APPELLANT S BRIEF CASE NO: CV APPEAL FROM THE COUNTY COURT AT LAW NO. THREE, NUECES COUNTY, TEXAS MICHAEL GILMORE,

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1 CASE NO: CV APPEAL FROM THE COUNTY COURT AT LAW NO. THREE, NUECES COUNTY, TEXAS TRIAL COURT CAUSE NO: 2017-CCV ACURRATE VALVE SERVICES, INC., APPELLANT VS. MICHAEL GILMORE, APPELLEE APPELLANT S BRIEF Bradford M. Condit Attorney for Appellant Accurate Valve Services, Inc. 401 N. Tancahua Corpus Christi, Texas State Bar No Voice: 361/ Facsimile: 361/ bradcondit@sbcglobal.net

2 I. Identity of Parties and Counsel Appellant: Accurate Valve Services, Inc Agnes Corpus Christi, Texas Appellee: Counsel: Bradford M. Condit 401 N. Tancahua Corpus Christi, Texas Voice: 361/ Facsimile: 361/ Michael Gilmore Counsel: Trial Court: Mr. Richard W. Hunnicutt III THE LAW OFFICES OF THOMAS J. HENRY 521 Starr Street Corpus Christi, Texas Attorney for Plaintiff/Appellee Judge Deanne Galvan County Court At Law No. Three 901 Leopard Corpus Christi, Texas i.

3 II. TABLE OF CONTENTS I. Identity of Parties and Counsel i II. Table of Contents ii III. Index of Authorities iii IV. Statement of the Case iv V. Statement of Oral Argument iv VI. Issue Presented iv The trial court erred in denying Appellant s motion for sanctions based on Appellee s filing of a false affidavit in his summary judgment response. VII. Statement of Facts VIII. Summary of the Argument IX. Argument and Authorities Issue One X. Prayer for Relief XI. Certificate of Compliance XII. Certificate of Service XIII. Appendix A. Order Denying Motion for Sanctions B. Gilmore Summary Judgment Affidavit ii.

4 III. Index of Authorities Case Law Authority Emmons v. Purser, 973 S.W.2d 696, 700 (Tex.App.-Austin 1998, no pet.) Home Owners Funding Corp. v. Scheppler, 815 S.W.2d 884, 889 (Tex.App.--Corpus Christi 1991, no writ) In Interest of W.E.R, 663 S.W.2d 887 (Tex.App. San Antonio 1983), (rev d on other grounds) In Interest of W.E.R., 669 S.W.2d 716 (Tex. 1984) Karagounis v. Property Co. of America, 970 S.W.2d 761 (Tex.App. Amarillo 1998) Rules Tex.R.Civ.P , 8, 9 iii.

5 IV. STATEMENT OF THE CASE Appellee Michael Gilmore filed a personal injury suit against Appellant Accurate Valve Services, Inc. and others for personal injuries arising from an oil field accident. Appellant filed a no evidence summary judgment motion and Appellee filed a response with his affidavit attached. (CR 5, 18) On the morning of trial Appellee non-suited Appellant (Supp. CR 4) and during the trial against the remaining Defendant testified that he lied in his summary judgment affidavit (RR Ex. Vol. Ex. B, pp ; Ex. C, pp ) Appellant moved the court for TRCP 13 sanctions for the filing of the false affidavit and the trial court denied its sanctions motion. (CR 39, 57, 62, 70 & 78) Post-trial against Appellant s co-defendants the trial court ordered a severance from the main case which made the sanctions denial order an appealable final judgment. (CR. 79) 1 This is an appeal of the trial court s refusal to enter sanctions. V. STATEMENT OF ORAL ARGUMENT Appellant does request oral argument. VI. ISSUE PRESENTED FOR REVIEW The trial court erred in denying Appellant s motion for sanctions based on Appellee s filing of a false affidavit in his summary judgment response. iv 1 That case resulted in a judgment for plaintiff and it is pending as Appellate Case No CV. The notice of appeal was filed October 20, 2017.

6 VII. Statement of Facts Appellee Michael Gilmore filed a personal injury suit against Appellant Accurate Valve Services, Inc. and others for personal injuries arising from an oil field accident. Appellant filed a no evidence summary judgment motion and Appellee filed a response with his affidavit attached. (CR pg. 37 & RR Ex. Vol. Ex. A; Appendix B) Appellee's Original Petition alleged negligence for the following failures: a. Failed to adequately train Plaintiff on the subject of workplace safety, b. Failed to train Plaintiff not to use a forklift to gain access to areas beyond his reach; c. Failed to train Plaintiff on the proper use of ladders; d. Failed to train Plaintiff on the hazards of using machinery and/or equipment for an improper or unintended purpose; e. Failed to provide proper equipment; (CR pg. 8) f. Failed to provide another employee to assist. The summary judgment motion asserted there was no-evidence of the following facts which could have been the legal proximate cause of the injuries claimed: a. Failed to adequately train Plaintiff on the subject of workplace safety, b. Failed to train Plaintiff not to use a forklift to gain access to areas beyond his reach; c. Failed to train Plaintiff on the proper use of ladders; 1

7 (CR pg ) d. Failed to train Plaintiff on the hazards of using machinery and/or equipment for an improper or unintended purpose; e. Failed to provide proper equipment; f. Failed to provide another employee to assist. In response Plaintiff filed his affidavit and gave is oath as follows: In addition, there is a tool called lifting eyes that would have allowed me to make the same repairs without having to be elevated at all. I have personally used this tool in the past and have seen many other companies using it at drilling sites. Had Accurate Valve Service, Inc. provided me with this tool, I could have done all my work from the ground, I would not have needed a forklift, and my injury would not have occurred. 1 (RR. Ex. Vol. Ex. A; Appendix B) Based on this false Affidavit the court denied Accurate s summary judgment motion. (CR pg. 38) On the first day of testimony Gilmore admitted he lied in the affidavit 15 times, and the next day of trial said he lied four more times. 1 Gilmore s affidavit also references the unavailability of a ladder, but in response to his lawyer s questioning during trial admitted that not having a ladder was not relevant. Q. Okay. Now, with respect to whether or not you had a ladder, would that have changed the fact that Unit had the forklift and the platform waiting for you? MS. DELLA CASA: Your Honor, again, I'm gonna object as leading. I apologize for interrupting. THE COURT: All right, please rephrase. Q. (MR. HUNNICUIT) Whether or not you had a ladder would that have changed the outcome? A. No. (RR Ex. Vol. pg. 80) 2

8 The examination where he admitted lying 15 times is this: 1 Q. And then you go on to say here, had they done 2 so, I would not have made use of a forklift and my injury 3 would not have occurred, we looked at that. In 4 addition, there is a tool called lifting eyes that would 5 of allowed me to make the same repairs without having to 6 be elevated at all, correct? Do you see where I'm 7 reading? 8 A. I see. 9 Q. And, sir, the truth is you actually had those 10 lifting eyes in your truck, correct? 11 A. Yes, ma'am. 12 Q. So A. I used them. 14 Q. You used them. And I guess maybe I'm missing 15 something, but here aren't you blaming them for not 16 giving you lifting eyes? 17 A. The lifting eyes are for the fly. 18 Q. Okay, but you use lifting eyes, correct? 19 A. Yeah. 20 Q. You know what they are? 21 A. Yeah. 22 Q. And they're in your truck? 23 A. Yeah. 24 Q. Okay. So, you had the equipment you needed in 25 terms of lifting eyes? 1 A. Yeah. 2 Q. But you didn't use it that day? 3 A. I was using -- I used them, that's how you get 4 the block out. 5 Q. Okay. Let me -- and we don't have to keep 6 going over this point, but here what you're saying is, I 7 blame Accurate Valve, because there is a tool called 8 lifting eyes that would of allowed me to make the same 9 repairs without having to be elevated at all. I 10 personally used the tool in the past and see many other 11 companies using it at drilling sights. Do you see where 12 I'm reading? 3

9 13 MR. HUNNICUTT: Your Honor, I need to 14 object. She's adding words to the affidavit. The word 15 blame doesn't appear any where. 16 MS. DELLA CASA: I used my words, Your 17 Honor, then I starting reading. 18 MR. HIJNNICUTT: The way she's rephrasing 19 her questions again tells what she's reading and what 20 she's adding in herself. THE COURT: Okay. Ladies and gentlemen of 22 the jury, I'm sure everyone can see the screen. You can 23 tell what's written on the affidavit. 24 Q. (MS. DELLA CASA) So, let's try it this way, and 25 I think we read through this together. It says, in 1 addition, there is a tool called lifting eyes that would 2 of allowed me to make the same repairs without having to 3 be elevated at all Do you see where I read that? 4 A. Yes, ma'am. 5 Q. Have I left out any words? I don't think I 6 have. I have personally used this tool in the past and 7 have seen many other companies using it at drilling 8 site. Do you see where I read that? 9 A. Yes, ma'am. 10 Q. And what you're saying here is had Accurate 11 Valve Services Inc. provided me with this tool I could 12 of done my work from the ground! I would not have 13 needed a forklift and my injury would not have occurred. 14 Do you see where I'm reading? 15 A. Yes, ma'am. 16 Q. Sir, can we agree that you had lifting eyes in 17 your truck? 18 A. Yes. 19 Q. It was your decision not to use them? 20 A. I used the lifting eyes. 21 Q. But here -- and you may have used it at other 22 times, but what you're saying here is -- these are my 23 words, you are blaming them for this accident based on 24 your words, your sworn affidavit, because they didn't 25 give you a lifting eye, correct? A. Yes, ma'am. 2 Q. And you recall that we asked you this question 4

10 3 in your deposition, and you're testimony was -- and this 4 is the last point we're gonna make here, is that you 5 have lifting eyes and you have other equipment that's 6 able for your use. Let me see if I can flip back here. 7 You have wrenches, lifting eyes, and other tools in your 8 truck for your use, correct? 9 A. Yes, ma'am. 10 Q. The only difference between the day of the 11 accident and what you would normally do is on the day of 12 the accident, according to this affidavit, you just 13 didn't use it, correct? 14 A. You have to use lifting eyes to get the block 15 out, so, yes, I used it. 16 Q. Okay. So, maybe we're not on the same page 17 here. Here you're saying, I'm blaming them, Accurate 18 Valve, because I don't have a lifting eye. Do you see 19 where we read that? 20 A. Yes. 21 Q. And so, the truth is you really do have lifting 22 eyes? 23 A. Yes. 24 Q. So, is that false? 25 A. Yes and no. 1 Q. Okay. Sir, can we agree based on what you're 2 telling this jury right now it is not true, it is not a 3 true statement that Accurate Valve failed to give you a 4 lifting eye, that's just not true? 5 A. I had a lifting eye. 6 U. Right, so that's not true? 7 A. Yeah. 8 Q. It's not true? El A. I had lifting eyes. 10 Q. Okay. And I'm sorry sometimes you said yes, so 11 I want to clarify. It is not a true statement, because 12 you really did have lifting eyes? 13 A. Yes. [emphasis supplied] (RR Ex. Vol. Ex. B, pp ) 5

11 During trial on the second day of Gilmore again admitted lying four more times. THE COURT: Yeah. Qf course, 11 Q. (MS. DELLA CASA) All right. Mr. Gilmore, just 12 a few more questions. What I heard you say just a few 13 moments ago -- and let's just blow this up. If you had 14 a lifting eye on the day of the accident. Is that what 15 I heard you say? 16 A. Yes You used a lifting eye on the day of the 18 accident. Is that what I heard you say? 19 A. Yes. 20 Q. So let's talk about this affidavit, and you 21 certainly know the importance of signing a notary 22 affidavit, correct? 23 A. Yeah. 24 Q. You're saying these are my statements and they 25 are true, correct? 1.A. Yeah. 2 Q. All right. So let's talk about it, because I 3 want to make sure I understand what you're telling this 4 jury. What you say here, and we'll just go through this 5 quickly. In addition, there is a tool called lifting 6 eyes that would of allowed me to make the same repairs 7 without having to be elevated at all, correct? 8 A. That's what it says. 9 Q. And then it goes on to say I have personally 10 used this tool in the past and have seen it in many 11 other companies using it at drilling sights. Do you see 12 where I'm- reading? 13 A. Yes. 14 Q. And then it says had Accurate Valve Services 15 provided me with this tool I could of done all my work 16 from the ground. I would not have needed a forklift and 17 my injury would not have occurred, correct? 18 A. Yes. 19 Q. So what you're saying in this affidavit, I'm 20 not talking what you just told Mr. Hunnicutt, what you 6

12 21 you're saying in this affidavit is nobody from Accurate 22 Valve gave me a lifting eye, and because I didn't have a 23 lifting eye the accident happened, correct? 24 A. Yes. 25 Q. So, sir, I want to make sure I understand. You 1 just told Mr. Hunnicutt you used the lifting eye, but in 2 your sworn affidavit you said you never got one and you 3 never used it: is that a fair characterization? 4 A. Yeah. 5 Q. So what is it, Fir. Gilmore? Is the truth what 6 you told Mr. Hunnicutt or is the truth what you did in 7 this sworn affidavit, because I truly want to 8 understand. 9 A. You want me to explain? 10 Q. I want to know what's the truth. Did you have 11 a lifting eye or in this affidavit are you blaming 12 Accurate Valve for not giving you that -- the lifting 13 eye? 14 A. I used a lifting eye. 15 Q. Okay. So, the truth is what you told Mr. 16 Hunnicutt and the false statement is what we see here. 17 A. I guess if that's how you want to look at that. 18.Q. Okay, that's false. They gave you a lifting 19 eye, correct? 20 A. Yeah. 21 Q. The last thing I want to talk to you about and, I'm sorry. I was a little distracted. What was 23 your final answer? I apologize. 24 A. I used a lifting eye. 25 Q. So that affidavit, that statement you signed as 1 a sworn statement is false? 2 MR. HUNNICUTT: Your Honor, that's been 3 asked and answered. 4 THE COURT: Sustained [emphasis added] (RR Exhibit Vol. Ex. C, pp ) Based on the filing of the groundless and false affidavit Appellant moved the court for sanctions under TEX.R.CIV.P. 13 and after presenting this evidence to the court the motion 7

13 was denied without explanation. (CR 39-77, 78; RR. Exhibit Vol and Vol 1; Appendix A) VIII. Summary of the Argument There is no other reasonable conclusion but that Gilmore s affidavit was not factually well ground by his nineteen admissions during trial that he lied. A trial court can abuse its discretion in two ways: (1) by taking action, or as in this case by (2) refusing to punish a party for lying under oath. This is that rare circumstance where this court is called up to set a standard of conduct that does not, as the trial court s denial of the sanctions motion does, condone lying in a summary judgment affidavit by reversing the trial court s refusal to enter sanctions. If this is how the law works then let s just say it you can lie under oath without any negative consequences (in fact you get rewarded) and TEX.R.CIV.P. 13 is meaningless lost in the murky, foggy and often muddled abuse of discretion standard. The trial court s refusal to sanction the submission of the false affidavit effectively nullified Rule 13 it overruled the Texas Supreme Court s authority by way of judicial nullification by the non-enforcement of Rule 13. 8

14 IX. Argument and Authorities For Issue One The purpose of Rule 13 is to check abuses in the pleading process. See Emmons v. Purser, 973 S.W.2d 696, 700 (Tex.App.-Austin 1998, no pet.). Under this rule, the trial court imposes sanctions against an attorney, a party, or both who filed a pleading that is either (1) groundless and brought in bad faith or (2) groundless and brought for purposes of harassment. Id. This rule serves to "check abuses in the pleading process, i.e. to insure that at the time the challenged pleading was filed the litigant's position was factually well grounded and legally tenable." Home Owners Funding Corp. v. Scheppler, 815 S.W.2d 884, 889 (Tex.App.--Corpus Christi 1991, no writ). In other words, what Rule 13 regulates is the signing and filing of groundless pleadings in bad faith. Karagounis v. Property Co. of America, 970 S.W.2d 761 (Tex.App. Amarillo 1998). It is clear that an abuse of discretion can be found when a trial court s ruling is so palpably and grossly violative of fact and logic that it evidences not an exercise of judgment but defiance of judgment, not exercise of reason but rather a display of unreasonableness and arbitrariness and is taken without proper consideration of the facts and the law. See, In Interest of W.E.R, 663 S.W.2d 887 (Tex.App. San Antonio 1983), rev d on other grounds, In Interest of W.E.R., 669 S.W.2d 716 (Tex. 1984) 9

15 In applying these principals to the facts, it is undisputed that intentionally lying in an affidavit attached to a no-evidence summary judgment response was not factually well grounded, i.e. that filing such pleading was groundless, filed in bad faith and violated TEX.R.CIV.P. 13. This court is being called upon to rule that a trial court when faced with a party who admits to lying in order to survive a summary judgment motion refuses to exercise its discretion to sanction that party such failure should be corrected as an abuse of discretion. X. Prayer for Relief Appellant requests this court reverse the trial court s denial of the motion for sanctions and to remand for a determination of just sanctions and to award it costs of court. Respectfully submitted, By: Bradford M. Condit, Texas Bar No N. Tancahua Corpus Christi, Texas Tel. (361) Fax. (361) Attorney for Defendant/Appellant Accurate Valve Service, Inc. XI. Certificate of Compliance Pursuant to Tex.R.App.P. 9.4(i)(3) the number of words in Appellee's computer generated brief totals 2,728 which is the word count of the computer program used to prepare the document. /s/ Bradford M. Condit 10

16 XII. Certificate of Service On November 2, 2017 the foregoing document was served by e-filing on: Mr. Richard W. Hunnicutt III THE LAW OFFICES OF THOMAS J. HENRY 521 Starr Street Corpus Christi, Texas Attorney for Plaintiff/Appellee Michael Gilmore Bradford M. Condit Appendix A. Order Denying Sanctions B. Gilmore Summary Judgment Affidavit 11

17 Filed 7/6/ :30 PM Anne Lorentzen District Clerk Nueces County, Texas CAUSE NUMBER 2013-CCV MICHAEL GILMORE PLAINTIFF vs. UNIT DRILLINGCOMPANY, and UNIT TEXAS DRILLING LLC DEFENDANTS IN COUNTY COURT ATLAWN0.3 NUECES COUNTY, TEXAS ORDER DENYING ACCURATE YALYE SERYICE. INC.'S MOTION FOR SANCTIONS PURSUANT TO TRCP 13 FROM THE HONORABLE JUDGE OF SAID COURT: Came ori to be heard on the ft day of ~U~, 2017, Accurate Valve Services, Inc.'s Motion for Sanctions Pursuant to TRCP 13. The Court, having considered the M9tion, Response, arguments of counsel and all evidence on file, and hereby orders that said motion be in all things DENIED. SIGNED AND ENTERED on this~ day of July,

18 STATE OF TEXAS COUNTY OF NUECES AFFIDAVIT OF MICHAEL GILMORE BEFORE ME, the undersigned authority, on this day personally appeared MICHAEL GILMORE, known to me personally to be the signatory of this affidavit, who after being duly sworn, deposed and stated as follows: "My name is Michael Gilmore. My date of birth is July 10, I am of sound mind and capable in all respects to make this affidavit. From 2007 to 2013, I was employed by Accurate Valve Service, Inc. as a valve technician. My job duties included maintenance and repair of valves, blow-out preventers, and annulars on oil rigs. My job required me to be on-site at drilling rigs throughout Texas, New Mexico, Louisiana, Mississippi, and other states. On or about September 13, 2011, I was assigned by my employer, Accurate Valve Service, In9., to perform repairs to a blow-out preventer at a drilling site in Dilley, Texas. In order to make the repairs, I had to be elevated because the equipment I was trying to work on was out of my reach. So, I stood on a wooden pallet that was raised in the air by a forklift. While making the repairs, the forklift operator severed a cable wire that was holding up a large metal pulley. The pulley fell and landed my right hand which caused severe injuries. In all the years I worked for Accurate Valve Service, Inc., I was never told that using a forklift as a make-shift ladder was unsafe. Rather, I was specifically trained by Accurate Valve Service, Inc. that this practice was safe and was customary in the industry. Never once did Accurate Valve Service, Inc provide me with a ladder for any job assignment. As far as this particular job, I feel Accurate Valve Service, Inc. should have told me not to use a forklift as a make-shift ladder, and should have provided me with an actual ladder. Had they done so, I would not have had to make use of a forklift, and my injury would not have occurred. In addition, there is a tool called "lifting eyes" that would have allowed me to make the same repairs without having to be elevated at all. I have personally used this tool in the past and have seen many other companies "'.""' using it at drilling sites. Had Accurate Valve Service, Inc. provided me with this tool, I could have done all my work from the ground, I would not have needed a forklift, and my injury would not have occurred. ~~ MICHAEL GILMORE which, witness my hand and official seal. DOMINGA RAMOS Notary Public, state of Texas My commission Expires AUgust as 37

5 Plaintiff, 6 Vs. 7 WILLIAM DAVISON, 8 Defendant. 9 / 13 * * * * * * * * 14 DEPOSITION OF MARLIN KNAPP 15 TAKEN AT THE INSTANCE OF THE DEFENDANT

5 Plaintiff, 6 Vs. 7 WILLIAM DAVISON, 8 Defendant. 9 / 13 * * * * * * * * 14 DEPOSITION OF MARLIN KNAPP 15 TAKEN AT THE INSTANCE OF THE DEFENDANT Page: 1 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT 2 IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 10 CA 002652 (AW) 3 U.S. BANK NATIONAL ASSOCIATION 4 AS TRUSTEE FOR RALI 06QS2 5 Plaintiff,