                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-08-173-CV


TRIPLE R AUTO SALES                                             APPELLANT

                                       V.

FORT WORTH TRANSPORTATION                                         APPELLEE
AUTHORITY

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      FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     Appellee Fort Worth Transportation Authority (FWTA) sued Appellant

Triple R Auto Sales (Triple R) on a theory of negligent entrustment of an

automobile.     Triple R failed to timely respond to request for admissions

propounded by FWTA, and consequently, the admissions were deemed

admitted.     See Tex. R. Civ. P. 198.2(c) (“If a response [to a request for




     1
         … See Tex. R. App. P. 47.4.
admissions] is not timely served, the request is considered admitted without the

necessity of a court order.”). Triple R did not seek any relief in the trial court

from the deemed admissions. FWTA subsequently filed a motion for summary

judgment relying solely on the deemed admissions. Triple R did not file any

controverting summary judgment evidence. 2       Triple R did not appear at the

summary judgment hearing. After the hearing, the trial court granted FWTA’s

motion for summary judgment and entered a final judgment awarding FWTA

money damages in the amount admitted in the deemed admissions. Triple R

perfected this appeal.

      In a single issue, Triple R contends that it cannot be liable for negligent

entrustment of an automobile because no evidence was presented proving that

it owned or had a right to control that automobile. Triple R admitted, via the

deemed admissions, the following: (1) that Triple R “owned, possessed or

controlled” the vehicle prior to January 2, 2006; (2) that on January 2, 2006,

Triple R “sold and delivered possession” of the vehicle to a Mr. Davis; (3) that

Mr. Davis subsequently collided with the back end of FWTA’s vehicle; (4) that

the accident “would not have occurred had Triple R . . . not negligently


      2
       … Triple R filed a short, three-paragraph response to FWTA’s motion for
summary judgment and attached two documents. One purports to be an
affidavit but is not signed by anyone, and the other is a copy of the untimely
answered and filed request for admissions.

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entrusted and sold the vehicle” to Mr. Davis; and (5) that the negligence of

Triple R “was the direct and proximate cause of the accident.” See Tex. R. Civ.

P. 198.2(c).

      Although deemed admissions often are sufficient evidence to support

summary judgment, when they create fact issues rather than resolve them, they

cannot be the basis for summary judgment. See CEBI Metal Sanayi Ve Ticaret

A.S. v. Garcia, 108 S.W.3d 464, 466 (Tex. App.—Houston [14th Dist.] 2003,

no pet.); see also Luke v. Unifund CCR Partners, No. 02-06-00444-CV, 2007

WL 2460327, at *4–5 (Tex. App.—Fort W orth 2007, no pet.) (mem. op.)

(observing dilemma presented by conflicting admissions); Profitlive P’ship v.

Surber, 248 S.W.3d 259, 261 (Tex. App.—Fort Worth 2007, no pet.) (requiring

reversal of summary judgment when appellee’s own summary judgment

evidence raised material issue of fact). We cannot pick and choose among

controverted facts in a summary judgment record, nor can a litigant avoid

conflicts created by deemed admissions of opposite facts by relying on only

some of the deemed admissions. Garcia, 108 S.W.3d at 466 (holding that

deemed admissions, which established every proposition and its opposite as

well, created fact issues).

      Here, the deemed admissions establish both that Triple R sold and

delivered possession of the vehicle to Mr. Davis prior to the accident and that

                                      3
Triple R negligently entrusted the vehicle to him. To establish Triple R’s liability

under the theory of negligent entrustment, FWTA had to show that Triple R

owned the vehicle, that it entrusted the vehicle to an unlicensed, incompetent,

or reckless driver that Triple R knew or should have known to be unlicensed,

that the driver was negligent on the occasion in question, and that the driver’s

negligence proximately caused the accident.         See De Blanc v. Jensen, 59

S.W.3d 373, 375–76 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (citing

Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987)).

A nonowner of a vehicle may be held liable for negligent entrustment of a

vehicle if the nonowner has the right to control the vehicle. Morris v. JTM

Materials, Inc., 78 S.W.3d 28, 52 (Tex. App.—Fort Worth 2002, no pet.). But

Texas courts have refused to expand negligent entrustment liability to sellers.

See Nat’l Convenience Stores, Inc. v. T.T. Barge Cleaning Co., 883 S.W.2d

684, 685, 687 (Tex. App.—Dallas 1994, writ denied); Salinas v. Gen. Motors

Corp., 857 S.W.2d 944, 948 (Tex. App.—Houston [1st Dist.] 1993, no writ);

Rush v. Smitherman, 294 S.W.2d 873, 875 (Tex. Civ. App.—San Antonio

1956, writ ref’d). The rationale behind this rule is that a seller, unlike a bailor

in a bailment, lacks the ability to control a chattel once he sells it. Rush, 294

S.W.2d at 876–77 (“A bailor entrusts, for what he entrusts is his.            But a

vendor does not entrust; he sells his chattel.”).

                                         4
      Triple R’s conflicting deemed admissions at a minimum create a fact issue

regarding ownership and control of the vehicle; the admissions establish both

that Triple R sold the vehicle to Mr. Davis before the accident and that Triple

R negligently entrusted the vehicle to him, and they do not establish that Triple

R retained ownership or control over the vehicle.3 See id. Thus, based on the

conflicting nature of the deemed admissions in this case, we cannot uphold the

summary judgment for FWTA. We hold that the summary judgment evidence

does not conclusively establish as a matter of law Triple R’s liability for

negligent entrustment. See Garcia, 108 S.W.3d at 466; Surber, 248 S.W.3d

at 261. Consequently, we sustain Triple R’s sole issue.

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

proceedings consistent with this opinion.




                                                  SUE WALKER
                                                  JUSTICE

PANEL: CAYCE, C.J.; WALKER and MCCOY, JJ.

DELIVERED: January 22, 2009


      3
       … FWTA contends that its amended petition specifically alleges that
“Triple R was ‘the owner, consignee and or possessor’ of the vehicle . . . at all
times relevant thereto,” but the cited portions of the petition assert that Triple
R was “the owner, consignee and or possessor of the vehicle” on January 2,
2006 and that “on said date same was sold by” Triple R to Mr. Davis.

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