                          NUMBER 13-19-00107-CV

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


RUSSELL GARNETT CLANTON
AND GABRIEL FRED GARCIA,                                                  Appellants,

                                           v.

INTERSTATE TELECOMMUNICATIONS, INC.,                                        Appellee.


               On appeal from the County Court at Law No. 2
                        of Nueces County, Texas.


                          MEMORANDUM OPINION

 Before Chief Justice Contreras and Justices Longoria and Hinojosa
         Memorandum Opinion by Chief Justice Contreras

      Appellants Russell Garnett Clanton and Gabriel Fred Garcia appeal a summary

judgment granted in favor of appellee Interstate Telecommunications, Inc. (ITI). By five

issues, which we treat as three, appellants argue that the trial court erred when it: (1)

granted summary judgment on appellants’ negligent-hiring claim; (2) overruled
appellants’ objections to ITI’s summary judgment evidence; and (3) granted summary

judgment on appellants’ vicarious-liability claim. We reverse and remand for further

proceedings consistent with this memorandum opinion.

                                          I.    BACKGROUND

       On or around September 10, 2016, appellants were involved in a car accident with

a vehicle driven by Justin Kell, an employee of ITI. In their live petition, appellants alleged

that Kell was attempting to pass their vehicle “at an excessive rate of speed” when “Kell

lost control and struck [appellants’] truck, causing both vehicles to run off the road and

roll over several times.” Kell was driving back to Corpus Christi, Texas after an overnight

trip to McAllen, Texas to service payphones at the request of ITI.

       Appellants brought suit against Kell, ITI, and Michelle Roddel.1 They alleged Kell

was acting in the course and scope of employment and asserted causes of action against

ITI for negligent hiring and for vicarious liability. ITI filed a traditional motion for summary

judgment arguing that it did not owe a duty to appellants because Kell “was not in the

course and scope of his employment when [appellants’] alleged damages were

sustained . . . .”2 In support of its motion, ITI attached an affidavit by its president, Frank

Zimmerer, and answers by Kell and Roddel to ITI’s requests for admissions.

       Appellants filed a response to ITI’s motion for summary judgment; attached

excerpts from depositions of Zimmerer, Kell, and Roddel; and objected to the evidence

submitted by ITI in support of its motion. After a hearing, the trial court overruled




       1
           The vehicle Kell was driving belonged to Roddel. Kell and Roddel are not parties to this appeal.
       2
         ITI’s motion was titled “Traditional and No Evidence Motion for Summary Judgment,” but the
motion only advanced the traditional summary judgment argument discussed in this memorandum opinion.
See TEX. R. CIV. P. 166a(c).

                                                     2
appellants’ objections, granted summary judgment to ITI, and dismissed “the claims

asserted by” appellants. Appellants filed a motion to sever their claims against ITI, and

the trial court granted it. This appeal followed.

                                     II.   DISCUSSION

   A. Standard of Review

         We review a trial court’s decision on a motion for summary judgment de novo. Katy

Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam). In

a traditional motion for summary judgment, the movant has the burden of showing no

genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

TEX. R. CIV. P. 166a(c); Katy Venture, 469 S.W.3d at 163. Evidence raises a genuine

issue of material fact if reasonable and fair-minded jurors could differ in their conclusions

in light of all the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d

754, 755 (Tex. 2007) (per curiam). A defendant who conclusively negates at least one of

the elements of a cause of action or conclusively establishes an affirmative defense is

entitled to summary judgment. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.

2010).

         Once the moving party produces evidence establishing its right to summary

judgment as a matter of law, the burden shifts to the nonmovant to produce evidence that

raises a genuine issue of material fact. Walker v. Harris, 924 S.W.2d 375, 376 (Tex.

1996). To determine if the nonmovant raised a fact issue, we review the evidence in the

light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors

could do so, and disregarding contrary evidence unless reasonable jurors could not.

Hawthorne v. Guenther, 461 S.W.3d 218, 221 (Tex. App.—San Antonio 2015, pet.



                                              3
denied). If the trial court grants summary judgment without specifying the grounds for

granting the motion, then we must uphold the trial court’s judgment if any of the asserted

grounds are meritorious. Davis v. West, 433 S.W.3d 101, 109 (Tex. App.—Houston [1st

Dist.] 2004, pet. denied).

        We review a trial court’s ruling on the admissibility of evidence for an abuse of

discretion. Rogers v. RREF II CB Acquisitions, LLC, 533 S.W.3d 419, 426 (Tex. App.—

Corpus Christi–Edinburg 2016, no pet.). A trial court abuses its discretion when it rules

without regard for any guiding rules or principles. Id.

    B. Negligent Hiring

        By their first issue, appellants argue that the trial court erred when it granted

appellee’s motion for summary judgment in regard to their negligent hiring claim.

        To prevail on a cause of action for negligent hiring, a plaintiff must prove: (1) the

employer owed the plaintiff a duty to hire, supervise, train, or retain competent employees;

(2) the employer breached that duty; (3) the employee committed a tort; and (4) the

employer’s breach and the employee’s tort proximately caused the plaintiff’s injury.3 See

THI of Tex. at Lubbock I, LLC v. Perea¸ 329 S.W.3d 548, 573 (Tex. App.—Amarillo 2010,

pet. denied); EMI Music Mex., S.A. de C.V. v. Rodriguez, 97 S.W.3d 847, 858 (Tex.

App.—Corpus Christi–Edinburg 2003, no pet.); see also Endeavor Energy Res., L.P. v.


        3
          We note that the Texas Supreme Court has “not ruled definitively on the existence, elements, and
scope” of a negligent-hiring claim and has “recognized that it is ‘factually similar’ to a claim for negligent
entrustment.” Endeavor Energy Res., L.P. v. Cuevas, 593 S.W.3d 307, __, 2019 WL 1966625, at *2–3
(Tex. May 3, 2019) (quoting Wansey v. Hole, 379 S.W.3d 246, 248 (Tex. 2012) (per curiam); Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 804 n. 27 (Tex. 2010)). The elements of a cause of action for negligent
entrustment of a motor vehicle are: (1) the owner of a vehicle entrusted it to another person; (2) that person
was an unlicensed, incompetent, or reckless driver; (3) at the time of the entrustment, the owner knew or
should have known that the driver was unlicensed, incompetent, or reckless; (4) the driver was negligent
on the occasion in question; and (5) the owner’s entrustment and the driver’s negligence proximately
caused the plaintiff’s injuries. See 4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 909 & n.6
(Tex. 2016).

                                                      4
Cuevas, 593 S.W.3d 307, __, 2019 WL 1966625, at *2–3 (Tex. 2019). A claim for

negligent hiring is based on direct liability, not on vicarious liability. Soon Phat, L.P. v.

Alvarado, 396 S.W.3d 78, 100–01 (Tex. App.—Houston [14th Dist.] 2013, pet. denied);

Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.—Fort Worth 2008, no pet.). An

employer owes a duty to the general public to ascertain the qualifications and competence

of the employee it hires, especially when the employees are engaged in occupations that

require skill or experience and that could be hazardous to the safety of others.

Dangerfield, 264 S.W.3d at 912. The main advantage of a negligent-hiring claim is that it

does not require a finding that the employee was acting in the scope of employment when

the tortious act occurred. See Moore Freight Servs., Inc. v. Munoz, 545 S.W.3d 85, 98

(Tex. App.—El Paso 2017, pet. denied); Soon Phat, L.P., 396 S.W.3d at 100; Dietes v.

Baker Serv. Tools, 739 S.W.2d 405, 408 (Tex. App.—Corpus Christi–Edinburg 1987, writ

denied) (“[A]n action for negligent hiring provides a remedy to injured third parties who

would be foreclosed from recovery under the master-servant doctrine since the wrongful

acts of employees in these cases are likely to be outside the scope of employment or not

in furtherance of the master’s business.”).

       In its motion for summary judgment, ITI’s only argument was that it owed no duty

to appellants because Kell was not in the course and scope of employment at the time of

the accident; however, that the defendant acted within the course and scope of

employment is not an element of a negligent hiring claim. See Munoz, 545 S.W.3d at 98;

Dietes, 739 S.W.2d at 408 (“If course and scope was a required element of a negligent

hiring and supervision claim, negligent hiring and supervision as a unique cause of action

would be rendered superfluous by the respondeat superior doctrine.”). Accordingly, ITI



                                              5
was not entitled to summary judgment on appellants’ claim for negligent hiring. See TEX.

R. CIV. P. 166a(c); Nall, 404 S.W.3d at 555; McConnell v. Southside Indep. Sch. Dist.,

858 S.W.2d 337, 341 (Tex. 1993).

       ITI argues on appeal that, because Kell was not acting in the course and scope of

employment, his actions were not “job related,” and that this disproves that the accident

was foreseeable. See Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (per

curiam) (noting that foreseeability of the risk is an element of proximate causation); see

also Moore v. Strike, LLC, No. 04-16-00324-CV, 2017 WL 96130, at *7 (Tex. App.—San

Antonio Jan. 11, 2017, no pet.) (mem. op.) (concluding that summary judgment on

negligent hiring claim was proper because defendant argued conduct was not

foreseeable because it was not job-related and out of the course and scope of

employment). We are not persuaded. ITI did not argue in its motion that Kell not acting in

the course and scope of employment defeated any of the elements of a negligent hiring

cause of action or that it impacted foreseeability in any way. See TEX. R. CIV. P. 166a(c)

(“The motion for summary judgment shall state the specific grounds therefor.”); Nall v.

Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (per curiam) (“[T]he court of appeals cannot

‘read between the lines’ or infer from the pleadings any grounds for granting summary

judgment other than those grounds expressly set forth before the trial court.”); Seaway

Prods. Pipeline Co. v. Hanley, 153 S.W.3d 643, 649 (Tex. App.—Fort Worth 2004, no

pet.) (providing that the grounds in the motion are sufficiently specific if they give “fair

notice” to the nonmovant).

       We sustain appellants’ first issue.




                                             6
   C. ITI’s Summary Judgment Evidence

      By their second issue, appellants argue that the trial court erred when it overruled

appellants’ objections to ITI’s summary judgment evidence.

          1. Admissions of Kell & Roddel

      In support of its motion for summary judgment, ITI attached responses to requests

for admissions it propounded to Roddel and Kell.

      Kell’s responses provided:

      REQUEST FOR ADMISSION 1: Admit that you were not in the course and
      scope of your employment with [ITI] when the incident occurred.

             RESPONSE: Admit

      REQUEST FOR ADMISSION 2: Admit that you were not driving a vehicle
      during the incident that was owned by [ITI].

             RESPONSE: Admit

      REQUEST FOR ADMISSION 3: Admit that you were not driving a vehicle
      during the incident that was leased by [ITI].

             RESPONSE: Admit

      REQUEST FOR ADMISSION 4: Admit that the vehicle that you were driving
      during the incident was not being used for any business or work associated
      with [ITI].

             RESPONSE: Admit

Roddel’s responses provided:

      REQUEST FOR ADMISSION 1: Admit that you owned the vehicle Justin
      Kell was using at the time of the accident.

             RESPONSE: Admit

      REQUEST FOR ADMISSION 2: Admit that your vehicle is not used for
      business or work associated with [ITI].

             RESPONSE: Admit



                                           7
      REQUEST FOR ADMISSION 3: Admit that you have no employment
      association with [ITI].

             RESPONSE: Admit

      REQUEST FOR ADMISSION 4: Admit your connection with Justin Kell is
      not related to his employment with [ITI].

             RESPONSE: Admit

      Appellants objected to responses 1, 2, 3, and 4 by both Kell and Roddel because

“[m]atters admitted by one defendant are not conclusively established as to another

defendant.” Thus, appellants argued, these responses constituted incompetent summary

judgment evidence and were inadmissible. We agree. The rule explicitly says that a

matter admitted is conclusively established only “as to the party making the admission.”

See TEX. R. CIV. P. 198.3 (“A matter admitted under this rule is conclusively established

as to the party making the admission”); U.S. Fid. & Guar. Co. v. Goudeau, 272 S.W.3d

603, 608 (Tex. 2008) (“Rule 198 expressly provides that a response to a request for

admission can only be used against ‘the party making the admission’”); Allen v. Allen, 280

S.W.3d 366, 376 (Tex. App.—Amarillo 2008, pet. denied) (“In a suit against multiple

defendants, evidence in the form of responses to requests for admissions made by one

defendant is not admissible against other defendants.”). Appellees cite no authority

providing that an admission by a third-party defendant may be used against a plaintiff,

and we find none. Therefore, we conclude the trial court abused its discretion when it

overruled appellants’ objection to the admission of the responses by Kell and Roddel.

          2. Frank Zimmerer’s Affidavit

      Appellants also objected to paragraphs 5, 6, and 9 of Zimmerer’s affidavit, which

ITI attached to its motion for summary judgment. Zimmerer’s affidavit provided:



                                            8
       1. My name is Frank Zimmerer. I am over 18 years of age, of sound mind,
          and capable of making this affidavit. The facts stated in this affidavit are
          within my personal knowledge and are true and correct.

       2. I am the President of [ITI] which has been sued in this action in
          connection with an accident involving a driver named Justin Christopher
          Kell.

       3. I have knowledge regarding all persons employed by [ITI].

       4. I have knowledge of when employees are actual [sic] working for [ITI].

       5. On September 10, 2016, Justin Christopher Kell was not acting in the
          course and scope of the employment with [ITI] at the time of the
          accident. He was not on duty at that time.

       6. On September 10, 2016, at the time of the accident Justin Christopher
          Kell was not under the direction or control of [ITI].

       7. On September 10, 2016, Justin Christopher Kell was not operating a
          vehicle that was controlled by [ITI] at the time of the accident.

       8. [ITI] exercises no control over the actions of employees when they are
          off duty and are not acting in the course and scope of their employment.

       9. At the time of the occurrence of the accident that this [sic] subject of this
          litigation, [ITI] exercised no control over the actions of Justin Christopher
          Kell.

       Appellants objected to paragraphs 5, 6, and 9 as irrelevant to a claim for negligent

hiring. For evidence to be admissible, it must be relevant. TEX. R. EVID. 402. Relevant

evidence is evidence having the tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence. TEX. R. EVID. 401. These paragraphs are relevant

because, whether or not they addressed an element of a negligent hiring claim, they

addressed an element of a vicarious liability claim. See id.; Painter v. Ameritex Drilling I,

Ltd., 561 S.W.3d 125, 131 (Tex. 2018). The trial court did not err in overruling appellants’

objection as to relevance.



                                              9
       Appellants also objected to paragraphs 5, 6, and 9 because they were conclusory.

A conclusory statement is defined as “[e]xpressing a factual inference without stating the

underlying facts on which the inference is based.” La China v. Woodlands Operating Co.,

L.P., 417 S.W.3d 516, 520 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see Arkoma

Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008);

LeBlanc v. Lamar State Coll., 232 S.W.3d 294, 301 (Tex. App.—Beaumont 2007, no pet.)

(“Statements are conclusory if they fail to provide underlying facts to support their

conclusions.”). Zimmerer’s affidavit sets out that he has personal knowledge of facts

regarding Kell’s employment with ITI because he is the president of ITI and has

knowledge “regarding all persons employed by” ITI. See Garner v. Long, 106 S.W.3d 260,

267 (Tex. App.—Fort Worth 2003, no pet.) (“To constitute competent summary judgment

evidence, affidavits must be made on personal knowledge, setting forth such facts as

would be admissible in evidence, and must affirmatively show that the affiant is competent

to testify to matters stated therein.”); Krishnan v. Law Offices of Preston Henrichson, P.C.,

83 S.W.3d 295, 300 (Tex. App.—Corpus Christi–Edinburg 2002, pet. denied). Further,

Zimmerer states that Kell was not on duty or driving a vehicle owned by ITI at the time of

the accident and that ITI exercises no control over the employees when they are off duty.

Thus, the paragraphs objected to were not conclusory because Zimmerer’s affidavit

furnishes some factual information as to these paragraphs that could have been rebutted.

See La China, 417 S.W.3d at 520; Rivera v. White, 234 S.W.3d 802, 808 (Tex. App.—

Texarkana 2007, no pet.).

       Appellants additionally objected to paragraphs 5, 6, and 9 because they were from

an interested witness and not clear, free from contradiction, and uncontroverted. We note



                                             10
that “[o]ur summary judgment rule permits the granting of a summary judgment on the

basis of uncontroverted testimonial evidence of an interested witness if that evidence ‘is

clear, positive and direct, and otherwise credible and free from contradictions and

inconsistencies, and could have been readily controverted.” Casso v. Brand, 776 S.W.2d

551, 558 (Tex. 1989) (citing TEX. R. CIV. P. 166a(c)). “Could have been readily

controverted” means that the “testimony at issue is of a nature which can be effectively

countered by opposing evidence.” Id. Paragraphs 5, 6, and 9 could have been readily

controverted because appellants could have produced opposing evidence showing that

Kell was in the course and scope of his employment and under the control or direction of

ITI. See Painter, 561 S.W.3d at 131–37; Casso, 776 S.W.2d at 558; La China, 417 S.W.3d

at 520–21.

      Finally, appellants objected to paragraphs 5 and 6 because they constituted a legal

opinion. “An affidavit supporting or opposing a motion for summary judgment must set

forth facts, not legal conclusions.” Krishnan, 83 S.W.3d at 299. However, legal

conclusions based on underlying facts that have been stated are not necessarily

improper. See Montemayor v. Chapa, 61 S.W.3d 758, 764 (Tex. App.—Corpus Christi–

Edinburg 2001, no pet.), disapproved on other grounds by Coco v. Port of Corpus Christi

Auth., 132 S.W.3d 689, 691–92 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.);

Aldridge v. De Los Santos, 878 S.W.2d 288, 296–97 (Tex. App.—Corpus Christi–

Edinburg 1994, writ dism’d w.o.j.). Zimmerer’s affidavit explains who he is and how he is

competent to testify about whether Kell was on duty at the time of the accident and

whether he was under the supervision or control of ITI. See TEX. R. CIV. P. 166a(f);

Brownlee v. Brownlee 665 S.W.2d 111, 112 (Tex. 1984); Choctaw Props., L.L.C. v. Aledo



                                           11
I.S.D., 127 S.W.3d 235, 244 (Tex. App.—Waco 2003, no pet.); Krishnan, 83 S.W.3d at

299–300. His conclusions that Kell was not in the course and scope of his employment

or under the direction or control of ITI were based on underlying facts that Zimmerer

stated in his affidavit. See Montemayor, 61 S.W.3d at 764.

             3. Conclusion

        We sustain appellants’ second issue in part, concluding that the trial court erred

when it overruled their objections to the admissions made by Kell and Roddel. We

overrule the remainder of appellants’ second issue.

    D. Vicarious Liability

        By their third issue, appellants argue that the trial court erred when it granted

summary judgment in favor of ITI on their vicarious liability claim.4

        Vicarious liability is a theory of liability that allows for an employer to be held liable

for its employee’s tort if the tort was committed while the employee was acting in the

course and scope of his or her employment. See Painter, 561 S.W.3d at 131; Baptist

Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). The tort can be the

result of the employee’s negligent or intentional conduct. See GTE Sw., Inc. v. Bruce, 998

S.W.2d 605, 617–18 (Tex. 1999); Magnolia Petroleum Co. v. Guffey, 102 S.W.2d 408,

409 (Tex. 1937). “[T]o prove an employer’s vicarious liability for a worker’s negligence,



        4
            Appellants argue ITI’s summary motion advanced a “no duty” argument only as to only their
negligent hiring claim, but not their vicarious liability claim. We disagree. A motion for summary judgment
must state the grounds on which it is made. TEX. R. CIV. P. 166a(c); KCM Fin. LLC v. Bradshaw, 457 S.W.3d
70, 79 (Tex. 2015); Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013). A trial court cannot grant a summary
judgment on grounds not presented in the motion. G&H Towing Co. v. Magee, 505 S.W.3d 555, 297 (Tex.
2011); see Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 566 (Tex. 2016). Here, while ITI’s motion does
not specifically state it applies to appellants’ vicarious liability cause of action, it argues that ITI is entitled
to summary judgment “on any cause of action rooted in the theory of negligence.” Accordingly, we conclude
that ITI’s “no duty” argument included appellants’ claim for vicarious liability. See TEX. R. CIV. P. 166a(c);
Bradshaw, 457 S.W.3d at 79; GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 617–18 (Tex. 1999).

                                                        12
the plaintiff must show that, at the time of the negligent conduct, the worker was (1) an

employee and (2) was acting in the course and scope of his employment.” Painter, 561

S.W.3d at 131.

       Within the scope of employment means that the action was “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.” Painter, 561 S.W.3d at

131; Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). And “the

act must be of the same general nature as the conduct authorized or incidental to the

conduct authorized.” Painter, 561 S.W.3d at 131. Conduct may be within the course and

scope of employment even if done in part to serve the purposes of the employee or a

third person. Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 128 (Tex. App.—Tyler

1977, writ ref’d n.r.e.); see Gilgon, Inc. v. Hart, 893 S.W.2d 562, 568 (Tex. App.—Corpus

Christi–Edinburg 1994, writ denied) (noting that employee’s actions may still be within the

course and scope of employment even if private matters are mixed with business errand).

       Furthermore, when an employee is involved in an accident while driving a motor

vehicle, there are special rules to determine whether the employee was within the scope

of employment at the time of the accident. See Painter, 561 S.W.3d at 135–37. Generally,

an employer is not liable for the acts of an employee while traveling to and from work. Id.

at 136. However, there is an exception to this rule when the employee is on a “special

mission” for the employer. See id. at 136–37.

       A special mission is a specific errand that an employee performs for the employer

either as part of his or her duties or at the employer’s request. Am. Gen. Ins. v. Coleman,

303 S.W.2d 370, 374–75 (Tex. 1957); Wilie v. Signature Geophysical Servs., Inc., 65



                                            13
S.W.3d 355, 359 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); Upton v. Gensco,

Inc., 962 S.W.2d 620, 621–22 (Tex. App.—Fort Worth 1997, pet. denied). It can involve

work or work-related activity outside of the employee’s regular job duties. Soto v. Seven

Seventeen HBE Corp., 52 S.W.3d 201, 206 (Tex. App.—Houston [14th Dist.] 2000, no

pet.). For example, an employee was on a special mission when his employer sent him

to Houston for supplies, he was entitled to mileage for the trip, and he was told to use his

own car, not the company truck. See Best Steel Bldgs., Inc., 553 S.W.2d at 127–28. If an

employee is sent on a special mission, then he is considered as still on such mission

while returning from the place to which he was required to go by his employer, unless he

deviates from the purpose of his mission and engages in an enterprise of his own. Id. at

129; see Shelton v. Standard Ins., 389 S.W.2d 290, 293 (Tex. 1965); see also Painter,

561 S.W.3d at 136 n.14 (rejecting notion that an employee is not engaged in the

furtherance of employer’s business when the employer does not require any particular

route). Whether the “special mission” exception applies “depends heavily on the facts and

circumstances of the case.” Painter, 561 S.W.3d at 136.

       Here, the element of appellants’ vicarious liability claim that was disputed in ITI’s

summary judgment motion is whether Kell was in the course and scope of his employment

when the accident occurred. See Painter, 561 S.W.3d at 131. Per our previous

discussion, the only admissible evidence submitted by ITI in support of its motion was

Zimmerer’s affidavit. Zimmerer’s affidavit supported the contention that Kell was not in

the course and scope of his employment at the time the accident occurred by providing

that Kell was not on duty at the time and not under the control and direction of ITI. See




                                            14
id. at 136. This shifted the burden to appellants to raise an issue of fact. See Walker, 924

S.W.2d at 376.

       In their response to ITI’s motion for summary judgment, appellants argued that Kell

was in the course and scope of employment “and/or in a special mission” for ITI. They

attached in support, among other things, portions of depositions of Kell, Rondell, and

Zimmerer.

       In Zimmerer’s deposition, he explains that Kell was hired by ITI to service pay

phones. According to Zimmerer, going to the location and coming back was part of Kell’s

job and, if an employee of ITI leaves the house to work on telephones, then the employee

is going to do work for the benefit of ITI. See Painter, 561 S.W.3d at 136–38 (noting that

if the drive to and from work is part of the employee’s assigned job duties, then the

employee may be within the scope of employment); Arbelaez, 149 S.W.3d at 719

(concluding that a fact issue was raised as to whether employee was on a special mission

because there was evidence that employer benefitted from employee’s act). Further,

Zimmerer explained that “the basis of [Kell’s] activity was in Corpus, but he would go to

the valley as needed” and that Kell gets reimbursed for mileage when he goes to the

valley because he is doing it on behalf of ITI for the benefit of ITI. See Arbelaez, 149

S.W.3d at 723 (noting that employee’s manager asked employee to perform a specific

errand on a routine basis and that the errand benefitted the employer). In his deposition,

Kell states that he “mostly” works out of Corpus Christi but that “there’s no telling” where

ITI might send him.

       Viewing this evidence in the light most favorable to appellants and indulging every

reasonable inference therefrom, we conclude that appellants raised a fact issue as to



                                            15
whether Kell was in the course and scope of his employment or on a special mission at

the time of the accident. See Painter, 561 S.W.3d at 136–37 (noting that in “the course

and scope of employment” means 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 he was hired); Arbelaez, 149 S.W.3d at 720 (noting that course and scope of

employment is generally a fact issue); Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354,

355–56 (Tex. App.—El Paso 1993, no pet.) (concluding employee was on a special

mission while en route to a mandatory seminar); Best Steel Bldgs., Inc., 553 S.W.2d at

127–28; see also OCI Beaumont LLC v. Barajas, 520 S.W.3d 83, 91 (Tex. App.—

Beaumont 2017, no pet.) (“Applying Texas law, Texas courts have consistently held that

the employer is not vicariously liable for the torts committed by employees when their

connection to their job shows they were merely commuting to work.”).

       We sustain appellants’ third issue.

                                  III.   CONCLUSION

       We reverse the trial court’s judgment and remand for further proceedings

consistent with this memorandum opinion.

                                                            DORI CONTRERAS
                                                            Chief Justice

Delivered and filed the
16th day of April, 2020.




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