                                                                                   ACCEPTED
                                                                               01-15-00161-CV
                                                                    FIRST COURT OF APPEALS
                                                                            HOUSTON, TEXAS
                                                                          8/18/2015 4:31:04 PM
                                                                         CHRISTOPHER PRINE
                                                                                        CLERK

                     No. 01-15-00161-CV

                                                             FILED IN
                                                      1st COURT OF APPEALS
              IN THE COURT OF APPEALS                     HOUSTON, TEXAS
           FOR THE FIRST JUDICIAL DISTRICT            8/18/2015 4:31:04 PM
                  HOUSTON, TEXAS                      CHRISTOPHER A. PRINE
                                                              Clerk


CAMILLO MARTINEZ O/B/O DECEASED, YOLANDA MARTINEZ,
                    APPELLANT

                               V.

    NABELL “BILL” ARAFAT D/B/A TEXAS CAR STEREO,
                     APPELLEE


         Appealed from the 270th Judicial District Court
                     Harris County, Texas
            Trial Court Cause No. 2011-44754-A


               APPELLANT’S REPLY BRIEF



                                    Husain Law + Associates, P.C.
                                    Joshua R. Leske
                                    State Bar No. 24060162
                                    5858 Westheimer, Suite 400
                                    Houston, Texas 77057
                                    (713) 621-8900
                                    (713) 621-8909 – Facsimile
                                    jleske@hlalawfirm.com

                                    COUNSEL FOR APPELLANT


       APPELLANT REQUESTS ORAL ARGUMENT
                           TABLE OF CONTENTS

Table of Contents…………………………………………………………………...2

Index of Authorities………………………………………………………………...3

Argument & Authorities……………………………………………………………5

ISSUE ONE: The trial court erred in granting summary judgment because genuine
issues of material fact exist, thus precluding summary judgment, regarding (1)
whether Appellee had the right to control the vehicle Rodriguez was operating; (2)
whether Appellee entrusted the vehicle to Rodriguez; (3) whether Rodriguez was
in the course and scope of his employment with Appellee at the time of the
accident; and (4) whether Appellee was grossly negligent…………...……………5

A.    Fact Issues exist about whether Appellee retained control over the vehicle
      Rodriguez was driving and whether Appellee entrusted the vehicle to
      Rodriguez……………………………………………………………………5

B.    A fact issue exists as to whether Rodriguez was in course and scope………7

      Deviation…………………………………………………………………...10

C.    A fact issue exists as to whether Appellee was grossly negligent………….11

Prayer……………………………………………………………………………...13

Certificate of Compliance…………………………………………………………14

Certificate of Service……………………………………………………………...15




                                                                                 2
                        INDEX OF AUTHORITIES

Cases:

Arbelaez v. Just Brakes Corp.,
      149 S.W.3d 717 (Tex. App.-Austin 2004)…………………………………10

Baker Hotel of Dallas v. Rogers,
      157 S.W.2d 940 (Tex. Civ. App.-Dallas 1941)……………………………...9

Best Steel Bldgs., Inc. v. Hardin,
      553 S.W.2d 122 (Tex. App.-Tyler 1977, no writ)………………………….10

City of Keller v. Wilson,
       168 S.W.3d 802 (Tex. 2005)………………………………………………...5

Dictaphone Corp. v. Torrealba, 520 S.W.2d 869
      (Tex. Civ. App.--Houston [14th Dist.] 1975, writ ref'd n.r.e.)……………..11

Eubanks v. Hughes Engineering Co.,
     369 S.W.2d 49 (Tex.Civ.App.-Fort Worth 1963, writ ref'd n.r.e.)………….8

Garay v. G.R. Birdwell Constr., L.P.,
     2014 Tex. App. LEXIS 12710 (Tex. App.-Houston [1st Dist.] 2014)……..12

General Motors Corp. v. Sanchez,
     997 S.W.2d 584 (Tex. 1999)……………………………………………….12

Gilgon, Inc. v. Hart,
      893 S.W.2d 562 (Tex. App.-Corpus Christi 1996, pet. denied)………..10, 11

GTE Southwest, Inc. v. Bruce,
     998 S.W.2d 605 (Tex. 1999)………………………………………………...7

Hanna v. Lott,
     888 S.W.2d 132 (Tex.App.-Tyler 1994)……………………………….11, 13

Hooper v. Pitney Bowes,
     895 S.W.2d 773 (Tex. App.-Texarkana 1995)………………………………9


                                                                            3
Howard v. American Paper Stock Co.,
    523 S.W.2d 744 (Tex.Civ.App.-Fort Worth 1975)………………………….8

J. V. Harrison Truck Lines, Inc. v. Larson,
       663 S.W.2d 37 (Tex. App.-Houston [14th Dist.] 1983, writ ref'd n.r.e.)……9

Josey-Miller Co. v. Sheppard,
      357 S.W.2d 488 (Tex. Civ. App.-Beaumont 1962, no writ)……………….11

Merrell Dow Pharm., Inc. v. Havner,
     953 S.W.2d 706 (Tex.1997)…………………………………………………5

Nixon v. Mr. Prop. Mgmt. Co.,
      690 S.W.2d 546 (Tex.1985)…………………………………………………5

Ramos v. Frito-Lay, Inc.,
     784 S.W.2d 667 (Tex. 1990)………………………………………………...9

Texas Workers' Comp. Comm'n v. Garcia,
      893 S.W.2d 504 (Tex. 1995)………………………………………………...8

Wal-Mart Stores, Inc. v. Alexander,
     868 S.W.2d 322 (Tex. 1993)…………………………………………...11, 12

Wrenn v. G.A.T.X. Logistics, Inc.,
     73 S.W.3d 489 (Tex. App.-Fort Worth 2002)……………………………….7

Rules:

Tex. R. App. P. 9.4(i)(1)…………………………………………………………..14

Tex. R. App. P. 9.4(i)(2)(D) ……………………………………………………..14

Tex. R. App. P. 9.4(i)(3) ………………………………………………………….14

Tex. R. Civ. P. 166a(c) …………………………………………………………….5

Tex. R. Civ. P. 166a(i) ……………………………………………………………..5



                                                                               4
                       ARGUMENT & AUTHORITIES

ISSUE ONE:        The trial court erred in granting summary judgment because

genuine issues of material fact exist, thus precluding summary judgment, regarding

(1) whether Appellee had the right to control the vehicle Miguel Zapeta-Rodriguez

(“Rodriguez”) was operating; (2) whether Appellee entrusted the vehicle to

Rodriguez; (3) whether Rodriguez was in the course and scope of his employment

with Appellee at the time of the accident; and (4) whether Appellee was grossly

negligent.

      For the purposes of this appeal, the central question which this Court must

address is whether Appellant presented evidence sufficient to create a question of

fact regarding each of the above issues. TEX. R. CIV. P. 166a(c),(i); see also

Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Nixon v.

Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); City of Keller v.

Wilson, 168 S.W.3d 802, 825 (Tex. 2005). The evidence presented by Appellant to

the trial court satisfied his burden on each of these points. Thus, summary

judgment was improper.

A.    Fact issues exist about whether Appellee retained control over the
      vehicle Rodriguez was driving and whether Appellee entrusted the
      vehicle to Rodriguez.

      Appellee’s control over Martina Ortiz Grifaldo’s (“Grifaldo”) vehicle is

established given the evidence that the vehicle was originally brought in during


                                                                                 5
business hours for repairs on the eve of the accident, July 8, 2011. C.R. 88-89 at

19:4-13; 22:23-23:6.1 Grifaldo’s vehicle was being brought in to be repaired by

one of Appellee’s employees. C.R. 81-82 at 75:2-12; 78:13-20. The vehicle was

experiencing electrical issues and an employee of Appellee was going to fix it.

C.R. 81-82 at 75:2-12; 78:13-20. This testimony was corroborated by Rodriguez.

C.R. 61 at 72:8-24; C.R. 63 at 74:7-9.

       The testimony of Alejandro Gomez (“Gomez”), Rodriguez’s roommate at

the time, establishes that Grifaldo’s vehicle was dropped off at Appellee’s facility

on July 8, 2011, and that Rodriguez drove the vehicle home that same evening.

               “Q. Did he tell you if the vehicle had been dropped off
               or given to him while he was at work on Friday?

               A. He only told me that they brought it to him during
               work -- during his work, and he didn't tell me the time.

               Q. So sometime while he was at work, the car was
               brought to him; is that correct?

               A. Yes.” C.R. 89 at 22:23 to 23: 6 (emphasis added).

       Appellee cites to the testimony of Alexander Buentello, Edson Carrizales,

and Rodriguez to support its contention that Grifaldo’s vehicle was not in its

possession or control the day before the accident. However, Messrs. Buentello and

Carrizales’ testimony cannot be taken at face value given the fact that they

1
 For the purposes of this Reply Brief, all citations to the Court Record (“C.R.”) shall refer to the
Court Record filed on July 9, 2015. Grifaldo was previously a named Defendant in the
underlying matter. C.R. 18-19.
                                                                                                  6
are/were employees of Appellee at all pertinent times. The testimony of Rodriguez,

a named Defendant in the underlying matter, is directly contradicted by Gomez’s

testimony. Gomez is the sole disinterested witness in this entire case.

      Likewise, it is immaterial what time Rodriguez showed up at Appellee’s

facility on July 9, 2011. The key issue, which Appellant has provided sufficient

evidence of, is that Grifaldo’s vehicle was at Appellee’s facility on July 8, 2011,

and Rodriguez drove it home from work on July 8, 2011. Thus, Appellant

presented sufficient evidence to create a question of fact that (1) Grifaldo’s vehicle

was brought to Appellee’s facility for repairs; (2) those repairs were to be done by

one of Appellee’s employees; (3) the vehicle was originally at Appellee’s facility

on July 8, 2011; and (4) Rodriguez took the vehicle from Appellee’s facility on

July 8, 2011. Appellee’s allowed Rodriguez to drive the vehicle from their facility

on July 8, 2011, and Rodriguez intended to bring it back for repairs. Appellee’s

summary judgment, therefore, should have been denied.

B.    A fact issue exists as to whether Rodriguez was in course and scope.

      “An employee’s conduct is within the scope of employment when that

conduct is of the same general nature as that authorized or incidental to the conduct

authorized.” Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 494 (Tex. App.-

Fort Worth 2002). Course and scope of employment is generally a fact issue like

negligence or proximate cause. See, e.g., GTE Southwest, Inc. v. Bruce, 998


                                                                                    7
S.W.2d 605, 618 (Tex. 1999); Texas Workers' Comp. Comm'n v. Garcia, 893

S.W.2d 504, 515 (Tex. 1995). The Court reviews the evidence in the light most

favorable to the non-movant, crediting such evidence if reasonable jurors could,

and disregarding contrary evidence unless reasonable jurors could not. Wilson at

825.

       Rodriguez’s duties and responsibilities in his job were described in general

terms as “he did whatever was needed of him.” C.R. 98 at 7:9-13. Appellant

attempts to limit the testimony regarding Rodriguez’s job duties to bolster its

argument that Rodriguez was not allowed to drive any vehicles. However, this

testimony is broad enough to include driving customer’s vehicles. The object for

which Rodriguez was hired was to perform work and assist his employer in

whatever way was required.

       Further, there is no dispute that Rodriguez’s purpose for driving the vehicle

on July 9, 2011, was to benefit his employer. Grifaldo’s car was being brought

back to Appellee’s facility for repairs; repairs for which Appellee would expect

payment. C.R. 63 at 74:3-9. If the purpose of serving the master's business actuates

the servant to any appreciable extent, the master is subject to liability if the act

otherwise is within the service of his employer. 2 Rodriguez testified that:


2
  Howard v. American Paper Stock Co., 523 S.W.2d 744 (Tex.Civ.App.--Fort Worth 1975)
(emphasis added) reformed and aff'd 528 S.W.2d 576 (Tex. 1975); Eubanks v. Hughes
Engineering Co., 369 S.W.2d 49 (Tex.Civ.App.-- Fort Worth 1963, writ ref'd n.r.e.).
                                                                                   8
              “Q. The main reason for you driving the car on Saturday
              morning was to get the alarm fixed; is that correct?

              A. I was going to work. And at that time, I was going to
              give one more job to the company.” C.R. 105-106 at
              80:22 to 81:1 (emphasis added).

Therefore, Rodriguez was acting within his general authority and furthering the

business interests of this employer because he was bringing a customer and

revenue to Appellee.

       Even if Rodriguez was not permitted to drive customer’s vehicles, the fact

that an employee does an act that is unauthorized or that would not be approved by

his employer does not mean that the employee was outside the scope of his

employment. Hooper v. Pitney Bowes, 895 S.W.2d 773, 777 (Tex. App.-Texarkana

1995). The employer is liable for the act of his employee, even if the specific act is

unauthorized or contrary to express orders, so long as the act is done while the

employee is acting within his general authority and for the benefit of the

employer. 3 As established by the evidence, supra, Rodriguez was doing “whatever

was needed of him” and was bringing business to Appellee. Therefore, Rodriguez

was still in the course and scope of his employment since he was (1) acting within

his general authority and (2) was acting with an intent to benefit his employer.

3
 Ramos v. Frito-Lay, Inc., 784 S.W.2d 667 (Tex. 1990); J. V. Harrison Truck Lines, Inc. v.
Larson, 663 S.W.2d 37 (Tex. App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.); Baker Hotel of
Dallas v. Rogers, 157 S.W.2d 940 (Tex. Civ. App.--Dallas 1941), writ ref'd per curiam, 138 Tex.
398, 160 S.W.2d 522 (1942).


                                                                                             9
       Deviation

       When considering course and scope of employment, "it is the servant's state

of mind that is material, and the servant's conduct can be within the course and

scope of employment if the servant is actuated to some extent by an intent to serve

the master." Arbelaez v. Just Brakes Corp., 149 S.W.3d 717 (Tex. App.-Austin

2004). "The fact that the preponderate motive of the servant is to benefit himself or

a third person does not prevent the act from being within the scope of

employment." Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 123 (Tex. App.-

Tyler 1977, no writ). Even "personal errands" can be in furtherance of an

employer's business if they directly or indirectly benefit the employer. 4

       Rodriguez did not completely deviate from his job to either (1) go get a part

for a friend at the junkyard or (2) to bring Grifaldo’s car in as a favor to her. While

each of these proposed purposes may have been purely personal, the overarching

purpose for driving Grifaldo’s vehicle that day was to benefit his employer. The

work on Grifaldo’s vehicle was going to be performed at Appellee’s facility and

Rodriguez expected Appellee to be paid for the work.



4
  See, e.g., Arbelaez at 722 (holding that employer failed to prove the employee's conduct was
purely personal errand not in furtherance of the business where the employee's errand -a
breakfast run - benefited the employer, albeit indirectly); see also Gilgon, Inc. v. Hart, 893
S.W.2d 562, 569 (Tex. App.-Corpus Christi 1996, pet. denied) (holding that an employee may
remain within the course of employment while on an errand that combines work-related tasks
with purely personal chores).


                                                                                           10
       Even if Rodriguez was personally benefitted to some degree by a personal

errand, his action of driving Grifaldo’s vehicle to Appellee’s facility on July 9,

2011, could still be within the course and scope of his employment. 5 Assuming

that Rodriguez brought the vehicle to Appellee as a favor for Grifaldo, Appellee

still would have benefited from the repair work to the vehicle. Rodriguez was still

acting within his general authority, his actions were benefitting his employer, and

he was accomplishing an act for which he was hired.

       The foregoing reveals that Appellant presented sufficient evidence to create

a question of fact regarding whether Rodriguez was in the course and scope of his

employment at the time of the accident. Therefore, the trial court erred when it

granted Appellee’s summary judgment.

C.     A fact issue exists as to whether Appellee was grossly negligent.

       Gross negligence is established if “there is some evidence that (a) the

defendant’s conduct created an extreme risk of harm, and (b) the defendant was

aware of the existence of the extreme risk.” Hanna v. Lott, 888 S.W.2d 132, 137

(Tex.App.-Tyler 1994) (citing Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d

5
  See Gilgon, Inc. v. Hart, 893 S.W.2d 562, 568 (Tex. App.--Corpus Christi 1994, writ denied)
(employee's actions may still be within course and scope of employment even if private matters
are mixed with business errand); Dictaphone Corp. v. Torrealba, 520 S.W.2d 869, 872 (Tex.
Civ. App.-Houston [14th Dist.] 1975, writ ref'd n.r.e.) ("Conduct may be within the scope of
employment, although done in part to serve the purposes of the servant or of a third person.")
(citing Restatement (Second) of Agency § 236 (1958)); Josey-Miller Co. v. Sheppard, 357
S.W.2d 488, 490 (Tex. Civ. App.--Beaumont 1962, no writ) (employee still within course and
scope even when "there is a mingling of the master's business with the servant's business").


                                                                                           11
322, 326 (Tex. 1993)). Gross negligence is the entire want of care which would

raise the belief that the act or omission complained of was the result of a conscious

indifference to the rights or welfare of the person or persons to be affected by it.

See Wal-Mart at 325.

      A plaintiff may prove the elements of gross negligence through

circumstantial evidence. Garay v. G.R. Birdwell Constr., L.P., 2014 Tex. App.

LEXIS 12710, *25 (Tex. App.-Houston [1st Dist.] 2014). The evidence is legally

sufficient if it rises to a level that would enable reasonable and fair-minded people

to differ in their conclusions. See General Motors Corp. v. Sanchez, 997 S.W.2d

584, 595 (Tex. 1999).

      The records clearly evinces that Rodriguez was an unlicensed epileptic

driver at the time of the accident. C.R. 111-114. Despite Appellee being aware of

both these facts, it expressly or impliedly permitted Rodriguez to take the vehicle

from their facility on July 8, 2011, with the intent that it be brought back the

following day. C.R. 88-89 at 19:4-13; 22:23 to 23:6. Permitting an individual who

suffers from epilepsy and who is otherwise not permitted to drive involved an

undeniably extreme risk of harm to others. Appellee was aware of the risk but

permitted Rodriguez to drive the vehicle anyway and/or took no steps to prevent

him from driving.




                                                                                  12
      At the time Appellee entrusted Grifaldo’s vehicle to Rodriguez with the

purpose of bringing it back the following day, there was an unmistakable extreme

risk of serious injury. Appellee undoubtedly knew of the peril, and its acquiescence

to Rodriguez’s use of the vehicle, or its failure to prevent his use of the vehicle,

demonstrates Appellee’s apathy. Thus, the a fact finder could determine that

Appellee was consciously indifferent to the safety of others in failing to forbid or

prevent Rodriguez from driving Grifaldo’s vehicle. See Hanna at 137.

      Therefore, Appellant presented sufficient evidence of Appellee’s gross

negligence, either by their entrustment of the vehicle to Rodriguez or vicariously as

his employer. The trial court, therefore, erred when it granted Appellee’s summary

judgment.

                                     PRAYER

      For the above reasons, Appellant presented sufficient evidence to raise

genuine issues of material fact, thus precluding summary judgment, regarding (1)

whether Appellee had the right to control the vehicle Rodriguez was operating; (2)

whether Appellee entrusted the vehicle to Rodriguez; (3) whether Rodriguez was

in the course and scope of his employment with Appellee at the time of the

accident; and (4) whether Appellee was grossly negligent.

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

Court reverse the trial court’s order granting Appellee’s traditional and no-


                                                                                   13
evidence motion for summary judgment and remand this matter to the trial court

for further proceedings.



                                        Respectfully submitted,

                                        HUSAIN LAW + ASSOCIATES, P.C.

                                        By: /s/ Joshua R. Leske
                                               Joshua R. Leske
                                               Texas Bar No.: 24060162
                                               5858 Westheimer, Suite 400
                                               Houston, Texas 77057
                                               Telephone (713) 621-8900
                                               Facsimile (713) 621-8909
                                               jleske@hlalawfirm.com

                                        COUNSEL FOR APPELLANT


                      CERTIFICATE OF COMPLIANCE

      Pursuant to Tex. R. App. P. 9.4(i)(3), this is to certify that this brief complies

with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(D). This brief

contains 2,291 words in a proportionally spaced typeface, exclusive of the

exempted portions set forth in Tex. R. App. P. 9.4(i)(1). This brief has been

prepared using Times New Roman 14-point in text and Times New Roman 12-

point in footnotes produced by Microsoft Word software.


                                              /s/ Joshua R. Leske
                                              Joshua R. Leske



                                                                                     14
                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing was filed electronically

with the court and served upon all known counsel of record as follows on August

18, 2015:

Via E-Filing & E-Service

Mr. Troy A. Williams
Ms. Robin N. Blanchette
Germer PLLC
333 Clay Street, Suite 4950
Houston, Texas 77002

Via E-Filing & E-Service

Mr. Joseph M. Heard
Heard & Medack, P.C.
9494 Southwest Freeway, Suite 700
Houston, Texas 77074


                                             /s/ Joshua R. Leske
                                             Joshua R. Leske




                                                                                   15
