xtitsx: (Default)
( 7 Apr 2017 11:47 am)
as follows, the Trial Brief that i've been working on for Legal Writing II for the better part of the past month.
the Trial Brief that ruined my Spring Break.
the Trial Brief worth forty percent of my Legal Writing II grade that can literally cause me to fail out of school if i don't do well on.
that motherfucker.
so, here it is, friends, so that you can see what the hell it is i've been doing with my life lately.
some of the case names and the Id.s are supposed to be italicized.
i didn't have time to go back through and put in HTML commands around each thing i wanted to italicize, so, whatever...
anyways, for your review:

No. 505-2016-14594



Defendant Jeremy Beeper moves for summary judgment against Plaintiff Justin Beeper.

A. Preliminary Statement
Jeremy Beeper is a father whos family life has been abruptly undermined by an unwarranted and unsupportable personal injury lawsuit from his son, Justin. Jeremy was teaching his teenage son how to drive when they were injured in a car accident. Five years later the family is just beginning to return to normal. That peace has been threatened by this lawsuit which, if allowed to proceed, would cause further unnecessary trauma to the family. Jeremy pleads both the statute of limitations and parental immunity and for the reasons stated below, this unfortunate matter should be dismissed and the Beepers allowed to return to familial normalcy.

B. Evidence in Support of Motion
Jeremy Beeper incorporates by reference all pleadings and discovery that have been filed with the Court in this cause. Jeremy Beeper also offers the following evidence, which is in the Appendix in Support of his Motion for Summary Judgment, filed concurrently with this motion:
Exhibit A: Affidavit of Jeremy Beeper
Exhibit B: Affidavit of Sandy Burns

C. Statement of Facts
Jeremy Beeper is the father of Justin. Prior to this controversy, they enjoyed a close and loving father-son relationship. (Beeper Aff. ¶ 2.)

From September, 2010 until October, 2011, Jeremy operated a driving school, Beep-Beep Driving. (Id. ¶ 3.) Justin earned pocket money cleaning and filing paperwork around the office. (Id.) Jeremy contemplated bringing Justin into the business as an instructor in the future, once Justin was old enough and had acquired his driver's license. (Id.) Justin did not consider himself to be working for his father at the time of the accident. (Beeper Dep. line 5:7–8.).

After Justin's fifteenth birthday, Jeremy took his son for his first driving lesson. (Beeper Aff. ¶ 5.) Like any father, Jeremy was looking forward to teaching his son to drive. (Id.) Justin was initially timid behind the wheel so Jeremy utilized confidence-building techniques to distract his son from his anxieties. (Id.)

Two weeks later, Jeremy took Justin for another lesson. (Id. ¶ 6.) The pair drove in a training vehicle which had been modified with an additional break in the passenger seat. (Id. ¶ 4.) The additional break allowed new drivers to relax behind the wheel, which Jeremy believed Justin could benefit from. (Id. ¶ 4.), (Id. ¶ 5.) The training vehicle was used for both business and family purposes. (Id. ¶ 4.)

Following Jeremy's instruction, Justin drove the training car on FM 4500. (Id. ¶ 6.) Justin was doing forty-five in a seventy MPH zone. (Id.) When their car was passed by another driver, Jeremy saw an opportunity for Justin to build confidence so he instructed his son to accelerate as a means of getting Justin's mind off the act of driving. (Id.) Justin accelerated the vehicle up to sixty MPH when he lost control and crashed into a tree. (Id.)

The accident caused lasting troubles for the entire Beeper family. (Id. ¶ 7.) After five years, Jeremy was optimistic about finally moving forward. Justin and Jeremy shared a conversation to that effect at Justin's twentieth birthday. (Id.) That optimism was stymied by this lawsuit. (Id.)

Justin filed his original petition on October 4, 2016 alleging personal injury from negligence. (Pl's Orig. Pet. 4.) The statute of limitations for Justin's claim expired on October 2, 2016, which was a Sunday. The following day, Monday, October 3, 2016 was Rosh Hashanah however, the Bluebonnet County Courthouse was open. (Burns Aff. 1.) Though the courthouse website initially listed the court closed, that information was corrected at 11:00am. The courthouse received telephone calls and did business the entire day. (Burns Aff. 1.)

D. Summary Judgment Standard of Review
Defendant’s Motion for Summary Judgment should be granted. A defendant may prevail on a motion for summary judgment if he establishes that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant is entitled to summary judgment when he conclusively establishes each element of an affirmative defense. Tex. R. Civ. P. 166a(a); Randall’s Food Mkts., Inc., 891 S.W.2d at 644. Defendant Jeremy Beeper is entitled to summary judgment because he can establish each element of an affirmative defense to Plaintiff’s cause of action as a matter of law.

E. Argument and Authorities
Jeremy is entitled to relief from Justin's personal injury claim on two independent grounds. First, the facts show that Justin's claim was filed one day past the expiration of the applicable limitations period. Because the County courthouse was open on the last day for Justin to legitimately file his claim and because no excuses for an extension apply, Jeremy is entitled to relief. Second, at the time of the accident Jeremy was acting within the exercise of his parental authority to teach Justin how to drive. Jeremy is thus entitled to parental immunity. Either of the aforementioned are grounds for summary judgment.

(1) The statute of limitations bars Justin from being able to sue Jeremy.
Justin missed his window to petition by one day. The last day Justin could have filed was October 3, 2016, a day the courthouse was open. Justin may have been operating under the assumption that the courthouse was closed for Rosh Hashana, however, it was open and doing business. The responsibility to take all appropriate steps to submit paperwork on time lies with the petitioner. Justin did not take appropriate steps to merit an extension

(I) Justin missed his deadline to file by one day.
The statute of limitations exists to allow a defendant to mount their defense while “the evidence is fresh in their minds” and “to prevent litigation of stale or fraudulent claims.” Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex. 1977, no writ). While preclusion of an otherwise-meritorious claim might be an “unfortunate, occasional by-product,” it is “not enough to justify a judicial exception to the statute.” Id.

The statute of limitations for personal injury is two years from the day the incident occurs. Tex. Civ. Prac. & Rem. Code § 16.003 (West, through 2015 reg. sess., 84th Leg.). The limitations period is tolled when a plaintiff is a minor. Tex. Civ. Prac. & Rem. Code Ann. § 16.001 (West, through 2015 reg. sess., 84th Leg.). If the last day of a limitations period falls on a weekend or holiday, the filing period is extended to the next day the courthouse is open. Tex. Civ. Prac. & Rem. Code Ann. § 16.072 (West, through 2015 reg. sess., 84th Leg.). A holiday is a day the county commissioners have declared a holiday, or the court clerk's office is officially closed. Martinez v. Windsor Park Dev. Co., 833 S.W.2d 950, 951 (Tex. 1992, no writ). A delayed opening does not constitute a holiday or a reason to extend a filing deadline. Boone v. St. Paul Fire & Marine Ins. Co., 968 S.W.2d 468, 470 (Tex. App. 1998, no pet.).

For the weekend and holiday extension to apply, a date must need saving. Lowe v. Rivera, 60 S.W.3d 366, 369 (Tex. App.—Dallas, 2001, no pet.). The final date of a limitations period must fall on a day where the courthouse is actually closed and the petitioner is actually at risk of losing his last day to plea. Id.

In Lowe, a plaintiff filed a petition one day after their statutory limit. The period expired on President's Day, which the plaintiff erroneously believed meant the courthouse was closed. The court concluded that “section 16.072 does not apply when the courthouse is in fact open on the last day of the plaintiff's limitations period.” Id. “To apply a statute extending the limitations period beyond a date when the courthouse is already open is patently absurd.” Id.

Here, Justin filed his petition on October 4, 2016, one day overdue. (Pl’s Orig. Pet. 1.) The applicable limitations period is two years from Justin's eighteenth birthday. § 16.003, § 16.001. Justin's last day to file was October 2, 2016, a Sunday. The next day the courthouse was open was October 3, Rosh Hashanah. Rosh Hashanah is an optional holiday which meant county commissioners had discretion to close or remain open. Tex. Gov't Code Ann. § 662.003 (West, through 2015 reg. sess., 84th Leg.) Though the courthouse initially considered closing, the commissioners opted to remain open and business was conducted the entire day. (Burns Aff. 1–2.)

Like in Lowe, there is no reason to extend a filing deadline past a day where the court was open. Since the courthouse was conducting business, extending the deadline would be “patently absurd.” As the purpose of a statute of limitations is to protect defendants, and since courts take an unequivocal position against absurd extensions, the statute of limitations applies and Justin missed his opportunity to file.

In Boone, a plaintiff submitted her petition one day after her limitations period expired because of news reports that inclement weather had closed the schools. The courthouse had a delayed opening two hours later at 10:00am and remaining open the rest of the day. The court decided a two-hour delay did not make an entire day a holiday and refused to grant a filing extension. Boone, 968 S.W.2d 468, 470.

Here, until 11:00am the courthouse website reflected an incorrect schedule showing it had intended to close for Rosh Hashanah. (Burns Aff. 1.) Assuming arguendo that Justin was aware of the incorrect website schedule, that does not extend beyond 11:00am when the information on the website was corrected. (Burns Aff. 2.) Like in Boone, a delayed opening does not create a holiday or a reason for a filing extension. A call or an in-person visit to the courthouse at any time of day would have revealed that the court was open, as did the website from 11:00am forward. (Burns Aff. 1.)

Because the courthouse was open on his last legally-valid day to file and because the few hours in the morning when the courthouse was listed as closed do not give cause for considering all Rosh Hashanah a holiday, Justin filed his petition one day late.

(II) Justin did not take all appropriate steps to file his petition
Petitioners have a “minimum obligation” to ascertain whether a courthouse is open when they have a filing deadline. Lowe, 60 S.W.3d at 370. Information a petitioner relies on to exercise their minimum obligation “must always be reasonable.” Id. Should they miss their filing deadline, a petitioner seeking an extension must show that they went through “all the appropriate steps,” to get their petition submitted on time and that the delay was no fault of their own. Boone, 968 S.W.2d at 470. In the event of a courthouse closure, a petitioner may file a document via postmarked mail. Miller Brewing Co. v. Villarreal, 829 S.W.2d 770, 771–72 (Tex. 1992, no writ).

In Lowe, the court held that a petitioner's sole reliance on the reading of a statute for guidance as to whether a court would be closed without doing additional investigation was unreasonable and did not meet their minimum obligation. Lowe, 60 S.W.3d at 370. In Boone, a petitioner who filed one day late was not granted an extension because she “ha[s] not demonstrated that she took all the appropriate steps, only to be thwarted [] with no opportunity to file her petition on time.” Boone, 968 S.W.2d at 470. The court lists contacting the courthouse and attempting to place the petition in the mail as options the petitioner could have taken. Id. The fact that there were other means to file her petition, even if she truly believed the court was closed, meant that “neither the law nor equity requires that we treat her petition as timely filed when it was filed one day after it was due.” Id.

Here, there is no record that Justin did anything to meet his minimum obligation to ascertain if the courthouse was open or to take all appropriate steps if it was not. (Pl’s Orig. Pet. 1–5,) (Beeper Dep. 1–15.) Had he contacted the courthouse, Justin would have found it open. (Burns Aff. 1.) Like Boone, the record here is devoid of demonstrable evidence of reasonable effort and should thus be dismissed.

Even if Justin can demonstrate that he had consulted the courthouse website before it had been updated, when filing deadlines are concerned courts find reliance on one source of information without additional research unreasonable. Lowe, 60 S.W.3d at 370. Further, consulting the website alone is not enough to demonstrate the exhaustion of all appropriate steps when courts allow submission via postmarked mail. Boone, 968 S.W.2d at 470. If Justin has not availed himself of alternative options, even if the courthouse was closed, then he has not met his minimum obligations.

Rosh Hashanah is a two-day holiday stretching October 3–4. State Holiday Schedule for Fiscal Year 2017, http://www.hr.sao.texas.gov/Documents/Holidays/Holidays2017.pdf (last visited Apr. 2, 2017). Jeremy submitted his petition on October 4. (Pl’s Orig. Pet. 1.) Had Jeremy been relying on the incorrect information on the courthouse website that they were closed for Rosh Hashanah, he would not have filed his petition until October 5. (Burns Aff. 1.) At some point on October 4, Jeremy became aware that the court was open over Rosh Hashana through some investigatory means. Whatever diligence Justin eventually exercised came one day too late. Justin should not be allowed a reprieve from his slipshod work at Jeremy's expense.

Justin filed his petition one day past his deadline. The courthouse was open on his last day to file. Since courts take a dim view of granting exceptions when a date doesn't actually require saving, and since Justin has not demonstrated that he has done anything to meet his minimum obligations in the event of a courthouse closure, Justin has overrun the limitations period and this case should be dismissed.

(2) Parental Immunity bars personal injury when Jeremy was acting within the exercise of his parental authority.
Parental immunity protects parents from torts from their unemancipated minor children when the alleged acts involve the exercise of parental authority. Sepaugh v. LaGrone, 300 S.W.3d 328 (Tex. App.—Austin 2009, pet. denied). The doctrine exists to allow for the unimpaired discharge of parental duties free from “undue judicial interference with parental discretion.” Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 936 (Tex. 1992, no writ.). Despite calls to do away with parental immunity Texas courts affirm its importance in preserving familial and societal peace and good harmony and as a way to “prevent the judicial system from being used to disrupt the wide sphere of reasonable discretion which is necessary in order for parents to properly exercise their responsibility to provide nurture, care, and discipline for their children.” Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex. 1971, no writ). Accordingly, courts have recognize only three exceptions to the doctrine; when a child is acting as an employee of their parent's business, when a child is injured in a vehicle driven by their parent, or for intentional torts. Hoffmeyer v. Hoffmeyer, 869 S.W.2d 667, 668 (Tex. App.—Eastland 1994, writ denied).

To assert parental immunity, a defendant must be the parent of an unemancipated minor who has suffered a personal injury due to the defendant's alleged negligence while the defendant was acting in the exercise of their parental authority. Sepaugh, 300 S.W.3d at 333. It is not in dispute that Jeremy is Justin's father, that Justin was an unemancipated minor at the time of the accident and that he has suffered a personal injury. It is further not in dispute that Justin alleges negligence, not intentional torts. What is in dispute is whether Jeremy was acting in the exercise of parental authority at the time of the accident. For the following reasons, he was:

(I) Jeremy was acting within the exercise of his parental authority at the time of the accident.
Parental immunity protects a parent's performance of “essentially parental activities.” Sepaugh, 300 S.W.3d at 334. Courts specifically list several examples of essentially parental activities including supervision, discipline, family chores, recreation and schooling. Id. Courts further recognize the wide variety of discretionary acts and “countless matters of personal, private choice” that constitute everyday parenting decisions and seek to remove those decisions from judicial review. Shoemake, 826 S.W.2d at 936 (Tex. 1992, no writ); Hoffmeyer 869 S.W.2d at 668.

In Shoemake, the court found that a mother's faulty supervision of her child in a pool did not lead to her contributory negligence for its death because decisions regarding “management, supervision and control of her child [are] exactly the sort of parental authority that remains protected.” Shoemake, 826 S.W.2d at 936. In Hoffmeyer the court held that a father leaving his teenage son unsupervised with a loaded handgun and failing to warn him of the danger the firearm possessed were the kinds of discretionary acts that are protected by parental immunity because he was attempting to teach his son to shoot. Hoffmeyer, 869 S.W.2d at, 668.

Here, Jeremy took Justin driving as a father-son activity. Jeremy was eager to teach his son to drive, “like any other dad” and took fatherly pride in his son's growth. (Beeper Aff. ¶ 5.) After an initial lesson, Jeremy saw that Justin had a timid driving disposition and decided he needed to draw out Justin's confidence. (Id.) On their second lesson, Jeremy directed Justin to FM 4500 for open-road practice. When their car was passed by another driver, Jeremy encouraged Justin to accelerate. (Beeper Aff. ¶ 6.) This was an act of parental discretion, a pedagogical choice Jeremy made to help his son “focus on the experience of driving.” (Id.) Upon receiving his father's instruction, Justin accelerated from forty-five MPH up to sixty on a seventy MPH roadway before hitting a tree. (Id.)

Jeremy teaching Justin how to drive involved management, supervision and control. Jeremy was physically next to Justin, supervising him. Jeremy utilized his parental discretion to evaluate Justin's needs and give corrective instructions. Even if, subject to our right to contest at trial, Jeremy's instructions proved to be negligent, parental discretion allows a wide latitude of choices when supervising, disciplining and schooling a child.

(II) Justin was not acting as Jeremy's employee at the time of the accident.
For parental immunity to apply, the exercise of parental authority must pertain to the “normal family relationship of parent and child.” Felderhoff, 473 S.W.2d at 930. Activities outside the “normal family relationship” do not apply. Id.

In Felderhoff, the court found a distinction between injuries sustained by a minor working for his father's business and injuries sustained during the normal familial relationship. Felderhoff, 473 S.W.2d at 930. The minor was one of several employees of his father's business, was injured during the regular performance of his duties, was paid a fixed hourly wage and had Federal wage deductions for social security. The court held that because the circumstances of the relationship were “business and vocational” a “legal relationship of employer and employee was created” that negated the underlying reasons for parental immunity. Id. at 930–33.

Here, Justin asserts he was an employee of Jeremy's driving school at the time of the accident. (Pl's Orig. Pet. 3.) This is not so. Justin “earn[ed] his pocket money” helping Jeremy around the office, similar to other parents giving their children an allowance for family chores. (Beeper Aff. ¶ 3.) Family chores are explicitly considered “essentially parental activities.” Sepaugh, 300 S.W.3d at 334. Though Jeremy might have considered bringing Justin into the business as a driving instructor in the future, that was a far-off possibility contingent on several variables, not the least of which being Justin attaining a driving license of his own, which is what the father and son were attempting to do on the afternoon of the accident. (Id. ¶ 3, 5.)

Unlike Felderhoff, Justin has not demonstrated that he was acting as his father's employee. There is no reference to minimum wages earned, tax withholdings or other obligations of the employer-employee relationship. (Pl's Orig. Pet. 1–5,) (Beeper Dep. 1–15.) Assuming arguendo and subject to our right to contest at trial, that Justin was an employee, Justin was not acting as an employee at the time of the accident. Justin's tasks at Beep-Beep Driving involved “office stuff[, f]iling, cleaning, that sort of thing.” (Beeper Dep. 5:10.) Justin was injured not while in performance of his regular duties like in Felderhoff, but while being taught by his father. (Beeper Aff. ¶ 5.) When asked about his employment history, Justin admits that he “did stuff for my dad at his office for a while, back before the accident.” (Id. 5:7–8.) This past-tense demonstrates that at the time of the accident, Justin did not consider himself on the job.

In furtherance of his allegation of being an employee, Justin points to the accident taking place in the “company car.” (Pl's Orig. Pet. 3.) While this vehicle was sometimes used by Beep-Beep Driving, it was also used for family purposes. (Beeper Aff. ¶ 4.) Justin acknowledges accompanying his father on family errands in the vehicle. (Beeper Dep. 9:7–8.) The car had been specially outfitted with an additional break in the passenger seat which allowed learning drivers to gain confidence. (Beeper Aff. ¶ 4.) Jeremy believed that his son was a timid driver and could benefit from confidence-building techniques. (Id. ¶ 5.) Conducting their driving lesson in the training car was a discretionary strategy he made as a father educating his son.

Since Justin was not an employee completing regular work duties, did not consider himself on duty at the time of the accident and was in a car used for family purposes at the time of the accident, circumstance clearly indicate a normal family relationship between Justin and Jeremy worthy of parental immunity protection.

(III) Justin was not injured by Jeremy's operation of a motor vehicle.
Similar to the court's finding in Felderhoff, courts recognize another exception to parental immunity for “not essentially parental” circumstances. Jilani By & Through Jilani v. Jilani, 767 S.W.2d 671, 673 (Tex. 1988, no writ). Children injured during the negligent operation of a vehicle by their parents are permitted to sue because the act of driving is so essentially dissimilar from the exercise of parental authority. Jilani, S.W.2d at 673.

In Jilani, the court held that a father who injured his minor children while operating a vehicle was liable for their injuries because “supervision of one's children involves issues of parental control, authority, and discretion that are uniquely matters of a very personal type of judgment [which] contrasts sharply with the state's supervision and regulation of the judgment one must exercise while driving an automobile.” Jilani, 767 S.W.2d at 673 quoting Schneider v. Coe, 405 A.2d 682 (Del.1979). The court specified that their holding is limited to the fact pattern of that particular case. Id.

Here, the facts are distinguishable from Jilani. At the time of the accident the vehicle was being driven by Justin, the minor child, not Jeremy, the parent (Beeper Aff. ¶ 6.). This is a significant-enough distinction considering the court's admonition that their holding is limited to Jilani's fact pattern.

Justin may argue that because he was operating under Jeremy's supervision or because Jeremy had a break in the training vehicle, Jeremy was effectively controlling the vehicle when it crashed. This would confuse the distinction Jilani makes. Jeremy's utilization of a passenger break was a discretionary decision Jeremy made to effect Justin's driver education. (Beeper Aff. ¶ 4.) When Jeremy instructed Justin to accelerate the vehicle, he did so not as a means of remote piloting but as an intentional technique to help Justin overcome his timidity. (Beeper Aff. ¶ 6.) Jeremy's instructional strategies were a parent's efforts to educate his son, exactly the kind of discretionary judgment Jillani explicitly preserves.

None of Jeremy's driving instructions were contrary to the “state's supervision and regulation of the judgment one must exercise while driving an automobile.” Justin was driving forty-five MPH on a roadway with a speed limit of seventy. After being encouraged by Jeremy to accelerate, Justin brought the car up to sixty MPH, still ten miles under the posted speed limit. (Id.)

Because Justin was operating the vehicle at the time of the accident, because Jeremy's instructions to Justin were essentially parental in nature involving issues of parental control, authority, and discretion and because no actions run afoul of the State's purview to regulate the judgment one must exercise while driving an automobile, the Jilani exception to parental immunity does not apply.

The facts indicate Jeremy was acting in an essentially parental role trying to teach his son how to drive. Jeremy was not functioning as an employer and Justin was not functioning as an employee because the nature of Justin's chores with Beep-Beep Driving were clerical and because Justin acknowledges the last time he “did stuff” for his dad was “before the accident.” The fact that the accident took place in the Beep-Beep Driving car is immaterial because it was also used for family errands and because it was specially-outfitted with a device Jeremy judged would help Justin as a driver. Jeremy's instructions to Justin were meant to provide parental guidance on how to best operate the vehicle. Because Texas courts strongly disfavor judicial interference in the essentially parental activities of supervision and schooling of children this matter should be dismissed.

F. Conclusion and Prayer
This Court should grant summary judgment in favor of Jeremy Beeper. Because Justin's petition has been filed one day past his filing deadline and because Justin has not demonstrated that he is entitled to an extension, the statute of limitations bars Justin's petition. Texas courts are adamant that the statue of limitations is construed for the defense and that extensions for petitioners will not be granted for days when the courthouse was open, as in this matter. Alternatively, because Jeremy was acting within his parental authority, with no applicable exceptions, parental immunity bars Justin's petition. Texas courts take a dim view of judicial interference in family matters.

For these reasons, Defendant Jeremy Beeper asks this Court to grant this motion and sign a final summary judgment denying all relief requested in Plaintiff’s petition so the Beeper family may be allowed to return to familial harmony.

Respectfully submitted,
TITS, a lawyer

//[ab irato ad astra]

September 2017

      1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 212223