Writing Sample Of Msj

Motion for Summary Judgment The following is a motion for summary judgment drafted during an internship with Upton, Mickits & Heymann. The names of parties and cause numbers have been changed to protect client confidentiality. Andrew Neal 9/1/2009

CAUSE NO.

CAUSE NO. 349334

RITA SMITH

§ § § § § §

VS. GERONIMO VALDEZ AND BARBARA VALDEZ

IN THE COUNTY COURT AT LAW NO. FIVE BEXAR COUNTY, TEXAS

DEFENDANT BABARA VALDEZ MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES BABARA VALDEZ, hereinafter referred to as “Movant,” a defendant in the above-styled and numbered cause and files this his Motion for Summary Judgment and for cause would respectfully show unto the Honorable Court the following: MOVANT’S ALLEGATIONS 1.

This suit arises from an automobile accident which occurred on or about May 11, 2007.

At the time of the incident in question Co-Defendant, GERONIMO VALDEZ, was driving a motor vehicle which he owned. Plaintiff, RITA SMITH, claimed to have been injured as a result of the accident and have brought a negligent entrustment cause of action against Movant. 2.

Movant respectfully contends, through this Motion for Summary Judgment, that

Plaintiffs’ claims against Movant lack merit as a matter of law. The elements of a negligent entrustment cause of action are: (1) the owner entrusted its vehicle to another person; (2) the person was an unlicensed, incompetent, or reckless driver; (3) the owner knew or should have known the driver was unlicensed, incompetent, or reckless; (4) the driver was negligent on the occasion in question; (5) and the driver’s negligence proximately caused the plaintiff’s injury. Williams v. Steves Industries, Inc., 699 S.W.2d 570, 571 (Tex. 1985).

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3.

Movant respectfully contends that the Motion for Summary Judgment should be granted

because she was not an owner of the motor vehicle involved in the accident, and as such, there can be no negligent entrustment of the vehicle as a matter of law. A non -owner of a vehicle cannot be held liable under a negligent entrustment theory for allowing another to drive the vehicle because the non- owner has no legal authority to prevent or grant use of the vehicle. Hence, the non-driver non-owner cannot be said to have entrusted the vehicle to the alleged negligent driver. Simply put, non-ownership of the vehicle defeats Plaintiffs’ negligent entrustment claim against Movant. NOTICE OF EVIDENCE RELIED UPON 4.

This Motion for Summary Judgment relies on the following evidence attached to this

motion as Exhibit “A”: Certification of Title of said motor vehicle in the names of GERONIMO VALDEZ. Movant concurrently relies on the following evidence attached to this motion as Exhibit “B”: Peace Officer’s Crash Report description of the accident as written by the police officer at the scene listing the driver of the vehicle involved as GERONIMO VALDEZ. Defendant relies upon the pleadings and other documents in the Court’s file in this case. AUTHORITY 5.

The movant for summary judgment has the burden of showing that there is no genuine

issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgr. Co., 690 S.W.2d 546, 548 (Tex. 1985); Swilley v. Hughes,488 S.W.2d 64, 67 (Tex. 1972). The issue in a summary judgment proceeding is whether there is a genuine issue of material fact.

Gaines v.

Hamman,358 S.W.2d 557 (Tex. 1962). The question is not whether the summary judgment proof raises fact issues with reference to the essential elements of plaintiff’s claim or cause of action, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Walton v. Harnischfeger d/b/a P & H Crane, 796 S.W.2d 225 (Tex. App. _________________________________________________________________________________________________________ DEFENDANT BABARA VALDEZ MOTION FOR SUMMARY JUDGMENT

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—San Antonio 1990, writ denied). Once the movant establishes that no genuine issue of material fact exists regarding an essential element of the plaintiff’s claim, the non-movant must present competent summary judgment evidence raising a fact issue on that element. Owen Elec. Supply, Inc. v. Brite Day Constr., Ind., 821 S.W.2d 283, (Tex. App.—Houston [1st Dist.] 1991, no writ.) 6.

Under Rule 166(a) of the Texas Rules of Civil Procedure, a summary judgment is proper

only when a movant establishes that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. Swilley v. Hughes, 488 S.W.2d 64 (Tex. 1972). The movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. MMP Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986). Summary judgment is proper for a defendant if his summary judgment proof establishes as a matter of law that there exists no genuine issue of material fact concerning one or more essential elements of the plaintiff’s cause of action. Goldberg v. United States Shoe Corp., 775 S.W.2d 751 (Tex. Appl.—Houston [1stDist.] 1989, writ denied). Summary judgment is also proper for a defendant if he conclusively establishes all elements of his affirmative defenses as a matter of law. Munoz v. Gulf Oil Co.,693 S.W.2d 372 (Tex. 1984). In order to defeat the granting of a motion for summary judgment, the non-movant must respond by producingevidence that raises a fact issue on each element on an affirmative defense. Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984). ARGUMENT 7.

The issue presented here is whether a non-owner of a car can negligently entrust the car

to another. It appears that Texas’ appellate courts have not addressed this issue. Courts of other states, as well as the Restatement (Second) of Torts, have analyzed this issue and concluded that negligent entrustment is not a viable cause of action under these facts. 8.

The first element of a negligent entrustment cause of action is that the owner entrust his

or her vehicle to another person. Williams v. Steves Industries, Inc., 699 S.W.2d 570, 571 (Tex. 1985). __________________________________________________________________________________________________________ DEFENDANT BABARA VALDEZ MOTION FOR SUMMARY JUDGMENT

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The entrusting of a motor vehicle to another person as the driver is an essential element for recovery from the non-driver who owns, or otherwise, controls use of the vehicle. There can only be negligent entrustment by a non-owner under limited circumstances. See Garcia v. Cross, 27 S.W.3d 152 (Tex. App.—San Antonio 2000, no pet. h.). In Garcia, a son lent his mother’s car to a friend to attend a funeral, which led to an accident leaving a passengerof the vehicle dead. The Court reasoned that a non-owner of a vehicle could be held liable under the theory of negligent entrustment because the entrustor need only possess the right of control over the vehicle. Id. at 155. In the present case, Movant BABARA VALDEZ did not have the right of control over the vehicle involved in the accident which gives rise to this case. She was not in the vehicle during the occurrence of the accident. She could not entrust the vehicle to Defendant GERONIMO VALDEZbecause she has no rights of ownership in the vehicle or control over the vehicle. The Texas Supreme Court stated “[t]here must be a showing of … entrustment of a vehicle by the owner” to establish liability under the negligent entrustment doctrine. Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987). Movant did not possess any means, access, or authority to entrust the vehicle at the time of the accident, therefore negating the first element of negligent entrustment. 9.

Here, Plaintiff is unable to satisfy this first element that “...the owner entrust its vehicle to

another person” because movant was not an owner of the vehicle. Williams, supra, 699 S.W.2d at 571. By definition, one non-owner cannot “entrust” a vehicle to another without control of the vehicle. 10.

In Summary, Plaintiffs’ negligent entrustment claim against Movant fails as a matter of

law because there can be no negligent entrustment of a motor vehicle by a non-owner. BABARA VALDEZ was not an owner nor did she have any control of the vehicle involved in the accident giving rise to this lawsuit. There is no genuine issue of material fact regarding this issue. The proof of nonownership is the title to the vehicle which predates the accident and listed GERONIMO VALDEZ, see

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Exhibit “A” attached hereto, and the police officer’s accident report which list GERONIMO VALDEZ as the sole driver of the vehicle which was involved in the accident, see Exhibit “B” attached hereto. WHEREFORE, PREMISES CONSIDERED, Movant requests that this matter be set for hearing and that Plaintiff, RITA SMITH, be required to produce summary judgment evidence raising a genuine issue of material fact relating to their claim against Defendant, BARBARA VALDEZ. Movant further requests that upon consideration by the Court and in the absence of such proof that the Court grant this Motion for Summary Judgment and order that Plaintiffs take nothing against BARBARA VALDEZ in this action and that Defendant recover his costs of suit. Respectfully submitted,

UPTON, MICKITS & HEYMANN, L.L.P. City View 10986 IH 35 South, Suite 248 San Antonio, Texas 78230 (210) 881-3871 (210) 881-3780 (Fax)

By: __________________________________________ ATTORNEYS FOR DEFENDANTS, GERONIMO VALDEZ A/K/A JERRY VALDEZ AND BARBARA VALDEZ

CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing instrument was served upon the Attorneys of Record of all parties to the above cause in accordance with Rule 21a, Texas Rules of Civil Procedure, on this the ___day of ___, 2009, by the method indicated below. __________________________________________________________________________________________________________ DEFENDANT BABARA VALDEZ MOTION FOR SUMMARY JUDGMENT

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