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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
1
REPORTER'S RECORD
VOLUME 1 OF 2
TRIAL COURT CAUSE NO. 2010-CI-03010
DENISE McVEA IN THE DISTRICT COURT

VS. 45TH JUDICIAL DISTRICT

DAVID GALBREATH,
Individually; GARY DANIELS,
Individually; ROBERT MUNOZ,
Individually; GREYHOUND
LINES, INC.; SAN ANTONIO
POLICE DEPARTMENT BEXAR COUNTY, TEXAS
--------------------------
DEFENDANT'S TRADITIONAL MOTION
AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
--------------------------
On 1st day of August, 2014, between the hours of
9:03 a.m. and 11:51 a.m., the following proceedings came on to be
heard in the above-entitled and numbered cause before the
Honorable Michael E. Mery, Judge presiding, held in San Antonio,
Bexar County, Texas:
Proceedings reported by computerized stenotype machine.
COPY
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
2
APPEARANCES:
MS. DENISE McVEA
1006 Wyoming Street
San Antonio, Texas 78203
(210) 316-3638
Appearing Pro Se
MS. COLLEEN VALA LISOWSKI
SBOT NO. 24073779
Vidaurri, Lyde, Rodriguez & Haynes, L.L.P.
One Alamo Center, Suite 230
San Antonio, Texas 78205
(210) 922-8541
Appearing for the Defendants
Greyhound Lines, Inc. and Gary Daniels
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
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THE COURT: This is Cause Number 2013-CI-03010,
Denise McVea vs. David Galbreath, et al. Can the parties tell me
what this -- first of all, would y'all please stand and make your
announcements for record.
MS. LISOWSKI: I'm Colleen Lisowski, we represent
Greyhound and Gary Daniels and we filed the motion for summary
judgment.
THE COURT: Is that what I have in front of me, a
motion for summary judgment?
MS. LISOWSKI: I'm not sure exactly what you have
in front of you, but I can make sure and give you a copy.
THE COURT: Okay. I mean, is --
MS. LISOWSKI: But yes, that is what we're talking
about.
THE COURT: What I mean in front of me, I mean is
that what's set for today?
MS. LISOWSKI: Yes.
THE COURT: So the Greyhounds -- the Greyhounds.
The Defendants are whom? This says et al. So who's involved in
the case?
MS. LISOWSKI: Involved in the case is Greyhound,
Gary Daniels, and Galbreath. But we represent Greyhound and the
bus driver, which is Gary Daniels. I don't represent Galbreath
at all. He's not involved in this in -- today.
THE COURT: And you have a motion for summary
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
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judgment?
MS. LISOWSKI: Yes.
THE COURT: Is that traditional or no evidence?
MS. LISOWSKI: Both.
THE COURT: All right, thank you. And you may have
a seat. Ma'am?
MS. McVEA: Your Honor, my name is Denise McVea, I
am the pro se in this matter. I am the Plaintiff in Cause Number
2013-CI-03010, and I have -- if I may approach, I also -- I have
a motion for continuance and a motion to file late response. I
have worked diligently to try to prepare for this hearing and I
have just not been able to complete the -- the -- the motion in
response. I have gotten quite a bit of it done. I would say
that it's 75 percent done. I have it attached to my motion for
continuance. I mean -- and -- and I also have a second motion
for leave to file late response which has got a little bit more
information. I have been inundated with incredible distractions,
incredible hardships that have made it, despite my best efforts,
impossible to complete this -- the response.
I do, like I said, have -- I did have it filed -- I
mean, I have -- I did file both of these. The -- the
continuance, motion for continuance and the motion for -- for
leave to file late response. Those have been duly filed. And
the motion for -- if -- if you'd like me to proceed, I can argue
my -- my motion for continuance.
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
5
THE COURT: All right, thank you. Ms. Lisowski,
are you -- are you opposed to the motion for continuance?
MS. LISOWSKI: Yes, we're opposed.
THE COURT: Okay, that's good.
MS. LISOWSKI: This is the second --
THE COURT: That's good. Let me see what you have.
MS. McVEA: This, Your Honor, is the motion for
continuance.
MS. LISOWSKI: And we received this last night.
MS. McVEA: Yeah. And this is the motion for --
I'm sorry. This is the motion for late -- for leave to file late
response.
THE COURT: Let me see your motion for summary
judgment, please.
MS. LISOWSKI: And this is also a time line of
other times when she asked for continuances.
THE COURT: Thank you. Now, did Judge Noll send
this to me only to hear the motion for continuance?
MS. McVEA: He did. He said --
MS. LISOWSKI: He said that we could discuss
whether or not there would be a motion for continuance.
THE COURT: Well, if I deny that, am I supposed to
hear this case or send you back? That's my question.
MS. LISOWSKI: I'm not sure about that.
THE COURT: Well, who announced 20 minutes?
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
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MS. LISOWSKI: Judge -- I said 20 minutes and Judge
Noll agreed 20 minutes.
THE COURT: Okay. Twenty minutes on a motion for
summary judgment. That's fine, thank you.
MS. LISOWSKI: And Your Honor, I would just like to
reiterate that we got that material last night. And this is --
MS. McVEA: I'd like to address that, Your Honor,
just to say that --
THE COURT: Ma'am, I haven't asked you for a
response.
MS. McVEA: Yes, Your Honor.
THE COURT: The motion for continuance is denied.
Okay. What is your motion all about?
MS. LISOWSKI: The -- the -- the Plaintiff is
arguing basically that this -- this happened and she was --
during the morning she was going to Hous- -- sorry, Your Honor.
During the morning she bought a bus ticket online
apparently and she was -- wanted to go to Houston and she went to
Greyhound and presented it to the bus driver who was Gary Daniels
who we represent. And apparently, there was something wrong on
the face of her ticket where it looked a little bit off and he
said, No, this is off, you need to go back to the ticket counter
line. And based on that, allegedly, the -- the Plaintiff became
very disruptive and that's when Galbreath, the security officer,
came and -- because apparently Plaintiff was very upset --
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
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MS. McVEA: Objection, not in evidence.
MS. LISOWSKI: Okay, upset that she couldn't get on
the bus. And so she went back to the ticket counter and she
waited and she was -- continued to be disruptive --
MS. McVEA: Objection, not in evidence.
MS. LISOWSKI: And ultimately, she --
THE COURT: Hold on, ma'am.
MS. LISOWSKI: Okay.
THE COURT: Is your motion in front of me?
MS. LISOWSKI: Yes.
THE COURT: Just have a seat, I'll read the
affidavits. I sustain your two objections.
MS. McVEA: Thank you, Your Honor.
THE COURT: Do you have a copy of Plaintiff's
petition or amended petitions, if any? I need the most current
petition.
MS. LISOWSKI: There was an attachment. Last time
they set it they didn't want --
MS. McVEA: Defendant's Exhibit D.
MS. LISOWSKI: Okay. But I don't know if I handed
it to him. Maybe you can give it to him. I handed him our --
MS. McVEA: I do have a copy, Your Honor, if you'd
like.
THE COURT: Can I see it, please?
MS. McVEA: May I approach?
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
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THE COURT: Yes. Thank you.
MS. McVEA: Thank you.
MS. LISOWSKI: Your Honor, I do have all the
exhibits. I didn't attach them to the one that I gave you, but
if you need those --
THE COURT: Did you file your exhibits?
MS. LISOWSKI: Yes. Just the copy that I gave you
last time that -- that -- Judge Noll that said he didn't want the
exhibits so I --
THE COURT: I do.
MS. LISOWSKI: Okay. Here they are, Your Honor.
THE COURT: Thank you.
MS. LISOWSKI: Your Honor, may I approach? I
forgot to give you one more thing.
MS. McVEA: May I see what it is?
MS. LISOWSKI: This is what I had prepared last
time.
(Discussion off the record at counsel table.)
THE COURT: Well, the 20 minutes are up, I'm not
even halfway through. Let me call and see what Judge Noll wants
me to do. Y'all stand by.
(Recess from 9:29 to 9:37.)
THE COURT: Judge Noll, our presiding judge is
calling the docket, I can't speak to him, I can't get his
attention. I've advised, however, his clerk that I denied the
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
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motion for continuance. I will continue with this but she said
when he gets free she'll speak to him. If I get a note that I
have to send y'all back to him for reassignment, I'll do that.
If I get a note to keep going, I'll do that. If I get a note
that I'm to terminate this hearing and take this matter under
advisement if I've not been able to rule, then I'll do that and
I'll have to schedule a time for y'all to come back for my ruling
or something of that nature.
In the meantime, I'll keep going. So y'all have a
seat. Thank you.
MS. McVEA: Your Honor, if I may, I know that you
ruled against the -- the -- you denied the continuance.
THE COURT: You may not. I don't know what you're
going to say, Ms. McVea, but I need to use my time right now.
I'm going to be reading for a while, so if y'all
want to take 10 minutes, you want to go to the bathroom or do
whatever, you may. But let me read through all of this, then
I'll talk to both parties. Okay? Thank you.
MS. McVEA: Objection, Your Honor.
(Recess from 9:38 to 10:52.)
THE COURT: I have some questions. Ms. Lisowski.
MS. LISOWSKI: Yes.
THE COURT: You attached some exhibits to your
motion with regard to the relationship between the security guard
Galbreath and Greyhound. Can you state for the record, what is
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
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your summary judgment evidence that addresses that issue?
MS. LISOWSKI: With regard to Mr. Galbreath's
relations to Greyhound? That -- well, first of all, we just
represent Greyhound and Daniels and Greyhound hired an
independent security company and that's who is in charge of
security and that's who hired Galbreath.
MS. McVEA: Objection, not in evidence.
THE COURT: My question to you, ma'am, is what is
your summary judgment evidence that addresses that issue?
MS. LISOWSKI: Let me see what we attached. I -- I
think we --
THE COURT: Do you have all your attachments?
MS. LISOWSKI: I gave you the copy that I had.
THE COURT: Okay, come forward.
MS. LISOWSKI: Okay.
THE COURT: Take all of this back. Go on, have a
seat.
MS. LISOWSKI: Your Honor, I believe it's Exhibit G
and it's the agreement with Greyhound and the security company.
THE COURT: Do you contest that the alleged date of
this incident is February 2011? Are you contesting that?
MS. LISOWSKI: I'm sorry, are we -- yes. That
the --
THE COURT: You're alleging -- you're contesting
that the alleged date is February of 2011?
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
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MS. LISOWSKI: February 23rd, 2011. Yes.
THE COURT: Are you contesting that?
MS. LISOWSKI: Oh, no.
THE COURT: Look at your Attachment G. What is the
effective date? What period does that cover?
MS. LISOWSKI: September 12th, 2002.
THE COURT: 2002?
MS. LISOWSKI: Yes.
THE COURT: Let me see that, please. Show me the
date on that document.
MS. McVEA: I would object to this document as
unverified.
THE COURT: Overruled. Well, when -- when -- when
does it end, ma'am?
MS. LISOWSKI: It's still ongoing.
THE COURT: But where is your summary judgment
proof to that effect? What does the document say?
MS. LISOWSKI: Let me look. I guess it doesn't say
exactly that it still covers this specific incident, but I guess
how does that --
THE COURT: But isn't that why we're here, for the
specific incident?
MS. LISOWSKI: Well, we're here for the specific
incident but only as it re- -- we are here as it relates to
Mr. Daniels and Greyhound; Galbreath, we don't represent him at
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
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all in --
THE COURT: It's not a matter of who you represent.
MS. LISOWSKI: Right.
THE COURT: You've made allegations concerning your
relationship with Galbreath. Right?
MS. LISOWSKI: Right.
THE COURT: Do you have any summary judgment
evidence before this Court establishing what that relationship
is?
MS. LISOWSKI: I mean, we have the affidavit from
the police officer who stated that Galbreath is the security
officer.
MS. McVEA: Objection, hearsay.
THE COURT: Sustained.
MS. LISOWSKI: And Your Honor, even if -- even if
the specific document isn't in the summary judgment evidence that
you're looking for, I don't see the -- necessarily the importance
of how that relates to all of the claims that she has made
because there isn't anything -- like, for example, with assault
or conspiracy or even if it's -- that doesn't relate to it at
all. Even assuming there was a relationship, that Greyhound
hired him directly, which they didn't, even if that was the case,
that still wouldn't affect our argument at all.
MS. McVEA: I believe they do refer to them in
their own motion as a Greyhound security guard. Give me a
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
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second, I think I can find it.
THE COURT: Can I see those documents that you had
attached to your motion, please?
MS. LISOWSKI: And just with the term for the
contract it says, Continue on a month-to-month basis until
terminated. And there's nothing that we have that's showing that
it's terminated.
THE COURT: The sentence right before that states,
It shall terminate on September 11th, 2003.
MS. LISOWSKI: Right.
THE COURT: Doesn't it?
MS. LISOWSKI: I -- yes, but then what does it
say -- what does it say after that?
MS. McVEA: The term is very explicit. Number 2.
THE COURT: Do you have any affidavit from anyone
concerning what you have attached as summary judgment evidence?
MS. LISOWSKI: From --
THE COURT: It's hard the way you handed me all
this loose like this.
MS. LISOWSKI: Right.
THE COURT: I see your motion here.
MS. LISOWSKI: We have one -- an affidavit from
Officer Munoz.
MS. McVEA: Objection, move to strike. The things
that he --
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THE COURT: Would you let me conduct --
MS. McVEA: I was under the impression that I
needed to make objections in order to preserve --
THE COURT: Well, when it's proper, you do. Okay?
Just -- I'm asking questions right now, Ms. McVea.
MS. McVEA: Thank you, Your Honor.
THE COURT: This information that is attached, in
your motion do you -- well, let me ask something else. Where do
you state where all these documents come from, this information
in your motion? Where do you --
MS. LISOWSKI: On page 4 and 5, are you talking
about where -- what we've -- a list of the exhibits?
THE COURT: Yes.
MS. LISOWSKI: Yes. On page 4 and 5 of the motion
it lists what we rely on for summary judgment evidence, if that's
what you're --
THE COURT: Thank you. With regard to each of
these Exhibits A through G, does your motion in any way -- is
there any document within your motion that basically sponsors
these various exhibits, that tells the Court exactly what it's
looking at?
MS. LISOWSKI: Yes. As far as referring to them
when we are referencing them in specific arguments.
THE COURT: Is there anything you want to say, Ms.
McVea?
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
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MS. McVEA: Yes, Your Honor, thank you.
Related to Exhibit B, move to strike as unverified,
unsworn testimony. Exhibit D, objection, move to strike, not
admissible as evidence.
THE COURT: Hold on, ma'am, let me go to the list.
You've moved to strike Exhibit B --
MS. McVEA: Exhibit B, objection, move to strike.
THE COURT: -- as unverified, unsworn?
MS. McVEA: Yes, sir.
THE COURT: All right, what else?
MS. McVEA: Exhibit D, Plaintiff's First Amended
Petition, petitions are not admissible summary judgment evidence.
On those grounds I move to strike. Exhibit E, affidavit of
Officer Robert Munoz, testifies to things that are not within his
personal knowledge. I move to strike. Objection.
THE COURT: Well, you need to be more specific
about that. What part of it is not within his personal
knowledge?
MS. McVEA: Mr. -- in his affidavit of Robert
Munoz, he says he spoke to Mr. Daniels. There's no evidence that
he ever spoke to Mr. Daniels.
THE COURT: That's overruled.
MS. McVEA: Okay.
THE COURT: What else?
MS. McVEA: That's it, Your Honor. Thank you.
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OFFICIAL COURT REPORTER
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THE COURT: Okay. So the Court will consider the
entire affidavit. What else, Ms. McVea?
MS. McVEA: Greyhound's terms and conditions, well,
obviously, it's non-verified. There's no -- it's not admissible
in the sense that there's -- there's no telling that it's
actually from Greyhound and that it is something that is relevant
to the issues that are under consideration of the Court right
now. I move to strike. Objection to it -- I object to it and I
move to strike.
THE COURT: Yes.
MS. McVEA: And Exhibit G, the service agreement
between Greyhound Lines, Incorporated and Statewide Patrol, not
verified, don't have any affidavits supporting either one of
those players in that so-called agreement, and plus it's expired.
Move to strike and I object to it.
THE COURT: Well, the Court is going to take this
entire matter under advisement, including your objections, some
of which sound valid to me.
And that's why I was questioning you, ma'am, as to
how you're sponsoring this summary judgment evidence. How am I
to know that documents that you have attached are what you say
they are? I don't have any sponsoring affidavits or anything of
that nature. However, I have to admit I'm going to check into
various matters.
I'm not going to rush to a conclusion here, but you
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might be right on on some of that, Ms. McVea. I'm not real sure
at this moment.
MS. LISOWSKI: Your Honor, like, for example, the
Exhibit B, that's an Internet narrative.
THE COURT: How do I know that?
MS. LISOWSKI: Okay. And so --
THE COURT: How do I know that?
MS. LISOWSKI: Well, the Internet address is on the
top and bottom of the page. And I think the point is -- was just
stating that this is Ms. McVea's account of it.
THE COURT: That's not the point.
MS. LISOWSKI: As an example.
THE COURT: What it says, what it stands for can
only be considered by the Court if it's valid testimony. Have
you met the requirements for summary judgment evidence? I don't
think you have on most of this.
MS. McVEA: Move for dismissal, Your Honor, of
this --
THE COURT: No, ma'am, overruled.
MS. McVEA: I have a right to ask.
THE COURT: Listen, Ms. McVea, settle down. This
is a court of law. You understand? I'm going step-by-step. I
don't need your guidance.
MS. McVEA: I'm not trying to guide you, Your
Honor, I'm just trying to preserve --
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THE COURT: Okay. But you make motions that are
nonsensical. That's nonsensical. It's not move for dismissal.
MS. McVEA: Not -- I'm -- I'm sorry, you're right.
THE COURT: Okay. Please --
MS. McVEA: I disagree -- I mean, I'm -- I mean, I
disagree -- I mean, I --
THE COURT: Don't interrupt, Ms. McVea.
MS. McVEA: I agree.
THE COURT: Listen --
MS. McVEA: Yes.
THE COURT: -- I'm conducting this hearing.
MS. McVEA: Absolutely, Your Honor.
THE COURT: All right.
MS. McVEA: You don't have to be so hostile to me.
I am --
THE COURT: I'm not hostile, Ms. McVea.
MS. McVEA: You're very hostile.
THE COURT: You're hostile to me by interrupting --
MS. McVEA: I'm not. I'm showing you nothing but
courtesy.
THE COURT: -- me when I'm referring to counsel on
other side, ma'am. You're pro se but there are rules of decorum
in a courtroom. I'm addressing one side; when I'm through, I'll
address you --
MS. McVEA: Thank you, Your Honor.
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THE COURT: -- you understand? You're welcome.
MS. LISOWSKI: Your Honor, with Exhibit B, that was
by way of example and I think the most important ones are -- are
sponsored. The affidavit of Robert Munoz, that's the most
important one and it's an affidavit and the --
THE COURT: The Court has already indicated that --
MS. LISOWSKI: Right.
THE COURT: -- I will consider that in full.
MS. LISOWSKI: Okay. And so I think as it relates
to all the causes of action, we didn't need to have as many
exhibits attached because just by the very nature of the facts
and the lack of evidence already in place, there wasn't much need
for exhibits. And so, if anything, those were just ways of
example.
THE COURT: The objection to Exhibit B is
sustained. The Court will not consider it.
MS. LISOWSKI: That's fine.
THE COURT: The objection to Exhibit D is
overruled. The objection to Exhibit C --
MS. McVEA: There's no objection to -- there was no
objection to Exhibit C, Your Honor.
THE COURT: Okay. The objections to Exhibits F and
G are sustained. Therefore, the summary judgment evidence before
this Court is Exhibit A, the deposition testimony; Exhibit C, the
official police report; Exhibit D, Plaintiff's First Amended
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Petition; and Exhibit E, the affidavit of Officer Robert Munoz.
I will take a brief recess and see if presiding will allow me to
conclude this matter so y'all don't have to come back.
Y'all stand by. Don't leave the courtroom unless
you need to use the bathroom or whatever, in which case you may,
but come right back.
THE BAILIFF: Court is in recess.
(Recess from 11:13 to 11:19.)
THE COURT: Thank you, y'all may be seated.
The Court is going to take this matter under
advisement. Rather than have to contact parties and let y'all
know what my ruling and all that is going to be, I'm just going
to give you a date to come back. Now, I'm available next Friday
and I'm hopeful that the afternoon time things will slow down
because the mornings are our busiest time. I'm thinking a 2:30
time next Friday.
Ms. McVea, are you available?
MS. McVEA: I don't -- I don't know, Your Honor.
THE COURT: Well, please take time and find out.
Let me make sure that I am, in fact, available.
MS. McVEA: You said next Friday?
THE COURT: Yes, ma'am, that would be August the
8th.
MS. McVEA: What exactly is the proceeding on
Friday?
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THE COURT: For the Court to announce its ruling.
MS. McVEA: Oh, on the motion for summary judgment?
THE COURT: Yes.
MS. McVEA: And are we not able to point out the
evidence that's available? I mean, are we not to make arguments?
THE COURT: You can.
MS. McVEA: I would like to.
THE COURT: Yes, but that's not the issue before
you now. The issue is whether you're available to return.
MS. McVEA: Oh.
THE COURT: On Friday, August the 8th, at 2:30.
MS. McVEA: One second, Your Honor. I will not be
in town, Your Honor. I will be back that Monday. I'm leaving
town Tuesday and I won't be back until, well, Saturday, or late
Friday but --
THE COURT: What about Friday -- what about -- you
said you'll be back Monday, the 11th?
MS. McVEA: Yes, Your Honor.
THE COURT: What about Wednesday, the 13th?
MS. McVEA: That will be fine, I don't have
anything.
THE COURT: Okay. Ms. Lisowski, Wednesday, the
13th, are you available?
MS. LISOWSKI: That's fine.
THE COURT: Since it's not a Friday and we're much
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busier during the week, I'm going to make it later in the day.
What about 4 o'clock?
MS. McVEA: That's fine, Your Honor, for me.
THE COURT: Jesse, thanks for coming in. Pencil
this in. The cause number, do you have the cause number here?
THE CLERK: Yes, sir.
THE COURT: You can take this. Court's ruling on
motion for summary judgment, 4:00 p.m. on this day. That's a day
that I'm assisting presiding. Right?
THE CLERK: Yes.
THE COURT: It's not a jury week?
THE CLERK: No, it's presiding.
THE COURT: Oh, good, thank you. Now, as I say,
I'm not ruling today, I'm going to take this matter under
advisement. I have carefully read the materials that have been
provided to me. I can give y'all just a little bit of time to
argue it, but I'm not going to be ruling today.
So I'm going ask each party, first, Ms. Lisowski,
you're the Movant, is there anything you need to say? I think
the motion itself is pretty explicit. I don't see the need for
you to put anything on the record, but you can if you want to.
MS. LISOWSKI: Okay. Just as far as the -- what
Ms. McVea submitted last night and the -- the -- I don't know
what else that she handed you, how is that being accounted for in
this --
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THE COURT: It's not been considered. It was late
filed.
MS. LISOWSKI: It won't be considered?
THE COURT: It was late filed and I denied the
motion for continuance so --
MS. LISOWSKI: Okay. That -- that was my only
concern.
MS. McVEA: And may I object to that? I object to
that.
THE COURT: All right. Now, Ms. McVea, you can
argue your position concerning the motion that's before the
Court. I have made rulings on your evidentiary objections and
you may go ahead and argue at this time if you wish.
MS. McVEA: Okay, Your Honor, just to be sure,
there were two motions that I presented. You said you denied the
motion for continuance. Have you also denied Plaintiff Denise
McVea's Second Motion to File Late Response?
THE COURT: Yes.
MS. McVEA: Okay, objection.
Yes, Your Honor. So, in fact, there's not really a
need to add any more evidence to the summary judgment record
outside of what the Defendants have already put in and so I think
that the -- there remains plenty of evidence -- plenty of
evidence that there are material -- genuine issues of material
fact and when there are genuine issues of material fact, it is
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inappropriate to grant summary judgment. And I'd like to take
that one at a time, it won't take very long.
On the grounds for motion for -- Defendant
Greyhound Lines, Incorporated and Gary Daniels' Traditional
Motion and No Evidence Motion For Summary Judgment, Defendants
assert that there are no -- there's no evidence that Mr. Daniels
threatened Plaintiff with imminent bodily injury; instead, the
evidence establishes that there was no such threat and no
evidence of an overt act in -- in the alleged verbal threat
Plaintiff claims. Instead the evidence establishes that there
was no act. I would like to draw the Court to Exhibit --
Defendant's Exhibit A, which is the deposition of Denise McVea,
sworn testimony which is admissible, it's already been admitted
by this Court.
THE COURT: Without objection by you, by the way.
Go ahead.
MS. McVEA: Without objection by me. That's right,
Your Honor.
THE COURT: All right.
MS. McVEA: Because it's sworn testimony. In fact,
I would have not objected to the thing that I wrote on the
Internet had it been sworn, just for the record. Oh. I'm sorry.
You have before you my -- my -- my -- my -- my second amended
petition. I think that the -- Ms. Colleen -- Ms. Lewinsky --
MS. LISOWSKI: Oh, I'm not -- I'm not doing any
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blue dress action.
MS. McVEA: I'm sorry? I'm sorry?
MS. LISOWSKI: Lisowski, close enough.
MS. McVEA: I'm sorry. Lisowski has already
presented that to you.
THE COURT: I think it was the first amended, let
me look and see. It's the first amended --
MS. McVEA: It is first amended petition.
THE COURT: -- petition, ma'am. I don't --
MS. McVEA: Right.
THE COURT: -- have a second amended. Is there --
Ms. McVEA: No, you're right.
THE COURT: -- a second amended petition?
MS. McVEA: I have a tendency to take the first and
call it second because I'm counting it after the original.
That's my -- that's my -- my -- my mistake.
THE COURT: Yes, I have your petition, yes, ma'am.
MS. McVEA: And in that I am alleging conspiracy to
assault between Gary Daniels and David Galbreath. And in the
sense that a person who drives a bank robber to the bank and then
takes him home afterwards, he is as liable for that bank robbery
as the person who went in and pointed the gun at the tellers. In
the same sense that Mr. Daniels, and I think that the evidence
from my deposition shows that Mr. Daniels actually conspired with
Mr. -- Mr. Galbreath and participated and assisted him in his
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assault with me and through that he is also liable for assault.
At the very least I am asserting that -- that that
was a concerted effort on their part, I swore to it in my
deposition. And they -- and whether they agree or not, that's
something for a jury to decide. That's a -- that's a -- a fact
issue for the jury to decide and it's inappropriate to be
considered under summary judgment if there's a genuine issue of
material fact.
And in this case the fact -- the genuine issue of
material fact is whether or not Mr. Daniels assisted
Mr. Galbreath in his attack of me. And it's very -- I would like
to note that the Defendants, in bringing this charge -- bringing
this motion for summary judgment and making this allegation, have
no documentation from Mr. Daniels, no sworn testimony from
Mr. Daniels alleging that he did not do that. So the fact
remains -- the material question -- the genuine issue of material
fact remains. Under -- under conspiracy Defendants allege -- oh,
I'm sorry. Excuse me one second.
I would also like to direct the Court's attention
to page 31 and 32 under the assault issue. Page 31 and 32.
THE COURT: 31 and 32 of what?
MS. McVEA: Of Defendant -- of Denise McVea's
deposition.
THE COURT: Yes.
MS. McVEA: Line 11 on page 31.
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Question, So your claim right here now, right now
is that Mr. Daniels and Mr. Galbreath planned this whole event to
harass someone, a passenger that day?
A, That's right.
Question, At 6 o'clock in the morning?
A, That's right, no -- with no supervisor there.
Question, And you're just basing that because he
yelled at you, This ain't right and Mr. Galbreath approached the
area?
Answer, That and the fact that it was -- it was an
over escalation of a simple issue. It was contrived. First of
all, the ticket was clearly a Greyhound issued ticket. Secondly,
if there was a problem, there was no reason why they couldn't
have allowed me to get on the bus and then go and take a talk --
go and -- and talk to the ticket master to okay it. That would
have seemed like the normal way to treat a customer. To look at
the ticket. If you have questions, before you leave go and ask
the ticket master to confirm it. And if it turned out that it
was somehow invalid, then, you know, take appropriate action.
Explain to me, you know, what needs to be done or what have --
what have you. But the fact that he's yelling right away, he,
the other guy, comes right away with all of this hostility and
aggression and it's -- it's a contrived issue. There really was
no issue at 6 o'clock in the morning and when -- and for them to
act that way. And when the ticket master told them that there
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was nothing wrong with the ticket, they did a couple of other
things that really clearly show that they knew what they were --
that they knew what they were doing.
Now, their argument throughout their motion for
summary judgment is that, well, Denise McVea was screaming and
yelling and throwing a fit. I dispute that. It wasn't the case.
And we have 20 or 30 other witnesses that can tell the same
thing. The point of the matter is is that that's for a jury to
decide and not appropriate for summary judgment because there is
a dispute and that does qualify as a genuine issue of material
fact.
Under their -- I'm sorry. Under the negligence
claim, they're asking for this -- they're saying that -- the
Defendant is saying Ms. McVea has no evidence to support her
negligence claim against Greyhound because her exclusive theory
of liability lies in premises liability rather than in -- rather
than negli- -- negligent activity. That's not -- the -- Denise
McVea disputes that.
Ms. McVea has no evidence that Mr. Galbreath was a
threat to the public; and even if he was, Plaintiff cannot prove
Galbreath knew or reasonably should -- I mean, Greyhound knew or
reasonably should have known. That's a question also for the
jury.
Mr. Galbreath -- the question of -- the question is
would Galbreath or Daniels have acted the way that they had and
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assaulted Ms. McVea if a supervisor had been present. That's the
question. And the evidence is not being -- we're not -- I'm
not -- we're not asked at the motion for summary judgment to --
to make that determination. And because we're not -- because
that is a question of fact for the jury to decide, it is
inappropriate at this point for their -- for their motion on --
their summary motion judgment on that issue to be granted.
I'm sorry. Premises defect, because Ms. McVea
cannot overcome the threshold hurdle of showing Greyhound this
is -- they're alleging that because I cannot overcome the
threshold hurdle of showing Greyhound had constructive or actual
knowledge, Plaintiff cannot produce evidence supporting all
elements of her premises liability claim. Ms. McVea cannot
present evidence that Defendants breached the duty of care
because the alleged criminal acts were not foreseeable as a
matter of law.
That's a question of fact, whether or not there
was -- Mr. Galbreath posed a -- a -- a danger and that whether or
not Greyhound was aware that he posed a danger and that -- even
if -- even if that were ruled in the favor of Greyhound, the
question still remains, and I think it is the overriding question
is, why -- where was a supervisor and why were these two men not
supervised when they were dealing with the public. And that is
the basis of my negligence claim, the claim that had those men
been supervised, they would not have acted the way that they had.
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False arrest. They are claiming that I consented
to my detention because I opted to get arrested rather than
volunteer -- voluntarily leave the premises as requested. So
Plaintiff cannot show she was arrested without consent. There's
no evidence whatsoever that they have presented -- excuse me,
that they have presented that I -- that I, Denise McVea, that --
from now on I'm just going to refer to myself in the third
person, Your Honor, if you don't mind. That Denise McVea
consented to her detention because she asked the police officer
to investigate a crime that was against her.
I'd like to direct the Court to page 19 of their
own motion for summary judgment. On the second paragraph -- tell
me when you're ready, Your Honor.
THE COURT: I'm ready.
MS. McVEA: Further it says, Plaintiff cannot prove
that the detention occurred without the authority of law, element
3.
THE COURT: Ms. McVea. I've read it --
MS. McVEA: Okay.
THE COURT: -- before and I'm reading it now.
What's your point?
MS. McVEA: Officer Munoz, the second paragraph
where it says, Officer Munoz therefore had at least a reasonable
suspicion that a crime was being committed in his presence and
had a duty to investigate, those are their words. Do you see it
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there?
THE COURT: Yes.
MS. McVEA: They're -- my -- my whole argument is
quite the same thing that, yes, he had a duty to investigate and
yet he did not investigate. The fact that he did not investigate
brings to -- actually speaks specifically to the credibility of
the affidavit that he -- and his -- and the police report that he
brings forward alleging that I had been unruly and therefore
deserving of all of the abuses that were heaped on me that
morning. And my depo- -- and page 53 of my -- of Denise McVea's
deposition.
THE COURT: I've read it, ma'am, I've read it.
MS. McVEA: Okay. So my point is that there's a
question of -- a very important question of material fact and
that question is whether or not this officer can be counted on
to -- to explain or explain away the actions of Mr. Galbreath and
Mr. Daniels when he did refuse to investigate, and by their own
measure, they're saying that he did have a duty to investigate.
That is a glaring issue of material fact, genuine, and leads --
and then -- and that's -- that's a -- that's a question for a
jury to decide and so a summary judgment on that question is
inappropriate.
THE COURT: Ms. McVea.
MS. McVEA: I'm almost finished, Your Honor. I'm
almost finished.
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THE COURT: Go ahead.
MS. McVEA: Intentional infliction of emotional
distress, they're claiming that I -- I was not -- that I had no
evidence of it. I just would like to direct the Court to page
501, line 1 through 9 of -- 501? That doesn't make sense. One
second. Page 50, I'm sorry, line 1 through 9 where McVea
specifically expresses fear of imminent bodily injury that she
underwent through Mr. -- Mr. Galbreath's activities.
In terms of the question of conspiracy, that also
is a question for the jury because once you look at the evidence
that's been presented by the Defendants, it's very clear that
there is more than enough evidence to -- to support a jury trial
in this cause and that many, many issues gen- -- genuine issues
of material fact exist. Ms. Colleen has done very little to show
any kind of evidence that would support a summary judgment at
this point and most of their -- their evidence are really -- it's
just conclusory.
Finally, Your Honor, if a respondent brings forth
even a scintilla of evidence that defeats summary judgment that's
actually well argued and well supplied with evidence, I have
brought forth more than enough -- more than a scintilla of
evidence and the evidence that they have brought forth is --
actually in many cases if it's not conclusory, it actually
defeats their own summary judgment. So I would respectfully ask
the Court to deny that motion for summary judgment and provide to
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the Plaintiff all relief to which she is justly entitled.
THE COURT: Thank you, Ms. McVea. Any response?
MS. LISOWSKI: Your Honor, can I briefly -- yes.
Just to go one-by-one, as far as assault, Ms. McVea
seems to have been lumping assault and conspiracy together. The
main point is that she says, I swore to it in my deposition that
Officer Munoz and the bus driver and Mr. Galbreath had this
elaborate trio going on where they just pinpoint --
MS. McVEA: Objection.
MS. LISOWSKI: Where they --
THE COURT: Listen, Ms. McVea. Nobody objected at
all during your presentation. I'm going to ask you kindly, I've
already ruled on evidence. You made objections, I ruled.
MS. McVEA: I understood --
THE COURT: This is argument.
MS. McVEA: I understand.
THE COURT: How about some common courtesy. I want
to hear her like I heard you.
MS. McVEA: Your Honor, I said I understood.
THE COURT: Yes, but I don't believe you do. So
don't -- don't interrupt the Court and don't just say objection.
MS. McVEA: I'm going to object to your tone, Your
Honor. You're --
THE COURT: I object to your tone, Ms. McVea.
You're availing yourself of the courts of Bexar County, you're
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going to follow the rules like everybody else.
MS. McVEA: Like everybody else.
THE COURT: You let her talk, like she let you
talk.
MS. McVEA: Thank you, Your Honor.
THE COURT: Yes. Go ahead, Ms. Lisowski.
MS. LISOWSKI: Thank you.
So the main point is that with assault there has to
be something more than Mr. Daniels, who is the bus driver, all he
said is, This ticket ain't right. He pointed and that was the
extent of it. He never even physically contacted the Plaintiff;
and so if he didn't touch her, then it -- there needs to be some
imminent threat and there was no evidence presented that she was
in threat. And her deposition testimony, which she did not
object to, specifically says that she was just appalled that he
was rude to her.
So as far as the assault goes, it's impossible. If
there's no physical contact, she wouldn't imminently feel
threatened. Just saying in her deposition that she was
assaulted, it's -- there's no evidence of that. Going down --
along those lines this will relate to conspiracy because that's
how she addressed it. Again, the only thing that she's relying
on is I swore to it in my deposition. I swore to it in my
deposition. Well, thank goodness that that's not the standard,
where you can just think that because two people are talking or
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because two people are friends that when one of them does
something wrong that suddenly there's a conspiracy and there's
this meeting of the minds. That's what the standard is, there
has to -- she has to show that there was a subjective meeting of
the minds. And because that they're -- they're co-workers that
doesn't necessarily mean that if one person does something wrong,
which we do not think that anybody did anything wrong, that they
are all in cahoots together.
And Officer Munoz, he's been dropped from this
case. There's -- that has nothing to do with our clients,
Greyhound and Officer (sic) Daniels. And so she keeps lumping
everybody in together, but it really needs to be -- in this case
Mr. Daniels was a bus driver who was treated rather rudely early
in the morning and now he's being tied into this and it's been
over a year, this was filed in February 2013 and this has been
going on for quite some time.
Going -- still going down the lines of addressing
what Ms. McVea said, as far as negligence, one of her main
arguments is, well, that's a question for the jury. That's a
question for the jury. Well, to get to the jury there has to be
some evidence to begin with. Just because you say something in
your deposition if you don't provide any evidence, then that's a
matter for summary judgment. When there's no evidence, and
especially with her own account, even her deposition testimony,
which she so heavily relies on, simply saying that there's
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negligence isn't enough to just automatically get it to a jury.
Specifically, there's really strong Texas case law
that supports our position. Ms. McVea, she emphasized that the
main overriding question in this case is, well, where was the
supervisor? Would -- would -- would the supervisor -- you know,
this wouldn't have happened if the supervisor was here. She
really focuses on whether or not this would have happened if a
supervisor was there, but that's the wrong starting point. Texas
law doesn't demand that employers, you have to have a supervisor
on shift the whole time unless there was a foreseeable reason for
that to happen. For example, in the Albertson's case or in
the -- in the hotel case where a security guard was called to the
room. There was a domestic violence dispute, the security guard
was called to the room. The security guard took the woman in the
other room to comfort her and see what was going on and he ended
up raping her. Even in that case the -- where there was a direct
connection between the security company and the hotel, where as
in ours there isn't, the court said, look at the security guard.
He had a good job history. He didn't have any history of doing
anything wrong. There wasn't -- there wasn't anything that a
hotel would have been able to say, well, this security guard is
going to be a threat to somebody.
Same thing with the bus driver. He didn't have
anything that was on his record. There wasn't any -- this
buildup of complaints. Greyhound had no reason to imagine that
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there was going to be this conspiring devil-ish trio between the
driver, the security guard, and an officer that's randomly called
in and suddenly they're going to assault the Plaintiff.
So with the -- with the negligence in the premises
defects there's the -- Texas case law is very explicit in saying
that there's a high standard where it has to be -- there has to
be more than just somebody does something wrong. Even if
somebody did do something wrong, as in the Albertson's case, an
Albertson's employee followed a woman throughout the store,
stalked her and then stabbed her and they still said that doesn't
rise to the level for a premises defect. And that's the same
thing that's applicable to this -- to Greyhound. There was
nothing to -- to -- to cue anybody that there was anything going
on.
As far as false arrest, again, we have Officer
Munoz' affidavit. He was -- acted as a reasonable officer. He
had a duty to believe, based on what he saw and what he -- what
people told him and her -- his witnessing her own disruptive
behavior which he says in his affidavit that was enough where he
investigated the situation and he arrested her.
And more so our client has no nothing to do with a
false arrest where he was -- all he did was say what he thought
was going on. So the bus driver with -- when all he did was say,
This ain't right, this ain't right, go to the counter, has
nothing to do with a false arrest. As far as Ms. McVea said she
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
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responded to the emotional distress claim and said, Please look
at my deposition testimony, I said, I -- I was mentally, you
know, impacted by this, but the -- the Texas Supreme Court has
recently said pretty much we're tired of sending cases back to
the lower courts because -- just because that there's cases that
seem abhorrent, like, for example, when a little girl was raped
and she went to the hospital -- the emergency room and the nurse
told her in front of everybody, well, you could have -- this
injury could have happened when you just fell off your bike or
riding a bike, if that doesn't rise to the level of emotional
distress, then Ms. McVea -- Ms. McVea being told to please go
back to the ticket counter and make sure that you have the proper
ticket, that certainly doesn't.
More so, there has to be -- to meet the mental
anguish standard, there has to be -- it's a high level. There
can't just be, oh, well, I was -- I was distressed. And it can't
just be conclusory deposition testimony, because if that was the
case, a lot of people could be deposed and say I underwent some
severe mental anguish.
And so finally, and this is only -- I'm only
responding to what Ms. McVea just said right now, not -- not
going down the list because our -- our -- I'd like to think our
summary judgment motion is clear with each one, but the final
thing she said is that -- throughout her whole argument she made
it a point that there's material issues of fact and all I have to
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
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do is raise a scintilla of evidence. Well, yes, we agree, but
Ms. McVea hasn't done anything, she hasn't done anything of that.
This has been filed for over -- almost two years now and I gave
you an outline of how cooperative we've been with Ms. McVea's
vacation filing and her suddenly having surgery and it's been
over -- almost seven or eight months worth of time where Ms.
McVea has had ample opportunity and hasn't done that and so
there's not a scintilla of evidence that Ms. McVea has presented
and even -- even if she had, it still as a matter of law doesn't
meet the high threshold with some of these elements and it
doesn't override strong Texas case law. And with that we just
hope that the -- the motion will be sufficient for showing
everything else.
THE COURT: I want to thank the parties. I'll see
y'all on the date I gave you, which as I recall was Wednesday,
August the 13th, here in this courtroom at 4 o'clock. Is that
the date I gave them?
MS. LISOWSKI: Yes.
THE COURT: Y'all are excused.
MS. McVEA: Your Honor, I have -- I'd like to --
THE BAILIFF: Court stands in recess, ma'am.
MS. McVEA: I'd -- I'd like to issue an objection
for the record before we go. I object to the presence of Brett
VanGheluwe in this case.
(Proceedings recessed at 11:51.)
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OFFICIAL COURT REPORTER
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THE STATE OF TEXAS )
THE COUNTY OF BEXAR )
I, RHONDA L. HOGAN, Official Court Reporter in and
for the 37th District Court of Bexar County, State of Texas, do
hereby certify that the above and foregoing contains a true and
correct transcription of all portions of evidence and other
proceedings requested by the Plaintiff to be included in this
volume of the Reporter's Record, in the above-styled and numbered
cause, all of which occurred in open court or in chambers and
were reported by me.
WITNESS MY OFFICIAL HAND this the 4th day of
September, 2014.
/s/ Rhonda L. Hogan
RHONDA L. HOGAN, CSR, RMR, CRR
Certification No. 1105
Expiration Date: 12-31-2014
37th District Court
Bexar County Courthouse
100 Dolorosa
San Antonio, Texas 78205
(210) 335-2516
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OFFICIAL COURT REPORTER
37TH DISTRICT COURT
SAN ANTONIO, TEXAS
i
VOLUME 1
DEFENDANT'S TRADITIONAL MOTION
AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
August 1, 2014 Page Vol.
Appearances...................................... 2 1
Announcements.................................... 3 1
Plaintiff's Motion for Continuance and Motion for
Leave to File Late Response................ 4 1
Court's Ruling................................... 6 1
Defendant's Motion for Summary Judgement......... 6 1
Objections to Summary Judgment Evidence.......... 15 1
Matter Taken Under Advisement and Date Set for
Parties to Return for Court's Ruling....... 20 1
Court Reporter's Certificate..................... 40 1