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CATES v. CREAMER

No. 03-10404.

431 F.3d 456 (2005)

Priscilla S. CATES, Individually and as Guardian of the Person and Estate of Bobby Ray Cates, an Incapacitated Person, Plaintiff-Appellant-Cross-Appellee, v. Matthew Scott CREAMER, Defendant-Appellee-Cross-Appellant, Lamae Creamer; Hertz Corporation, Defendants-Appellees.

United States Court of Appeals, Fifth Circuit.

November 28, 2005.

Attorney(s) appearing for the Case

Charles William Fillmore (argued), The Fillmore Law Firm, Fort Worth, TX, Stephen Morris Briley, Banner, Briley & White, Wichita Falls, TX, for Cates.

Charles William Oldham (argued), Meredith Lea Kennedy, Oldham, Hanson & Florendine, Wichitia Falls, TX, for the Creamers.

Blazena Psurny (argued), Thomas William Long, Tribble & Sanders, Houston, TX, for Hertz Corp.

Before JOLLY, JONES and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The lease for the Hertz rental car was executed in Florida. The wreck and Bobby Cates's injuries occurred in Texas. The defendant driver, Matthew Scott Creamer, momentarily went to sleep while driving. Mr. Cates's car had stalled on the side of the highway when Creamer hit it, severely injuring Bobby Cates. The first jury found no negligence and returned its verdict for the defendant, Creamer. The district court granted a new trial....

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