Opinion issued February 25, 2016




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-15-00161-CV
                            ———————————
                 CAMILLO MARTINEZ O/B/O DECEASED,
                    YOLANDA MARTINEZ, Appellant
                                        V.
                       NABEEL “BILL” ARAFAT D/B/A
                        TEXAS CAR STEREO, Appellee


                    On Appeal from the 270th District Court
                             Harris County, Texas
                      Trial Court Case No. 2011-44754-A


                          MEMORANDUM OPINION

      This appeal arises out of an accident in which Miguel Zapeta-Rodriguez,

who was not licensed to drive, suffered a seizure and lost control of the vehicle he

was driving, causing him to collide with a vehicle driven by Yolanda Martinez.
Martinez suffered fatal injuries in the collision. Her widower, Camillo Martinez,

brought this wrongful death suit against Rodriguez’s employer, Nabeel “Bill”

Arafat d/b/a Texas Car Stereo, alleging that Texas Car Stereo was vicariously

liable for Rodriguez’s negligent acts under a respondeat superior theory and that it

acted with negligence and gross negligence in entrusting to Rodriguez the car he

was using when the accident occurred.

      Texas Car Stereo moved for summary judgment on traditional and no-

evidence grounds. Martinez appeals the trial court’s order granting Texas Car

Stereo’s motion, contending that the evidence raises genuine issues of material fact

concerning whether (1) Texas Car Stereo had the right to control the vehicle

Rodriguez was driving; (2) Texas Car Stereo entrusted the vehicle to Rodriguez;

(3) the accident occurred while Rodriguez was acting in the course and scope of

his employment; and (4) Texas Car Stereo acted with gross negligence. We affirm.

                                    Background

      Texas Car Stereo’s business operations and procedures

      In July 2011, Rodriguez was working as a general laborer for Texas Car

Stereo. His job involved installing tires, painting tires, emptying the trash, and

generally helping out in the installation and repair area.

      Edson Carrizales, Texas Car Stereo’s manager of installation, and Alex

Buentello, the sales manager, testified regarding the procedure for obtaining



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service from Texas Car Stereo. They explained that a customer who wants service

on his car must first have contact with a salesperson. The salesperson reaches an

agreement with the customer about the work to be done on the customer’s vehicle,

then prepares a bill of sale. The customer fills in the information on the bill of

sale, signs the agreement, and pays the invoiced amount. At that point, the sales

transaction is complete; the salesperson hands the keys to Carrizales, and

Carrizales drives the car to the back for service. When the work is complete,

Carrizales drives the vehicle to the front and returns the keys to the salesperson.

      No bill of sale existed for the vehicle involved in the accident. Carrizales

explained that without a bill of sale, a vehicle will not receive service at Texas Car

Stereo. Further, a customer would not be allowed to leave a vehicle at Texas Car

Stereo without having completed and signed a bill of sale.

      Carrizales explained that he is generally the only employee authorized to

drive a customer’s car to the front and back of the store. The only exception would

be that Buentello could drive the customer’s vehicle to the back if the customer

needed more information about how to operate the equipment that had been

installed. As Texas Car Stereo’s owner, Aarafat also had the authority to move a

customer’s vehicle on company property.         Rodriguez, however, did not have

permission or authority to drive any vehicle on behalf of Texas Car Stereo,

whether company- or customer-owned.



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      Buentello averred that it is against company policy to drive a customer’s

vehicle home from work. Carrizales testified that employees are prohibited from

driving a customer’s vehicle off company property, that he had never done so or

authorized any other employee to do so, and that it had never happened. Both

Carrizales and Buentello testified that an employee who kept a customer’s vehicle

at his home overnight would be fired.

      According to both Buentello and Carrizales, Rodriguez always took the bus

to and from work. Neither had ever seen him drive. Carrizales never discussed

with Rodriguez whether he had a car. Rodriguez confirmed that he did not own a

car, used public transportation to commute, and had never brought any car to Texas

Car Stereo before the accident.

      The accident

      Rodriguez testified that, as a personal favor for his friend, Mrs. Grifaldo, he

arranged to have one of his co-workers look at her car and determine whether

Texas Car Stereo could help repair the alarm. According to Rodriguez, Grifaldo

drove a rented car to pick up Rodriguez at the end of his workday. Grifaldo then

drove Rodriguez to her home, and Rodriguez drove Grifaldo’s car to his apartment.

Rodriguez’s roommate at the time, Alejandro Gomez, testified in his deposition

that Rodriguez told him Grifaldo had left her vehicle at Texas Car Stereo that day

and that Rodriguez drove it home from work. No evidence, however, suggests that



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either Arafat, Buentello, or Carrizales saw Rodriguez in Grifaldo’s car or driving

it. Further, Rodriguez did not tell anyone at Texas Car Stereo that he was going to

bring Grifaldo’s car in for repair.

      The next morning, Rodriguez left early for work so that he could first stop

by a junkyard to buy a part for an unidentified friend. Almost immediately after

Rodriguez left the parking area of his apartment complex and drove Grifaldo’s car

onto the road, he had a seizure and collided with Yolanda Martinez’s vehicle.

                                      Discussion

I.    Summary Judgment Standard of Review

      We review a summary judgment de novo.            Boerjan v. Rodriguez, 436

S.W.3d 307, 312 (Tex. 2014) (quoting Timpte Indus., Inc. v. Gish, 286 S.W.3d

306, 310 (Tex. 2009)). In a traditional motion for summary judgment, a defendant

who states specific grounds and conclusively negates at least one essential element

of an identified cause of action is entitled to summary judgment. Id.; see TEX. R.

CIV. P. 166a(c).    A no-evidence motion for summary judgment is essentially a

motion for a pretrial directed verdict: the party without the burden of proof

contends that no evidence supports one or more essential elements of the

nonmovant’s claim. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.

2003); see TEX. R. CIV. P. 166a(i). The trial court must grant the motion unless the

nonmovant raises a genuine issue of material fact on each challenged element.



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Boerjan, 436 S.W.3d at 310 (citing Hamilton v. Wilson, 249 S.W.3d 425, 426

(Tex. 2008) (per curiam)).

      We review the summary-judgment evidence in the light most favorable to

the party against whom the summary judgment was rendered, crediting evidence

favorable to that party if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not. Id. at 311 (quoting Timpte Indus., 286

S.W.3d at 310).

II.   Negligent Entrustment

      A.    Applicable law

      To establish liability under a negligent entrustment theory for injuries arising

from a vehicle collision, the plaintiff must show that: (1) the defendant entrusted

the vehicle to the driver; (2) that person was an unlicensed, incompetent, or

reckless driver; (3) at the time of the entrustment, the defendant knew or should

have known that the driver was an unlicensed, incompetent, or reckless driver;

(4) the driver was negligent on the occasion in question; and (5) the driver’s

negligence proximately caused the accident. Goodyear Tire & Rubber Co. v.

Mayes, 236 S.W.3d 754, 758 (Tex. 2007) (citing Schneider v. Esperanza

Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987)); Magee v. G&H Towing Co.,

388 S.W.3d 711, 717 (Tex. App.—Houston [1st Dist.] 2012, no pet.). To sustain

such a claim based on a failure to screen an employee, a plaintiff must show that



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anything found in a background check “would cause a reasonable employer to not

hire” the employee, or would be sufficient to put the employer “on notice that

hiring [the employee] would create a risk of harm to the public.” See Fifth Club,

Inc. v. Ramirez, 196 S.W.3d 788, 796–97 (Tex. 2006). The plaintiff must also

prove that the risk that caused the entrustment or hiring to be negligent caused the

accident at issue. Schneider, 744 S.W.2d at 597.

      The element of entrustment requires the plaintiff to show that the defendant

either owned or had the right to control the vehicle when the injury occurred. De

Blanc v. Jensen, 59 S.W.3d 373, 376 (Tex. App.—Houston [1st Dist.] 2001, no

pet.). A right to control exists if the entrustor possesses a superior right to the

vehicle over the person to whom it was entrusted. Id.

      B.    Analysis

      Martinez contends that the evidence raises fact issues concerning whether

Texas Car Stereo had a right to control Grifaldo’s car and whether Texas Car

Stereo entrusted the vehicle to Rodriguez. The evidence shows that Texas Car

Stereo generally authorized Arafat, Buentello, and Carrizales to drive customer

vehicles, and then only on company premises to move them to and from the

installment and repair area; it prohibited all of its employees from using customer

vehicles away from company premises. The undisputed evidence demonstrates

that Rodriguez took possession of Grifaldo’s car without Arafat, Buentello, or



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Carrizales’s knowledge and that Texas Car Stereo had not taken Grifaldo’s car into

its possession because no bill of sale had been prepared for any work to Grifaldo’s

car. Further, no evidence shows that Rodriguez’s possession of Grifaldo’s car

came about as a company-sanctioned exception to these rules.               Although

Rodriguez testified that he “was going to work to give one more job to the

company,” no evidence showed that Rodriguez had ever driven a car to Texas Car

Stereo for the purpose of securing business for the company or that the company

had authorized his decision to drive Grifaldo’s car. In his deposition, he explained:

   Q: And you were driving Ms. Grifaldo’s car because you were doing her
      a personal favor and trying to figure out if you could help get the
      alarm fixed, is that correct?

   A: Yes, exactly.

   Q: And no one at Texas Car Stereo told you to drive the car into the shop
      did they?

   A: No.

   Q: . . . so no one at Texas Car Stereo knew you were bringing the car in
      that day did they?

   A: No.

   Q: And because of the accident, you never made it to Texas Car Stereo
      on July 9, 2011, is that correct?

   A: No, I didn’t get there.
                                   ***
   Q: Did anyone at Texas Car Stereo ever ask you to bring in customer cars
      for repairs?



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   A: This had nothing, absolutely nothing to do with Texas Car Stereo.

       Because no evidence raises a fact issue that Texas Car Stereo either took

possession of Grifaldo’s car or that Grifaldo gave her car to Rodriguez with Texas

Car Stereo’s knowledge or awareness—such that it could have tacitly permitted or

acquiesced in its use by Rodriguez—Martinez cannot establish the elements of

right to control or entrustment. See Soodeen v. Rychel, 802 S.W.2d 361, 362–63

(Tex. App.—Houston [1st Dist.] 1990, writ denied).

III.   Vicarious Liability

       A.      Applicable law

       Under the respondeat superior theory, an employer is vicariously liable for

the negligent acts of its employee acting within the scope of employment. Baptist

Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). “The general

rule is that an employer is liable for its employee’s tort only when the tortious act

falls within the scope of the employee’s general authority in furtherance of the

employer’s business and for the accomplishment of the object for which the

employee was hired.” Minyard Food Stores v. Goodman, 80 S.W.3d 573, 577

(Tex. 2002).

       The main issue for determining whether an employee is acting within the

course and scope of employment is whether the employer had the right to direct

and control the employee’s performance when the alleged negligent act occurred.



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St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542 (Tex. 2003) (confirming that “the

right to control remains the ‘supreme test’ for whether the master-servant

relationship exists” and thus whether the rule of vicarious liability applies)

(quoting Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926

S.W.2d 287, 290 (Tex. 1996)). The employee’s acts must be of the same general

nature as the conduct authorized or incidental to the conduct authorized to be

within the scope of employment. Minyard, 80 S.W.3d at 577 (citing Smith v. M

Sys. Food Stores, Inc., 297 S.W.2d 112, 114 (Tex. 1957)). If an employee deviates

from performing employment-related duties for a personal purpose, the employer

is not responsible for what occurs during that deviation. Id.

      An employee generally is not in the course and scope of employment while

driving a vehicle to and from his place of work. Wilie v. Signature Geophys.

Servs., Inc., 65 S.W.3d 355, 358 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

      B.     Analysis

      Martinez argues that, like the employee in Arbelaez v. Just Brakes Corp., he

raises a fact issue that Rodriguez was acting within the course and scope of his

employment because Rodriguez’s purpose for driving the car was to benefit his

employer by bringing in additional business. See 149 S.W.3d 717, 721 (Tex.

App.—Austin 2004, no pet.) (determining that manager’s affirmative and routine

request that employee make breakfast run raised fact issue on whether employee



                                         10
deviated from employment on personal errand or was acting in course and scope of

employment when employee had traffic accident on way to pick up breakfast). It

is undisputed, however, that Rodriguez was not authorized to drive customer

vehicles and that no Texas Car Stereo employee was permitted to drive a

customer’s vehicle off of company premises. These undisputed facts preclude any

reasonable inference that Texas Car Stereo authorized Rodriguez to use Grifaldo’s

car or that his doing so came within the course and scope of his employment. See

Brown v. Am. Racing Equip., Inc., 933 S.W.2d 734, 736 (Tex. App.—San Antonio

1996, no writ) (upholding summary judgment on basis that employee was not

acting in course and scope of employment when he was injured assisting in repair

of manager’s car where no evidence showed he was authorized to do so).

      Martinez points to evidence that other Texas Car Stereo employees would

occasionally drive in vehicles for service at Texas Car Stereo that they owned or

that belonged to a friend. But Martinez proffered no evidence that Texas Car

Stereo authorized Rodriguez to do so, or that driving cars to the shop was expected

as a condition of employment at the shop. The evidence fails to demonstrate that

Rodriguez’s use of Grifaldo’s car off of Texas Car Stereo property was conduct

authorized to be within the scope of employment or incidental to it. See St. Joseph

Hosp., 94 S.W.3d at 542.




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      Although the accident happened just as he exited his apartment complex and

was on his regular route to work, Rodriguez testified that he was first headed to the

junkyard on a personal errand—to acquire a car part for an unidentified friend—

and he planned to go to work only after acquiring the part. To raise a fact issue on

course and scope, the nonmovant must show that the employee’s actions were not

for a purely personal matter, but also indirectly benefited the employer’s business.

See Mitchell v. Ellis, 374 S.W.2d 333, 336 (Tex. App.—Fort Worth 1963, writ

ref’d) (holding that employee deviated from delivery duties and thus was not

acting in course and scope when he caused accident by negligently crossing street

to purchase cigarettes), cited in Just Brakes Corp., 149 S.W.3d at 723 & n.8.

      Because the summary judgment evidence shows that Rodriguez’s trip was

neither within the course and scope of his employment nor incidental to it, we hold

that the trial court did not err in granting summary judgment in favor of Texas Car

Stereo on this ground.

IV.   Gross Negligence

      Because there is no evidence to support Martinez’s negligence claim against

Texas Car Stereo, his gross negligence claim also fails.        See Garay v. G.R.

Birdwell Const., L.P., No. 01-13-01088-CV, 2014 WL 6680347, at *9 (Tex.

App.—Houston [1st Dist.] Nov. 25, 2014, no pet.) (mem. op.); Shell Oil Co. v.




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Humphrey, 880 S.W.2d 170, 174 (Tex. App.—Houston [14th Dist.] 1994, writ

denied).

                                     Conclusion

         We hold that the trial court properly granted summary judgment in favor of

Texas Car Stereo on Martinez’s wrongful death action based on claims of

negligence and gross negligence. We therefore affirm the judgment of the trial

court.




                                              Jane Bland
                                              Justice

Panel consists of Justices Jennings, Keyes, and Bland.




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