                                                                                        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
__________________________________________________________________
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.


_____________________________________________________
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


_____________________________________________________
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


_____________________________________________________
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).




_____________________________________________________
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
_____________________________________________________
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


_____________________________________________________
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.

_____________________________________________________
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


_____________________________________________________
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

_____________________________________________________
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:


_____________________________________________________
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.

_____________________________________________________
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

_____________________________________________________
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




_____________________________________________________
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


_____________________________________________________
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




_____________________________________________________
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


_____________________________________________________
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

_____________________________________________________
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.




_____________________________________________________
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
