ACCEPTED
12-16-00095-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/11/2016 2:09:06 PM
Pam Estes
CLERK
NO. 12-16-00095-CV
IN THE COURT OF APPEALS,
FILED IN
TWELFTH DISTRICT OF TYLER, TEXAS 12th COURT OF APPEALS
TYLER, TEXAS
________________________________________________________________
7/11/2016 2:09:06 PM
PAM ESTES
ALBERT RAY WILLIAMS, Clerk
Appellant,
v.
GREAT WESTERN DISTRIBUTING COMPANY OF AMARILLO
D/B/A BILL REED DISTRIBUTING COMPANY
Appellee.
On Appeal from the 104th District Court
of Taylor County, Texas
Cause No. 26,604-B
APPELLEE’S BRIEF
________________________________________________________________
Respectfully submitted,
MCMAHON SUROVIK SUTTLE, P.C.
P.O. Box 3679
Abilene, Texas 79604
(325) 676-9183 Telephone
(325) 676-8836 FAX
BY: ROBERT WAGSTAFF
State Bar No. 20665000
rwagstaff@mcmahonlawtx.com
JESSICA L. HAILE
State Bar No. 24071580
jhaile@mcmahonlawtx.com
ATTORNEYS FOR APPELLEES
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Table of Contents .............................................................................................. ii
Index of Authorities ........................................................................................... iv
REPLY POINT ONE .......................................................................................... 1
STATEMENT OF FACTS ................................................................................. 1
APPELLEES REPLY POINT ONE RESTATED .............................................. 2
SUMMARY OF THE ARGUMENT ................................................................. 2
STANDARD OF REVIEW ................................................................................. 4
ARGUMENT & AUTHORITIES ...................................................................... 7
I. The Trial Court Properly Rendered Partial Summary Judgment on
Appellant’s Respondeat Superior Claim, which Merged into the Final
Order Granting Defendant, Bill Reed’s Motion To Strike, and Became
Final And Appealable Upon Severance ..................................................... 7
II. The Trial Court Properly Granted Appellee’s Motion for Summary
Judgment on Respondeat Superior ........................................................... 9
A. Workers’ Compensation Act v. Respondeat Superior ..................... 9
B. Appellant Presents No Evidence to Support its Claim of
Respondeat Superior ...................................................................... 12
III. PRAYER ................................................................................................ 20
CERTIFICATE OF COMPLIANCE ................................................................ 21
CERTIFICATE OF SERVICE ......................................................................... 21
__________________________________________________________________
APPELLEES BRIEF Page ii
INDEX OF AUTHORITIES
Cases
Andrews v. Houston Lighting & Power, 820 S.W.2d 411, 413 (Tex. App.-
Houston [14th Dist.] 1991, writ denied) ........................................................... 13
Bell v. VPSI, Inc., 205 S.W.3d 706, 718 (Tex. App.-Fort Worth 2006,
no pet.) ....................................................................................................... 15, 16
Berry v. Gregg Indus. Servs., Inc., 907 S.W.2d 4 (Tex. App. –Tyler 1994, writ
denied) ............................................................................................................... 9
City of Beaumont v. Stewart, 09-12-00316-CV, 2012 WL 5364678, at *3
(Tex. App.—Beaumont Nov. 1, 2012, no pet .............................................. 13, 15
Compare Mapp v. Md. Cas. Co., 730 S.W.2d 658, (Tex. 1987) ........................ 9
Drooker v. Saeilo Motors, 756 S.W.2d 394, 397-98 (Tex. App.-Houston
[1st Dist.] 1988, writ denied) ....................................................................... 14, 16
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000) ... 4
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) ......................... 6
Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010) ..................... 7
Gant v. Dumas Glass & Mirror, Inc., 935 S.W.2d 202, 212 (Tex. App.
-Amarillo 1996, no writ) .............................................................................. 13, 14
Garcia v. City of Houston, 799 S.W.2d 496, 499 (Tex. App.-El Paso 1990,
writ denied)........................................................................................................ 16
Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 481 (Tex. 2005) ...................... 10
Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014) ........................................ 7
Henry v. Cullum Companies, Inc., 891 S.W.2d 789, 792 (Tex. App.—
Amarillo 1995, writ denied) ................................................................................ 7
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APPELLEES BRIEF Page iii
Holditch v. Standard Acc. Ins. Co., 208 F.2d 721 (5th Cir. 1953) ....................... 9
J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636 (Tex. App.—
San Antonio 1993, no writ) ................................................................... 15, 17, 18
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) .......... 4
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983) ............................... 6
Leatherwood v. Holland, 375 S.W.2d 517, 519 (Tex. Civ. App.—Fort Worth
1964, writ ref'd n.r.e.) ......................................................................................... 7
Longoria v. Texaco, Inc., 649 S.W.2d 332, 335 (Tex. App.-Corpus Christi
1983, no writ) .................................................................................................... 16
Maughon v. ARMC, L.P., 11-06-00049-CV, 2007 WL 2390717, at *1 (Tex.
App.—Eastland Aug. 23, 2007, no pet.) ............................................................. 6
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)
(citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence”
Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960)) .................................... 5, 6
McCormack v. Guillot, 597 S.W.2d 345 (Tex. 1980) ......................................... 7
Morris v. JTM Materials, Inc., 78 S.W.3d 28, 47 (Tex. App.-Fort Worth
2002, no pet.) ..................................................................................................... 13
S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) ............................. 7
Salmon v. Hinojosa, 538 S.W.2d 22, 24 (Tex. Civ. App.-San Antonio 1976,
no writ) .............................................................................................................. 16
SeaBright Ins. Company v. Lopez, 465 S.W.3d 637 (Tex. 2015) ........................ 9
Smith v. Tex. Emp’rs’ Ins. Ass’n, 105 S.W.2d 192 (Tex. 1937) .......................... 9
Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009) ....................................... 5
__________________________________________________________________
APPELLEES BRIEF Page iv
Tex Mut. Ins. Co. v. Jerrols, 385 S.W.3d 619 (Tex. App.—Houston [14th
Dist.] 2012, pet. dismissed) ................................................................................. 9
Timpte Industries, Inc., 286 S.W.3d 306, 310 (Tex. 2009) (quoting Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006)) ................................... 5
Upton v. Gensco, Inc., 962 S.W.2d 620, 622 (Tex. App.—Fort Worth 1997,
pet. denied) (citing Wilson v. H.E. Butt Grocery Co., 758 S.W.2d at 907
(citing London v. Texas Power & Light Co., 620 S.W.2d 718, 720 (Tex.
Civ. App.—Dallas 1981, no writ)) .............................................................. 16, 17
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) ................ 4
Ward v. Wright, 490 S.W.2d 223, 226 (Tex. Civ. App.—Fort Worth 1973,
no writ) ........................................................................................................ 10, 11
Webb v. Jorns, 488 S.W.2d 407, 408-09 (Tex. 1972) .......................................... 8
Wilson v. H.E. Butt Grocery Co., 758 S.W.2d 904, 906 (Tex. App.-Corpus
Christi 1988, no writ) citing, Robertson Tank Lines, Inc. v. Van Cleave, 468
S.W.2d 354, 357 (Tex.1971)) ............................................................................ 12
Statutes and Rules:
TEX. R. CIV. P. 166a(c) .................................................................................... 6
TEX. R. CIV. P. 166a(i) ..................................................................................... 6
__________________________________________________________________
APPELLEES BRIEF Page v
APPELLEE’S BRIEF
TO THE HONORABLE COURT OF APPEALS:
NOW COMES, GREAT WESTERN DISTRIBUTING COMPANY OF
AMARILLO D/B/A BILL REED DISTRIBUTING COMPANY (“Appellee”),
by and through their attorneys of record, Robert Wagstaff and Jessica Haile,
McMahon Surovik Suttle, P.C., and files the Brief of Appellee and would show
the Honorable Court the following:
REPLY POINT ONE
The trial court properly granted Appellee’s Motion for Summary
Judgment.
STATEMENT OF FACTS
Background
Appellant, Albert Williams (“Appellant”) was involved in a motor vehicle
collision with Defendant, Dakotah Croxton (“Defendant Croxton”), who was
driving a vehicle owned by his employer, Appellee, on June 7, 2012. On
December 20, 2012, Appellant filed suit against Defendant Croxton and Appellee
alleging various causes of action relating to a car accident that occurred between
Appellant and Defendant Croxton. Appellant brought suit against Appellee,
asserting Appellee was directly liable on the grounds that it was negligent and
grossly negligent and vicariously liable under the doctrine of respondeat superior.
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APPELLEE’S BRIEF Page 1
After a sufficient amount of time for discovery passed, on January 9, 2015,
Appellee filed a motion for summary judgment on Appellant’s claims of gross
negligence and respondeat superior. The trial court ruled immediately granting
summary judgment on the claim of gross negligence, but asked for additional
briefing on the issue of respondeat superior. On July 9, 2015, the trial court issued
a letter ruling granting Appellee’s motion for summary judgment on the
respondeat superior issue as well. Appellee filed special exceptions to Plaintiff’s
Third Amended Petition, which were granted, and when Appellant failed to abide
by the trial court’s order on the special exceptions, Appellee filed a Motion to
Strike all claims against Appellee, which the trial court granted on January 25,
2016. Appellant then filed a Motion to Sever the Claims against Appellee so that
the Motion to Strike would be final and appealable. The Court ordered severance
of the claims against Appellee on February 9, 2016. Appellant appeals the trial
court’s Partial Summary Judgment on the issue of respondeat superior.
Appellees Reply Point One Restated
The trial court properly granted Appellee’s Motion for Summary
Judgment.
SUMMARY OF THE ARGUMENT
Summary Judgment was properly rendered by the trial court on the issue
of respondeat superior when the court announced its decision to grant the
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APPELLEE’S BRIEF Page 2
motion for summary judgment on the issue of respondeat superior in open court
on August 11, 2015. The partial summary judgment was interlocutory at the
time judgment was rendered because it did not dispose of all parties and all
claims. The trial court’s order on the respondeat superior issue merged into the
Court’s order granting Appellee’s Motion to Strike which disposed of all claims
against Appellee, and dismissed Appellee from the underlying suit. This order
became final on February 9, 2016 when the Court granted severance of the
claims against Appellee from the remaining claims in the underlying suit.
Therefore, the issue of whether the trial court properly granted Appellee’s
Partial Motion for Summary Judgment on the respondeat superior claim is
properly before this Court and subject to appellate review.
The trial court properly granted Appellee’s Partial Motion for Summary
Judgment on the respondeat superior claim because there is no evidence before
the court that Defendant Croxton was acting in the course and scope of his
employment, in furtherance of Appellee’s business and for the accomplishment
of the object for which he was hired. Without evidence to support this element,
Appellant’s claim for respondeat superior fails as a matter of law. Furthermore,
the uncontroverted evidence that is before the Court establishes that Defendant
Croxton was not acting in the course and scope of his employment at the time of
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APPELLEE’S BRIEF Page 3
the accident and negates that element of Appellant’s respondeat superior claim.
Therefore, the trial court’s order granting summary judgment on the issue of
respondeat superior in favor of Appellee should be upheld.
STANDARD OF REVIEW
Standard of Review for Summary Judgment.
When both parties move for summary judgment on the same issues and
the trial court grants one motion and denies the other, as is the case here
regarding Appellant’s premises liability claim, the reviewing court must
consider the summary judgment evidence presented by both sides, determine all
questions presented, and if the reviewing court determines that the trial court
erred, it will render the judgment the trial court should have rendered. See FM
Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000);
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a
summary judgment order does not specify the grounds on which it was granted,
the reviewing court will affirm the judgment if any one of the theories advanced
in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d
150, 157 (Tex. 2004).
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APPELLEE’S BRIEF Page 4
No Evidence Motion for Summary Judgment
In conducting a no-evidence summary judgment review, the reviewing
court considers the evidence presented by the motion and response in the light
most favorable to the party against whom the summary judgment was rendered,
credits evidence favorable to that party if reasonable jurors could, and
disregards contrary evidence unless reasonable jurors could not. Timpte
Industries, Inc., 286 S.W.3d 306, 310 (Tex. 2009) (quoting Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 582 (Tex.2006)). Once the movant specifies the
elements on which there is no evidence, the burden shifts to the non-movant to
raise a fact issue on the challenged elements. Id. Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006). “A no evidence point will be sustained when
(a) there is a complete absence of evidence of a vital fact, (b) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered
to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than
a mere scintilla, or (d) the evidence conclusively establishes the opposite of the
vital fact.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711
(Tex.1997) (citing Robert W. Calvert, “No Evidence” and “Insufficient
Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960)). Thus, a no-
evidence summary judgment is improperly granted if the non-movant brings
forth more than a scintilla of probative evidence to raise a genuine issue of
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APPELLEE’S BRIEF Page 5
material fact. Tex. R. Civ. P. 166a(i); Smith v. O'Donnell, 288 S.W.3d 417, 424
(Tex. 2009). Less than a scintilla of evidence exists when the evidence is “so
weak as to do no more than create a mere surmise or suspicion” of a fact.
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla
of evidence exists when the evidence “rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.” Merrell Dow
Pharms., 953 S.W.2d at 711. If the non-movant fails to meet his or her Rule
166a(i) burden, then there is no need to address whether the movant satisfied
their burden for obtaining a traditional summary judgment under Tex. R. Civ. P.
166a(c). Maughon v. ARMC, L.P., 11-06-00049-CV, 2007 WL 2390717, at *1
(Tex. App.—Eastland Aug. 23, 2007, no pet.).
When a party moves for summary judgment on both a no-evidence and a
traditional motion for summary judgment, the appellate courts first review the
judgment under no-evidence standards. Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004).
Traditional Motion for Summary Judgment
The party moving for traditional summary judgment bears the burden of
showing that no genuine issue of material fact exists and that he is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c). A defendant who
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APPELLEE’S BRIEF Page 6
conclusively negates a single essential element of a cause of action or
conclusively establishes an affirmative defense is entitled to summary judgment
on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010);
Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014).
ARGUMENT & AUTHORITIES
I. The Trial Court Properly Rendered Partial Summary Judgment on
Appellant’s Respondeat Superior Claim, which Merged into the Final
Order Granting Defendant, Bill Reed’s Motion To Strike, and
Became Final And Appealable Upon Severance.
Judgment is rendered when the trial court officially announces its decision
in open court or by written memorandum filed with the clerk. S & A Rest. Corp.
v. Leal, 892 S.W.2d 855, 857 (Tex. 1995). The rendition of the trial court's
decision, whether in open court or by official document of the court, is the
critical moment when the judgment becomes effective. Henry v. Cullum
Companies, Inc., 891 S.W.2d 789, 792 (Tex. App.—Amarillo 1995, writ
denied). A judgment, on its rendition, even without any entry, is final, valid and
enforceable between the parties. The oral official pronouncement by the court of
its conclusions and decision upon the matter submitted to it for adjudication
may be said to be the rendition of its judgment. The writing out of the judgment
in the form of a judgment on file, to be recorded, is a matter of subsequent
clerical action. Leatherwood v. Holland, 375 S.W.2d 517, 519 (Tex. Civ.
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APPELLEE’S BRIEF Page 7
App.—Fort Worth 1964, writ ref'd n.r.e.), disapproved of on other grounds by
McCormack v. Guillot, 597 S.W.2d 345 (Tex. 1980).
Appellant gives too much deference to the ministerial act of signing a
written order and filing the same with the clerk. The trial court clearly rendered
partial summary judgment against Appellant on the respondeat superior issue, if
not on July 9, 2015 in its letter ruling, at the very latest on August 11, 2015,
when it pronounced in open court that it “granted the motion for summary
judgment as to respondeat superior.” (Supp. RR., Vol. 1, p. 23, ll. 6-7). The act
of pronouncing the trial court’s judgment on the respondeat superior issue,
constitutes a valid and enforceable rendition of a interlocutory order.
An order is interlocutory if it does not dispose of all parties and issues in
the pending suit. Webb v. Jorns, 488 S.W.2d 407, 408-09 (Tex. 1972). Without
severance, an interlocutory order does not become final and appealable until it is
merged into a final judgment which disposes of all parties and all issues in the
suit. Id.
The partial summary judgment granted by the court on the issue of
respondeat superior was interlocutory as it did not dispose of all parties or all
claims in the cause before the court. However, the partial summary judgment
merged into the Court’s Order granting Defendant’s Motion to Strike, which
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APPELLEE’S BRIEF Page 8
dismissed all claims against Defendant, Bill Reed. This Order then became final
and appealable when the trial court granted severance of all claims against
Defendant, Bill Reed, thereby disposing of all issues and claims against
Defendant, Bill Reed, in the severed cause. Therefore, the partial summary
judgment rendered by the trial court is properly before this Court and should be
considered under the standard of review applied to summary judgments.
II. The Trial Court Properly Granted Appellee’s Motion for Summary
Judgment on Respondeat Superior
A. Worker’s Compensation Act v. Respondeat Superior
Initially, Appellee is compelled point out that every single case cited by
Appellant in Section III. B. of its Brief—SeaBright Ins. Company v. Lopez, 465
S.W.3d 637 (Tex. 2015); Berry v. Gregg Indus. Servs., Inc., 907 S.W.2d 4 (Tex.
App. –Tyler 1994, writ denied); Compare Mapp v. Md. Cas. Co., 730 S.W.2d
658, (Tex. 1987); Tex Mut. Ins. Co. v. Jerrols, 385 S.W.3d 619 (Tex. App.—
Houston [14th Dist.] 2012, pet. dismissed); Holditch v. Standard Acc. Ins. Co.,
208 F.2d 721 (5th Cir. 1953); Smith v. Tex. Emp’rs’ Ins. Ass’n, 105 S.W.2d 192
(Tex. 1937) — in support of his argument that Defendant Croxton was acting
within the course and scope of his employment when driving home for his lunch
break is a worker’s compensation insurance case. Worker’s compensation cases
analyze the issue of course and scope of employment under the statutory
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APPELLEE’S BRIEF Page 9
framework of Title 5 of the Texas Labor Code pertaining to worker’s
compensation insurance. Therefore, these cases are distinguishable and utterly
irrelevant to an analysis of course and scope under the common law doctrine of
respondeat superior as applied in a personal injury suit such as this.
The Texas Supreme Court specifically states that the Workers’
Compensation Act does not apply to the common law doctrine of respondeat
superior. See Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 481 (Tex. 2005)
(“In this case, we are construing only the Labor Code, specifically the Workers'
Compensation Act; we are not applying general common-law principles
regarding vicarious liability for injuries to third parties. We reiterate what we
said in Wingfoot: ‘The common-law principles that define when there will be
vicarious liability are designed to assign liability for injury to third parties to the
party who was directing the details of the negligent actor's conduct when that
negligence occurred.’ The Workers' Compensation Act was not.”). While there
is some commonality of language and concepts between the Workers’
Compensation Act and the common law doctrine of respondeat superior, the
courts consistently treat the two theories of liability and recovery as distinctly
separate. In fact, in Ward v. Wright, the Fort Worth Court of Appeals
specifically states:
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APPELLEE’S BRIEF Page 10
The situation in the case before us, as it must be viewed for
summary judgment purposes, was as follows: Both plaintiff and
defendant were on their respective lunch hours. It was the intention
of each of them to depart their employer's premises for lunch. They
entered automobiles and were in the process of leaving the parking
lot, defendant driving her automobile immediately behind that of
the plaintiff, when these two vehicles collided by reason of the
defendant's negligence. By reason of the collision the plaintiff's
injury was sustained. By the foregoing it is obvious that the parties'
common employer would not, under the respondeat superior
doctrine, have been responsible for the negligence of either of the
parties to the automobile collision.
….
The defendant, herself, if she also had sustained personal injuries in
the same accident, would have been entitled to Workmen's
Compensation Insurance benefits (because of the fact that such
injuries were sustained while she was still upon the premises of her
employer and it being assumed in absence of evidence to the
contrary that she had ‘elected’ to be covered by her employer's
policy of Workmen's Compensation Insurance.
Ward v. Wright, 490 S.W.2d 223, 226 (Tex. Civ. App.—Fort Worth 1973, no
writ) (emphasis added). The court clearly distinguishes the Workers’
Compensation Act from respondeat superior cases, and in fact, finds that a
party may have recovery under one theory and not under the other in certain
circumstances. Therefore, Appellant’s attempt to merge the two theories of
liability and recovery by citing exclusively Workers’ Compensation cases for
the proposition that there is no bright-line rule for determining whether an
employee is acting within the course and scope of his employment is entirely
misplaced.
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APPELLEE’S BRIEF Page 11
Under Texas common law, to impose liability on an employer for the tort
of his employee under the doctrine of respondeat superior, the employee's act
must fall within the scope of the employee's general authority and must be in
furtherance of the employer's business and for the accomplishment of the object
for which the employee was hired. See Wilson v. H.E. Butt Grocery Co., 758
S.W.2d 904, 906 (Tex. App.-Corpus Christi 1988, no writ) citing, Robertson
Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex.1971)).
B. Appellant Presents No Evidence to Support its Claim of
Respondeat Superior.
Appellant has provided no evidence that Defendant Croxton was acting in
furtherance of Bill Reed’s business while travelling home for lunch in a Bill
Reed vehicle, or that the act of traveling home for lunch was for the
accomplishment of the object for which Croxton was hired, as is required to
establish respondeat superior; rather, the uncontroverted evidence before the
Court establishes that Croxton was not acting in the course and scope of his
employment.
Presumption of Course and Scope
When the vehicle involved in an accident is owned by the defendant-
employer and the driver was an employee of the defendant-employer, “a
presumption arises that the driver was acting within the scope of his
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APPELLEE’S BRIEF Page 12
employment when the accident occurred.” Robertson Tank Lines, Inc. v. Van
Cleave, 468 S.W.2d 354, 357 (Tex. 1971). However, where there is evidence
that the driver was on a personal errand, or otherwise not in the furtherance of
his employer's business, the presumption is rebutted and the fact that the vehicle
is owned by the defendant-employer and that the driver was an employee of the
defendant-employer is not probative evidence that the employee was within the
course and scope of employment at the time of the accident and is insufficient to
raise a fact issue. Id. at 358; City of Beaumont v. Stewart, 09-12-00316-CV,
2012 WL 5364678, at *3 (Tex. App.—Beaumont Nov. 1, 2012, no pet.); Gant v.
Dumas Glass & Mirror, Inc., 935 S.W.2d 202, 212 (Tex. App.-Amarillo 1996,
no writ) (presumption rebutted by employee's testimony he was returning from
personal business of eating lunch en route to work); Morris v. JTM Materials,
Inc., 78 S.W.3d 28, 47 (Tex. App.-Fort Worth 2002, no pet.) (presumption
rebutted where employee, whom employer instructed to drive tractor-trailer
from home to yard for maintenance, went to sister's house first on personal
errand and was leaving her house to continue to maintenance yard when
accident occurred); see also Andrews v. Houston Lighting & Power, 820 S.W.2d
411, 413 (Tex. App.-Houston [14th Dist.] 1991, writ denied) (“[A]n employer is
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APPELLEE’S BRIEF Page 13
not liable for actions that an employee takes in his own interest and not to
further the purpose of carrying out the master's business.”).
Here, the presumption that Croxton was acting in the course of scope of
his employment is created by the fact that Croxton was driving his employer’s
vehicle at the time of the accident. However, the presumption is rebutted by the
uncontroverted evidence that Croxton was on a personal errand at the time of
the accident. Croxton testified that he was heading home for lunch at the time of
the accident. (C.R. 27). Thus, Appellant cannot rely on the facts that Croxton
was driving a vehicle owned by Defendant, Bill Reed and that Croxton was an
employee of the Defendant, Bill Reed at the time of the accident to raise a fact
issue to defeat summary judgment on respondeat superior.
Presumption of Course and Scope Rebutted
Croxton’s uncontroverted testimony is in line with the holdings of several
Texas courts that found that evidence that an employee was driving a company
vehicle while going to or from lunch or dinner break was evidence that the
employee was not acting within the scope of his employment. See Gant v.
Dumas Glass & Mirror, Inc., 935 S.W.2d 202, 212–13 (Tex.App.-Amarillo
1996, no writ) (holding that employee was not within the scope of employment
when the accident occurred while he was in his company vehicle en route back
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APPELLEE’S BRIEF Page 14
to work after “attending his personal business of eating lunch”); Drooker v.
Saeilo Motors, 756 S.W.2d 394, 397-98 (Tex. App.-Houston [1st Dist.] 1988,
writ denied) (finding no evidence that employee was acting within scope of his
employment where employee left work in employer's vehicle with two co-
workers for a dinner break, intended to return to work after the meal, and was en
route to dinner when the accident occurred); City of Beaumont v. Stewart, 09-
12-00316-CV, 2012 WL 5364678, at *3 (Tex. App.—Beaumont Nov. 1, 2012,
no pet.) (holding that the fact that an employee was driving within his or her
designated work area at the time of an accident when headed home for lunch
does not constitute probative evidence that the employee was acting in
furtherance of the employer's business); see also J & C Drilling Co., 866
S.W.2d at 637–38 (holding that plaintiff failed to raise a fact issue regarding
whether driver was within the scope of his employment where driver, who was
in his company vehicle and was on 24–hour call, got into an accident returning
to his rig site, after having left the site to have dinner in another town); see also
Robertson, 468 S.W.2d at 358–59 (discussing cases holding that presumption of
course and scope is rebutted where the evidence establishes that the driver
turned aside, even briefly, for a personal errand); cf. Bell v. VPSI, Inc., 205
S.W.3d 706, 718 (Tex. App.-Fort Worth 2006, no pet.) (recognizing that “[e]ven
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APPELLEE’S BRIEF Page 15
when driving a vehicle furnished by the employer, the employee is generally not
in the course and scope while going to and returning from work unless he is
directed by his employer or furthering the employer's business.”).
Texas courts have generally held that an employee is generally not in the
course and scope while going to and returning from work unless he is directed
by his employer or furthering the employer's business, even when he is driving a
vehicle furnished by the employer. See Upton v. Gensco, Inc., 962 S.W.2d 620,
622 (Tex. App.-Fort Worth 1997, pet. denied); Garcia v. City of Houston, 799
S.W.2d 496, 499 (Tex. App.-El Paso 1990, writ denied) (holding presumption
that employee driving city-owned vehicle was in course and scope vanished
when evidence established he was finished with tasks for day and on his way
home); Drooker v. Saeilo Motors, 756 S.W.2d 394, 400 (Tex. App.-Houston
[1st Dist.] 1988, writ denied) (affirming summary judgment where employee
was driving company vehicle home for dinner); Longoria v. Texaco, Inc., 649
S.W.2d 332, 335 (Tex. App.-Corpus Christi 1983, no writ) (affirming summary
judgment for employer where employee using company vehicle had finished
work for day and was on way home, although use of vehicle was considered
fringe benefit and part of compensation); Salmon v. Hinojosa, 538 S.W.2d 22,
24 (Tex. Civ. App.-San Antonio 1976, no writ) (holding presumption of course
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APPELLEE’S BRIEF Page 16
and scope rebutted as matter of law by evidence that employee was merely
returning from home to work); Bell v. VPSI, Inc., 205 S.W.3d 706, 718 (Tex.
App.—Fort Worth 2006, no pet.). Thus, the general consensus amongst the
courts is that: “when the employer neither requires any particular means of
travel nor directs the employee to take a particular route, the employee is not
engaged in the furtherance of the master's business.” Upton v. Gensco, Inc., 962
S.W.2d 620, 622 (Tex. App.—Fort Worth 1997, pet. denied) (citing Wilson v.
H.E. Butt Grocery Co., 758 S.W.2d at 907 (citing London v. Texas Power &
Light Co., 620 S.W.2d 718, 720 (Tex. Civ. App.—Dallas 1981, no writ));
accord J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636 (Tex. App.—San
Antonio 1993, no writ).
Again, the only evidence regarding the accident is that Defendant
Croxton, while employed by Appellee, Bill Reed, testified that while he was
driving the company vehicle home for lunch he was involved in an accident
with Appellant. (C.R. 49, 74). Consistent with the holdings of other Texas
courts, this testimony demonstrates that Defendant Croxton was on a personal
mission and was not acting in the course and scope of his employment with
Appellee. Therefore, the presumption of course and scope is rebutted, and
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APPELLEE’S BRIEF Page 17
Appellant must develop other evidence in support of its claim that Defendant,
Croxton was acting in the course and scope of his employment.
No Other Evidence of Course and Scope Presented
Unaided by the presumption that the driver was acting in furtherance of
the employer’s business, the plaintiff then has the burden to produce other
evidence that the driver was acting within the course and scope of his or her
employment at the time of the accident. See J & C Drilling Co. v. Salaiz, 866
S.W.2d 632, 637 (Tex. App.-San Antonio 1993, no writ).
Instead of controverting Defendant, Croxton’s testimony, Appellant
attempts to establish that Defendant Croxton was acting in the course and scope
of his employment by pointing to the deposition evidence of a Bill Reed
representative that testified that 1) immediately after the accident, Croxton
notified his supervisor of the accident and the supervisor came to the scene of
the accident; 2) an internal investigation was performed after the accident, and
3) that Defendant, Croxton was representing the company at the time of the
accident.
However, the fact that Defendant Croxton notified the owner of the
vehicle that its vehicle was involved in an accident after the accident occurred
does not establish that Defendant Croxton was acting in the course and scope of
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APPELLEE’S BRIEF Page 18
his employment or in furtherance of his employer’s business at the time the
accident occurred. Moreover, the fact that Appellee conducted an internal
investigation into the accident, which involved its vehicle, is not indicative that
the employee was acting within the course and scope of his employment while
driving the vehicle when the accident occurred. The evidence of post-accident
measures taken by Appellee with regard to its vehicle are not indicative of
whether or not Defendant Croxton was acting in furtherance of Appellee’s
business at the time of the accident to raise a fact issue with regard to
Appellant’s respondeat superior claim.
Finally, the statement Appellant cites from C.R. 41 that Croxton was
representing the company takes the statement out of context and completely
misconstrues the testimony, the omitted and relevant portion of the testimony is
as follows:
Q: At the time of the accident, sir, that we’re here for,
was Mr. Croxton on the clock?
A: He was representing the company, yes. He was not
– I may have misstated that. He did not punch in or
punch out. He was on our weekend base pay
program.
(C.R. 41)(emphasis added). Within the same answer, the testimony that Croxton
was representing the company was withdrawn and denied, and the question
posed was answered. Thus, the partial response Appellant argues is indicative
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APPELLEE’S BRIEF Page 19
of Croxton acting within the course and scope of his employment is actually
controverted in the same breath in which it was uttered. Thus, Appellant has not
provided the Court with any evidence in support of its respondeat superior
claim other than the fact that Defendant Croxton was employed by Bill Reed,
Bill Reed’s vehicle was involved in the accident, and Croxton was driving Bill
Reed’s vehicle at the time of the accident. As indicated by the case law above,
this evidence alone is insufficient to create a fact issue on course and scope of
employment. Therefore, Appellant’s claim against Appellee Bill Reed, under
the doctrine of respondeat superior was appropriately dismissed as a matter of
law, and Appellee’s motion for summary judgment on the same was properly
granted.
III.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee, Great Western
Distributing Company of Amarillo d/b/a Bill Reed Distributing respectfully
request this Court affirm the summary judgment and assess the costs of this
appeal against Appellant.
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APPELLEE’S BRIEF Page 20
Respectfully submitted,
MCMAHON SUROVIK SUTTLE, P.C.
P.O. Box 3679
Abilene, Texas 79604
(325) 676-9183 Telephone
(325) 676-8836 FAX
BY: /s/Jessica Haile
Jessica Haile
State Bar No. 24071580
jhaile@mcmahonlawtx.com
ATTORNEYS FOR APPELLEES
CERTIFICATE OF COMPLIANCE
I, Jessica Haile, do hereby affirm that this motion is in size 14.5 Times
New Roman font and contains 5,401 words in accordance with the Texas Rules
of Appellate Procedure.
/s/ Jessica Haile
CERTIFICATE OF SERVICE
This is to certify that a true copy of the above and foregoing instrument
was forwarded on this 11th day of July, 2016, via electronic service in
accordance with the Texas Rules of Civil and Appellate Procedure to the
following:
Cody D. Smith Burt L. Burnett
Brackett & Ellis, P.C. Majd M. Ghanayem
100 Main Street The Burnett Law Firm
Fort Worth, TX 76102-3090 P. O. Box 1521
Abilene, TX 79604
/s/ Jessica Haile
Jessica Haile
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APPELLEE’S BRIEF Page 21
Albert Ray Williams v. Great Western Distributing Company of Amarillo D/B/A Bill Reed Distributing Company
Combined Opinion