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`FILED
`2/26/2024 5:38 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Lauren Beavers DEPUTY
`
`
`
`
`
`LAURA LOPEZ, INDIVIDUALLY
`ON BEHALF OF HERNAN
`MURILLO, DECEASED, AND AS
`NEXT FRIEND OF XXX
`MURILLO, XXX MURILLO,
`XXX MURILLO, AND XXX
`MURILLO,
`
`Plaintiff
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`
`
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`v.
`
`
`FRITO-LAY, INC.,
`WALKER INDUSTRIAL, LLC,
`WALKER ENGINEERING, INC.,
`THE HASKELL COMPANY, and
`SAMMY DEER
`
`
`
`Defendants.
`
`CAUSE NO. DC-19-16959
`
`§
`§
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`§
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`DEFENDANT WALKER ENGINEERING, INC.’S RESPONSE
`TO PLAINTIFFS’ EMERGENCY MOTION TO STRIKE
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`TO THE HONORABLE JUDGE OF SAID COURT:
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`IN THE DISTRICT COURT
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`DALLAS COUNTY, TEXAS
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`
`
`44TH JUDICIAL DISTRICT
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`
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`COMES NOW, WALKER ENGINEERING, INC., (“Engineering”) and files this, its
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`Response to Plaintiffs’ Emergency Motion to Strike, and, in support thereof, would
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`respectfully show unto the Court the following:
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`I.
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`In what can only be described as a frivolous motion to strike Engineering’s
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`amended motion for summary judgment, Plaintiffs claim that Engineering blew a non-
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`existent deadline to file its motion, breached a non-existent principle against filing an
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`amended motion for summary judgment, and violated a non-existent local rule limiting a
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`motion for summary judgment’s page numbers and exhibits. Because Engineering
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`complied with every procedural rule in filing its amended motion for summary judgment,
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`Defendant Walker Engineering, Inc.’s Response to Plainfiffs’ Emergency Mofion Strike
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`Page 1 of 8
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`and because there would be a due process violation in altering those rules at this late
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`date, the Court should consider Engineering’s pending motion.
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`Although Engineering cannot speak to Plaintiffs’ motives in filing the motion to
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`strike, it bears noting that Engineering’s motion is a serious one, thorough in nature,
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`addressing all possible claims Plaintiffs could be asserting – while Plaintiffs’ motion to
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`strike is anything but. Plaintiffs’ theories have real problems that preclude trial, and those
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`real problems do not vanish in the face of fabricated procedural defaults. Engineering’s
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`motion deserves a ruling and, more than that, deserves a grant. The Court should deny
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`Plaintiffs’ motion to strike in the interim.
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`A.
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`Engineering Complied with All Applicable Deadlines for Filing and Setting
`Its Amended Motion for Summary Judgment
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`Plaintiffs first ask the Court to strike Engineering’s motion for summary judgment
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`because: (1) it was filed 21 days before submission, in compliance with Texas Rule of
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`Civil Procedure 166a(c); (2) it was set for submission 30 days before trial, in compliance
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`with the Court’s governing procedures;1 and (3) it was filed in accordance with Rule
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`166a(c) absent a deadline in the Fifth Amended Uniform Scheduling Order. As to the
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`latter, the Fifth Amended Uniform Scheduling Order both reset the trial date and failed to
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`include a deadline for dispositive motions as did all other prior scheduling orders –
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`deadlines that would have been nullified given the new trial setting in any event. Harris
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`v. Mastec N. Am., Inc., No. 05-19-00955-CV, 2020 WL 6305028, *3 (Tex. App. – Dallas
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`2020, no pet.) (mem. op.) (holding trial court properly denied motion to strike because
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`new trial date reset deadlines contained in prior scheduling order). There was no deadline
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`1 Plainfiffs also complain that Engineering did not set its mofion for a hearing. But Engineering did request
`a hearing date from the Court’s clerk and was told that Engineering’s mofion for summary judgment would
`be considered on submission without a hearing.
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`Defendant Walker Engineering, Inc.’s Response to Plainfiffs’ Emergency Mofion Strike
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`Page 2 of 8
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`contained in the Fifth Amended Uniform Scheduling Order for the Court to extend or with
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`which Engineering had to comply and no deadline in any prior uniform scheduling order
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`that would have survived a new trial date.
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`Instead, Texas Rule of Civil Procedure 166a applies by default; and Engineering
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`complied with its dictates – as Plaintiffs expressly acknowledge in their motion to strike.
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`Dennis v. Giles Grp., inc., No. 04-07-00280-CV, 2008 WL 183062, *2 (Tex. App. – San
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`Antonio, Jan. 23, 2008, no pet.) (mem. op.) (holding that the Texas Rules of Civil
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`Procedure govern deadlines unless there is a scheduling order pursuant to Rule 166 that
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`alters an otherwise applicable deadline); see also James v. Witherite, No. 05-17-00799-
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`CV, 2018 WL 5869641, *6 (Tex. App. – Dallas, Nov. 9, 2018, no pet.) (mem. op.)
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`(recognizing that trial court may alter deadlines imposed by the Texas Rules of Civil
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`Procedure in a scheduling order issued pursuant to Rule 166 but the procedural rules
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`govern absent any such altered deadline). The Court did not have to reauthorize a filing
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`expressly permitted by the Texas Rules of Civil Procedure and that nothing in any order
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`precluded.
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`Lastly, were the Court to strike Engineering’s motion despite Engineering having
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`complied with all deadlines of which it could have been aware at the time of filing,
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`Engineering would be denied due process. University of Tex. Med. Sch. at Houston v.
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`Than, 901 S.W.2d 926, 930 (Tex. 1995) (“Due process at a minimum requires notice and
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`an opportunity to be heard at a meaningful time and in a meaningful manner.”). The Court
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`should deny Plaintiffs’ motion to strike.
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`Defendant Walker Engineering, Inc.’s Response to Plainfiffs’ Emergency Mofion Strike
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`Page 3 of 8
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`B.
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`There Is No Bar to an Amended Motion for Summary Judgment – Especially
`When It Contains Grounds the Court Has Never Considered Previously
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`Plaintiffs next contend that Engineering could not file an amended motion for
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`summary judgment that re-urges previously considered grounds. In support, Plaintiffs
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`misconstrue the single case they cite in support and contort the concept of mootness.
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`Specifically, Plaintiffs cite 9029 Gateway S. Joint Venture v. Eller Media Co., 159 S.W.3d
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`183, 187 (Tex. App. – El Paso 2004, no pet.) for the proposition that a party can never file
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`an amended motion for summary judgment after a court has ruled on an original motion
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`that asserted the same grounds. The case says nothing of the sort. In fact, 9029 Gateway
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`has nothing to do with amended motions for summary judgment at all. Id. Rather, the
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`Court addressed only the timing of an amended answer. Id.
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`As to the actual issue of whether a party can file an amended motion for summary
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`judgment after the denial of a previous motion, binding Texas law answers that question
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`with a resounding yes. Ho Yoo v. Hornok, No. 05-19-01590-CV, 2020 WL 6791521,
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`*3 (Tex. App. – Dallas, Nov. 19, 2020, no pet.) (mem. op.). There, the Dallas Court of
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`Appeals expressly held that “[t]here is no merit” to the “contention that a defendant may
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`not file multiple motions for summary judgment urging grounds previously rejected by the
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`trial court.” Id. The Dallas Court of Appeals explained that “Texas Rule of Civil Procedure
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`166a includes no limit to the number of times a motion for summary judgment may be
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`filed.” Id.
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`Not only does Plaintiffs’ argument conflict with this case law, but Plaintiffs’
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`proposed prohibition would contradict the well-settled principal that interlocutory rulings
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`may be reconsidered by a trial court at any time. In re Brown, No. 05-20-00639-CV, 2020
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`WL 4047965, *3 n.4 (Tex. App. – Dallas, Jul. 20, 2020, orig. proceeding) (“[A] trial court
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`Defendant Walker Engineering, Inc.’s Response to Plainfiffs’ Emergency Mofion Strike
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`Page 4 of 8
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`may reconsider its interlocutory orders at any time before it renders judgment.”), citing
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`Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam). In fact, Plaintiffs
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`asked and received precisely that relief for every adverse pretrial ruling the Court’s
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`predecessor judge made before her electoral defeat.
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`As a result, any prior denial does not make Engineering’s motion “moot,” certainly
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`as to the portions previously denied. Abbott v. Mexican Am. Leg. Caucus, 647 S.W.3d
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`681, 689 (Tex. 2022) (explaining that a case is moot when a justiciable controversy does
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`not exist between the parties or the parties do not have a legally cognizable interest in
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`the outcome). To the extent Plaintiff contend the amended motion is moot because the
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`Court’s predecessor judge granted it in part to Plaintiffs’ claims that are “mooted by the
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`parties’ stipulation,” the meaning of that phrase is unclear. In Engineering’s view, that
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`would mean Plaintiffs’ entire case is disposed, as all claims are contravened by the
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`stipulation. Unfortunately, Engineering lacked sufficient time to seek clarification from the
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`Court’s predecessor judge, given that the order was signed only days before she left
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`office. As a result, Engineering has undertaken to address every conceivable theory in
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`an amended motion for summary judgment.
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`Regardless, Plaintiffs are wrong on the record in arguing that Engineering already
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`asserted every ground for summary judgment contained in their amended motion and
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`had relief denied. For one thing, Engineering never previously addressed the issue of
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`agency because the Court did not allow an agency pleading until well after Engineering
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`filed its motion for summary judgment and obtained a ruling. In fact, Engineering had no
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`choice but to file an amended motion for summary judgment on that claim once an
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`amended was permitted. See, e.g., Konogeris v. Pinnacle Health Facilities GP I, LLC,
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`Defendant Walker Engineering, Inc.’s Response to Plainfiffs’ Emergency Mofion Strike
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`Page 5 of 8
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`657 S.W.3d 421, 426 (Tex. App. – El Paso 2022, no pet.) (“[W]hen a plaintiff amends its
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`pleadings to add a new claim or theory of recovery after the defendant has moved for
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`summary judgment, the defendant must ordinarily file an amended summary judgment
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`motion to address the newly raised claims or theories before the trial court may grant a
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`summary judgment on the entire plaintiff’s case.”).
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`Moreover, a comparison of Engineering’s original motion and its amended motion
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`show that the original motion addressed the supposed employer-employee relationship
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`between Engineering and Sammy Deer and was not based on the subsequently pled
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`agency theory. So, the original motion asked for a traditional summary judgment
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`because: (1) Sammy Deer was not Engineering’s employee and, thus, Engineering could
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`not be vicariously liable for his conduct; (2) absent that relationship, Engineering could
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`not be liable for negligent hiring, negligent retention, and negligent supervision; and
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`(3) Engineering owed no duty to train its employee on known hazards.
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`While the second and third grounds overlap in some respects with the amended
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`motion for summary judgment, the amended motion was written in the context of Plaintiffs’
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`new agency theory and belated reliance on the Rental Agreement for the boom lift, which
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`Engineering’s motion did not argue or attach. The same is true of the no-evidence portion
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`of the original motion. The original motion and the amended motion are two entirely
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`different procedural vehicles. Plaintiffs’ assertion otherwise is ironic given that they
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`argued that the Court could not grant complete relief to Engineering because Engineering
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`failed to move for summary judgment on a whole host of theories, including premises,
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`other bases for vicarious liability including agency, negligent entrustment, and the
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`Defendant Walker Engineering, Inc.’s Response to Plainfiffs’ Emergency Mofion Strike
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`Page 6 of 8
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`negligence of employees other than Sammy Deer. 2 The Court should deny the motion
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`to strike.
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`C.
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`There Are No Local Rules that Limit the Number of Pages or Exhibits for a
`Motion for Summary Judgment
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`Finally, Plaintiffs assert that Engineering violated an uncited local rule by filing a
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`motion for summary judgment in excess of 25 pages and in attaching 11 exhibits.
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`Engineering has no idea to what rule Plaintiffs intend to refer. Engineering has reviewed
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`Miscellaneous Docket 14-9023, Approval of Amended Local Rules for the Civil Courts of
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`Dallas County and the attached Local Rules of the Civil Courts of Dallas County, Texas.
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`Engineering cannot find any limitation on the number of pages or the number of exhibits
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`permitted for motions for summary judgment. Nor can Engineering find any such
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`limitations contained in the 44th District Court Policies and Procedures. Texas Rule of
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`Civil Procedure 166a itself contains no such limitation. Again, the Court should deny the
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`motion to strike.
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`II.
`PRAYER
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`WHEREFORE, PREMISES CONSIDERED, Defendant Walker Engineering, Inc.
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`respectfully requests that the Court deny Plaintiffs’ Emergency Motion to Strike, that the
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`Court grant Engineering’s Amended Motion for Traditional and No-Evidence Summary
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`Judgment, that the Court render a take-nothing judgment in favor of this Defendant and
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`against Plaintiffs on all of their claims, that this Defendant recover its costs of court, and
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`that the Court grant this Defendant such other and further relief to which it is entitled.
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`2 Although Plaintiffs continually refer to John Self as Engineering’s employee, Engineering
`established as a matter of law in its amended motion that he was Industrial’s employee at the
`time in question.
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`Defendant Walker Engineering, Inc.’s Response to Plainfiffs’ Emergency Mofion Strike
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`Page 7 of 8
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`Respectfully submitted,
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`
`/s/ Soña J. Garcia
`
`ROBERT A. BRAGALONE
`State Bar No. 02855850
`BBragalone@grsm.com
`
`SOÑA J. GARCIA
`State Bar No. 24045917
`SJGarcia@grsm.com
`GORDON REES
`SCULLY MANSUKHANI, LLP
`2200 Ross Avenue, Suite 3700
`Dallas, Texas 75201
`214-231-4660 (Telephone)
`214-461-4053 (Facsimile)
`
`JOSEPH E. BYRNE
`State Bar No. 00787178
`JByrne@bcallp.net
`BYRNE, CARDENAS & ARIS, LLP
`5468 La Sierra Drive
`Dallas, Texas 75231
`972-371-5250 (Telephone)
`
`ATTORNEYS FOR DEFENDANT
`WALKER ENGINEERING, INC.
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a true and correct copy of the foregoing document
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`was served pursuant to TEXAS RULES OF CIVIL PROCEDURE 21 and 21a on all counsel of
`record via electronic service on February 26, 2024.
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`/s/ Soña J. Garcia
`Soña J. Garcia
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`Defendant Walker Engineering, Inc.’s Response to Plainfiffs’ Emergency Mofion Strike
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`Page 8 of 8
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`

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`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the persons listed below. The rules governing
`certificates of service have not changed. Filers must still provide a
`certificate of service that complies with all applicable rules.
`Denise Houser on behalf of Soña Garcia
`Bar No. 24045917
`dhouser@gordonrees.com
`Envelope ID: 84922752
`Filing Code Description: Response
`Filing Description: TO EMERGENCY MOTION TO STRIKE
`Status as of 2/27/2024 10:24 AM CST
`
`Case Contacts
`
`Name
`R. Wayne Gordon
`Marc Tolliver
`Michele Y.Smith
`George (Trey) NWilson
`Naomi Castillo
`Lisa Rogers
`Wm. LanceLewis
`Alissa Puckett
`B. G.Sandoval
`Terrie Edwards
`Mark Hardy
`John K. Dunlap
`Fernando Pablo Arias
`Bijan R. Siahatgar
`Charles Soechting
`Sona Julianna Garcia
`Bernabe Sandoval
`Robert A. Bragalone
`Clifford L. Harrison
`Adam Diamond
`Mohammad Said
`Joseph Edward Byrne
`Denise Houser
`Travis MBrown
`Kathleen Knuth
`
`BarNumber
`
`24087667
`6235300
`24025946
`
`24044333
`24045917
`24048784
`2855850
`9113800
`24092344
`24061101
`787178
`
`Email
`wayne.gordon@tbjbs.com
`marc.tolliver@tbjbs.com
`MicheleSmith@MehaffyWeber.com
`twilson@thompsoncoe.com
`NaomiCastillo@MehaffyWeber.com
`LisaRogers@MehaffyWeber.com
`llewis@qslwm.com
`apuckett@qslwm.com
`TreySandoval@MehaffyWeber.com
`tedwards@cokinoslaw.com
`DJ.Hardy@fletcherfarley.com
`jdunlap@bcallp.net
`fred.arias@fletcherfarley.com
`bsiahatgar@clarkhill.com
`csoechting@sgptrial.com
`sjgarcia@grsm.com
`treysandoval@mehaffyweber.com
`bbragalone@grsm.com
`charrison@munsch.com
`adiamond@clarkhill.com
`msaid@mas.law
`jbyrne@bcallp.net
`dhouser@grsm.com
`tbrown@cokinoslaw.com
`kknuth@cokinoslaw.com
`
`TimestampSubmitted
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
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`Status
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
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`

`

`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the persons listed below. The rules governing
`certificates of service have not changed. Filers must still provide a
`certificate of service that complies with all applicable rules.
`Denise Houser on behalf of Soña Garcia
`Bar No. 24045917
`dhouser@gordonrees.com
`Envelope ID: 84922752
`Filing Code Description: Response
`Filing Description: TO EMERGENCY MOTION TO STRIKE
`Status as of 2/27/2024 10:24 AM CST
`
`Case Contacts
`
`Kathleen Knuth
`Angie Stevenson
`Andrea Fratus
`Deborah Stick
`Abby Golman
`Teresa Valcoviak
`Caroline Randolph
`Heather Vandever
`Connor J.Moore
`Samuel Kessler
`Iyman Strawder
`Orlando Vera
`COURTNEY RUTLEDGE
`Renea Conn
`Hayley Davis
`Jill Graham
`Gary S.Kessler
`Stephen JHuschka
`Stephanie O'Rourke
`Kathy S.Hamshare
`Lauren S.Aldredge
`Kanita Bruce
`J.J. Patino
`Samuel Crecelius III
`Leslie Jaeger
`Nina Ashurov
`
`kknuth@cokinoslaw.com
`astevenson@kesslercollins.com
`edocket@mehaffyweber.com
`deborah.stick@fletcherfarley.com
`abby.golman@fletcherfarley.com
`teresa.valcoviak@fletcherfarley.com
`crandolph@cokinoslaw.com
`heather.vandever@tbjbs.com
`connor.moore@tbjbs.com
`skessler@kesslercollins.com
`istrawder@sgptrial.com
`overa@sgptrial.com
`COURTNEY.RUTLEDGE@DALLASCOUNTY.ORG
`rconn@munsch.com
`hdavis@bcallp.net
`reception@bcallp.net
`gsk@kesslercollins.com
`shuschka@kesslercollins.com
`sorourke@cokinoslaw.com
`khamshare@clarkhill.com
`laldredge@cokinoslaw.com
`kbruce@bcallp.net
`jpatino@sgptrial.com
`screcelius@cokinoslaw.com
`leslie.jaeger@fletcherfarley.com
`nina.ashurov@tbjbs.com
`
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
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`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`ERROR
`SENT
`SENT
`SENT
`SENT
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`

`

`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the persons listed below. The rules governing
`certificates of service have not changed. Filers must still provide a
`certificate of service that complies with all applicable rules.
`Denise Houser on behalf of Soña Garcia
`Bar No. 24045917
`dhouser@gordonrees.com
`Envelope ID: 84922752
`Filing Code Description: Response
`Filing Description: TO EMERGENCY MOTION TO STRIKE
`Status as of 2/27/2024 10:24 AM CST
`
`Case Contacts
`
`Nina Ashurov
`Sarah Carrillo
`Samuel Kessler
`Gary S.Kessler
`Chip Adams
`Lana Byrne
`
`nina.ashurov@tbjbs.com
`scarrillo@sgptrial.com
`skessler@kesslercollins.com
`gkessler@kesslercollins.com
`coadams@grsm.com
`lbyrne@bcallp.net
`
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`
`Associated Case Party: LAURA LOPEZ
`
`Name
`M. KevinQueenan
`Elizabeth Davila
`Brent Walker
`Charla Aldous
`Ellen Lessem
`Carlos Lopez
`Alexandra Cassar
`Stacey White
`CHARLES E.SOECHTING
`Kimberly Fayard
`Eleanor Aldous
`Caleb Miller
`Bruce A. Campbell
`Charles DavisHernandez
`
`BarNumber
`
`3694500
`
`Email
`service@queenanlaw.com
`edavila@aldouslaw.com
`bwalker@aldouslaw.com
`caldous@aldouslaw.com
`elessem@aldouslaw.com
`carlos@queenanlaw.com
`alexandra@queenanlaw.com
`stacey@queenanlaw.com
`Csoechting@sgptrial.com
`kimberly@queenanlaw.com
`ealdous@aldouslaw.com
`cmiller@aldouslaw.com
`bcampbell@cllegal.com
`charles@queenanlaw.com
`
`TimestampSubmitted
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`
`Status
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`SENT
`
`

`

`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the persons listed below. The rules governing
`certificates of service have not changed. Filers must still provide a
`certificate of service that complies with all applicable rules.
`Denise Houser on behalf of Soña Garcia
`Bar No. 24045917
`dhouser@gordonrees.com
`Envelope ID: 84922752
`Filing Code Description: Response
`Filing Description: TO EMERGENCY MOTION TO STRIKE
`Status as of 2/27/2024 10:24 AM CST
`
`Associated Case Party: LAURA LOPEZ
`
`Charles DavisHernandez
`Sha'Huni Robinson
`
`charles@queenanlaw.com
`srobinson@aldouslaw.com
`
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`
`SENT
`SENT
`
`Associated Case Party: WALKER ENGINEERING, INC.
`
`BarNumber
`791747
`
`Name
`Jacqueline M. Stroh
`VLS DFW Support
`JOSEPH EDWARDBYRNE
`Soña J.Garcia
`
`Email
`jackie@strohappellate.com
`VLS_DFWSupport@grsm.com
`jbyrne@bcallp.net
`sjgarcia@grsm.com
`
`TimestampSubmitted
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`
`Status
`SENT
`SENT
`SENT
`SENT
`
`Associated Case Party: MIKE BASSETT
`
`Name
`Michael H. Bassett
`The BassettFirm
`
`BarNumber
`1890500
`
`Email
`efile@thebassettfirm.com
`eservice@thebassettfirm.com
`
`TimestampSubmitted
`2/26/2024 5:38:01 PM
`2/26/2024 5:38:01 PM
`
`Status
`SENT
`SENT
`
`