                                                                            ACCEPTED
                                                                        01-15-00161-CV
                                                             FIRST COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                                                   7/29/2015 3:50:56 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 DISTRICT OF TEXAS      7/29/2015 3:50:56 PM
                  HOUSTON, TEXAS                CHRISTOPHER A. PRINE
                                                        Clerk



CAMILLO MARTINEZ O/B/O DECEASED, YOLANDA MARTINEZ
                    APPELLANT
                        V.
    NABEEL “BILL” ARAFAT D/B/A TEXAS CAR STEREO
                    APPELLEES


               Original Proceeding from the
               270th Judicial District Court
                 of Harris County, Texas
                Cause No. 2011-44754-A


APPELLEES NABEEL “BILL” ARAFAT AND U.S. CAR SALE AND
   REPAIR, LLC ALSO D/B/A TEXAS CAR STEREO’S BRIEF


                          GERMER, PLLC
                          ROBIN N. BLANCHETE
                          State Bar No. 24045509
                          TROY A. WILLIAMS
                          State Bar No. 00788678
                          333 Clay St., Suite 4950
                          Houston, Texas 77002
                          Telephone: (713) 650-1313
                          Facsimile: (713) 739-7420

                          ATTORNEYS FOR APPELLEE
                          NABEEL “BILL” ARAFAT AND
                          U.S. CAR SALE AND REPAIR, LLC
                          ALSO D/B/A TEXAS CAR STEREO
                ORAL ARGUMENT REQUESTED

PLAINTIFF/APPELLANT              COUNSEL FOR APPELLANT

CAMILLO MARTINEZ O/B/O           JOSHUA LESKE, Lead Counsel
DECEASED, YOLANDA MARTINEZ       State Bar No.: 24060162
                                 YOUNG & HUSAIN, PLLC
                                 2700 Post Oak Blvd., Suite 1220
                                 Houston, Texas 77056
                                 Telephone: (713) 621-8900
                                 Facsimile: (713) 621-8909


DEFENDANT/APPELLEE               COUNSEL FOR APPELLEE

NABEEL “BILL” ARAFAT D/B/A       ROBIN N. BLANCHETTE, Lead
TEXAS CAR STEREO                 Counsel
                                 State Bar No. 24045509
                                 TROY A. WILLIAMS
                                 State Bar No. 00788678
                                 Germer, PLLC
                                 333 Clay St., Suite 4950
                                 Houston, Texas 77002
                                 Telephone: (713) 650-1313
                                 Facsimile: (713) 739-7420
                                 And
                                 JOSEPH M. HEARD
                                 State Bar No. 09337500
                                 Heard & Medack, P.C.
                                 9494 Southwest Freeway, Suite 700
                                 Houston, Texas 77074
                                 Telephone: (713) 772-6400
                                 Facsimile: (713) 772-6495




                             2
                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND
COUNSEL……………………………………………………………………….i, ii

TABLE OF CONTENTS
…………………………………………………………………………………iii, iv

INDEX OF AUTHORITIES………………………………………….v, vi, vii, viii

STATEMENT OF THE
CASE…………………………………………………………..............................1

RECORD
CITATIONS………………………………………………………………….......2

ISSUE PRESENTED: Reply Point to Issue 1: The trial court properly granted
Appellee’s traditional and no-evidence motion for summary judgment because
there is not a scintilla of evidence raising a genuine issue of material fact as to (1)
whether Appellee had a right to control the vehicle Rodriquez was operating; (2)
whether Appellee entrusted the vehicle to Rodriquez; (3) whether Rodriquez was
in the course and scope of his employment with Appellee at the time of the
accident; and (4) whether Appellee was grossly negligent.
……………………………………………………………………………………2

STATEMENT OF
FACTS……………………………………………………………………………2

SUMMARY OF THE
ARGUMENT……………………………………………………………………..4

ARGUMENT……………………………………………………………

   I. Standard of Review………………………………………………………..5

                 a. Traditional Motion for Summary
                    Judgment………………………...

                 b. No-Evidence Motion for Summary
                    Judgment………………………
                                           iii
   II. Negligent Entrustment………………………………………………………8
         a. No ownership or control
         b. No Entrustment

   III.Rodriquez was not acting in the course and scope of his employment with.14
         Appellees at the time of the accident
         a. Rodriquez was not acting within the scope of his general authority
         b. Rodriquez was not acting in the furtherance of Appellees’ business
         c. Rodriquez was not acting to accomplish an object for which he was
             hired
         d. Deviation

   IV.      No Fact Issue as to whether Appellees were grossly negligent……..24

PRAYER………………………………………………………………………….27

CERTIFICATE OF
SERVICE………………………………………………………………………….28

APPENDIX
Exhibit

1. Order Granting Summary Judgment to Defendant Defendants Nabeel “Bill”
Arafat and U.S. Car Sale and Repair, LLC also d/b/a Texas Car Stereo, signed on
December 17, 2014.




                                       iv
                       INDEX OF AUTHORITIES
                              CASES
Anderson v. Snider,
808 S.W.2d 54, 55 (Tex. 1991)…………………………………………...10, 25, 26

Arbelaez v. Just Brakes Corp.,
2004 WL 1114572 (Tex.App.-- Austin 2004, no pet. h.)…………………………20

Battarbee v. Transp. Ins. Co.,
No. 05-01-0086-CV, 2002 Tex. App. Lexis 737, at *5
(Tex. App.—Dallas Feb. 1, 2002, no pet.)……………………………………...16

Black v. Victoria Lloyds Inc. Co.,
797 S.W.2d 20, 27 (Tex. 1990)……..……………………………………………...6

Broaddus v. Long,
138 S.W.2d 1057, 1059 (1940)……………………………………………………16

Burroughs Wellcome Co. v. Crye,
907 S.W.2d 497, 499 (Tex. 1995)……………………………………………….....8

Calhoun vs. Hill,
607 S.W.2d 951 (Civ. App. - Eastland 1980, no writ history)……………………14

Carr v. Brasher,
776 S.W.2d 567, 569 (Tex. 1989)………………………………………….......7, 26

Cummings v. HCA Servs. of Texas,
                                          th
799 S.W.2d 403, 405 (Tex. App.–Houston [14 Dist.] 1990, no writ)…….……...6

De Blanc v. Jensen, 59 S.W.3d 373, 376
(Tex. App.—Houston [14th Dist.] 2001, no pet.)………………………………..9

Garcia v. City of Houston,
799 S.W.2d 496, 498 (Tex.App.-El Paso 1990, writ. denied)……………………16

Gifford - Hill & Company vs. Moore,
479 S.W.2d 711 (Civ. App. Tyler 1972, no writ history)…………………………14



                                    v
Gilgon, Inc. v. Hart,
893 S.W.2d 562, 568(Tex.App.--Corpus Christi 1994, writ denied)…………..22

Ginther v. Domino's Pizza, Inc.,
93 S.W.3d 300, 302 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)……16

Goodyear Tire & Rubber Co. v. Mays,
236 S.W.2d 754, 758 (Tex. 2007)……………………………………………….9

Hall v. Stephenson,
919 S.W.2d 454, 467 (Tex.App.—Fort Worth 1996, writ denied)……………….24

Harwell v. State Farm Mut. Auto. Ins. Co.,
896 S.W.2d 170, 173 (Tex. 1995) ……………………………………………..7, 26

In Re: Mohawk Rubber Co.
982 S.W.2d 494, 498 (Tex. App.—Texarkana 1998, orig. proceeding)…………..7

ITT Consumer Fin. Corp. v. Tovar,
932 S.W.2d 147, 158 (Tex. App.—El Paso 1996, no pet.)……………………….14

Josey-Miller Co. v. Sheppard,
357 S.W.2d 488, 490 (Tex.Civ.App.--Beaumont 1962, no writ)…………………22

Kindred v. Con/Chem, Inc.,
650 S.W.2d 61, 63(Tex. 1983)…..…………………………………………………8

King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 750, 751 (Tex. 2003).…………………………………………7, 8

Lear Siegler, Inc. v. Perez,
819 S.W.2d 470, 471 (Tex. 1991)……………………………………………….....6

Little v. Tex. Dept. of Criminal Justice,
148 S.W.3d 374, 381 (Tex. 2004)………………………………………………….5

Lockett v. HB Zachry Co.,
285 S.W.3d 6, 77 (Tex.App.—Houston [1st Dist.] 2009, no pet.)……………25



                                   vi
Merrell Dow Pharms. v. Havner,
953 S.W.2d 706, 711 (Tex. 1997)………………………………………………….8

Millan vs. Dean Witter Reynolds,
90 S.W.3d 760 (Tex. App. - San Antonio 2002, no pet. h.)………………………14

Minyard Food Stores, Inc. v. Goodman,
80 S.W.3d 573, 577, 578-79(Tex. 2002)………………………………………….14

Montgomery v. Kennedy,
669 S.W.2d 309, 310-11 (Tex. 1984)…...………………………………………….6

Nixon v. Mr. Property Management Co.,
690 S.W.2d 546, 548-49 (Tex. 1985)…...………………………………………….5

Provident Life & Accident Inc. Co. v. Knott,
128 S.W.3d 211, 215 (Tex. 2003)………………………………………………….5

Shell Oil Co. v. Humphrey,
880 S.W.2d 170, 175-76 (Tex.App.—Houston [14th Dist.] 1994, writ denied)….24

Smith v. M Sys. Food Stores, Inc.,
297 S.W.2d 112, 114 (1957)………………………………………………………14

Smith v. Texas Employers' Ins. Assn.,
105 S.W.2d 192, 193 (1937)………………………………………………………16

Soodeen v. Rychel, 802 S.W.2d 361, 262-63
(Tex. App.—Houston [1st Dist.] 1990, writ denied)……………………………...12

Southwest Dairy Products Company vs. De Frates,
132 Tex. 556, 125 S.W.2d 282, 283 (Tex. 1939)……………………………14, 23

Strickland Transp. v. Ingram, 403 S.W.2d 192, 194
(Tex. App.—Texarkana 1966, writ dism'd)…………………………………….9

Transportation Ins. Co. v. Moriel,
879 S.W.2d 10, 25 (Tex. 1994).……………………………………………………8



                                     vii
Westland v. Oil Dev. Corp. v. Gulf Oil Corp.,
637 S.W.2d 903, 907 (Tex. 1982)………………………………………………….6

White v. Wah,
789 S.W.2d 312, 315 (Tex. App–Houston [1st Dist.] 1990, no writ)……………...6

Wilie v. Signature Geophysical Svcs., Inc.,
65 S.W.3d 355, 358 (Tex. App.—Houston [14th Dist.] 2001, no pet.)………..16

Wortham v. Dow Chem. Co.,
179 S.W.3d 189, 198-99
(Tex.App.—Houston [14th Dist.] 2005, no pet.)……………………………..24


STATUTES AND RULES

Tex. R. App. P.
38………………………………………………………………………………...2, 3

TRCP 166 …………………………………………………………………………7




                                   viii
                               NO. 01-15-00161-CV


                        IN THE COURT OF APPEALS
                     FOR THE FIRST DISTRICT OF TEXAS
                            HOUSTON, TEXAS


   CAMILLO MARTINEZ O/B/O DECEASED, YOLANDA MARTINEZ
                       APPELLANT
                           V.
       NABEEL “BILL” ARAFAT D/B/A TEXAS CAR STEREO
                       APPELLEES


                           Original Proceeding from the
                           270th Judicial District Court
                             of Harris County, Texas
                            Cause No. 2011-44754-A


  APPELLEES NABEEL “BILL” ARAFAT AND U.S. CAR SALE AND
REPAIR, LLC ALSO D/B/A TEXAS CAR STEREO’S APPELLATE BRIEF



TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

      Appellees Nabeel “Bill” Arafat and U.S. Car Sale and Repair, LLC also

d/b/a Texas Car Stereo (hereinafter referred to as “Appellees”) submit their brief in

response to the brief filed by Appellant Camillo Martinez o/b/o Yolanda Martinez,

Deceased (hereinafter referred to as “Appellant”) and would show the following:

                         STATEMENT OF THE CASE
      Appellant’s Statement of the Case is generally correct.

                                          1
                              RECORD CITATIONS

      The original clerk’s record has one volume and two supplements. Thus, a

citation to C.R. 1 refers to page 1 of the original clerk’s record at page 1. Further, a

citation to 1st S.C.R. 1 refers to page 1 of the first supplemental clerk’s record at

page 1. Additionally, a citation to 2nd S.C.R. 1 refers to page 1 of the second

supplemental clerk’s record at page 1.

                               ISSUE PRESENTED

Reply to Issue 1: The trial court properly granted Appellee’s traditional and no-
                  evidence motion for summary judgment because there is not a
                  scintilla of evidence raising a genuine issue of material fact as
                  to (1) whether Appellee had a right to control the vehicle
                  Rodriquez was operating; (2) whether Appellee entrusted the
                  vehicle to Rodriquez; (3) whether Rodriquez was in the course
                  and scope of his employment with Appellee at the time of the
                  accident; and (4) whether Appellee was grossly negligent.

                            STATEMENT OF FACTS

      Appellees object to Appellant’s statement of facts because it impermissibly

argues the facts, in violation of Texas Rule of Appellate Procedure 38.1(g) ("The

brief must state concisely and without argument the facts pertinent to the issues. .

."). Specifically, Appellees object to Appellant’s statement of facts set forth on

page 14, as they impermissibly argue the facts. (See Appellant’s Brief p. 14).




                                           2
      Additionally, Appellees object to Appellant’s statement of facts to the extent

it violates Texas Rule of Appellate Procedure 38.1(g) ("The statement [of facts]

must be supported by record references."). A review of the record clearly indicates

that “the statement of facts” offered by Appellant are not correctly cited, nor

supported by the references offered. Rather, Appellant has inappropriately

misconstrued and misrepresented the evidence contained in the record.

      Notwithstanding the foregoing, this case arises out of an incident that

occurred on July 9, 2011, when the deceased, Yolanda Martinez, was traveling

eastbound in the 9400 Block of Westheimer in Houston, Texas, when Rodriguez,

who was traveling westbound in the 9400 block of Westheimer, struck the

deceased’s vehicle. C.R. 7. At the time of the accident, Rodriguez was driving the

vehicle owned by Martina Ortiz Grifaldo. C.R. 7. As a result, Appellant filed a

lawsuit against Appellees for causes of action including negligent entrustment of a

vehicle, negligence per se and gross negligence. C.R. 6. Specifically,

Appellant asserted that Rodriguez was driving the vehicle with the permission

of Appellees and in the scope of his employment for Appellees, and that

Appellees were negligent in allowing Rodriguez to continue driving the

vehicle after having knowledge of the risk Rodriguez posed while driving, thus

endangering the welfare of the public. C.R. 8-11. Appellees sought a traditional

and no-evidence motion for summary judgment on the basis that they did not own


                                         3
or control the vehicle; that they did not entrust the vehicle to Rodriguez and

that Rodriguez was not acting in the scope of his employment for Appellees at

the time of the accident. The trial court granted Appellees traditional and no-

evidence motion for summary judgment and Appellant now appeals. C.R. 14.

                       SUMMARY OF THE ARGUMENT

      This lawsuit arose out of an accident that occurred on July 9, 2011. On that

day, Rodriquez, an employee of Texas Car Stereo, was driving a vehicle owned by

Grifaldo. Rodriquez had retrieved the vehicle from Grifaldo’s apartment on the

night of July 8, 2011. On the morning of July 9, 2011, Rodriquez was in route of

running a personal errand for a friend when the vehicle he was driving collided

with the vehicle driven by Yolanda Martinez. The Appellees did not own the

vehicle in question. The Appellees did not entrust the vehicle in question to

Rodriquez. The Appellees were never in possession of the vehicle and the

Appellees never conducted any repairs to the vehicle in question. Furthermore, the

Appellees did not direct Rodriquez to conduct any repairs to the vehicle and

Rodriquez was not in the course and scope of his employment with Appellees at

the time of the accident.

      Appellant seeks appeal of a properly granted summary judgment.            In

particular, the trial court properly granted Appellees’ traditional and no-evidence

motion for summary judgment, as Appellees proved there was not more than a


                                         4
scintilla of evidence raising a genuine issue of material fact. Specifically, the

negligent entrustment claim against Appellees was properly disposed of via

summary judgment because Appellees did not retain control of the vehicle,

Appellees did not entrust the vehicle to Rodriquez and Rodriquez was not in

the course and scope of his employment with Appellees at the time of the

accident. As such, Appellant failed to raise a genuine issue of material fact on the

foregoing elements and failed to controvert the summary judgment proof that

Appellees did not retain control of the vehicle, Appellees did not entrust the

vehicle to Rodriquez and Rodriquez was not in the course and scope of his

employment with Appellees at the time of the accident.

                       ARGUMENT & AUTHORITIES

I.    Standard of Review

      a.    Traditional Motion for Summary Judgment

      The standard of review for a traditional motion for summary judgment is de

novo. Provident Life & Accident Inc. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003); Little v. Tex. Dept. of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004).

A movant for summary judgment must show there is no genuine issue of material

fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property

Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The court shall take all

evidence favorable to the non-movant as true, and indulge every reasonable

                                         5
inference in the non-movant’s favor. Id. Summary judgment for the defendant is

proper when the proof shows that there is no genuine issue of material fact as to

one or more of the essential elements of the plaintiff’s causes of action. Black v.

Victoria Lloyds Inc. Co., 797 S.W.2d 20, 27 (Tex. 1990); White v. Wah, 789

S.W.2d 312, 315 (Tex. App.–Houston [1st Dist.] 1990, no writ). In other words, a

defendant must disprove, as a matter of law, at least one of the essential elements

of a plaintiff’s cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471

(Tex. 1991).

      When a defendant moves for summary judgment and bases his motion for

summary judgment on an affirmative defense, he must prove all the elements of

such defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11

(Tex. 1984). Once the movant establishes a right to summary judgment, the

non-movant must expressly present any reasons seeking to avoid the movant’s

entitlement and must support the reasons with summary judgment proof to

establish a fact issue. Westland v. Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d

903, 907 (Tex. 1982); Cummings v. HCA Servs. of Texas, 799 S.W.2d 403, 405
                        th
(Tex. App.–Houston [14 Dist.] 1990, no writ).

      b.       No-Evidence Motion for Summary Judgment

      After an adequate time for discovery, a party may move for summary

judgment on the ground there is no evidence for one or more elements of a claim or

                                         6
defense on which the non-movant has the burden of proof at trial. TEX. R. CIV. P.

166a(i). A Court must grant a no-evidence motion for summary judgment unless

the non-movant produces more than a scintilla of probative evidence that raises a

genuine issue of material fact on the challenged element or elements. TEX. R. CIV.

P. 166a(i); In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.—

Texarkana 1998, orig. proceeding).

      If, as here, the order granting summary judgment does not specify the

grounds on which summary judgment was granted, a court of appeals should

affirm the summary judgment if any theory advanced in the motion for summary

judgment supports the granting of the summary judgment. Harwell v. State Farm

Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995); Carr v. Brasher, 776

S.W.2d 567, 569 (Tex. 1989).

      Notwithstanding the foregoing, a trial court’s granting of a motion for no-

evidence summary judgment is reviewed under a legal sufficiency standard. King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003)(citing cases). As such,

the appellate court must review the evidence in the light most favorable to the non-

movant, disregarding contrary evidence and inferences. Id. A no-evidence point is

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

                                          7
is no more than a mere scintilla, or (d) the evidence conclusively establishes the

opposite of the vital fact. King Ranch, 118 S.W.3d at 751, quoting Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).           The court may

properly find that less than a scintilla of evidence exists when the evidence offered

to prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.

1983)(citing cases). The court should determine that more than a scintilla of

evidence exists when "the evidence supporting the finding, as a whole, ‘rises to a

level that would enable reasonable and fair-minded people to differ in their

conclusions.’"     Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997), citing Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)

(quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)).

    II. Negligent Entrustment

       To establish a claim for negligent entrustment, Appellant must establish the

following elements:

             (1)     the owner entrusted its vehicle to another person;
             (2)     that person was an unlicensed, incompetent, or reckless
                     driver;

             (3)     the owner knew or should have known the driver was

                     unlicensed, incompetent, or reckless;
                                           8
            (4)   the driver was negligent on the occasion in question; and
            (5)   the driver's negligence proximately caused the plaintiff's
                  injury.

      Goodyear Tire & Rubber Co. v. Mays, 236 S.W.2d 754, 758 (Tex. 2007).
In the instant case, as more fully set forth below, the record conclusively
establishes that Appellees did not own or retain control of the vehicle,
Appellees did not entrust the vehicle to Rodriquez and Rodriquez was not in
the course and scope of his employment at the time of the accident. Therefore,
summary judgment was proper.

a.    No ownership or control
      For the purposes of negligent entrustment, the owner of a vehicle can
either be (1) a person or entity claiming ownership and having possession; or
(2) someone who exercises control over the vehicle. See Strickland Transp. v.
Ingram, 403 S.W.2d 192, 194 (Tex. App.—Texarkana 1966, writ dism'd).
The record conclusively establishes that Appellees did not own the vehicle in
question. Indeed, according to Appellant's own petition, Appellees were not
among the owners of the vehicle. C.R. 7. Therefore, because ownership of the
vehicle is not in dispute, the central focus becomes whether or not Appellees
ever had “possession” or “exercised control” over the vehicle.
      In this regard, to be liable as a non-owner, a defendant must have a
superior legal right to control the vehicle and not just exercise some control
over the vehicle. See De Blanc v. Jensen, 59 S.W.3d 373, 376 (Tex. App.—
Houston [14th Dist.] 2001, no pet.).

                                       9
       Appellant attempts to rely on self-serving, speculative, conclusory
statements in order to establish that the vehicle in question was brought to
Appellees’ place of business for repairs. See Appellant’s Brief at pages 21 and 22.
At first blush, it bears noting that conclusory statements will not support a
summary judgment. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991).
       In any event, Appellant is attempting to rely upon speculative hearsay
testimony offered by Gomez and Grifaldo in order to establish that the vehicle in
question was brought to Appellees’ place of business for repairs, thereby
establishing the “possession” or “right to exercise control.” See Appellant’s Brief
at 20. However, even the portions of Gomez’ testimony offered by Appellant
confirm that Gomez did not know how Rodriquez got the vehicle. Id. In addition,
a review of the record confirms that Grifaldo’s testimony does not support the
position for which Appellant has offered it. Rather, Grifaldo has explicitly stated
that the vehicle was not going to be taken to Appellee’s place of business for
repair. 1st S.C.R. 38, page 2, lines 2-22 – 1st S.C.R. 39, page 3, lines 1-14.
      Further, Appellant is attempting to establish Appellees “right of control” by
relying on the legal premise that a mechanic, such as Appellees, has the right to
control a vehicle that is placed into possession for repair. See Appellant’s Brief at
page 19. While Appellees do not dispute the legal premise per se, the most
obvious problem with Appellant’s logic is that the undisputed evidence contained
in the record confirms that the vehicle was never placed into Appellees’
possession for repairs.



                                          10
     In this instance, Appellees did not control the vehicle in the slightest
degree. In fact, Appellees never came into possession of the vehicle at any
point in time. As explained by Alexander Buentello, the sales manager for
Appellee, Texas Car Stereo, the vehicle in question was never left under the
control of Appellees. 2nd S.C.R. 50-53 at p. 12, line 20 – p. 13, line 16; p. 14, line
11- p. 15, line 9. This lack of control and possession is further established by the
testimony of Rodriguez.


     For example, by way of Rodriguez’s own testimony, he confirmed that he
did not drive the vehicle in question, to or from Texas Car Stereo before the
accident. 2nd S.C.R. 63 at p. 74, lines 10-15. Further, according to Edson
Carrizales, the manager installer for Texas Car Stereo, the first time Rodriguez
came in to Texas Car Stereo on the day of the accident was in the afternoon,
when he mentioned to Mr. Carrizales that he had been in an accident. 2nd S.C.R.
37-39 at p. 11, line 20-p. 13, line 3. Ex. 2, at 11:13-12:16. Therefore, any vehicle
driven by Rodriguez was not obtained by him while at Texas Car Stereo.


     Furthermore, prior to the accident, Rodriguez did not tell Appellees that he
intended to bring the vehicle in for service, nor did they authorize him to do so. 2nd
S.C.R. 40-41 at p. 14, line 2 – p. 15, line 5; 2nd S.C.R. 49-53 at p. 11, line 3 – p.
13, line 3; 2nd S.C.R. 62 at p. 73, lines 3-19. Therefore, not only was the vehicle
not left with Appellees, Appellees had no connection to the vehicle prior to the
accident. In fact, Appellees virtually knew nothing about the vehicle prior to the
accident. 2nd S.C.R. 49-53 at p. 11, line 20-p. 15, line 5; 2nd S.C.R. 62 at p.73,

                                         11
lines 3-19. Thus, as a matter of law, Appellees did not control the vehicle. Because
Appellees did not own, possess or exercise control of the vehicle in question, an
essential element of Appellant’s cause of action was not met and summary
judgment was proper.

b.    No entrustment by Appellees
      In addition to falling short of proving Appellees’ control/possession over
the vehicle, Appellant cannot demonstrate that Appellees entrusted the vehicle to
Rodriguez. For example, by way of Appellant’s own admission, Appellant has
failed to cite to evidence indicating that Appellees entrusted the vehicle to
Rodriquez and simply stated to this Appellate Court that there is “no other
conclusion to draw.” See Appellant’s Brief at page. 22.
      Contrary to Appellant’s position, Appellees have provided ample
evidentiary support which completely negates entrustment. Entrustment can be
proven by establishing that the owner permitted the driver to use the vehicle. See
Soodeen v. Rychel, 802 S.W.2d 361, 262-63 (Tex. App.—Houston [1st Dist.] 1990,
writ denied). The evidence demonstrates as a matter of law that Appellees did not
entrust the vehicle to Rodriguez.
      The only people at Texas Car Stereo generally authorized to drive
customers' vehicles were Edson Carrizales, Alexander Buentello, and Bill Arafat.
2nd S.C.R. 34 at p. 8, lines 2-14. Rodriguez was a general laborer for Texas Car
Stereo, whose job involved installing and painting tires. 2nd S.C.R. 48 at p. 7, lines
9-13. While the managers or salesmen at Texas Car Stereo drove customers'
vehicles in special circumstances or at the request of the customers, Rodriguez

                                          12
was not authorized to drive these vehicles for any reason, either on or off the
premises of Texas Car Stereo. 2nd S.C.R. 50-51 at p. 12, line 20 – p. 13, line 16;
see also 2nd S.C.R. 34-36 at p. 8, line 2- p.10, line, 1. In fact, as both Mr.
Carrizales and Mr. Buentello testified, if an employee was caught driving a
customer's vehicle home off the property for the night, that employee would be
fired. 2nd S.C.R. 35 at p. 9, lines 18-21; 2nd S.C.R. 51-52 at p. 13, line 20 – p. 14,
line 3. Rodriguez was never entrusted with a customer's vehicle or any other
company vehicle. 2nd S.C.R. 50-51 at p. 12, line 20-p. 13, line 16. Furthermore,
Rodriguez did not drive the vehicle in question, or any other vehicle, home from
Texas Car Stereo the night before the accident. 2nd S.C.R. 49-50 at p. 11, lines 3-8
and p. 12, lines 11-19; 2nd S.C.R. 59-63 at p. 70. Lines 14-25 – p. 74, line 15.
Rather, after work on July 8, 2011, Rodriquez retrieved the vehicle in question
from Grifaldo’s residence. 2nd S.C.R. 59-60 at p. 70, lines 14- p. 71, line 11.
      The day of the accident, Rodriguez did not come in to work at Texas Car
Stereo as scheduled—he came later in the day to borrow money because he said
he had been in an accident. Id. Prior to the accident, Rodriguez did not tell
Appellees that he was bringing the vehicle in for service, nor did they authorize
him to do so. 2nd S.C.R. 49-50 at p. 11, line 24-p. 12, line 10; 2nd S.C.R. 40-41 at
p. 14, line 22 – p. 15, line 5; 2nd S.C.R. 62-63 at p. 73, lines 3-19, p. 74, lines 10-
15.
      Based on the foregoing, it is clear that Appellees did not entrust the vehicle
to Rodriguez. Thus, an essential element of Appellant’s cause of action fails and
summary judgment was proper.

                                          13
III.   Rodriguez was not acting in the scope of his employment for Appellees
       at the time of the accident.
       The general rule is that an employer is liable for its employee's tort only
when the tortious act falls within the scope of the employee's general authority in
furtherance of the employer's business and for the accomplishment of the object
for which the employee was hired. Minyard Food Stores, Inc. v. Goodman, 80
S.W.3d 573, 577 (Tex. 2002). The Texas Supreme Court held that for an
employee's acts to be within the scope of employment "the conduct must be of the
same general nature as that authorized or incidental to the conduct authorized."
Id., citing Smith v. M Sys. Food Stores, Inc., 297 S.W.2d 112, 114 (1957).
       Moreover, "if an employee deviates from the performance of his duties for
his own purposes, the employer is not responsible for what occurs during that
deviation." ITT Consumer Fin. Corp. v. Tovar, 932 S.W.2d 147, 158 (Tex. App.—
El Paso 1996, no pet.). When an employee departs from his or her work to
accomplish a personal purpose not connected to the employer's business, the
relationship of employer and employee is temporarily suspended and the employer
is not liable for the employee's acts during the period of the suspension. Southwest
Dairy Products Company vs. De Frates, 132 Tex. 556, 125 S.W.2d 282 (Tex.
1939); Calhoun vs. Hill, 607 S.W.2d 951 (Civ. App. - Eastland 1980, no writ
history); Gifford - Hill & Company vs. Moore, 479 S.W.2d 711 (Civ. App. Tyler
1972, no writ history). Additionally, an employer is not liable for intentional torts,
even when committed in connection with the employee's work, if the employer
would not reasonably expect the act to occur in view of the servant's duties. Millan



                                          14
vs. Dean Witter Reynolds, 90 S.W.3d 760 (Tex. App. - San Antonio 2002, no pet.
h.).
       a. Rodriguez was not acting within the scope of his general authority
       The only person at Texas Car Stereo generally authorized to drive
customers' vehicles was Edson Carrizales. 2nd S.C.R. 34 at p. 8, lines 2-14.
While the manager or salesmen drove customers' vehicles in special
circumstances or at the request of the customers, Rodriguez was not authorized
to drive customers' vehicles at any time. 2nd S.C.R. 34-36 at p. 8, line 2- p. 10,
line 1; see also 2nd S.C.R. 50-51 at p. 12, line 20 – p.13, line 16. In fact, as Mr.
Carrizales testified, if an employee was caught driving a customer's vehicle
home off the property for the night, that employee would be fired. 2nd S.C.R. 35
at p. 9, lines 18-21. Rodriguez was never entrusted with a customer's vehicle or
any other company vehicle. See 2nd S.C.R. 50-51 at p. 12, line 20- p.13, line 16;
2nd S.C.R. 59-63 at p. 70, line 11-: p. 74, line 15.Furthermore, Rodriguez did not
drive the vehicle in question, or any other vehicle, home from Texas Car Stereo
the night before the accident. Id. See also 2nd S.C.R. 49-50 at p. 11, lines 3-8 and
p. 12, lines 11-19; Therefore, any vehicle driven by Rodriguez was not obtained
by him while at Texas Car Stereo and was not being driven under the scope of
his authority at Texas Car Stereo. Thus, the evidence establishes that Rodriguez
was not acting within the scope of his general authority at the time of the
accident.




                                         15
      b.     Rodriguez was not acting in furtherance of Defendants' business
      The day of the accident, Rodriguez did not come in to work at Texas Car
Stereo as scheduled—he only came to Texas Car Stereo's premises later in the
day to borrow money because he said he had been in an accident. 2nd S.C.R. 37-
38 at p. 11, line 12 - p. 12, line 16. Prior to the accident, Rodriguez did not tell
Appellees that he was bringing the vehicle in for service, nor did they authorize
him to do so. 2nd S.C.R. 49-50, at p. 11, line 24- p. 12, line 10; 2nd S.C.R. 40-41 at
p. 14, line 22- p. 15, line 5; 2nd S.C.R. 59-63 at p. 70, line 11-: p. 74, line 15.
      Rodriquez further established that he was not acting in the furtherance of
company business at the time of the accident. Rather, Rodriquez was running a
personal errand. Specifically, Rodriguez testified as follows:

      Q:     And you got up the following morning, Saturday, July 9th, and you
             left your apartment around 7:30 a.m., is that correct?
      A:     Yes…


      Q:     And I believe you stated that you were going to a junk yard to buy a
             part for friend of yours, is that correct?
      A:     Yes.

      Q:     Did you make it to the junkyard that morning?
      A:     No…

      Q:     So, the accident happened before you got to the junkyard, is that
             correct?
      A:     A lot before.

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

                                           16
Q:   And no one at Texas Car Stereo told you to drive the car into the
     shop did they?
A:   No.

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

Q:   And because of the accident, you never made it to Texas Car Stereo
     on July 9, 2011, is that correct?
A:   No, I didn’t get there.

Q:   And Ms. Grifaldo’s car never made it to Texas Car Stereo that day
     did it?
A:   Never got there.

Q:   Did anyone at Texas Car Stereo ever ask you to bring in customer
     cars for repairs?
A:   This had nothing, absolutely nothing to do with Texas Car Stereo.

Q:   And it had nothing to do with Texas Car Stereo because you were
     doing a favor for a friend, correct?
A:   It was a favor on my part.

Q:   …I also understand that before you even intended to go to work,
     you were running an errand for another friend, is that correct?
A:   Yeah, before I was going to another place.

Q:   You were going to the junk yard for another friend of yours,
     correct?
A:   Yes, a junk yard.

Q:   And you intended to do that first before you went to work, correct?
A:   That was my intention.

Q:   And the accident happened before you made it to the junkyard, is
     that correct?


                                17
     A:     Before I got to the junkyard.

     2nd S.C.R. 59-63 at p. 70, line 11-: p. 74, line 15.

     Assuming arguendo that Rodriguez was commuting to work at the time
of the accident, an employee is generally not in the course and scope of his
employment while driving to and from work. See Wilie v. Signature
Geophysical Svcs., Inc., 65 S.W.3d 355, 358 (Tex. App.—Houston [14th Dist.]
2001, no pet.); Battarbee v. Transp. Ins. Co., No. 05-01-0086-CV, 2002 Tex.
App. Lexis 737, at *5 (Tex. App.—Dallas Feb. 1, 2002, no pet.); Ginther v.
Domino's Pizza, Inc., 93 S.W.3d 300, 302 (Tex. App.—Houston [14th Dist.]
2002, pet. denied). This rule is premised on the idea that an injury occurring
while traveling to and from work is caused by risks and hazards incident to
driving on public streets, which has nothing to do with the risks and hazards
emanating from a person's employment. A presumption does arise that an
employee is within the course and scope of his employer's business when
evidence is presented that the employer employed the driver and furnished for use
in his employment the vehicle involved in the incident. See Broaddus v. Long,
138 S.W.2d 1057, 1059 (1940). This presumption is a mere rule of procedure and
the presumption vanishes when positive evidence to the contrary is introduced.
Garcia v. City of Houston, 799 S.W.2d 496, 498 (Tex.App.-El Paso 1990, writ.
denied).


     As indicated above, the evidence in our case explicitly establishes that

Rodriquez was forbidden from driving any customer vehicles and was running a

                                         18
purely personal errand at the time of the accident.       Therefore, the evidence

establishes that Rodriquez was not acting in furtherance of Appellee’s business

as a matter of law.


          c. Rodriguez was not acting to accomplish an object for which he
             was hired
       As established by testimony from Mr. Buentello, Rodriguez's job for Texas
Car Stereo was as a general laborer:

     Q:     What kind of work did Miguel do for Texas Car Stereo?
     A:     General labor, helping out in the back, whatever was needed of him,
            throwing out the trash, tire installs, painting tires.
     Q:     When you say "in the back," what do you mean by in the back?
     A:     I mean back in the shop. We have the front shop which is the sales
            area, and we do our installation and repairs in the back of the
            building. So I consider it the back.
2nd S.C.R. 48 at p. 7, lines 9-19. As established supra, Rodriguez was not
authorized to drive customers' vehicles, either on or off Texas Car Stereo's
premises. As such, Rodriguez's job never involved driving customers' vehicles
on public roads. In fact, Rodriguez was not working at all when the accident
occurred—as he did not even come in to work that day. 2 nd S.C.R. 37-38 at p.
11, line 13- p. 12, line 16; 2nd S.C.R. 59-63 at p. 70, line 11-: p. 74, line 15. In
summary, Rodriguez, who worked on tires and never drove vehicles during
his employment for Texas Car Stereo, got into a car accident while off the
clock in a vehicle that was not being worked on by Texas Car Stereo. In no
way was Rodriguez acting to accomplish an object for which he was hired,
and therefore as a matter of law he was outside the scope of his employment
for Appellees.
                                         19
         d. Deviation

     Appellant attempts to maintain the position that Rodriquez was in the

course and scope because Appellee ultimately would have benefited from the

repair work in the event that the vehicle ever made it to Appellee’s place of

business. In support of this argument, Appellant relies on, inter alia, Arbelaez v.

Just Brakes Corp., 2004 WL 1114572 (Tex.App.-- Austin 2004, no pet. h.). In

Just Brakes, a Just Brakes employee arrived at work and shortly thereafter

received his “first assignment” of the day, which was to pick up breakfast for

himself, his manager, and his other coworkers. Id. at *1. While engaging in this

first assignment and while driving his own vehicle, the employee collided with

the plaintiff. Id. The plaintiff filed a negligence lawsuit against the employee and

also alleged that Just Brakes was vicariously liable for the acts of its employee.

Id. During discovery, the plaintiff learned of several facts that allegedly supported

his vicarious liability claim. Id. These facts included the following: (i.) the

employee was asked by his manager to obtain breakfast for the crew as the

employee's “first assignment” of the day; (ii.) the employee's breakfast run was a

daily routine, both at this and other Just Brakes locations; (iii.) Just Brakes

benefited by having only one employee out of the shop at a time; (iv.) the

employee's manager paid him $10/week in gas money to run this errand; and (v.)


                                         20
the employee was on the clock and paid by Just Brakes for the time spent running

this errand. Id at *2. Just Brakes filed a traditional motion for summary judgment,

asserting that it was not vicariously liable for the employee's negligence because

the employee was not acting within the course and scope of his employment at

the time of the accident. Id. Even after considering the foregoing evidence, the

trial court granted Just Brakes' motion. Id. Admittedly, a divided Court of

Appeals reversed the summary judgment in favor of Just Brakes and remanded

the case back to the trial court. Id. at *6. In so doing, the Court of Appeals pointed

to three specific factors that forced it to overturn the summary judgment. Id. at *4

- 5. As explained below, these three factors do not exist in this case. (emphasis

added). Accordingly, summary judgment was and is proper because the factors

that required a reversal in Just Brakes are not present in this case.

      First, the Austin Court of Appeals pointed out that the summary judgment

evidence established that the employee's manager affirmatively asked the

employee to make the breakfast run for the shop. Id. at *4. Here, Rodriquez

acknowledges that his trip to the junkyard was not for the Appellees, but rather a

personal errand for a friend. 2nd S.C.R. 59-63 at p. 70, line 11-: p. 74, line 15.



      Based on the foregoing, Rodriquez clearly knew that the purpose of his trip

was not for the Appellees, but rather a personal errand for a friend. In Just


                                          21
Brakes, the Court was persuaded by evidence that the errand was actually the

employee's “first assignment” of the day, and was performed at the direct request

of a manager. Just Brakes, 2004 WL 1114572, *4. This case does not present the

same evidence that troubled the Just Brakes court because Appellees did not

direct Rodriquez to drive the vehicle in question and Rodriquez was strictly

running a personal errand. 2nd S.C.R. 49-50, at p. 11, line 24- p. 12, line 10; 2nd

S.C.R. 40-41 at p. 14, line 22- p. 15, line 5; 2nd S.C.R. 59-63 at p. 70, line 11-: p.

74, line 15.

      The Just Brakes court then turned to Just Brakes' argument that the

employee deviated from his employment because the breakfast run was for purely

personal purposes. Id. The court acknowledged that the breakfast run served a

personal purpose (i.e., the employee got breakfast), but disposed of this argument

by pointing out that the breakfast run was the employee's “first assignment” of the

day. Id. In so doing, the court pointed to several cases, also relied upon by

Appellant, holding that, even when an employee's acts serve a personal purpose,

the employee may still be within the course and scope of employment when there

is a mix of personal and business purposes. Id. citing 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); Josey-Miller Co. v. Sheppard, 357


                                         22
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). Implicit in this “mixed purpose” reasoning is the concept that

an employee cannot be within the course and scope of his employment when the

employee's acts serve purely a personal purpose. In this regard, the Texas

Supreme Court has held:

      “It is the firmly settled rule that when a servant completely departs
      from his work to accomplish some purpose of his own not connected
      with his employment, the relation of master and servant is thereby
      temporarily suspended and the master is not liable for his acts during
      the period of such suspension.”

Southwest Dairy Prods. Co. v. DeFrates, 125 S.W.2d 282, 283 (Tex. 1939).

      In this case, Rodriquez completely deviated from his work at Texas Car

Stereo to participate in a purely personal errand. As established supra, Rodriguez

was not authorized to drive customers' vehicles, either on or off Texas Car

Stereo's premises. As such, Rodriguez's job never involved driving customers'

vehicles on public roads. In fact, Rodriguez was not working at all when the

accident occurred—as he did not even come in to work that day. Further,

Rodriquez acknowledged that the trip to the junk yard was purely for personal

purposes. 2nd S.C.R. 37-38 at p. 11, line 13- p. 12, line 16; 2nd S.C.R. 59-63 at

p. 70, line 11-: p. 74, line 15. Thus, this case presents a different set of

circumstances than those that forced the Just Brakes court to overturn Just Brakes'

                                        23
summary judgment. As the Texas Supreme Court clearly articulated, a purely

personal errand suspends the master's liability for the acts of the servant.

Therefore, summary judgment was and is proper.

      Further, as indicated above, the undisputed evidence establishes that

Rodriquez was running a personal errand at the time of the accident. Thus, not

only was Rodriquez not in the course and scope of his employment, Rodriquez

was not even in route to his place of employment at the time of the accident.

Appellant’s attempt to extrapolate the argument that Rodriquez was in the course

and scope because the “route of Rodriquez’ personal errand” was the same as

the “route Rodriquez would have taken to work”. However, this argument is

nonsensical, speculative, not supported by any references or authority and fails to

raise a genuine issue of material fact.

      IV.   No Fact Issue as to whether Appellees were grossly negligent

      It is well-established that, under Texas law, a finding of ordinary
negligence is a prerequisite to maintaining an action for gross negligence and a
plaintiff who cannot support a negligence cause of action cannot succeed on gross
negligence. See, e.g., Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex.App.—Fort
Worth 1996, writ denied); Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 175-76
(Tex.App.—Houston [14th Dist.] 1994, writ denied); Wortham v. Dow Chem.
Co., 179 S.W.3d 189, 198-99 (Tex.App.—Houston [14th Dist.] 2005, no pet.).



                                          24
Since summary judgment was and is proper on Appellant’s negligence claims, as
discussed above, the gross negligence cause of action must fail as a matter of law.
      To prove an action for gross negligence in Texas, Appellant must prove the
following elements:

             1.   the act or omission, when viewed objectively from the
             defendant's standpoint at the time it occurred, involved an
             extreme degree of risk, considering the probability and
             magnitude of the potential harm to others; and
             2.    the defendant had actual, subjective awareness of the
             risk, but still proceeded with a conscious indifference to the
             rights, safety, or welfare of others.

TEX. Civ. PRAC. & REM. CODE § 41.001 (11); Lockett v. HB Zachry Co., 285

S.W.3d 6, 77 (Tex.App.—Houston [1st Dist.] 2009, no pet.).

      Appellant has cited to no evidence supporting either element of Appellant’s
gross negligence claim. "Extreme risk" means the likelihood of serious injury to
the plaintiff, not merely a remote possibility of injury. Lockett, 285 S.W.3d at 77.
There is no evidence offered by Appellant that any act or omission by Appelles
involved an extreme degree of risk. Likewise, "actual awareness" means that the
defendant knew about the danger, but the defendant's acts or omissions
demonstrated that it did not care. Id. Appellant has referenced no evidence that
Appellees had actual awareness of the danger, yet was consciously indifferent to
the welfare of Appellant because even if Appellees knew of the danger of
allowing Rodriguez to drive, Appellant has offered no evidence that Appellees
took any action allowing Rodriguez to drive the vehicle in question. In sum,
Appellant cites to no summary judgment evidence to support the various

                                        25
statements suggesting a fact issue as to whether or not Appellees were grossly
negligent. See Appellant’s Brief at pps. 36 -37. Rather, Appellant attempts to rely
on self-serving, speculative, conclusory statements. Again, conclusory statements
will not support a summary judgment. See Anderson v. Snider, 808 S.W.2d 54,
55 (Tex. 1991). Therefore, summary judgment was and is proper as to
Appellant’s gross negligence claim.


       In conclusion, the trial court’s order granting Appellees’ Traditional and
No-Evidence Motion for Summary Judgment does not specify the grounds upon
which same was granted. C.R. 14. As stated above, if, as here, the order granting
summary judgment does not specify the grounds on which summary judgment
was granted, a court of appeals should affirm the summary judgment if any theory
advanced in the motion for summary judgment supports the granting of the
summary judgment. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170,
173 (Tex. 1995); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).


      As enumerated above, Appellees sought a traditional and no-evidence

motion for summary judgment on the basis that they did not own, possess or

control the vehicle; that they did not entrust the vehicle to Rodriguez and that

Rodriguez was not acting in the scope of his employment for Appellees at the

time of the accident. The trial court properly granted Appellees’ traditional and

no-evidence motion for summary judgment. As such, Appellees respectfully

requests that same be affirmed.
                                        26
                                     PRAYER

      For the reasons stated above, Appellees Nabeel “Bill” Arafat and U.S. Car

Sale and Repair, LLC also d/b/a Texas Car Stereo submits that the trial court

properly granted its motion for summary judgment, and respectfully pray that the

trial court’s judgment be in all things affirmed, with costs taxed against Appellant.

                                       GERMER PLLC



                                       By:_________________________________
                                            TROY A. WILLIAMS
                                            State Bar No. 00788678
                                            ROBIN N. BLANCHETE
                                            State Bar No. 24045509
                                            333 Clay St., Suite 4950
                                            Houston, Texas 77002
                                            Telephone: (713) 650-1313
                                            Facsimile: (713) 739-7420
                                            twilliams@germer.com
                                            rblanchette@germer.com

                                       ATTORNEYS FOR APPELLEE
                                       NABEEL “BILL” ARAFAT AND
                                       U.S. CAR SALE AND REPAIR, LLC
                                       ALSO D/B/A TEXAS CAR STEREO




                                          27
                         CERTIFICATE OF SERVICE

      As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b),(d), (e), I
hereby certify that a true and correct copy of the above and foregoing instrument
has been forwarded by certified mail, return receipt requested and facsimile on this
29th day of July, 2015, to the following:

(713) 621-8909
Joshua Leske, Lead Counsel
Young & Husain, P.L.L.C.
2700 Post Oak Blvd., Ste. 1220
Houston, TX 77056




                                 ______________________________________
                                      Robin N. Blanchette




                                         28
                           NO. 01-15-00161-CV


                     IN THE COURT OF APPEALS
                  FOR THE FIRST DISTRICT OF TEXAS
                         HOUSTON, TEXAS


     CAMILLO MARTINEZ O/B/O DECEASED, YOLANDA MARTINEZ
                         APPELLANT
                             V.
         NABEEL “BILL” ARAFAT D/B/A TEXAS CAR STEREO
                         APPELLEES


                        Original Proceeding from the
                        270th Judicial District Court
                          of Harris County, Texas
                         Cause No. 2011-44754-A


 APPELLEES/DEFENDANTS NABEEL “BILL” ARAFAT AND U.S. CAR
    SALE AND REPAIR, LLC ALSO D/B/A TEXAS CAR STEREO’S
                         APPENDIX



                          LIST OF DOCUMENTS

1.    Order Granting Summary Judgment to Defendant Nabeel “Bill” Arafat and
      U.S. Car Sale and Repair, LLC also d/b/a Texas Car Stereo, signed on
      December 17, 2014.




                                      1
