No. 03-14-00819-CV 

__________________________________________________________________

IN THE COURT OF APPEALS FOR THE 

THIRD COURT OF APPEALS DISTRICT

AUSTIN, TEXAS

__________________________________________________________________

JUDY WEIRICH, 

 Appellants

v.

IESI CORPORATION and SOUTHSIDE WRECKER, INC., 

 Appellees

__________________________________________________________________

BRIEF OF APPELLANT 

JUDY WEIRICH

__________________________________________________________________

 

 ZACHARY P. HUDLER

 State Bar No. 24032318

 ZACHARY P. HUDLER, P.C.

 100 East Pecan, Suite One

 P.O. Box 1728

 Johnson City, Texas, 78636

 830.868.7651

 830.868.7636 Facsimile

 Zachary@hudlerlaw.com 

 ATTORNEY FOR APPELLANT

JUDY WEIRICH

APPELLANT DOES NOT REQUEST ORAL ARGUMENT

i 

ACCEPTED

03-14-00819-cv

4869265

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/13/2015 4:12:37 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/16/2015 4:32:37 PM JEFFREY D. KYLE Clerk
IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties to this appeal and the names and 

addresses of those parties’ counsel.

APPELLANT/PLAINTIFF COUNSEL FOR APPELLANT

Judy Weirich Zachary P. Hudler

Zachary P. Hudler, P.C.

100 East Pecan, Suite One

P.O. Box 1728

Johnson City, Texas 78636

zachary@hudlerlaw.com

APPELLEE/DEFENDANT COUNSEL FOR APPELLEE

IESI Corporation Mr. Vaughan E. Waters

Thornton, Biechlin, Segrato, 

Reynolds & Guerra, L.C.

Fifth Floor- One International Centre

100 N.E. Loop 410

San Antonio, Texas 78216

vwaters@thorntonfirm.com

Southside Wrecker, Inc. George J. Petras V

The Petras Law Firm

1504 San Antonio Street

Austin, Texas 78701

gpetras@petraslawfirm.com

ii
TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ii

TABLE OF CONTENTS iii

TABLE OF AUTHORITIES iv

STATEMENT OF THE CASE vi

ISSUES PRESENTED vi

STATEMENT OF FACTS 2

SUMMARY OF THE ARGUMENT 3

ARGUMENT 4

CONCLUSION AND PRAYER 8

CERTIFICATE OF COMPLIANCE 12

CERTIFICATE OF SERVICE 12

APPENDIX 13

iii
TABLE OF AUTHORITIES

CASES Page

Brownlee v. Brownlee,

665 S.W.2d 111, 112 (Tex.1984) 7

Forbes, Inc. v. Granada Biosciences, Inc,.

124 S.W.3d 167, 172 (Tex.2003) 5

Lehrer v. Zwernemann,

14 S.W.3d 775, 777 (Tex.App.—Houston [1st Dist.] 2000, pet denied) 5

Mansions in the Forest, LP v. Montgomery Cty.,

365 S.W.3d 314, 316-17 (Tex. 2012) 7

Merriman v. XTO Energy, Inc.,

407 S.W.3d 244, 248 (Tex.2013) 5

Nabors Drilling, USA, Inc. v. Escoto,

288 S.W.3d 401, 404 (Tex. 2009) 9

Omega Contracting, Inc. v. Torres,

191 S.W.3d 828, 840-841 (Tex.App.—Fort Worth, 2006, no pet.) 9

Thomas v. Omar Invs.

156 S.W.3d 681, 684 (Tex.App.—Dallas 2005, no pet.) 5

Ryland Grp. v. Hood

924 S.W.2d 120, 122 (Tex. 1996) 7, 8

Sosa v. Central Power & Light

909 S.W.2d 893, 895 (Tex.1995) 6

Western Invs. V. Urena

162 S.W.3d 547, 550 (Tex.2005) 9

iv
STATUTES

Tex.Transp. Code Ann. §547.004(a) & §548.604(a) 9

Tex.R.Civ.P.166(a)(i) 5

Tex.R.Civ.P.166a(c) 7, 8

Tex.R.Civ.P.63 6

Tex.R.Civ.P. 166a(f) 7

v
STATEMENT OF THE CASE

Nature Of The Case: This case arises from a dispute involving an 

automobile accident in Johnson City, Blanco 

County, Texas. The large garbage truck owned by 

IESI was being towed by Southside Wrecker and 

completely lost one of its wheels which then struck 

Judy Weirich’s car and caused property and 

personal injury damages. 

Trial Court: The Honorable J. Allan Garrett, Presiding Judge of 

the 424th Judicial District Court, Blanco County, 

Texas.

Trial Court’s Actions: The trial court rendered no evidence motion for 

summary judgment orders in favor of Defendants 

purporting to dismiss all of Plaintiff’s claims. The 

Court further struck Plaintiff Judy Weirich’s 

Affidavit in support of her response.

ISSUES PRESENTED

1. Whether this Court has standing in light of Plaintiff’s timely amended 

petition asserting additional claims and theories of recovery, including 

but not limited to res ipsa loquitur and negligence per se where the 

Defendants’ no evidence motions for summary judgment did not address 

those claims? 

2. Whether the trial court erred by striking Plaintiff Judy Weirich’s affidavit 

in support of her response to Defendants’ no-evidence motions for 

summary judgment in its entirety?

3. Whether the trial court erred by granting Defendant IESI and Defendant 

Southside’s no-evidence motion for summary judgment or whether 

Plaintiff Judy Weirich produced sufficient summary judgment evidence 

to warrant a jury trial?

vi
No. 03-14-00819-CV

__________________________________________________________________

IN THE COURT OF APPEALS FOR THE 

THIRD COURT OF APPEALS DISTRICT

AUSTIN, TEXAS

__________________________________________________________________

JUDY WEIRICH,

Appellant

v.

IESI CORPORATION and SOUTHSIDE WRECKER, INC.,

Appellees

__________________________________________________________________

BRIEF OF APPELLANT 

JUDY WEIRICH

__________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

Appellant Judy Weirich (“Weirich”) respectfully submits this brief in 

support of her appeal from the trial court’s orders granting no-evidence summary 

judgments in favor of IESI Corporation (“IESI”) and Southside Wrecker, Inc. 

(“Southside”). The parties will be referred to by name or by their designation in 

the trial court.

The Clerk’s 1-volume record will be cited by page number as “CR____ 

[page #].” The Court Reporter’s record consists of portions of the summary 

judgement hearing transcripts entitled “Motion for Summary Judgment”. The 

1
Court Reporter’s record will be cited as “RR MSJ, [page # of Court Reporter’s 

transcript].

2
STATEMENT OF THE FACTS

This is a personal injury case. The automobile driven by Plaintiff Weirich 

on or about January 9, 2012 was struck by a wheel of an IESI garbage truck which 

was being towed by Southside Wrecker in Blanco County, Texas. CR 138-139. 

As a result of the entire wheel dislodging from the IESI garbage truck and striking 

Weirich’s car, Weirich’s car was totaled and she suffered personal injuries and 

other damages. CR 138; CR 127, et seq. (Plaintiff’s live Petition). The factual 

details of this personal injury case are set forth in Weirich’s affidavit which is

attached to Plaintiff’s response to Defendants’ no-evidence motions for summary 

judgments and incorporated by reference herein as if set forth at length. CR 138-

139. 

Defendants moved for a no-evidence motion for summary judgment. 

Weirich filed a timely response and amended pleading alleging, among other 

things, negligence and gross negligence, as previously plead and added claims of 

negligence per se, and res ipsa loquitur. CR 127. Defendants each filed replies 

and objected to Weirich’s summary judgment evidence, to wit, Weirich’s Affidavit 

and the Affidavit of her legal counsel. CR 140- 165. 

The trial court struck the Affidavit of Judy Weirich and her counsel and 

granted each of Defendants’ no-evidence motion for summary judgments. Weirich 

filed her notice of this appeal. 

3
SUMMARY OF THE ARGUMENT

The Court erred in striking the affidavit of Judy Weirich and granting 

Defendants’ No-Evidence Motions for Summary Judgment. The Affidavit of Judy 

Weirich is competent summary judgment evidence which raises a genuine issue of 

material fact concerning the negligence and gross negligence of each Defendant to 

warrant the case to be tried to a jury. Further, Weirich timely amended her 

pleadings to include claims of negligence per se and liability under res ipsa 

loquitur against Defendant IESI and Defendant Southside which was not addressed 

in either Defendant’s no-evidence motion for summary judgment. This court lacks 

standing to decide this case as the purported judgments do not dispose of all 

claims. In the alternative, the summary judgment evidence on file supports those 

additional claims and creates a genuine issue of fact that should be tried to a jury. 

4
ARGUMENT

A. No-Evidence Motion for Summary Judgment Legal Authorities

The burden on the non-movant regarding a no-evidence motion summary 

judgment is to raise a genuine issue of material fact about the element challenged 

by the motion for summary judgment. See Merriman v. XTO Energy, Inc., 407 

S.W.3d 244, 248 (Tex.2013). The trial court must resolve all reasonable doubts 

about the facts in favor of the non-movant. See Lehrer v. Zwernemann, 14 S.W.3d 

775, 777 (Tex.App.—Houston [1st Dist.] 2000, pet denied). A no-evidence motion 

for summary judgment is essentially a motion for a pretrial directed verdict. See 

Thomas v. Omar Invs., 156 S.W.3d 681, 684 (Tex.App.—Dallas 2005, no pet.). 

To defeat a no-evidence motion for summary judgment, the non-movant must 

produce more than a scintilla of evidence to raise a genuine issue of material fact. 

TRCP 166(a)(i); Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 

(Tex.2003). 

B. The Trial Court’s Orders improperly state that the Judgments 

are final and erred to the extent that it impliedly struck Weirich’s additional 

theories of recovery set forth in her Fourth Amended Original Petition.

Weirich timely amended her petition seven days prior to the hearing and 

specifically included, among other things, additional theories of recovery, 

including negligence per se and res ipsa loquitur. CR 127-134. The trial court 

5
must render a summary judgment on the pleadings on file at the time of the 

hearing. TRCP 166a(c). A party may file an amended petition seven days prior to 

the hearing. TRCP 63; Sosa v. Central Power & Light, 909 S.W.2d 893, 895 

(Tex.1995). Here, the Defendant’s no-evidence motion for summary judgment did 

not address the additional theories of recovery asserted by Weirich in her timely 

filed amended petition. Thus, having no final judgment as set forth in the order, 

this court lacks standing to hear this case and it should be remanded to the trial 

court. See TRCP 166a(c); TRCP 63; Sosa v. Central Power & Light, 909 S.W.2d 

893, 895 (Tex.1995). 

In the alternative, Weirich’s affidavit and summary judgment evidence 

clearly supports a genuine fact issue on the claims of negligence per se and res ipsa 

loquitur asserted in the amendment. CR 127-134 & CR 138-139. As to 

negligence per se, the statutes cited below were plainly designed to protect the 

class of people such as Weirich and the violation of the statutes proximately caused 

Weirich’s injuries. As to res ipsa loquitur, the incident “speaks for itself” and (1) 

Weirich’s injuries would not have occurred without negligence, and (2) the IESI 

garbage truck was under the sole possession and control of Southside Wrecker at

the time of the incident. 

C. The Trial Court erred in Striking Plaintiff Judy Weirich’s 

Affidavit from the Summary Judgment Evidence

6
In Texas, affidavits are routinely recognized as competent summary 

judgment evidence. See Mansions in the Forest, LP v. Montgomery Cty., 365 

S.W.3d 314, 316-17 (Tex. 2012). In fact, it is so commonplace that it goes without 

citation that the most common form of summary judgment evidence is the 

affidavit. The minimum requirement for an affidavit is that it must be sworn. See 

id. The affidavit must contain facts that would be admissible in evidence at a 

conventional trial on the merits. TRCP 166a(f). It must also affirmatively show 

that the witness is competent to testify about the matters in the affidavit and that 

the facts are based on personal knowledge. TRCP 166a(f). An affidavit must not 

be based on legal or factual conclusions. See Brownlee v. Brownlee, 665 S.W.2d 

111, 112 (Tex.1984). The statements must be susceptible to being readily 

controverted. See TRCP 166a(c); Ryland Grp. v. Hood, 924 S.W.2d 120, 122 

(Tex. 1996). 

In this case, Judy Weirich who had personal knowledge of the facts at issue 

as she was involved in the automobile accident and gave a sworn affidavit to 

support her response to Defendants’ no-evidence motions for summary judgment. 

CR 138-139. Weirich is competent to testify in this matter as she was 61 years of 

age at the time of her testimony. Id. The affidavit clearly shows that she was 

involved in the accident and knew that her car was struck with a wheel of an IESI 

garbage truck which was being towed by Southside Wrecker. See id. In fact, 

7
Weirich’s affidavit sets forth the incident made the basis of this lawsuit with 

specific facts. See id. The facts contained in the affidavit are susceptible to being 

readily controverted in this simple personal injury case. CR 138-139; See TRCP 

166a(c); Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Instead of 

controverting the facts, the Defendants’ made general statements that Weirich’s 

affidavit was conclusory. CR 149-164. 

Clearly, Weirich’s affidavit constitutes competent summary judgment 

evidence, should not have been struck from the summary judgment record, and 

plainly creates a genuine issue of fact on the theories of recovery set forth in 

Weirich’s live pleading. CR 127, et seq. 

As a result, the trial court committed error by dismissing Weirich’s claims 

and must be reversed. This Court should remand this case to the trial court for a 

determination on the merits. 

D. The Trial Court Erred in Granting No-Evidence Motion for 

Summary Judgments on Weirich’s Negligence and Gross-Negligence Claims

The trial court erred in granting Defendants’ no-evidence motions for 

summary judgment because Weirich presented summary judgment evidence to 

support all elements of her claims in this personal injury lawsuit. CR 138-139. 

The elements of a negligence action are the following: (1) the defendant owed a 

legal duty to the plaintiff, (2) the defendant breached the duty, and (3) the breach 

8
proximately caused the plaintiff’s injury. See Western Invs. V. Urena, 162 S.W.3d 

547, 550 (Tex.2005). 

The existence of a duty is generally a question of law. See Nabors Drilling, 

USA, Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). The duty for owners and 

drivers to assure that vehicles are safe on our Texas highways is deeply rooted in 

our jurisprudence. In Texas, drivers and owners of vehicles, including but not 

limited to IESI and Southside, have a duty to ensure that their vehicles either 

driven or towed are in safe working order. The Texas Transportation Code affirms 

this duty and prohibits the operation of an unsafe vehicle or a vehicle in a 

mechanical condition that endangers a person. Tex.Transp. Code Ann. 

§547.004(a) & §548.604(a). 

Moreover, Texas courts have specifically recognized the duty of a motor 

carrier to ensure the lug nuts on wheels are not loose. See Omega Contracting, Inc. 

v. Torres, 191 S.W.3d 828, 840-841 (Tex.App.—Fort Worth, 2006, no pet.). This 

duty includes a requirement to inspect the vehicle and assure that the vehicle is in a 

safe operating condition. 

Southside Wrecker was towing the IESI garbage truck on the day the entire 

wheel of the IESI truck came off and struck Weirich’s automobile. CR 138-139. 

IESI’s obvious failure to maintain its vehicle to avoid the entire wheel separating 

from its garbage truck clearly constitutes a breach of its duty. CR 138-139. 

9
Indeed, IESI’s breach was the proximate cause of damages set forth in Weirich’s 

affidavit. 

Similarly, Southside’s failure to ensure that the vehicle it was towing was in 

safe operating condition, i.e. that the lug nuts were secure on the wheel, constitutes 

a breach of duty which proximately caused Weirich’s damages. CR 138-139. 

Defendants offer no excuse for the wheel coming off. The only reasonable 

explanation for it occurring is negligence on behalf of the Defendants. At a 

minimum, Weirich’s summary judgment evidence establishes a genuine issue of 

fact and would survive the standard for a directed verdict. 

E. Defendants’ conduct amounted to gross negligence

 Defendant IESI’s conduct amounted to gross negligence. IESI as a garbage

disposal company and owner of vehicles clearly understands that failing to provide 

minimal maintenance to its vehicles to ensure that the wheels of the vehicle remain 

attached to the body of the vehicle involves an extreme degree of risk to the public 

as directly evidenced by what happened here. CR 138-139. IESI was aware of this 

risk just as every other reasonable Texas citizen. However, it proceeded with 

conscious indifference to what could and did happen to others on the highway. See 

id. 

Defendant Southside Wrecker’s conduct amounted to gross negligence. 

Southside Wrecker as a towing company and owner of vehicles clearly understands 

10
that failing to minimally inspect a vehicle that it tows to ensure that the wheels of 

the vehicle remain attached to the body of the vehicle involves an extreme degree 

of risk to the public as directly evidenced by what happened here. CR 138-139. 

Southside Wrecker was aware of this risk just as every other reasonable Texas 

citizen. However, it proceeded with conscious indifference to what could and did 

happen to others on the highway. CR 138-139. 

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant Judy Weirich 

respectfully prays that this Court reverse the trial court’s granting of Defendant’s 

no-evidence motions for summary judgment. Appellant further prays that the 

Court grant to Appellant such other and further relief to which she is justly entitled.

Respectfully submitted,

/s/ Zachary P. Hudler

Zachary P. Hudler

State Bar No. 24032318

ZACHARY P. HUDLER, P.C.

100 E. Pecan Street, Suite One

P.O. Box 1728

Johnson City, Texas 78636

830.868.7651 (Telephone)

830.868.7636 (Facsimile)

ATTORNEY FOR APPELLANT JUDY 

WEIRICH

11
CERTIFICATE OF COMPLIANCE 

I, Zachary P. Hudler, attorney for Appellant Judy Weirich, certify that this 

document was generated by a computer using Microsoft Word 2010 which 

indicates that the word count of this document is 1,502 per Tex. R. App. P. 9.4 (i).

/s/ Zachary P. Hudler

Zachary P. Hudler

CERTIFICATE OF SERVICE 

I certify that a true and correct copy of the foregoing Brief of Appellant has 

been served on the attorneys listed below by e-service, on the 8th day of April, 

2015:

Mr. Vaughan E. Waters

Thornton, Biechlin, Segrato, Reynolds & Guerra, L.C.

Fifth Floor - One International Centre

100 N.E. Loop 410

San Antonio, Texas 78216

vwaters@thorntonfirm.com

George J. Petras V

The Petras Law Firm

1504 San Antonio Street

Austin, Texas 78701

gpetras@petraslawfirm.com

/s/ Zachary P. Hudler

Zachary P. Hudler

12
APPENDIX

1. Order on Defendant IESI TX CORP.’s No-Evidence Motion for Summary 

Judgment signed by Judge J. Allan Garrett on November 12, 2014.

2. Order Granting Southside Wrecker, Inc.’s No-Evidence Motion For 

Summary Judgment, For Severance and Final Judgment signed by Judge J. 

Allan Garrett on December 8, 2014.

13