04-14-00899-CV

In the 

Fourth Court of Appeals SITTING AT SAN ANTONIO

LETICIA ZEPEDA VASQUEZ, Individually and on Behalf of the Estate of 

Jose Abraham Vasquez, Jr.,

Appellant,

v.

LEGEND NATURAL GAS III, LP; LEGEND NATURAL GAS, LLC; 

LEWIS ENERGY GROUP, LP; LEWIS PETRO PROPERTIES, INC.; 

ROSETTA RESOURCES OPERATING, LP; VIRTEX HOLDINGS, 

LLP; VIRTEX OPERATING CO., INC.; ENTERPRISE PRODUCTS 

HOLDINGS, LLC; ENTERPRISE PRODUCTS COMPANY; and XTO 

ENERGY, INC., 

Appellees

Appealed From the 81st District Court 

La Salle County, Texas 

Trial Court Cause No. 14-07-0019-CVL

APPELLANT’S OPENING BRIEF

JEFFREY L. DORRELL

State Bar No. 00787386

jdorrell@hanszenlaporte.com

11767 Katy Freeway, Suite 850

Houston, Texas 77079

Telephone: 713-522-9444

FAX: 713-524-2580

ATTORNEY FOR APPELLANT

APPELLANT REQUESTS ORAL ARGUMENT.

ACCEPTED

04-14-00899-cv

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

3/31/2015 4:47:38 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 03/31/2015 4:47:38 PM KEITH E. HOTTLE Clerk
ii

IDENTITY OF PARTIES & COUNSEL

Appellant certifies that the following is a complete list of the parties, 

the attorneys, and any other person who has any interest in the outcome of 

this matter: 

PARTIES COUNSEL

Leticia Zepeda Vasquez, Jeffrey Lee Dorrell

 Appellant H. Mark Burck

Daniel Dutko

Hanszen Laporte, LLP

11767 Katy Freeway, Suite 850

Houston, Texas 77079

Telephone: 713-522-9444

FAX: 713-524-2580

Attorney for Appellant

Legend Natural Gas III, LP, 

and Legend Natural Gas, LLC

Isaac J. Huron

Davis, Cedillo & Mendoza, Inc.

 Appellees McCombs Plaza, Suite 500

755 E. Mulberry Avenue

San Antonio, Texas 78213

Telephone: 210-822-6666

FAX: 210-822-1151

Attorney for Legend Natural Gas III, LP, and

Legend Natural Gas, LLC

Lewis Energy Group, LP, and

Lewis Petro Properties, Inc.

David L. Ortega

Naman Howell Smith & Lee, PLLC

 Appellees 1001 Reunion Place, Suite 600

San Antonio, Texas 78216

Telephone: 210-731-6300

FAX: 210-785-2953

Attorney for Lewis Energy Group, LP, and

Lewis Petro Properties, Inc.
iii

XTO Energy, Inc.

 Appellee

Jose E. Garcia

Garcia & Villareal

4311 N. McColl Road

 McAllen, Texas 78504

Telephone: 956-630-0081

 FAX: 956-630-3631

Attorney for XTO Energy, Inc.

Rosetta Resources Oper., LP

 Appellee

William A. Abernethy

Donnell, Abernethy & Kieschnick, P.C.

555 N. Carancahua, Suite 1770

 Corpus Christi, Texas 78401

Telephone: 361-888-5551

 FAX: 361-880-5618

Attorney for Rosetta Resources Oper., LP

Virtex Operating Co., Inc., and 

Virtex Holdings, LLP 

Christopher Lowrance

Royston, Rayzor, Vickery & Williams, LLP

 Appellees 802 Carancahua, Suite 1300

Corpus Christi, Texas 78401

Telephone: 361-884-8808

FAX: 361-884-7261

Attorney for Virtex Operating Co., Inc., and

Virtex Holdings, LLP

Enterprise Products Holdings,

LLC, and Enterprise Products

Co.

E. Michael Rodriguez 

Atlas, Hall & Rodriguez, LLP

P.O. Box 6369 (78523-6369)

 Appellees 50 W. Morrison Road, Suite A

Brownsville, Texas 78520

Telephone: 956-574-9333

FAX: 956-574-9337

Attorney for Enterprise Products Holdings, 

LLC, and Enterprise Products Co. 
iv

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL...................................ii

TABLE OF CONTENTS..........................................................iv

INDEX OF AUTHORITIES ......................................................v

STATEMENT OF THE CASE...................................................2

STANDARD OF REVIEW.........................................................3

ISSUE PRESENTED FOR REVIEW..........................................4

STATEMENT OF FACTS..........................................................5

SUMMARY OF ARGUMENT....................................................6

ARGUMENT...........................................................................7

Issue 1. Did defendants have a legal duty to act to prevent 

Vasquez’s death from the dangerous situation on 

Krueger Road that defendants themselves

negligently created? .....................................................7

CONCLUSION..................................................................10

PRAYER.........................................................................11

CERTIFICATE OF SERVICE .............................................12

CERTIFICATE OF WORD COUNT COMPLIANCE ................14

APPENDIX .....................................................................15
v

INDEX OF AUTHORITIES

CASES

Page

Abalos v. Oil Development Co. of Texas, 

544 S.W.2d 627 (Tex. 1976) ................................................9

Buchanan v. Rose, 

159 S.W.2d 109 (Tex. 1942) ................................................9

Cactus Drilling Co. v. Williams, 

525 S.W.2d 902 (Tex. Civ. App.—Amarillo 1975, writ ref’d n.r.e.)...9

Chrysler Corp. v. Dallas Power & Light Co., 

522 S.W.2d 742 (Tex. Civ. App.—Eastland 1975, writ ref’d n.r.e.)....9

City of Austin v. Liberty Mut. Ins., 

431 S.W.3d 817 (Tex. App.—Austin 2014, no pet.) .....................3 

Courville v. Home Transportation Co., 

497 S.W.2d 788 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e.)..9

Dailey v. Thorpe, 

445 S.W.3d 785 (Tex. App.—Houston [1st Dist.] 2014, no pet.).......3

Dallas Ry. & Terminal Co. v. Archer, 

167 S.W.2d 290 (Tex. Civ. App.—Dallas 1942, writ ref’d w.o.m.)....9

Devoll v. Demonbreun, 

2014 Tex. App. LEXIS 13865 at *4 

(Tex. App.—San Antonio December 31, 2014, n.p.h.) ..................3 

GoDaddy.com, LLC v. Toups, 

429 S.W.3d 752 (Tex. App.—Beaumont 2014, pet. denied)............3

San Benito Bank & Trust Co. v. Travels, 

31 S.W.3d 312 (Tex. App.—Corpus Christi 2000) .......................9

SmithKline Beecham Corp. v. Doe, 

903 S.W.2d 347 (Tex. 1995) .............................................8-9

Wooley v. Schaffer,

447 S.W.3d 71 (Tex. App.—Houston [14th Dist.]

2014, pet. filed).............................................................3, 7
vi

RULES

TEX. R. CIV. P. 91a .......................................................Passim
1

04-14-00899-CV

LETICIA ZEPEDA VASQUEZ, Individually and on Behalf of the Estate of 

Jose Abraham Vasquez, Jr.,

Appellant

v.

LEGEND NATURAL GAS III, LP; LEGEND NATURAL GAS, LLC; 

LEWIS ENERGY GROUP, LP; LEWIS PETRO PROPERTIES, INC.;

ROSETTA RESOURCES OPERATING, LP; VIRTEX HOLDINGS, 

LLP; VIRTEX OPERATING CO., INC.; ENTERPRISE PRODUCTS 

HOLDINGS, LLC; ENTERPRISE PRODUCTS COMPANY; and XTO 

ENERGY, INC., 

Appellees

APPELLANT’S OPENING BRIEF 

Appellant Leticia Zepeda Vasquez files her opening brief. Appellant

will be referred to individually by name, or as “plaintiff,” as she was

designated below. Appellees Legend Natural Gas III, LP; Legend 

Natural Gas, LLC; Lewis Energy Group, LP; Lewis Petro Properties, 

Inc.; Rosetta Resources Operating, LP; Virtex Holdings, LLP; Virtex 

Operating Company, Inc.; Enterprise Products Holdings, LLC; 

Enterprise Products Company; and XTO Energy, Inc., will be referred to 

individually by name, or collectively as “defendants,” as they were 

designated below.
2

STATEMENT OF THE CASE

Nature of the case. On July 21, 2014, plaintiff sued the ten defendants 

for negligence and gross negligence. (CR 5-6.) On October 2, 2014, 

plaintiff filed her first amended original petition asserting the same claims. 

(Tab C, CR 84-86.) The various defendants generally denied, raised 

affirmative defenses, and counterclaimed. (CR 8-56.) The defendants’ 

affirmative defenses and counterclaims are not at issue in this appeal.

Course of proceedings. No trial was held. Defendants Legend 

Natural Gas III, LP, and Legend Natural Gas, LLC, filed a motion to dismiss 

plaintiff’s claims Under TEX. R. CIV. P. 91a. (CR 62.) A similar motion 

was included in the body of the answer filed by defendants Lewis Energy 

Group, LP, and Lewis Petro Properties. (CR 52-53.) On October 16, 2014, 

the trial court held an oral hearing on defendants’ motions to dismiss.

Trial court disposition. The trial court granted defendants’ motions to 

dismiss on November 20, 2014, but failed to dispose of certain other claims.

(CR 147-48.) Plaintiff filed a premature notice of appeal. (CR 159.) On 

January 5, 2015, the trial court entered a final order granting all defendants’ 

motions to dismiss and severing the undisposed claims. (2d SCR 7-8.) (Tab 

A.) On January 29, 2015, plaintiff filed an amended notice of appeal of the 

new order. (2d SCR 1.) 
3

STANDARD OF REVIEW

This Court reviews the trial court’s dismissal of Vasquez’s claims 

pursuant to TEX. R. CIV. P. 91a de novo. Devoll v. Demonbreun, 2014 Tex. 

App. LEXIS 13865 at *4 (Tex. App.—San Antonio December 31, 2014, 

n.p.h.); Wooley v. Schaffer, 447 S.W.3d 71, 75 (Tex. App.—Houston [14th 

Dist.] 2014, pet. filed); Dailey v. Thorpe, 445 S.W.3d 785, 787 (Tex. 

App.—Houston [1st Dist.] 2014, no pet.); City of Austin v. Liberty Mut. 

Ins., 431 S.W.3d 817, 822 (Tex. App.—Austin 2014, no pet.); 

GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont 

2014, pet. denied).
4

ISSUE PRESENTED FOR REVIEW

Issue 1: Did defendants have a legal duty to act to prevent 

Vasquez’s death from the dangerous situation on Krueger Road that 

defendants themselves negligently created?
5

STATEMENT OF FACTS

On August 4, 2012, Jose Vasquez was tragically killed when his 

vehicle flipped over in an accident that could have been avoided if not for 

the negligence of defendants. (CR 82.) Vasquez was operating his vehicle 

on Krueger Road in La Salle County, Texas, when he was blinded by a dust 

cloud and drove into a ditch. (Id.) Once a safe, paved road for the public

(CR 83), Kruger Road has now become dangerously dilapidated as a result 

of defendants’ negligent use of the road to operate their oil and gas wells in 

the area. (CR 81-82.) The road now has potholes, crevices, bumps, and the 

road has no markings to determine the proper lanes of travel. (CR 83, 85.) 

Defendants’ negligent operation of their trucks and businesses 

includes sending hundreds or thousands of trucks every year—some over 

legal weight limits—driving “recklessly” or at too high a rate of speed down 

Krueger Road. (CR 83.) Defendants knew that their operations had created 

the dangerous conditions on Krueger Road that eventually killed Jose 

Vasquez. (CR 83-85.) Defendants did nothing either to repair Krueger

Road or warn others of the dangerous conditions they have negligently 

created. (CR 83-85.) 
6

SUMMARY OF THE ARGUMENT

The trial court was bound to take plaintiff’s factual allegations pled as 

true and liberally construe them in her favor. The trial court implicitly found 

that defendants owed no legal duty to Jose Vasquez when it dismissed his 

widow’s claims under TEX. R. CIV. P. 91a because her claims allegedly had 

“no basis in law.” However, Texas courts have long recognized at least two 

species of duty when a defendant creates a dangerous condition. If the 

defendant created the dangerous condition negligently, he has a duty to 

repair it. If the defendant created the dangerous condition without being 

negligent, he nevertheless still has a duty to warn those who may be injured 

as a result. The trial court erred when it failed to recognize defendants’ duty 

to repair or to warn Jose Vasquez of the unreasonably dangerous condition 

their trucks had negligently created.
7

ARGUMENT

Argument and Authorities—Issue 1

Issue 1: Did defendants have a legal duty to act to prevent 

Vasquez’s death from the dangerous situation on Krueger Road that 

defendants themselves negligently created?

Yes. However, the trial court implicitly found that there could be no 

such duty when it dismissed plaintiff’s claims pursuant to Rule 91a as 

having “no basis in law.” 

Rule 91a allows a party to move to dismiss a baseless cause of action 

on the grounds that it has no basis in law or fact. TEX. R. CIV. P. 91a.1. In 

the case at bar, fact issues are not in dispute—the trial court’s order is 

expressly limited to dismissal because the claims allegedly had “no basis in 

law.” (Tab A.) 

A cause of action has no basis in law if the allegations, taken as 

true, together with inferences reasonably drawn from them, do 

not entitle the claimant to the relief sought. 

TEX. R. CIV. P. 91a.1. The trial court must decide a Rule 91a motion to 

dismiss based solely on the pleading of the cause of action, together with 

any exhibits permitted by Rule 59. TEX. R. CIV. P. 91a.6. 

In conducting our [Rule 91a] review, ... we must construe the 

pleadings liberally in favor of the plaintiff, look to the pleader’s 

intent, and accept as true the factual allegations in the 

pleadings....

Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.—Houston [14th Dist.]

2014, pet. filed) [emphasis added]. 
8

Thus, factual allegations the trial court was obliged to “take as true”

and liberally construe in favor of plaintiff included:

(i) It takes 1200 trucks to bring one oil or gas well into production; 

(Tab C, CR 81)

(ii) It takes 350 trucks a year to maintain one oil or gas well; (Tab 

C, CR 81)

(iii) The service life of roads in areas around oil or gas wells is 

reduced more than 30% per year due to well operations; (Tab 

C, CR 81-82)

(iv) Defendants knew that La Salle County could not repair Krueger 

Road as fast as defendants destroyed it; (Tab C, CR 82)

(v) Some of defendants’ trucks travelled at an unsafe speed; (Tab 

C, CR 83)

(vi) Some of defendants’ trucks travelled “recklessly;” (Tab C, CR 

84)

(vii) Some of defendants’ trucks were overweight; (Tab C, CR 83, 

85)

(viii) Krueger Road was once a safe, paved road for the public; (Tab 

C, CR 83)

(ix) Krueger Road is now in a dangerously dilapidated condition, 

with potholes, crevices, and bumps; (Tab C, CR 83, 85)

(x) Defendants knew they had created Krueger Road’s dangerously 

dilapidated condition; (Tab C, CR 83, 85)

(xi) It was foreseeable that Vasquez (or others) could be injured 

while in the lawful exercise of his right to drive on Krueger 

Road; (Tab C, CR 83) and

(xii) Defendants did nothing either to repair Krueger Road or warn 

others of the dangerous conditions defendants had created there. 

(Tab C, CR 83)
9

Texas courts have long held that if a party creates a dangerous

condition, he has a duty to prevent injury to others if it is reasonably 

foreseeable that others in the exercise of their lawful rights may be injured 

by the dangerous condition he created. SmithKline Beecham Corp. v. Doe, 

903 S.W.2d 347, 353 (Tex. 1995); Buchanan v. Rose, 159 S.W.2d 109, 110 

(1942); San Benito Bank & Trust Co. v. Travels, 31 S.W.3d 312, 319 (Tex. 

App.—Corpus Christi 2000).

[I]t may be said generally, on the one hand, that if a party 

negligently creates a dangerous situation it then becomes his 

duty to do something about it to prevent injury to others if it 

reasonably appears or should appear to him that others in the 

exercise of their lawful rights may be injured thereby.

Buchanan, 159 S.W.2d at 110; see also Abalos v. Oil Development Co. of 

Texas, 544 S.W.2d 627, 632-33 (Tex. 1976); Cactus Drilling Co. v. 

Williams, 525 S.W.2d 902, 911 (Tex. Civ. App.—Amarillo 1975, writ ref’d 

n.r.e.); Chrysler Corp. v. Dallas Power & Light Co., 522 S.W.2d 742, 744 

(Tex. Civ. App.—Eastland 1975, writ ref’d n.r.e.); Courville v. Home 

Transportation Co., 497 S.W.2d 788, 790-91 (Tex. Civ. App.—Beaumont 

1973, writ ref’d n.r.e.); Dallas Ry. & Terminal Co. v. Archer, 167 S.W.2d 

290, 293 (Tex. Civ. App.—Dallas 1942, writ ref’d w.o.m.). 

Nor does it absolve a defendant of all duty if he creates the dangerous 

condition on a “public way”—even if he does so without being negligent:
10

We think it may also be said that if one by his own acts, although 

without negligence on his part, creates a dangerous situation in 

or along a public way and it reasonably appears that another in 

the lawful use of such way in the exercise of ordinary care for his 

own safety may be injured by the dangerous situation so created, 

the one creating the same must give warning of the danger or be 

responsible for the consequences. To illustrate: One who in the 

exercise of a lawful right, and without negligence on his part, 

makes an excavation across a street or sidewalk or on his 

premises in close proximity to a public way, or parks a vehicle in 

a road, or otherwise obstructs the road with a foreign substance, 

is bound to give warning of the danger created thereby.

Buchanan, 159 S.W.2d at 110 [citations omitted]. Although the duty may 

be different—to warn others of the dangerous condition as opposed to a duty 

to repair the condition—there is nevertheless still a duty. 

Defendants owed the Buchanan duties to Jose Vasquez. When they 

breached their duties, defendants caused Jose Vasquez’s death. 

CONCLUSION

The trial court was bound to take plaintiff’s factual allegations pled as 

true and liberally construe them in her favor. The trial court implicitly found 

that defendants owed no legal duty to Jose Vasquez when it dismissed his 

widow’s claims under TEX. R. CIV. P. 91a as having “no basis in law.” 

Because Texas courts have long recognized a duty when a defendant creates 

a dangerous condition, the trial court erred when it failed to recognize 

defendants’ duty to repair or to warn Jose Vasquez of the unreasonably 

dangerous condition defendants’ trucks had created.
11

PRAYER

For these reasons, appellant Leticia Zepeda Vasquez prays that the 

Court reverse the trial court’s dismissal of her claims and causes of action 

against defendants as having “no basis in law,” and remand to the trial court 

for a trial. 

Respectfully submitted,

By: /s/ Jeffrey L. Dorrell .

Jeffrey L. Dorrell

State Bar No. 00787386

jdorrell@hanszenlaporte.com

11767 Katy Freeway, Suite 850

Houston, Texas 77079

Telephone: 713-522-9444

FAX: 713-524-2580

ATTORNEYS FOR APPELLANT LETICIA ZEPEDA VASQUEZ
12

CERTIFICATE OF SERVICE

I hereby certify that on 3-31 , 2015, a true and correct copy of the 

foregoing was sent by: 

 Hand delivery

 Certified mail

 Telephonic document transfer

 X E-service in accordance with TEX. R. APP. P. 9.5(b)

in accordance with TEX. R. APP. P. 9.5(c) to the following counsel of record:

Mr. William A. Abernethy

Donnell, Abernethy & Kieschnick, P.C.

555 N. Carancahua, Suite 1770

Corpus Christi, Texas 78401

Telephone: 361-888-5551

FAX: 361-880-5618

COUNSEL FOR DEFENDANT ROSETTA RESOURCES 

OPERATING, LP.

Mr. David L. Ortega

Naman Howell Smith & Lee, PLLC

1001 Reunion Place, Suite 600

San Antonio, Texas 78216

Telephone: 210-731-6300

FAX: 210-785-2953

COUNSEL FOR DEFENDANTS LEWIS ENERGY GROUP, LP, and 

LEWIS PETRO PROPERTIES, INC.

Mr. Christopher Lowrance

Royston, Rayzor, Vickery & Williams, L.L.P.

802 Carancahua, Suite 1300

Corpus Christi, Texas 78401

Telephone: 361-884-8808

FAX: 361-884-7261

COUNSEL FOR DEFENDANTS VIRTEX OPERATING CO., INC., 

and VIRTEX HOLDINGS, LLP
13

Mr. Isaac J. Huron

Davis, Cedillo & Mendoza, Inc.

McCombs Plaza, Suite 500

755 E. Mulberry Avenue

San Antonio, Texas 78213

Telephone: 210-822-6666

FAX: 210-822-1151

COUNSEL FOR DEFENDANTS LEGEND NATURAL GAS III, LP, 

and LEGEND NATURAL GAS, LLC

Mr. E. Michael Rodriguez

Atlas, Hall & Rodriguez, L.L.P.

P.O. Box 6369 (78523-6369)

50 W. Morrison Road, Suite A

Brownsville, Texas 78520

Telephone: 956-574-9333

FAX: 956-574-9337

COUNSEL FOR DEFENDANTS ENTERPRISE PRODUCTS 

HOLDINGS, LLC, and ENTERPRISE PRODUCTS CO.

Mr. Jose E. Garcia

Garcia & Villareal

4311 N. McColl Road

McAllen, Texas 78504

Telephone: 956-630-0081

FAX: 956-630-3631

COUNSEL FOR DEFENDANT XTO ENERGY, INC.

 /s/ Jeffrey L. Dorrell

JEFFREY L. DORRELL
14

CERTIFICATE OF WORD COUNT COMPLIANCE

In compliance with TEX. R. APP. P. 9.4, relying on the word count 

function in the word processing software used to produce this document, I 

certify that the number of words in this document including footnotes

(excluding captions, identity of parties and counsel, statement regarding oral 

argument, table of contents, index of authorities, statement of the case, 

statement of issues presented, statement of jurisdiction, statement of 

procedural history, signature, proof of service, certification, certificate of 

compliance, and appendix) is 1,343.

 /s/ Jeffrey L. Dorrell

JEFFREY L. DORRELL
15

04-14-00899-CV

LETICIA ZEPEDA VASQUEZ, Individually and on Behalf of the Estate of Jose 

Abraham Vasquez, Jr.,

Appellant

v.

LEGEND NATURAL GAS III, LP; LEGEND NATURAL GAS, LLC; LEWIS 

ENERGY GROUP, LP; LEWIS PETRO PROPERTIES, INC.; ROSETTA 

RESOURCES OPERATING, LP; VIRTEX HOLDINGS, LLP; VIRTEX 

OPERATING CO., INC.; ENTERPRISE PRODUCTS HOLDINGS, LLC; 

ENTERPRISE PRODUCTS COMPANY; and XTO ENERGY, INC., 

Appellees

APPELLANT’S APPENDIX 

LIST OF DOCUMENTS

1. January 5, 2015, Order Appealed From .................................Tab A

2. TEX. R. CIV. P. 91a. ........................................................Tab B

3. Plaintiff’s First Amended Original Petition .............................Tab C