FILED
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`20-0870
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`10/29/2020 5:25 PM
`tex-47661711
`
`SUPREME COURT OF TEXAS
`BLAKE A. HAWTHORNE, CLERK
`
`In The
`Supreme Court of Texas
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`NUTRIEN AG SOLUTIONS, INC. (f/k/a CROP PRODUCTION SERVICES,
`INC.) and CROP PRODUCTION SERVICES, INC.,
`
`Petitioners,
`V.
`PETER BALDERAS AND MARTHA BALDERAS, INDIVIDUALLY AND ON
`BEHALF OF THEIR DECEASED MINOR CHILDREN, AND P.B., JR.,
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`INJURED MINOR CHILD, JACQUELINE BALDERAS, CASANDRA
`BALDERAS, AND EMILY BALDERAS,
`
`Respondents.
`
`On Review from the Seventh Court of Appeals at Amarillo, Texas
`No. 7-20-00192-CV
`
`PETITION FOR REVIEW
`Bryan Cave Leighton Paisner LLP Young & Newsom, PC
`Paul Lopach, Colorado SBN 34441, Tim Newsom, SBN 00784677
`Pro Hac Vice 1001 S. Harrison, Suite 200
`Zachary Fitzgerald, Colorado SBN 49226, Amarillo, Texas 79101
`Pro Hac Vice Tel. No. (806) 331-1800
`1700 Lincoln Street, Suite 4100 Fax No. (806) 398-9095
`Denver, Colorado 80203 tim@ youngfirm.com
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`Tel. No. (303) 866-0207
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`Fax No. (303) 866-0200
`paul.lopach@ bclplaw.com
`zachary .fitzgerald@ bclplaw.com
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`ATTORNEYS FOR PETITIONERS
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`NUTRIEN’S PETITION FOR REVIEW 1
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`IDENTITY OF PARTIES AND COUNSEL
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`The undersigned counsel of record certifies the following listed persons and
`entities have an interest in the outcome of this case. These representations are
`made so the Justices of this Court may evaluate possible disqualification or recusal.
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`A. Parties
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`Petitioners/Defendants: Nutrien AG Solutions, Inc. f/k/a Crop Production Services,
`Inc. and Crop Production Services, Inc.
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`Additional Defendants: United Phosphorus, LTD., UPL Corporation Limited, and
`United Phosphorus, Inc.; Isidro Ulloa (pro se)
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`Respondents/Plaintiffs: Peter Balderas and Martha Balderas, Individually and on
`behalf of their deceased minor children, and P.B., Jr., minor child,
`Jacqueline Balderas, Casandra Balderas, and Emily Balderas
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`B. Attorneys
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`For Petitioners:
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`Paul Lopach Colorado Bar No. 34441
`Paul.Lopach@ bclplaw.com
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`Zachary Fitzgerald Colorado Bar No. 49226
`Zachary .Fitzgerald@ bclplaw.com
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`BRYAN CAVE LEIGHTON PAISNER, LLP
`1700 Lincoln Street, Suite 4100
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`Denver, Colorado 80203
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`(303) 866-0207 (303) 866-0200 (Fax)
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`Tim Newsom State Bar No. 00784677
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`tim@ youngfirm.com
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`YOUNG & NEWSOM, PC
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`1001 S. Harrison, Suite 200 Amarillo, Texas 79101
`(806) 331-1800 (805) 398-9095 (Fax)
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`NUTRIEN’S PETITION FOR REVIEW 2
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`For Respondents:
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`Mark A. Haney State Bar No. 08908480
`mark@ pulshaney.com
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`W. Kelly Puls State Bar No. 16393350
`kelly@ pulshaney.com
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`Christopher G. Lyster State Bar No. 12746250
`chris@ pulshaney.com
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`Juliana Morris State Bar No. 24026356
`jmorris@ pulshaney.com
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`PULS HANEY LYSTER PLLC
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`301 Commerce Street, Suite 2900
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`Fort Worth, Texas 76102
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`(817) 338-1717 (817) 332-1333 (Fax)
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`Kevin Isern State Bar No. 10432900
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`kevin@ lovell-law.net
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`LOVELL, LOVELL, ISERN & FARABOUGH, LLP
`112 S.W. 8th Ave., Suite 1000
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`Amarillo, Texas 79101
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`(806) 373-1515 (806) 379-7176 (Fax)
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`Thomas M. Michel, State Bar No. 14009480
`thomasm@ lawgjm.com
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`Lauren M. Lockett, State Bar No. 24013886
`laurenl@ lawgjm.com
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`GRIFFITH, JAY& MICHEL, LLP
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`2200 Forest Park Blvd.
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`Fort Worth, Texas 76110
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`817/926-2500, 817/926-2505 (Fax)
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`NUTRIEN’S PETITION FOR REVIEW 3
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`For UP Defendants:
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`J eff Ray State Bar No. 16604400
`jray@raylaw.com
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`Rob Edwards State Bar No. 24058290
`redwards@ raylaw.com
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`Aldo R. Lopez State Bar No. 24060185
`alopez@ raylaw.com
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`Noemi V. Lopez State Bar No. 24078881
`nlopez@ raylaw.com
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`RAY | PENA | MCCHRISTIAN P.C.
`5822 Cromo Dr. El Paso, Texas 79912
`(915) 832-7200 (915) 832-7333 (Fax)
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`Dee J ohnson State Bar No. 10705142
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`dee@ packardlawfirm.com
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`PACKARD, HOOD, JOHNSON & PAUL
`301 S. Polk St., Ste. 375 Amarillo, Texas 79101
`(806) 374-3300 (512) 374-3381 (Fax)
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`Pro Se Defendant:
`Isidro Ulloa
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`NUTRIEN’S PETITION FOR REVIEW 4
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`TABLE OF CONTENTS
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`Page
`IDENTITY OF PARTIES AND COUNSEL ..... ee cccccescsseseeseescsssseessessesssesseereeenes 2
`INDEX OF AUTHORITIES... ec ecccscsceseseeseescescssssesseeecsessessseeceessessseesessesaeers 7
`STATEMENT OF THE CASE... ccccccsssssescsscssessescescsesseesceecsessessseesesseesseessesseeaes 9
`STATEMENT OF JURISDICTION... ecceseeseescsseseeseescescsssseesseessessseeseeseees 11
`ISSUES PRESENTED ju... ccecccssesssscssesseseescsesseeseescsessesseescessesssesssesseesseessessesseerseess 12
`STATEMENT OF UNDISPUTED FACTS wu... cecccesseseescesesseseescsesseesserseeesees 13
`A. During 2009 and 2010, 3710 Canisters of Weevil-Cide from Batch
`18 Were Distributed in the United States... ccsscsceeteeseeeneeees 13
`B. | Law Enforcement Was Unable to Determine the Source of the
`WEEVII-Cide........ccccesscsscessesseessceseesscesscsscesscesseecesscsssessceseenseessenssenseeass 14
`SUMMARY OF ARGUMENT 1... cecccccsessessescsscssessescsscseessessescsscseesseesessseaseeeeees 18
`ARGUMENT uu... .ccccccscsssssescsscsssseescescsessessessceessesseesseessesseeeseessessesseeeseesaessseeseesaeeaees 20
`I. The Court of Appeals A bused Its Discretion in Declining Nutrien’s
`Interlocutory Appeal .......c.ccccsccssssssecescsssssescssssssssesseecssssessssesessesssersessseaees 20
`A. There Are Substantial Grounds for Differences of Opinion............... 21
`1. ‘Plaintiffs Have No Evidence of Negligence as a Matter of
`LAW. s.sececcsccscssceseesecsecsecsecseceecesceseesecsecsecsesseceecsseseeseessesesnesaeeees 22
`2 Nutrien Was Under No Duty to Train or Supervise Hereford
`GTI... .ceseesscesseesscessecesscesscesecesecessecessceseceseceseeesecessceseceseeseeenes 26
`B. These Issues Are Controlling Questions Of Law ........ccceseceeeeeeeees 28
`C. This Appeal Will Materially Advance the Litigation’s Ultimate
`TO@QIMINAUON .......ceescesscesscesscessecescceseceseeeeecessceseccsecessecessceseceseeeeseseneens 29
`II]. | This Petition Presents Questions of Law that Are Important to the
`Jurisprudence Of T@XaS .........cccsccesscsscessesscesscsseesecessessceseesseesesessesseesseeseasensees 30
`A. Texas Rejects Probability-Based Theories of Liability ............. 30
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`NUTRIEN’S PETITION FOR REVIEW 5
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`B. Texas Does Not Impose Duties to Monitor or Control Unrelated
`Third Parties, Including CusStOMerS...........:ccscsccectecseeeeeeseseeeteeees
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`PRAY ER ve ecsesseseseeecnecsessesececsessesececsesseseesessesseseesecsesseseeeeeseeseeaeseenesaeeaesesaeeaeeaes
`CERTIFICATE OF COMPLIANCE wo ciccceeseesesetecnesetseeecnecseeseeeseeseeeeeenees
`CERTIFICATE OF SERVICE
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`NUTRIEN’S PETITION FOR REVIEW 6
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`INDEX OFAUTHORITIES
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`Page(s)
`Cases
`Gann v. Anheuser-Busch, Inc.,
`394 S.W.3d 83 (Tex. App.— El Paso 2012, no pet.) oc. .cescsescsessessesseeseereeres 22
`Gaulding v. Celotex Corp.,
`772 S.W.2d 66 (Tex. 1989)... cccscsccescseseescsssseessescsessssssesseessesseeeseeeas 23, 30, 31
`
`Greater Houston Transp. Co. v. Phillips,
`801 S.W.2d 523 (Tex. 1990) oo. ccccccsesseessessssesessesssseessesessseessseesssees 26, 27, 32
`
`Gulf Coast Asphalt Co., L.L.C. v. Lloyd,
`457 S.W.3d 539 (Tex. App.— Houston [14th Dist.] 2015, no pet.) .21, 22, 28, 29
`
`Humble Sand & Gravel, Inc. v. Gomez,
`146 S.W.3d 170 (Tex. 2004) voice cceccssecssscsssccssccssscsscsssscsscssesessscssssesseeseeess 27
`
`Kenyon v. Elephant Ins. Co., LLC,
`--- §.W.3d ---, 2020 WL 1540392 (Tex. App.— San Antonio 2020,
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`Pet. PENAING) 0... eescecssessesscsscsscsscescessesseseesecsessecseceeseeceesessessessssssssssessesaeseeserees 20
`Khan v. Velsicol Chem. Corp.,
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`711 S.W.2d 310 (Tex. App.— Dallas 1986, pet. denied)... ceeceeeeeeeeees 27
`Marathon Corp. v. Pitzner,
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`106 S.W.3d 724 (Tex. 2003) v..ccccccccccssccscercesessessessessessesesssserserees 21, 23, 24, 26
`Sabre Travel Int’, Ltd. v. Deutsche Lufthansa AG,
`
`567 S.W.3d 725 (Tex. 2019) wc ceecesescscsscsscsscsscescescessesseseesscseceeseecsesssseasersenes 20
`Statutes
`Tex. Civ. Prac. & Rem. Code § 51.014(d) oo. eeecccssssccesssecesssseessseeeees 9, 11, 21
`Tex. GOV. Code § 22.001(a).... ccc eescsescsscsscsscescessessesessssessssseceesesserserees 11, 18, 30
`Other Authorities
`House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 978, 77th
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`LeG., R.S. (2001)... eccscscsscscecesessseeessssscsecesceesessessesecsessessssseseeseesessessesseaseas 22
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`NUTRIEN’S PETITION FOR REVIEW 7
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`TDA, “Pesticides” (last visited Oct. 26, 2020) available at
`https://www.texasagriculture.gov/RegulatoryPrograms/
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`P@SLICICES.ASPX ......scsccessesscessesseesscessesscesscsecesscessesscesecsssessceseesscesscseceaseeseneceateneees 32
`TeX. R. App. P. 28.3 ...ccccccccsescssescscsssssesssssssessssssescsessessssesseesesssseeessssseesessesseeeeeseaees 9
`Tex. R. App. P. 56.1(€)(2) cccccccscscsessessssscsscsscescsscessesecssessecsecsscessessessesssaesseseees 20
`Tex. R. App. Proc. 56(1)(a)(5) cc. ee escsessessesscsscsscsseessessesscsesecseceesessersessesseaeeneenees 30
`Tex. R. App. Proc. 56(1)(a)(6)....ceeescsescssessesscsscsseessessessssecsecsscsecessessessesseaseneenees 30
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`NUTRIEN’S PETITION FOR REVIEW 8
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`STATEMENT OF THE CASE
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`In this case, the Plaintiffs seek damages for the injuries and deaths of family
`members arising from an incident in which Plaintiff Peter Balderas, Sr. applied a
`restricted use pesticide under his family home.
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`Petitioners, Nutrien Ag Solutions, Inc. (f/k/a Crop Productions Services,
`Inc.) and Crop Production Services, Inc. (together, “Nutrien”), file this petition for
`review under Texas Government Code § 22.001(a). The trial court case number
`and style are: No. 106846-E-CV, Peter Balderas et al. v. United Phosphorus Ltd.
`et al., in the 108th judicial district court of Potter County, Texas, before Judge
`Doug Woodburn.
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`Nutrien seeks to appeal two district court orders signed on July 6, 2020.
`Those orders denied Nutrien’s (1) No-Evidence Motion and (2) Traditional Motion
`for Summary Judgment. The trial court granted Nutrien permission to appeal the
`orders on July 6, 2020.
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`Nutrien sought interlocutory appeal of the Court’s July 6 orders because they
`involve controlling questions of law for which there are substantial grounds for
`difference of opinion, and an immediate appeal from the orders would materially
`advance the ultimate termination of the litigation. Tex. Civ. Prac. & Rem. Code
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`§ 51.014(d).
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`NUTRIEN’S PETITION FOR REVIEW 9
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`On July 28, 2020, the Seventh Court of Appeals granted Nutrien’s co-
`defendant's Petition for Interlocutory Appeal, No. 07-20-00165-CV.
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`On September 14, 2020, the Seventh Court of Appeals—Judges Pirtle,
`Parker, and Doss— denied Nutrien permission to pursue an interlocutory appeal.
`Nutrien Ag Solutions, Inc. et al v. Peter Balderas et al., 07-20-00192-CV (Tex.
`App.— Amarillo Sept. 14, 2020, pet. filed) (per curiam). Nutrien did not file a
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`motion for rehearing or en banc reconsideration.
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`NUTRIEN’S PETITION FOR REVIEW 10
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`STATEMENT OF JURISDICTION
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`Although the trial court denied Nutrien’s motions for summary judgment, it
`determined that an immediate interlocutory appeal was warranted under Texas
`Civil Practice and Remedies Code § 51.014(d). See Exs. V and W, Trial Court
`Orders; App. 135 and 138. The trial court specified in detail that its orders
`involved controlling questions of law as to which there are substantial grounds for
`difference of opinion, and an immediate appeal may materially advance the
`ultimate termination of the litigation. The court of appeals, however, declined to
`accept the appeal without explanation. This Court has jurisdiction to review the
`trial court’s denial of Nutrien’s summary judgment motions under Texas
`Government Code § 22.001(a), which provides “The supreme court has appellate
`jurisdiction, except in criminal law matters, of an appealable order or judgment of
`the trial courts if the court determines that the appeal presents a question of law
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`that is important to the jurisprudence of the state.”
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`NUTRIEN’S PETITION FOR REVIEW 11
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`ISSUES PRESENTED
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`1. Whether there is sufficient evidence, beyond speculation and conjecture,
`to submit negligence to the jury under the test in Marathon Corp. v. Pitzner, 106
`S.W.3d 724 (Tex. 2003).
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`2. Whether Nutrien has a duty to ensure its commercial customers, licensed
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`in restricted-use pesticides, follow the law.
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`NUTRIEN’S PETITION FOR REVIEW 12
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`STATEMENT OF UNDISPUTED FACTS
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`A. During 2009 and 2010, 3710 Canisters of Weevil-Cide from Batch 18
`Were Distributed in the United States
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`At issue in this case is a batch of Weevil-Cide pellets' that UPI
`manufactured in India in 2008 and shipped to the United States during 2009 and
`2010, identified by batch code KFOOABPO018 (“Batch 18”). Ex. B, at 226:1-12;
`App. 010. Batch 18 comprised 265 cases, 14 canisters each, for a total of 3,710
`canisters. Ex. C, at 489-97; App. 011-19.
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`UPI shipped Batch 18, in the following quantities, to the following entities
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`in 9 locations across the country:
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`e 48 Cases to Research Fumigation Company in Reserve, Louisiana;
`e 48 Cases to Central States Fumigation in Kenner, Louisiana;
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`e 94.26 Cases to Ecolab - Pearland (a/k/a Research Fumigation Company) in
`Pearland, Texas;
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`e 2 Cases to Nutrien in Hereford, Texas;
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`e 47.74 Cases to Estes Inc. in Enid, Oklahoma;
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`e 12 Cases to Safetyquip Company in Portland, Oregon;
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`e 1 Case to Opossum Ridge Planting Company in Hollandale, Mississippi;
`e 11 Cases to The McGregor Company, in Palouse, Washington; and
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`e 1 Case to Nutrien in Delhi, Louisiana.
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`Ex. C, at 489-97; App. 011-19. Nutrien accounted for every canister of Batch 18
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`Weevil-Cide that passed through its Hereford, Texas location, all of which were
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`' Weevil-Cide is a restricted-use fumigant pesticide consisting of small gray balls that are
`activated by moisture in the air, causing the release of phosphine gas. Ex. A, at 4; App. 004.
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`NUTRIEN’S PETITION FOR REVIEW 13
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`sold to Hereford Grain Corp., a duly licensed applicator, over a roughly 48-hour
`period in August 2009. Ex. I, at 1, 4, 41, 42; App. 054-57.
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`At some point between 2009 and 2016, Plaintiff Peter Balderas, Sr. (“Mr.
`Balderas”) somehow obtained a single canister of Weevil-Cide from the 3,710
`canisters that comprise Batch 18. Ex. E, at 86:9-13; App. 025. In December 2016,
`in order to kill rodents, Mr. Balderas placed the Weevil-Cide under his family
`home, which led to his family’s injuries and four of his children’s deaths.
`Afterwards, Mr. Balderas variously told law enforcement that he received the
`canister from (1) a friend one year prior to the incident; (2) a friend from Mexico
`approximately one month prior; (3) someone in Dallas five years prior; and (4)
`someone at a gas station outside Amarillo. See Ex. F, at 69, 70; App. 030-31; Ex.
`G at 11-64; App. 033-46, 89:4-7; App. 047; Ex. H at 11, 14; App. 049-50.
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`B. Law Enforcement Was Unable to Determine the Source of the Weevil-
`Cide
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`Inspector Camillo Garzon of the Texas Department of Agriculture (“TDA”)
`investigated the source of the Weevil-Cide and was unable to determine from
`whom Mr. Balderas obtained it. Mr. Balderas told Inspector Garzon varying
`accounts of where he obtained the Weevil-Cide, including that he had received it
`(1) about five years ago from someone in Dallas, Texas (Ex. H at 11; App. 049);
`and (2) from someone at a gas station outside Amarillo on I-40 (Ex. H at 14; App.
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`050). At no point did Mr. Balderas mention Isidro Ulloa, Crop Production
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`NUTRIEN’S PETITION FOR REVIEW 14
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`Services, Nutrien, or Hereford Grain to the police or TDA as the source of the
`single canister of Weevil-Cide he used beneath his home. Inspector Garzon’s
`report noted that due to “[iJnconsistent information provided by Peter Balderas”
`TDA could not determine the source of the Weevil-Cide. Ex. H at 27; App. 051.
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`Inspector Garzon contacted UPI to determine where Batch 18 had been
`distributed, but limited his search to certain locations in Texas and Oklahoma.
`Inspector Garzon did not investigate all locations across the country that received
`canisters from Batch 18. Inspector Garzon focused on (1) Nutrien’s Hereford
`location, which had received 2 cases; (2) Research Fumigation in Pearland, which
`had received 94 cases; and (3) Estes Chemical in Enid, which had received 48
`cases of Batch 18. Ex. H at 30; App. 052.
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`Research Fumigation did not retain records from 2009. Estes Chemical had
`closed. Only Nutrien still possessed records, which showed it had possessed 2
`cases from Batch 18 for less than 72 hours in August 2009 and that Nutrien sold
`both cases to Hereford Grain Corp. Ex. H at 31; App. 053, Ex. I at 1; App. 054.
`Nutrien accounted for every canister of Batch 18 that it handled. No canisters went
`unsold or missing. Ex. I at 1, 4; App. 054-55. Moreover, Hereford Grain had a
`valid pesticide dealer license and employed a licensed applicator. Ex. I at 41, 42;
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`App. 056-57; Ex. J, at 45:18-22; App. 063. TDA determined that Hereford Grain
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`NUTRIEN’S PETITION FOR REVIEW 15
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`complied with applicable restricted-use pesticide rules and regulations. Ex. K, at
`177:25-178:17; App. 066-67.
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`Ultimately, Inspector Garzon was unable to determine which of the 9
`recipients of Batch 18 had possessed the canister used by Mr. Balderas. Ex. K, at
`171:24-172:7; App. 065-66.
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`TDA charged Mr. Balderas with illegally obtaining, applying, storing, and
`disposing of Weevil-Cide. See Ex. L, at 1-6; App. 068-73 (six violations for a
`total penalty of $10,000). TDA did not charge any other person or entity with
`violations arising from this incident.
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`Plaintiffs’ lawsuit alleges that Mr. Balderas received the Weevil-Cide
`canister from a neighbor, Isidro Ulloa. Mr. Ulloa testified that he had never seen
`the Weevil-Cide canister before this lawsuit and did not give it to Mr. Balderas.
`Ex. M, at 14:10-19; App. 077. Mr. Ulloa has never worked for, or even heard of,
`Crop Production Services, Nutrien, Hereford Grain, or UPI. Ex. M, at 12:6-17;
`App. 076.
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`Nutrien filed an Amended No-Evidence Motion for Summary Judgment and
`a Traditional Motion for Summary Judgment (together, the “Motions”) on May 4,
`2020. See Exs. T and U; App. 106 and 116. The trial court signed Amended
`Orders denying the Motions on July 6, 2020. See Exs. V and W; App. 135 and
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`138.
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`NUTRIEN’S PETITION FOR REVIEW 16
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`Nutrien filed a petition for a permissive appeal with the Seventh Court of
`Appeals on July 29, 2020. See Exs. X, Y, Z; App. 141, 175, 189. The court of
`appeals denied Nutrien’s petition without explanation (beyond reciting the
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`elements for a permissive appeal) on September 14, 2020. See Ex. AA, App. 203.
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`NUTRIEN’S PETITION FOR REVIEW 17
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`SUMMARY OF ARGUMENT
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`The law in Texas is well-settled: Juries cannot guess or speculate regarding
`causation, and there is no duty to ensure third parties follow the law. Y et, despite
`the Texas Supreme Court's clarity on both of these points, the trial court held (1)
`the jury can speculate based on probability even though there is no evidence
`establishing Nutrien ever possessed the Weevil-Cide canister Mr. Balderas used
`beneath his home; and (2) manufacturers and retailers have a duty to monitor, train,
`and supervise their customers to ensure their customers follow the law— even
`where the customer, as here, is licensed and regulated by TDA. This Court should
`grant certiorari because these issues are questions of law which are “important to
`the jurisprudence of the state.” Tex. Gov. Code § 22.001(a).
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`Nutrien filed a petition for a permissive appeal to the Seventh Court of
`Appeals, which rejected Nutrien’s petition without explanation. This was an abuse
`of discretion because Nutrien demonstrated the necessary elements for a
`permissive appeal. If the court of appeals rejected Nutrien’s appeal based on a
`perceived lack of substance in the trial court’s orders, then that decision conflicts
`with other courts of appeals and this Court should resolve that dispute.
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`If allowed to stand, the trial court’s orders and the court of appeals’ refusal
`to correct them would (1) allow the jury to engage in probabilistic determinations
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`that this Court has rejected previously; and (2) impose a duty on retailers and
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`NUTRIEN’S PETITION FOR REVIEW 18
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`manufacturers to monitor all of their customers’ behavior to ensure that the
`customers act lawfully. These are clear departures from Texas Supreme Court
`jurisprudence and place enormous burdens on Nutrien and, more broadly,
`businesses in Texas. Therefore, Nutrien respectfully requests that this Court
`remand to the court of appeals to grant Nutrien’s permissive appeal or grant this
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`petition and rule on these important questions of law.
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`NUTRIEN’S PETITION FOR REVIEW 19
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`ARGUMENT
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`I, The Court of Appeals A bused Its Discretion in Declining Nutrien’s
`Interlocutory A ppeal
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`Below, the trial court ruled that the jury may guess at whether Nutrien— the
`recipient of less than 1% of Batch 18— had possessed the W eevil-Cide canister that
`Mr. Balderas illegally used under his home. Ex. V; App. 135-37. The trial court
`also ruled that Nutrien had a duty to monitor and train its licensed customers to
`ensure that they used or sold products lawfully. Ex. W; App. 138-40. Both of
`these orders contravene well-established Texas law. Nutrien demonstrated as such
`to the court of appeals, which declined to hear Nutrien’s permissive appeal without
`any explanation beyond reciting the elements necessary for a permissive appeal.
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`To the extent the court of appeals viewed the trial court’s orders as lacking
`adequate substantive discussion, there is a “conflict between the courts of appeals
`on an important point of law” that this Court should resolve. Tex. R. App. P.
`56.1(a)(2); see also Kenyon v. Elephant Ins. Co., LLC, --- S.W.3d ---, 2020 WL
`1540392, at *4 (Tex. App.— San Antonio 2020, pet. pending) (holding that, after
`Sabre Travel Int'l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725 (Tex. 2019),
`courts of appeals should not reject permissive appeals because of a lack of
`Substance in trial court orders, and “review is not limited to the controlling
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`question of law formulated by the district court in its certification order”).
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`NUTRIEN’S PETITION FOR REVIEW 20
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`Although the claims in this petition—negligence— frequently involve
`complicated factual issues, no disputed issues of fact are present here, only
`questions of whether the existing facts suffice to submit the claims to the jury. The
`Texas Supreme Court has held in such a situation that appellate courts may rule on
`the application of undisputed facts to law. See, e.g., Marathon Corp. v. Pitzner,
`106 S.W.3d 724 (Tex. 2003) (deciding, on appeal, defendant was not liable for
`negligence claim based on no evidence of causation).
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`As the following will show, Nutrien established the requirements for a
`permissive appeal below: “(1) the order to be appealed involves a controlling
`question of law as to which there is a substantial ground for difference of opinion;
`and (2) an immediate appeal from the order may materially advance the ultimate
`termination of the litigation.” Tex. Civ. Prac. & Rem. Code § 51.014(d). This
`Court should therefore remand to the court of appeals to hear Nutrien’s permissive
`appeal.
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`A. There Are Substantial Grounds for Differences of Opinion
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`“The proper scope of a permissive appeal is the determination of controlling
`legal issues, about which there are legitimate disagreements, necessary to the
`resolution of the case.” Gulf Coast Asphalt Co., L.L.C. v. Lloyd, 457 $.W.3d 539,
`544 (Tex. App.— Houston [14th Dist.] 2015, no pet.). Permissive appeals promote
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`judicial efficiency where “the trial court rules on an issue that is pivotal in a case
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`NUTRIEN’S PETITION FOR REVIEW 21
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`but about which there is legitimate disagreement.” Id. (quoting House Comm. on
`Civil Practices, Bill Analysis, Tex. H.B. 978, 77th Leg., R.S. (2001)). Despite the
`dispositive legal issues raised in Nutrien’s Motions, the Court denied Nutrien’s
`Motions and the court of appeals denied Nutrien’s permissive appeal without
`explanation. However, there exist substantial grounds for differences of opinion
`regarding the issues raised in this petition, and the court of appeals abused its
`discretion in denying Nutrien’s interlocutory appeal.’
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`1. Plaintiffs Have No Evidence of Negligence as a Matter of Law
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`After extensive discovery, Plaintiffs failed to identify any evidence
`establishing that Nutrien possessed the particular Weevil-Cide canister that Mr.
`Balderas illegally used under his home. Plaintiffs’ only “evidence” is supposition
`and inferences stacked on other inferences. Allowing a jury to determine the
`probability that Nutrien possessed the canister—with no direct evidence
`whatsoever— contravenes Texas law.
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`To prevail on negligence claims, the Plaintiffs must establish “(1) a legal
`duty owed by one person to another; (2) a breach of that duty; and (3) damage
`proximately caused by the breach.” Gann v. Anheuser-Busch, Inc., 394 S.W.3d 83,
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`88 (Tex. App.— El Paso 2012, no pet.). In a products case, “the plaintiff must
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`2 Additionally, on July 28, 2020, the Seventh Court of Appeals granted Nutrien’s co-defendant’ s
`Petition for Interlocutory Appeal, No. 07-20-00165-CV.
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`NUTRIEN’S PETITION FOR REVIEW 22
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`prove that the defendants supplied the product which caused the injury.” Gaulding
`v. Celotex Corp., 772 S.W.2d 66, 68 (Tex. 1989).
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`Courts should grant no-evidence motions for summary judgment when “the
`record discloses a complete absence of evidence of a vital fact” or “the evidence
`offered to prove a vital fact is no more than a mere scintilla.” Marathon, 106
`S.W.3d at 727.
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`“[S]ome suspicion linked to other suspicion produces only more suspicion,
`which is not the same as some evidence.” Id. at 728. Further, this issue is a matter
`of law: “[A]n inference stacked only on other inferences is not legally sufficient
`evidence.” Id. The Marathon case is instructive.
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`In Marathon, as here, the plaintiff’s only evidence of liability required
`extensive speculation, thus the claims failed as a matter of law. The plaintiff
`(Pitzner) was an air conditioning repairman working on the roof of defendant
`Marathon’s motorcycle dealership. Id. at 725-26. After the dealership closed,
`Pitzner was found semi-conscious in the parking lot with severe head injuries. Id.
`Although Pitzner had no memory of what happened, and no testifying witnesses
`observed what led to his injuries, he sued Marathon under the theory that
`Marathon’s negligence— specifically the rooftop’s condition— caused his injuries.
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`Id.
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`NUTRIEN’S PETITION FOR REVIEW 23
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`At trial, the parties presented the following evidence favorable to Pitzner: (1)
`Marathon’s roof did not comply with codes; (2) the air conditioning units were too
`close together; (3) the units lacked the required power disconnect; (4) Pitzner had a
`screwdriver with a burnt tip; and (5) a gas pipeline present on the rooftop was a
`tripping hazard. Id. at 728-29. The jury found Marathon one hundred percent
`liable, but the Texas Supreme Court noted this verdict required the jury to
`speculate that (1) the power to the rooftop air conditioning units had been shut off
`inside the building; (2) requiring Pitzner to reach inside the cramped units; (3)
`using his screwdriver, Pitzner contacted a live high-voltage wire in one of the
`units; (4) Pitzner was shocked so harshly that he stumbled backward and tripped
`over the gas pipeline; (5) which caused him to fall off the roof; and (6) all of which
`would have been avoided if Marathon had possessed the proper power disconnect
`or more space between the air conditioning units. Id. at 729. The Texas Supreme
`Court held that this string of inferences was inadequate to sustain liability as a
`matter of law. Id. at 729.
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`The Texas Supreme Court held that, “in cases with only slight circumstantial
`evidence, something else must be found in the record to corroborate the probability
`of the fact’s existence or non-existence.” Id. Thus, the Texas Supreme Court
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`reversed as a matter of law and held Marathon was not liable. Id. at 730.
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`NUTRIEN’S PETITION FOR REVIEW 24
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`Here, in response to Nutrien’s arguments, Plaintiffs submitted zero evidence
`connecting Nutrien to the Weevil-Cide canister that Mr. Balderas used. Rather,
`Plaintiffs submitted slight circumstantial evidence demonstrating only that: (1) the
`product Plaintiff Mr. Balderas used under his home was a canister of Batch 18
`Weevil-Cide pellets; (2) seven years prior to the incident, Nutrien’s Hereford
`location possessed 28 (of the 3,710) canisters of Batch 18—i.e., less than 1%— and
`was the closest recipient of Batch 18 to the Balderas incident; (3) Nutrien
`possessed the 2 cases for less than 72 hours and sold both cases to its licensed
`customer Hereford Grain; (4) Hereford Grain either used the Weevil-Cide it
`purchased or sold it to other licensed applicators; (5) after the incident, TDA
`investigated Nutrien and two other companies in Texas and Oklahoma as possible
`sources of the Balderas canister; and (6) TDA was unable to conclude whether
`Nutrien, the two other TDA-investigated entities, or Batch 18 recipients in four
`other states had been the source of the Balderas canister. Ex. W at 2; App. 139.
`None of this evidence establishes that Nutrien possessed the canister.
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`Nutrien accounted for every canister that briefly passed through its Hereford,
`Texas location, and Nutrien’s sale to its customer, Hereford Grain, was lawful.
`Plaintiffs’ “evidence” consists of suspicions and inferences about the origin of the
`canister that Mr. Balderas used under his home. In other words, Plaintiffs and
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`Nutrien do not disagree about what evidence exists, but rather whether suspicions
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`NUTRIEN’S PETITION FOR REVIEW 25
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`and inferences are sufficient to submit the question to the jury. Under the Texas
`Supreme Court’s holding in Marathon, Plaintiffs’ arguments are insufficient as a
`matter of law to establish negligence on any theory. The jury should not be
`allowed to speculate on this point in contravention of Texas Supreme Court case
`law.
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`2. Nutrien Was Under No Duty to Train or Supervise Hereford Grain
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`Nutrien was not under a legal duty to train or supervise its customer,
`Hereford Grain. Moreover, because Hereford Grain was a duly licensed pesticide
`dealer with whom Nutrien had no special relationship, Nutrien’s sale of Weevil-
`Cide to Hereford Grain was lawful. Plaintiffs’ claims for “negligent customer
`training” or “negligent distribution” therefore fail as a matter of law.
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`“[T ]he existence of duty is a question of law for the court to decide from the
`facts surrounding the occurrence in question.” Greater Houston Transp. Co. v.
`Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
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`“Generally, there is no duty to control the conduct of third persons.” Id.
`The only exceptions involve the following relationships, none of which is
`applicable to Nutrien’s customers such as Hereford Grain: employer and employee,
`parent and child, and independent contractor and contractee where the contractee
`retains the right to control the contractor's work. Id. “In Texas, the law recognizes
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`that there is no duty to inform others of the requirements of the law because all
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`NUTRIEN’S PETITION FOR REVIEW 26
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`persons are presumed to know the law.” Id. at 525, n.3 (emphasis added).
`Because Texas does not impose a duty on Nutrien to supervise or train its
`customers, Plaintiffs’ negligence claims fail as a matter of law.
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`Additionally, it is undisputed that Nutrien’s sale of Weevil-Cide to Hereford
`Grain in August 2009 was lawful. Hereford Grain held a valid pesticide dealer's
`license at the time of the sale in 2009 and also employed a licensed applicator. Ex.
`I at 46-47; App. 058-59; Ex. J, at 45:18-22; App. 063.
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`Plaintiffs argued below that “Nutrien had a duty to safely distribute the
`highly dangerous Weevil-Cide product” and relied upon Humble Sand & Gravel,
`Inc. v. Gomez, 146 S.W.3d 170, 188 (Tex. 2004). However, Humble involved the
`adequacy of a manufacturer’s product label warnings to foreseeable users. 146
`S.W.3d, 185-91. Plaintiffs do not claim Nutrien failed to warn Mr. Balderas or
`that Nutrien played any role in the creation of the product label. Nowhere in
`Humble does the Texas Supreme Court suggest that a product retailer has a duty to
`manage, train, or supervise its customers—or distribute products in a certain
`fashion.? Rather, it is the manufacturer's duty to adequately warn ultimate,
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`foreseeable users via product labeling.
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`> Similarly, Plaintiffs’ reliance below on Khan v. Velsicol Chem. Corp., 711 S.W.2d 310 (Tex.
`App.— Dallas 1986, pet. denied)) is misguided. Khan, just as Humble, is about a manufacturer’ s
`warnings to foreseeable users, and never discussed a retailer’s duties to monitor its customers or
`track its products.
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`NUTRIEN’S PETITION FOR REVIEW 27
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`Nutrien neither owed, nor violated, any duties to supervise or train Hereford
`Grain, and Nutrien cannot be liable for Hereford Grain’s alleged negligence.
`Nutrien’s sale of Weevil-Cide to Hereford Grain was lawful, and Plaintiffs’ efforts
`to create duties bey