Writing sample (motion for summary judgment- abbreviated) for Martinez, Aaron.pdf

DEFENDANTS NAVISTAR, INC.’S AND IC BUS, LLC’S AFFIRMATIVE
AND NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT Page 1
CAUSE NO. 2010-08608
TREASSA WREN, § IN THE DISTRICT COURT
v.
ALDINE I.S.D. as administered by the
TASB RISK MANAGEMENT FUND,
§
§
§
§
§
§ HARRIS COUNTY, TEXAS
v. §
§
NAVISTAR, INC., INTERNATIONAL
TRUCK AND ENGINE CORPORATION,
IC BUS, LLC, and COMMERCIAL
VEHICLE GROUP d/b/a NATIONAL
SEATING COMPANY.
§
§
§
§
§ 189TH
JUDICIAL DISTRICT
AND NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW NAVISTAR, INC. ("Navistar"), and IC BUS, LLC ("IC Bus") and file
these Affirmative and No Evidence Motions for Summary Judgment of Plaintiff's and
Intervenor's claims under the Texas Deceptive Trade Practices Act ("DTPA"):
I. BACKGROUND & SUMMARY OF THE ARGUMENT
This case arises out an accident that occurred in the early morning hours of February 12,
2008. (Pl.’s 2d Am. Pet. 2.) Plaintiff Treassa Wren, a school bus driver for the Aldine
Independent School District, drove her bus through a drainage ditch located in the bus parking
lot and rammed it into and over one or more concrete car stops on the other side of the ditch,
causing her to sustain injuries to her back, spine, leg, and toe. (Id.; see also Ex. 1, Wren Dep.
97:14–97:22, 126:6–126:18, Mar. 24, 2011).
Wren initially filed suit against the bus manufacturers Navistar and IC Bus and against
the seller Longhorn Bus Sales, LLC, on February 9, 2010. (Pl.’s Original Pet. 1.) Subsequently,

Aldine Independent School District, as managed by the TASB Risk Management Fund
("A.I.S.D."), intervened, seeking reimbursement for payments its workers compensation
insurance policy made to Wren. (Original Pet. in Intervention 1–3.) Wren later amended her
petition to add driver's seat manufacturer Commercial Vehicle Group d/b/a National Seating
Company ("National Seating") as a defendant, and separately nonsuited Longhorn Bus. (Pl.’s 2d
Am. Pet. 2; Pl.’s Mot. to Dismiss Without Prejudice 1.) Thus, the current parties to this suit are
Plaintiff Wren, Intervenor A.I.S.D., and Defendants Navistar, IC Bus, and National Seating. (2d
Am. Pet. 1).
Wren alleges negligence and gross negligence in the manufacture and design of the bus
and seat, breach of the implied warranties of merchantability and fitness for a particular purpose,
DTPA violations by breach of those warranties, strict products liability, and res ipsa loquitur.
(2d Am. Pet. 3–5.) A.I.S.D. adopted these claims as its own to the extent of its subrogation
interest. (Pet. in Intervention 2–3.) Navistar and IC Bus deny these allegations in their entirety.
(Navistar, Inc., and IC Bus, LLC’s Answer to Pl.’s Original Pet. ¶ 1.1).
Navistar and IC Bus specifically deny that Plaintiff has any cause of action under the
DTPA. (Id. ¶¶ 2.3, 3.4.) They assert that the summary judgment evidence shows that the DTPA
claims fail as a matter of law because Wren is not a consumer. Navistar and IC Bus alternatively
assert that no evidence exists to support a finding that Wren is a consumer under the DTPA and
thus she has no standing to sue under the DTPA. Accordingly, and for the reasons set forth
below, this Court should grant Navistar and IC Bus judgment as a matter of law on the DTPA
claims. This Court should also award Navistar and IC Bus its attorneys’ fees and costs incurred
in defending against this groundless claim. See Tex. Bus. & Com. Code Ann. § 17.50(c) (West
2010).

II. SUMMARY JUDGMENT STANDARDS
[Section omitted for brevity]
III. DISCOVERY STATEMENT
[Section omitted for brevity]
IV. ELEMENTS THAT PLAINTIFF MUST PROVE TO RECOVER
A. Elements that Wren Must Prove to Recover Under the DTPA.
Navistar and IC Bus incorporate all prior sections and all summary judgment evidence
attached to this motion its entirety.
In order to maintain a cause of action under the DTPA, the plaintiff must prove that (1)
she is a consumer; (2) the defendant’s actionable conduct occurred in connection with the
transaction at issue; (3) the defendant committed a wrongful act under the DTPA; and (4) the
wrongful act was a producing cause of her damages. See Tex. Bus. & Com. Code Ann. §§
17.46, 17.50 (West 2010); Amstadt v. U. S. Brass Corp., 919 S.W.2d 644, 649–50 (Tex. 1996);
Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995).
B. Elements that Wren Must Prove to Show that She Is a DTPA Consumer.
In order to show she is a consumer under the DTPA, the plaintiff must show she (1)
sought or acquired, (2) by purchase or lease, (3) good or services, and (4) those goods or services
were the basis of the complaint. Tex. Bus. & Com. Code Ann. § 17.45(4) (West 2010); Melody
Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 351 (Tex. 1987). The individual claiming consumer
status does not have to be the one who actually purchased or leased the goods or services, but the
entity that did make the purchase or lease must have done so primarily for that individual’s
benefit, or because the individual requested it. E.g., Kennedy v. Sale, 689 S.W.2d 890 891–92
(Tex. 1985) (finding that the plaintiff was a consumer of a health insurance policy his employer

purchased for his benefit after plaintiff elected to be covered by that policy); Hernandez v. Kasco
Ventures, Inc., 832 S.W.2d 629, 634 (Tex. App.—El Paso 1992, no writ) (finding that the
plaintiff was not a consumer of warehouse docking levelers that injured him while working
because he did not request them or come into any sort of ownership of them).
Goods and services an employee uses or encounters in the course and scope of her
employment generally are not acquired with the intent to benefit the employee, but rather to
benefit the business. E.g., Clark Equip. Co. v. Pitner, 923 S.W.2d 117 (Tex. App.—Houston
[14th Dist.] 1996, writ denied) (holding that the plaintiff was not a consumer of forklift she used
in the course and scope of her employment because her employer bought the forklift primarily to
benefit and further its business); Lara v. Lile, 828 S.W.2d 536, 542 (Tex. App.—Corpus Christi
1992, writ denied) (finding that the decedent was not a consumer of a defective truck that caused
his death because the contractor who owned the truck purchased it for use in his business).
Generally, such goods and services benefit the employee only incidentally, if at all, and thus she
cannot be a consumer of those goods and services. E.g., Brandon v. Am. Sterilizer Co., 880
S.W.2d 488 (Tex. App.—Austin 1994, no writ) (finding that a hospital employee was not a
consumer of a malfunctioning sterilizer tank that injured her while working because the tanks
were meant primarily to benefit the hospital and its patients and only benefitted the employee
incidentally).
V. ARGUMENTS IN SUPPORT OF AFFIRMATIVE SUMMARY JUDGMENT
The evidence shows that Wren did not seek or acquire the bus or seat at issue in this case.
A.I.S.D. did not intend to purchase or lease the bus primarily for her benefit, but purchased it to

further its objective of getting students to their respective schools. Any benefit Wren acquired
from her use of the bus was incidental to that objective. As such, she is not a consumer under the
DTPA, and there is no genuine issue of material fact with regard to her DTPA claims.
A. An Employer Must Have Purchased or Leased a Good Primarily for an
Employee’s Benefit for the Employee to be a DTPA Consumer.
Texas law is clear in holding that a plaintiff does not necessarily have to purchase or
lease a good or service herself in order to be a DTPA consumer. See, e.g., Kennedy, 689 S.W.2d
at 891–92; see also Wellborn v. Sears, Roebuck, &Co., 970 F.2d 1420, 1426–27 (5th Cir. 1992)
(finding that a child using a garage door opener purchased by his mother was a consumer under
the DTPA). In other words, the person need not be in contractual privity with the defendant to
be a DTPA consumer of a good sold by or produced by that defendant. E.g., Kennedy, 689
S.W.2d at 891–92. But not everyone who uses a good or service that was purchased or leased by
someone else is a DTPA consumer. Such a broad reading of the statute would go beyond the
intent of the Legislature in providing a personal remedy for the individual or business actually
wronged by a deceptive trade practice. Cf. PPG Indus. v. JMB/Houston Ctrs. Ltd. P’ship, 146
S.W.3d 79 (Tex. 2004) (prohibiting assignment of DTPA claims and extensively discussing the
Legislature’s intent to make the DTPA a personal remedy for the consumer who was actually
wronged by the defendant’s conduct).
Thus, where the good or service at issue was purchased or leased by someone other than
the person claiming consumer status, courts have focused on whether that person sought or
acquired the good or service in some manner. In order for a plaintiff to seek a good or service,
she must have requested or asked for it. Hernandez, 832 S.W.2d at 634; Westinghouse Supply
Co. v. Page & Wirtz Const. Co., 647 S.W.2d 44, 47 (Tex. App.—Amarillo 1982, writ ref’d
n.r.e.). In order to have acquired the good or service, she must have come into some sort of

ownership of the good or service. Hernandez, 832 S.W.2d at 634; Lara, 828 S.W.2d at 542;
Westinghouse, 647 S.W.2d at 47.
Where an employer provides a good or service to an employee, she only comes into
ownership of the good or service if the employer purchased or leased it primarily for the
employee’s benefit. E.g., Cook-Pizzi v. Van Waters & Rogers, Inc., 94 S.W.3d 636, 644 (Tex.
App.—Amarillo 2002, pet. denied) (finding that a hospital worker was not a consumer of a drain
cleaner the hospital purchased because the hospital purchased and used it primarily to clean
drains); Hernandez, 832 S.W.2d at 634; Lara, 828 S.W.2d at 542. If employer purchased or
leased the good or service primarily to further its business purposes, the employee benefits from
it only incidentally, if at all, and thus does not come into ownership of the good or service.
Pitner, 923 S.W.2d at 127; Brandon, 880 S.W.2d at 492; Lara, 828 S.W.2d at 542.
In Kennedy, the Texas Supreme Court held that an employee was a consumer of a health
insurance policy his employer purchased for him. 689 S.W.2d at 891–92. In that case, an
insurance sales agent misrepresented the policy’s preexisting condition coverage to the
employee. Id. at 891. The employee, relying on those misrepresentations, elected to have his
employer buy that policy for him instead of another that would have had the coverage the
employee needed. Id. After being forced to pay for medical bills out of pocket because of the
policy’s lack of coverage, the employee sued the agent under the DTPA. Id. In finding that the
employee was a consumer, the Court stated that he “most assuredly did ‘acquire’ [the policy’s]
benefits when he was covered by the [its] provisions.” Id. at 892. The court further reasoned
that “it could reasonably be said that [the employee] did ‘acquire’ the policy benefits ‘by
purchase,’ albeit a purchase consummated for his benefit” by the employer. Id. at 892.

The court in Pitner, however, found that an employee’s use of a forklift in the course and
scope of her employment did not make her a consumer of the forklift. 923 S.W.2d at 127. In
that case, in spite of the employee’s consistent and regular use of the forklift, the court found that
she did not acquire the forklift or the benefits of using the forklift because the employer
purchased it in order to further its business operations. Id. at 128. Any benefit from using the
forklift extended only incidentally to the employee. Id. Thus, she was not a DTPA consumer.
Id. Texas courts have consistently held the same as the Pitner court, finding that if the employer
purchased or leased the good or service primarily for business purposes or to further its business
operations, an employee harmed by the good or service did not acquire it, and thus is not a
DTPA consumer. See, e.g., Cook-Pizzi, 94 S.W.3d at 644; Brandon, 880 S.W.2d at 491;
Hernandez, 832 S.W.2d at 634; Lara, 828 S.W.2d at 542.
B. Wren Is Not a DTPA Consumer Because A.I.S.D. Did Not Purchase or Lease the
Bus for Her Benefit, but to Further its Business Purpose of Transporting
Students to its Schools.
The facts in this case do not show that A.I.S.D. acquired the bus or seat at issue primarily
for Wren's benefit. She testified that the school district did nothing but provide her the bus to use
on her route. (Ex. 1, Wren Dep. 202:11–203:18.) Unlike the employee in Kennedy, she had no
input on the selection of the bus or seat by the school district, nor did she specifically ask for this
particular bus or seat. (Id.) Rather, just like the forklift operator in Pitner, she simply took the
keys and used the bus to drive her assigned everyday route. (Id.).
Richard Delgado, A.I.S.D.'s Director of Transportation, also testified that A.I.S.D. did not
purchase the bus to benefit her in any manner. (See Ex. 2, Delgado Dep. 77:09–77:22, Apr. 13,
2011.) Rather, it purchased the bus in order to get students to Aldine's schools. (Id.) At all
times, A.I.S.D. retained ownership and possession of the bus and could freely assign it to another

driver. (Id. 73:25–75:01.) Indeed, Wren admitted that the bus was not hers exclusively and that
other people did drive it on occasion. (See Ex. 1, Wren Dep. 83:08–83:16.) A.I.S.D. further did
not take into account the preferences of any bus drivers in making the decision to purchase this
bus or any features on this bus, including the seats. (See Ex. 2, Delgado Dep. 83:11–84:04).
Because all A.I.S.D. did was assign a bus to Wren for her to use on her route, any benefit
she acquired from its use, including the benefit of employment, was incidental to A.I.S.D.’s
primary objective of getting students to A.I.S.D.'s schools. As such, she did not acquire the bus
and cannot be a consumer under the DTPA. Thus, this Court should grant Navistar and IC Bus
judgment as a matter of law on Wren's DTPA claims.
VI. ARGUMENTS IN SUPPORT OF NO EVIDENCE SUMMARY JUDGMENT
There is no evidence that Wren is a consumer under the DTPA. Specifically, there is no
evidence that she sought or acquired the bus at issue or sought or requested the bus from A.I.S.D.
in any way. There is also no evidence showing that A.I.S.D. intended to purchase or lease the
bus primarily for her benefit or for any other purpose other than getting students from their
homes to Aldine's schools.
A. Where an Employer Purchases or Leases a Good Primarily to Further its Business
Purposes, an Employee Cannot Be a DTPA Consumer of that Good.
As has been established above, an employee is a DTPA consumer of a good or service
she encounters during her employment only if her employer purchased or leased that good or
service primarily to benefit that employee, or if the employee specifically sought the good or
service. See supra Part V.A–B. The employee’s consistent or exclusive use of that good or
service is irrelevant. See Pitner, 923 S.W.2d at 127 (finding that the employee was not a

consumer of a forklift in spite of her consistent, regular use of the forklift). What matters is the
employer's purpose behind the purchase. See id. If the employer purchased the good or service
primarily for business purposes or to further its business operations, then the employee only
benefits from it incidentally and cannot be a DTPA consumer of that good or service. E.g.,
Kennedy, 689 S.W.2d at 891–92; Cook-Pizzi, 94 S.W.3d at 644; Pitner, 923 S.W.2d at 127;
Brandon, 880 S.W.2d at 491; Hernandez, 832 S.W.2d at 634; Lara, 828 S.W.2d at 542.
B. There is No Evidence that A.I.S.D. Purchased or Leased the Bus for Any Purpose
Other Than its Business Purpose of Transporting Students to its Schools.
In this case, there is no evidence showing that A.I.S.D. purchased the bus for any other
purpose other than the purpose school buses are generally manufactured and marketed for-
getting students to their respective schools. Cf., e.g., 49 C.F.R. § 571.3 (2010) (defining “school
bus” as a bus “that is sold, or introduced in interstate commerce, for purposes that include
carrying students to and from school or related events”). There is also no evidence that Wren
sought out or requested the bus or seat at issue. Indeed, the evidence specifically shows that she
did not seek or request this bus or seat. (See Wren Dep. 202:11–203:18).
Because Wren presented no evidence that A.I.S.D. purchased or leased the bus primarily
for her benefit, or any evidence that she sought or requested the bus or seat from her employer,
she cannot be a consumer under the DTPA. Thus, this Court should grant Navistar and IC Bus
judgment as a matter of law on her DTPA claims.
VII. CONCLUSION
There is no genuine issue of material fact as to whether Wren is a consumer under the
DTPA. The evidence conclusively shows that she is not. Wren also has provided no evidence
showing she is a consumer under the DTPA. For these reasons, this Court should grant summary
judgment as to her DTPA claims.

VIII. ATTORNEYS FEES
Pursuant to section 17.50(c) of the Texas Business and Commerce Code, Navistar and IC
Bus pray that this Court award them attorneys’ fees and costs for defending against the DTPA
claims, as the claims are groundless in fact and law.
A. Standards for Recovery of Attorneys' Fees Under § 17.50(c).
The DTPA requires a court to award a defendant attorneys' fees whenever the court finds
that the plaintiff’s DTPA claim was “groundless in fact or law or brought in bad faith, or brought
for the purpose of harassment.” § 17.50(c). The Texas Supreme Court in Donwerth v. Preston
II Chrysler-Dodge, Inc. held that groundlessness for purposes of section 17.50(c) is the same as
groundlessness under Rule 13 of the Texas Rules of Civil Procedure. 775 S.W.2d 634, 637 (Tex.
1989). According to Donwerth, a DTPA claim is groundless where it has no “basis in law or
fact” and is “not warranted by good faith argument for the extension, modification, or reversal of
existing law.” Id. (quoting Tex. R. Civ. P. 13).
The court, not the fact finder, makes the determination of groundlessness, bad faith, or
harassment under section 17.50(c). Id. The proper standard to determine whether a DTPA claim
is groundless is “whether the totality of the tendered evidence demonstrates an arguable basis in
fact and law for the consumer's claim,” including evidence that may be inadmissible at trial.
Splettstosser v. Myer, 779 S.W.2d 806, 808 (Tex. 1989); Donwerth, 775 S.W.2d at 637.
An intervenor can also be liable for groundless DTPA claims it adopts as its own. See
Arbuckle Broadcasters, Inc. v. Rockwell International Corp., 513 F. Supp. 412 (N.D. Tex. 1981).
In Arbuckle, the court found that as a subrogee of the plaintiff who willingly intervened in the

suit, the intervenor shared in and had the same interest in any judgment as the plaintiff. Id. at
417–18. The court also noted that the intervenor and plaintiff used the same complaint to bring
the claim, thus indicating that the intervenor adopted plaintiff’s claims as its own. Id. at 417.
Thus, the court denied the intervenor relief from liability for attorneys fees under § 17.50(c). See
id. at 420.
B. Courts Generally Allow Recovery of Attorneys' Fees Under § 17.50(c) Where the
Law is Clear that a Claimant Is Not a Consumer Under the DTPA.
Courts have consistently found that a DTPA claim is groundless in law when the law is
clear that a particular claimant is not a consumer under the DTPA. In Alcan Aluminum Corp. v.
BASF Corp., for instance, the court found that a corporate plaintiff's DTPA claim was groundless
because the statutory definition of consumer specifically excludes business entities such as the
plaintiff that have assets of $25 million or more. 133 F. Supp. 2d 482, 501–03, 506 (N.D. Tex.
2001) (mem. op.). The court rejected the plaintiff's assertion that it made a good-faith argument
that the $25 million limitation violated the equal protection clauses of the Texas and Federal
Constitutions, as the plaintiff proffered no authority remotely supporting that argument. Id. at
506.
Likewise, in Mosk v. Thomas, the court upheld the trial court’s finding that the plaintiff’s
DTPA claim was groundless where he was not a consumer of property acquired by a divorce
settlement. 183 S.W.3d 691 (Tex. App.—Houston [14th Dist] 2003, no pet.). The court found
that he did not acquire the property by purchase or lease but as a result of the settlement and thus
he could not be a consumer under the DTPA. Id. The court then found that his DTPA claim was
“groundless in law” because plaintiff clearly was not a consumer under these facts. Id.; see also
Transport Indem. Co. v. Orgain, Bell & Tucker, 846 S.W.2d 878, 882–83 (Tex. App.—
Beaumont 1993, writ denied) (finding a DTPA claim groundless where a business consumer with

over $25 million in assets allowed its claim to stand for over a year after discovering its
disqualification under the DTPA); cf. Genico Distributors, Inc. v. First Nat’l Bank, 616 S.W.2d
418, 419–20 (Tex. Civ. App.—Dallas 1981, writ ref’d n.r.e.) (finding a DTPA claim groundless
where the claim was based on bank deposits that were not DTPA goods or services).
C. The Law Is Clear and Settled that a Claimant Such as Wren Is Not a Consumer
Under the DTPA.
In this case, it is settled law that an employee who uses a product in the course and scope
of her employment is not a DTPA consumer of that product, as her employer did not purchase it
to benefit her, but to benefit its business. See supra Part V.A–B. Thus, any such claim would be
groundless in law under the DTPA. Regardless, Wren asserted such a claim from the onset of
this suit and has pursued it ever since. (See Original Pet. 4; Am. Pet 4; 2d Am. Pet. 4.) Because
she made a groundless claim under the DTPA, this Court should award Navistar and IC Bus
attorneys’ fees under section 17.50(c).
This Court should also find that A.I.S.D., as a subrogee of Wren's interests who adopted
all of her claims from the moment it joined this suit (see Pet. in Intervention 2), is liable as well.
Just like the intervenor in Arbuckle, A.I.S.D. made the same DTPA claims as Wren by adopting
her petition as its own. (See id.). And just like Wren, A.I.S.D. has pursued the DTPA claims
ever since it entered into this litigation almost a year ago (See id.) As such, A.I.S.D. made a
groundless claim under the DTPA and this Court should find it liable for attorneys’ fees under
section 17.50(c).
["Summary Judgment Evidence," "Prayer," "Signature," and "Certificate of Service"
sections omitted for brevity]

Writing sample (motion for summary judgment- abbreviated) for Martinez, Aaron.pdf

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