe Tex had a system in place to determine whether or not the

drivers were fatigued. See USA Truck, Inc., 189 S.W.3d at 907. This along with the

evidence the fact that Rayner did not see Dillon, and Rayner’s admission that he

could possibly have been fatigued if his books were falsified, the jury could

reasonably believe he was fatigued at the time of the accident because of Joe Tex’s

actions. 

Lack of Evidentiary Support for Defendants’ Argument

Despite the overwhelming evidence of gross negligence set forth above,Rayner

and Joe Tex continue to argue that there was no “direct evidence” of fatigue. This

clearly ignoresthe fact that there is overwhelming circumstantial evidence of fatigue. 

“Circumstantial evidence can be used to prove gross negligence.” Boerjan, 436

S.W.3d at 311. Even Rayner admitted that if hislog books were wrong the day before

the accident there was no way he could tell the jury he was not fatigued on the day

of the accident. (5 RR 251).

Despite this Defendants argue that to find that Rayner was fatigued the jury

would have to infer that he intentionally falsified his log books. The jury did not

have to infer that he falsified his log books because Rayner admitted that he had done

17
so on numerous occasions, including the day before the accident and the day of the

accident. (5 RR 225, 235, 294). Rayner also admitted on the day of the accident that

he had improperly filled out his log book before he even left that morning. (5 RR

294).

The jury does not even have to make an inference, it simply must believe

Rayner that he falsified his log books. From that, and his admission that there was

no way to tell the jury he was not fatigued, the jury could infer from the accident that

he wasfatigued. He did notsee Dillon prior to the accident. (5 RR 284-285). Rayner

hit her from behind. (P. Ex. 17, Appendix A). Rayner didn’t even know he’d hit her

until he saw her in the median. (5 RR 284-285). Skidmore testified that fatigue

played a role in most accidents. (5 RR 16). These facts, coupled with the utter lack

of credibility of the Joe Tex witness, would lead a reasonable jury to but one

conclusion: Rayner was fatigued at the time of the accident.

Even still Defendants argue that the jury could not reach that conclusion

because of four uncontroverted factsthat affirmatively demonstrated that “fatigue had

nothing to do with the accident.” (Appellants’ brief p. 19). This conclusion is only

based upon Defendants’ belief in the credibility of their own witnesses. 

Unfortunately, for Defendants, the jury is the one who determines whether the

evidence is credible or not. Joe Tex and Rayner’s credibility was very much in

18
question.

4 The evidence showed that Joe Tex through its CFO and president were

willing to lie to the Department of Transportation, and Rayner was continually

falsifying hislog booksin violation of federal requirements. (P. Ex. 23, 24; P. Ex. 18,

Appendix C). Therefore the jury had no basis to believe anything they testified to. 

Despite thislack of credibility Defendants argue that it was undisputed that the

responding officer did not identify fatigue as a cause of the accident. (Appellant’s

Brief p. 19). While there is no note on the accident report Rayner testified that he did

not really even talk to the officer at the accident scene. (5 RR 255). Therefore, one

would not expect the officer to identify fatigue as a cause of the accident if he didn’t

really speak to Rayner. 

Defendants also argue that the testimony of dispatcher Craig Skidmore (who

Joe Tex represented to be their safety manager) that Rayner was not fatigued and did

not appear tired was uncontroverted. (Appellants’ Brief p. 19). Skidmore testified

that he would not say that fatigue was a factor in the accident because it was bad for

everyone. (5 RR 103-104). 

4 Setina was not credible. He initially lied to the jury that he was a casual fisherman not a

professional with no sponsors like Berkley. (2 RR 253-257; 3 RR 30-34). He was forced to admit

that was false when confronted with photos of him in his Berkley-sponsored shirt winning

$25,000.00 in a professional tournament. (P. Ex. 35). He also admitted winning over $209,000 as

a professional fisherman. (3 RR 34). He also admitted lying to the Department of Transportation

that Joe Tex had hired a safety manager to try to get his safety rating changed when it had not. (2

RR 283; P. Ex. 24, 26 [emphasis added]).

19
Defendants also argue that because Rayner’s log book only shows that he was

driving three or four hours on the day of the accident he could not have been

fatigued. (Appellants’Brief p. 19). Rayner’s own testimony wasthat if hislog books

were falsified the day before the accident there was no way that he could tell the jury

that he was not fatigued. (5 RR 251). 

Finally, Defendants argue that because Rayner denied he wasfatigued the jury

was required to agree with him. For the reasons set forth above Rayner was not a

credible witness that the jury was required to believe.

The jury is the sole judge of the credibility of the witnesses, did not have to

accept the testimony that Defendants now attempt to rely on, particularly in light of

the fact that it was controverted, and there was little if any credibility attributable to

Joe Tex and Rayner.

CONCLUSION

The evidence clearly supports the required elements for the jury to find gross

negligence. The Defendants were not credible. The evidence was that Defendants

knew of the extreme risk of falsifying log books which allowed fatigued drivers to

cause catastrophic injuries, but simply did not care. Didn’t care enough to get rid of

the worst offenders. Didn’t care enough to even retrain the offending drivers. 

Therefore the jury’s verdict should be affirmed.

20
PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellee, KRISTA DILLON,

prays that this Court affirm the trial court’s judgment; and for such other and further

relief to which she may show herself to be entitled.

Respectfully submitted,

 /s/ John R. Mercy 

John R. Mercy

Texas State Bar No. 13947200

MERCY p CARTER p TIDWELL, L.L.P.

1724 Galleria Oaks Drive

Texarkana, TX 75503

Telephone: (903) 794-9419

Facsimile: (903) 794-1268

E-mail: jmercy@texarkanalawyers.com

Brent Goudarzi

Texas State Bar No. 00798218

Email: brent@goudarzi-young.com

Marty L. Young

Texas State Bar No. 24010502

Email: myoung@goudarzi-young.com

Geoffrey Hoover

Texas State Bar No. 24074437

Email: ghoover@goudarzi-young.com

GOUDARZI & YOUNG

P.O. Box 910

Gilmer, TX 75644

Telephone: (903) 843-2544

Facsimile: (903) 843-2026

ATTORNEYS FOR APPELLEE

21
CERTIFICATE OF SERVICE

I hereby certify that on December 7, 2015 a true and correct copy of the

foregoing Brief of Appellee was served on all counsel of record by the Electronic

Service Provider, as follows:

Mr. Samuel V. Houston, III

HOUSTON DUNN, PLLC

4040 Broadway, Suite 440

San Antonio, TX 78209

Email: sam@hdappeals.com

Mr. Bryan P. Reese

Email: breese@feesmith.com

Ms. Jennifer M. Lee

Email: jlee@feesmith.com

FEE, SMITH, SHARP & VITULLO, L.L.P.

Three Galleria Tower

13155 Noel Road, Suite 1000

Dallas, TX 75240

 /s/ John R. Mercy 

John R. Mercy

CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4, I hereby certify that the foregoing Brief of

Appellee contains 4070 words. This is a computer-generated document created in

WordPerfect using 14-point typeface. In making this certificate I am relying on the

word count provided by the software used to prepare the document.

 /s/ John R. Mercy 

John R. Mercy

22
NO. 06-15-00009-CV

IN THE COURT OF APPEALS FOR THE

SIXTH DISTRICT OF TEXAS

AT TEXARKANA

DENNIS RAYNER and

JOE TEX XPRESS, INC. APPELLANTS

V.

KRISTA DILLON APPELLEE

__________________________________________

APPENDIX INDEX

______________________________________________

A - Accident Report Drawing (P. Ex. 17 p. 6)

B - Hours of Service: Record of Duty Status Falsification List

(P. Ex. 3 (emphasis added])

C - Joe Tex July 12, 2010 Violation Report (P. Ex. 18 [emphasis added]

D - 4.30.10 Joe Tex letter (P. Ex. 26 [emphasis added])

E - 7.1.10 Joe Tex letter (P. Ex. 24 [emphasis added])

F - Joe Tex letter (P. Ex. 27 [emphasis added])