Opinion issued July 25, 2019




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                               NO. 01-17-00955-CV
                          ———————————
                     LAURIE MEJIA-ROSA, Appellant
                                       V.
                 JOHN MOORE SERVICES, INC., Appellee


                   On Appeal from the 215th District Court
                            Harris County, Texas
                      Trial Court Case No. 2014-00998


                         MEMORANDUM OPINION

      Laurie Mejia-Rosa appeals the trial court’s rendition of summary judgment

in favor of appellee, John Moore Services, Inc. (“JMS”), on her respondeat

superior and negligent hiring, training, supervision, monitoring, retention, and

entrustment, and gross negligence claims for injuries she sustained after being
struck by a van driven by a JMS employee. In two issues, Mejia-Rosa argues that

the trial court erred in granting JMS’s summary-judgment motion on no-evidence

and traditional grounds because she presented evidence raising a genuine issue of

material fact for each of her claims.

      JMS argues that we lack jurisdiction over this appeal. We disagree and

affirm the trial court’s summary-judgment order.

                                    Background

      Mejia-Rosa was walking her dogs in the parking area of her apartment

complex when she was struck by a JMS van driven by Kim Allen Madden.1

According to her live petition, Mejia-Rosa was thrown through the air and

sustained injuries including a massive laceration on the back of her head.

      Mejia-Rosa sued JMS as well as two other defendants who are not parties to

this appeal, namely, IT-Fountains of Tomball, Ltd., the owner of the apartment

complex, and Henry S. Miller Realty Management, LLC, the manager of the

apartment complex.

      JMS filed a hybrid motion for summary judgment on all of Mejia-Rosa’s

claims against it. In support of its traditional motion, JMS attached Madden’s

affidavit and deposition testimony. In his affidavit, Madden stated that the accident

occurred as he entered the parking lot of his apartment complex at the end of his

1
      Mejia-Rosa’s petition names Madden as a defendant but does not assert a claim
      against him.

                                         2
work day. He also stated that he was not in the course and scope of his

employment, on any special mission, or on call for JMS.

      In his deposition testimony, Madden stated that he began working as an

electrician for JMS on February 10, 2000. His “usual work hours” are 7:00 a.m. to

6:00 p.m. Before he was hired, he had to pass a 400-question test, covering driver

competence as well as other aspects of his employment. Once hired, Madden was

permitted to drive a JMS van “right away.” His training consisted of a ride-along

over the first three days of his employment, as well as weekly “safety training” that

“sometimes” covered driver safety.

      Madden also testified that during his first year of employment with JMS, he

received two traffic citations. The first was for his involvement in a “four-car

pileup” accident while driving his JMS van. He explained that “the rear-end truck

made everybody else bump into each other because somebody in the front pulled

out in front.” He also stated that he “shouldn’t have been responsible,” but “the cop

didn’t see the accident, so he gave everybody a ticket.” His second citation was a

red-light camera ticket. Madden also stated that JMS had never designated him a

“high risk driver,” placed him on probation for his driving, or suspended his

driving privileges.

      The accident happened at 6:45 p.m. on December 19, 2013, when Madden

was driving home from work. He was not on call for JMS (nor had he ever been on


                                         3
call for JMS) and was not his cell phone. He was driving five miles per hour in the

parking lot of the apartment complex where both he and Mejia-Rosa were

residents, when Mejia-Rosa “darted out in front of” him from between parked cars.

Before he could stop, his van struck her, knocking her to the ground.

      In addition to Madden’s affidavit and deposition testimony, JMS presented

evidence showing that before hiring and entrusting Madden with the company van,

it had obtained his Driver Record Service Report indicating that he possessed a

valid unrestricted driver’s license and that his three-year driving record was

“clear.”

      In her response, Mejia-Rosa attached records for Madden’s JMS cell phone.

The records indicate that on the evening of the accident, Madden was on his cell

phone for 9 minutes at 5:47 p.m., 5 minutes at 6:11 p.m., 3 minutes at 7:18 p.m.,

and 4 minutes at 7:31 p.m. Mejia-Rosa also attached JMS’s cell phone policy,

which states that JMS cell phones do not allow access to outside numbers and are

only to be used for business purposes.

      Mejia-Rosa also attached JMS’s On-Call Policy, Employee Handbook, and

Fleet Safety Program Manual. The On-Call Policy and Employee Handbook state

that JMS employees “in certain departments,” including electricians, may be

required to take call “during certain times of the year” and “must be readily

reachable by telephone.” JMS’s Fleet Safety Program Manual states that when a


                                         4
JMS driver receives two or more moving violations within one year, he will be

designated a “High Risk Driver,” and as such, will be given additional driver safety

training and either be placed on probation or have his driving privileges suspended.

The Fleet Safety Program Manual also states that JMS will provide periodic driver

safety training and obtain annual driving records for its drivers.

      On May 15, 2015, the trial court granted JMS’s motion, rendering summary

judgment on both traditional and no-evidence grounds on Mejia-Rosa’s respondeat

superior and negligent entrustment claims, and on no-evidence grounds on her

remaining claims of gross negligence and negligent hiring, training, supervision,

monitoring, and retention.

      Mejia-Rosa filed an unopposed motion to sever asking that the summary-

judgment order be severed from the remaining claims and parties so that it would

be a final, appealable judgment. The trial court granted Mejia-Rosa’s motion but

its severance order (the “original severance order”) did not designate the summary-

judgment order as one of the documents to be transferred to the new cause (the

“severed cause”). And the original severance order expressly stated that it “does

NOT dispose of the severed case, but will keep the case ACTIVE.”

      Mejia-Rosa instituted this appeal by filing a notice of appeal in the

underlying cause (the “original cause”). One month later, on January 19, 2018, the

trial court signed an amended severance order, this time stating that all of


                                          5
Mejia-Rosa’s claims against JMS are severed, and specifically identifying the

summary-judgment order as one of the documents to be transferred to severed

cause. The order also stated that its purpose was “to render final for purposes of

appeal” May 15, 2015 summary-judgment order.

      Mejia-Rosa then timely filed a notice of appeal in the severed cause (the

“second notice of appeal”), which she states in her reply brief she did “solely out

of an abundance of caution as a result of the confusion that may be caused by the

two different, but very similar cause numbers relating to the same appeal.”

      Upon learning that the clerk of this Court treated the second notice of appeal

as its own separate, independent cause with its own cause number,

01-18-00129-CV (the “second appeal”), Mejia-Rosa filed an amended notice of

appeal in this cause, asking this Court to consolidate the second appeal into this

appeal. The second appeal was dismissed for want of prosecution.

                                    Jurisdiction

      Before conducting our review, we address JMS’s contention that we lack

subject-matter jurisdiction to review the summary-judgment order. See M.O.

Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (reviewing court must

ensure that it has subject-matter jurisdiction before proceeding to merits of appeal).

JMS argues that, when Mejia-Rosa commenced this appeal by filing her notice of

appeal in the original cause, (1) the summary-judgment order was interlocutory


                                          6
and (2) JMS was no longer a party. According to JMS, the trial court’s summary-

judgment order could only have been perfected in the severed cause.

      Absent a statute allowing an interlocutory appeal, a party may only appeal

from a final judgment. TEX. CIV. PRAC. & REM. CODE §§ 51.012 (authorizing

appeal from final judgment of district or county courts where amount in

controversy exceeds $250), 51.014 (authorizing appeal from certain interlocutory

orders); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (appellate

courts have jurisdiction only over appeals from final judgments and those

interlocutory orders specifically authorized by statute). When, as here, there has

not been a conventional trial on the merits, an order or judgment is not final for

purposes of appeal unless it actually disposes of every pending claim and party or

clearly and unequivocally states that it does. Lehmann, 39 S.W.3d at 205; Davati v.

McElya, 530 S.W.3d 265, 266–67 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

Because Mejia-Rosa’s claims against IT-Fountains of Tomball and Henry S. Miller

Realty Management remained pending, the order granting JMS’s summary-

judgment motion was interlocutory when she filed the notice of appeal in the

original cause. See Lehmann, 39 S.W.3d at 206 (“As the order recites and as the

record demonstrates, the defendant named in the order was not the only defendant

remaining in the case. Thus, we conclude that a final and appealable judgment was

not rendered . . . .”); see also Butler v. Whitten, No. 02-13-00306-CV, 2014 WL


                                        7
24232, at *1 (Tex. App.—Fort Worth Jan. 2, 2014, no pet.) (mem. op.) (orders

dismissing plaintiff’s claims against some defendants were interlocutory because

of plaintiff’s remaining claims against other defendants).

      A court may make an otherwise interlocutory summary-judgment order that

disposes of all claims against a party final for purposes of appeal by severing the

cause and party into a different cause. Avni v. Dosohs I, Ltd., No.

01-15-00459-CV, 2016 WL 2745421, at *1 (Tex. App.—Houston [1st Dist.] May

10, 2016, no pet.) (mem. op.); see also Martinez v. Humble Sand & Gravel, Inc.,

875 S.W.2d 311, 312 (Tex. 1994) (judgment in case involving multiple parties may

be made final as to some parties for purposes of appeal by trial court’s “severing

the causes and parties disposed of by the judgment into a different cause”).

      But if the severance order indicates further proceedings are to be conducted

in the severed action, it does not effect a final judgment. Diversified Fin. Sys., Inc.

v. Hill, Heard, O’Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001);

Avni, 2016 WL 2745421, at *2. Such is the case with the original severance order

here—it did not include the summary-judgment order in its list of documents to be

transferred to the severed cause and expressly stated that it “does NOT dispose of

the severed case, but will keep the case ACTIVE.” Thus, the summary-judgment

order remained interlocutory. See Diversified Fin. Sys., 63 S.W.3d at 795

(severance order stating severed claims would “proceed as such to final judgment


                                          8
or other disposition in this Court” precluded final judgment in severed action);

Martinez, 875 S.W.2d at 313–14 (severance order permitting additional defendant

to be added to severed “final” judgment was interlocutory).

      As a result, the notice of appeal of the summary-judgment order Mejia-Rosa

filed in the original cause was premature. But it was not ineffective. Under Texas

Rule of Appellate Procedure 27.1(a), when a party files a notice of appeal

prematurely, the notice is “effective and deemed filed on the day of, but after, the

event that begins the period for perfecting the appeal.” TEX. R. APP. P. 27.1(a).

Following such event, the judgment becomes final and may be appealed, even

without a separate physical file or different cause number. See Martinez, 875

S.W.2d at 313.

      When, on January 19, 2018, the trial court amended its severance order to

state that all of Mejia-Rosa’s claims against JMS were severed from the original

cause, expressly identify the summary-judgment order as one of the documents to

be transferred to severed cause, and recite that its purpose was “to render final for

purposes of appeal” May 15, 2015 summary-judgment order, it unequivocally

indicated its intent to make the order final and appealable. See Lehmann, 39

S.W.3d at 205; Avni, 2016 WL 2745421, at *2. Thus, on January 19, 2018,

Mejia-Rosa’s notice of appeal of the original cause became effective. See TEX. R.

APP. P. 27.1(a); Alvarado v. Lexington Ins. Co., 389 S.W.3d 544, 549 & n.5 (Tex.


                                         9
App.—Houston [1st Dist.] 2012, no pet.) (prematurely filed notice of appeal

effective and deemed filed when trial court granted motion to sever and rendered

final judgment in favor of defendant); see also Johnson v. Nat’l Indem. Co., No.

14-15-00197-CV, 2016 WL 6809165, at *1 (Tex. App.—Houston [14th Dist.]

Nov. 17, 2016, no pet.) (mem. op.) (premature notice of appeal filed pre-severance

effective to appeal interlocutory order made final by severance); Espalin v.

Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 681 (Tex. App.—Dallas 2000, no

pet.) (“[A] document filed in an attempt to appeal an interlocutory order that later

becomes final serves to appeal the final judgment.”). And, because Mejia-Rosa’s

notice of appeal of the original cause invoked our appellate jurisdiction, the notice

of appeal she filed in the severed action was unnecessary to perfect her appeal. See

Alvarado, 389 S.W.3d at 549 & n.5 (dismissing second appeal as moot); Lerma v.

Forbes, 144 S.W.3d 18, 20 (Tex. App.—El Paso 2004, no pet.) (dismissing second

appeal on its own motion and consolidating record with first appeal).

      Finally, we briefly address JMS’s argument that, because the trial court’s

original severance order removed JMS from the original cause, Mejia-Rosa’s

notice of appeal of the original cause was ineffective as to JMS. Texas Rule of

Appellate Procedure 25.1(b) states that “[t]he filing of a notice of appeal by any

party invokes the appellate court’s jurisdiction over all parties to the trial court’s

judgment or order appealed from.” TEX. R. APP. P. 25.1(b) (emphasis added).


                                         10
Because JMS was a party to the summary-judgment order, the notice of appeal

invoked our jurisdiction over it.

                                Summary Judgment

      Mejia-Rosa challenges the trial court’s rendition of summary judgment on

traditional and no-evidence grounds on her respondeat superior and negligent

entrustment claims, and on no-evidence grounds on her negligent entrustment,

negligent hiring, training, supervision, monitoring, and retention, and gross

negligence claims.

A.    Standard of Review and Applicable Law

      We review a trial court’s summary judgment de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take

as true all evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Valence Operating,

164 S.W.3d at 661; Knott, 128 S.W.3d at 215.

      A party seeking summary judgment may move for both traditional and no-

evidence summary judgment. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004);

see TEX. R. CIV. P. 166a(c), (i). When a party has sought summary judgment on

both grounds, we typically review first the propriety of the summary judgment

under the no-evidence standard. See Merriman v. XTO Energy, Inc., 407 S.W.3d


                                       11
244, 248 (Tex. 2013); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.

2004); Deweese v. Ocwen Loan Servicing L.L.C., No. 01-13-00861-CV, 2014 WL

6998063, at *2 n.1 (Tex. App.—Houston [1st Dist.] Dec. 11, 2014, no pet.) (mem.

op.); Poag v. Flories, 317 S.W.3d 820, 825 (Tex. App.—Fort Worth 2010, pet.

denied). However, in the interest of efficiency, we may review a summary

judgment under the traditional standard first if it would be dispositive. See

Deweese, 2014 WL 6998063, at *2 n.1; Poag, 317 S.W.3d at 825; see also TEX. R.

APP. P. 47.1.

      A party moving for traditional summary judgment bears the burden of

proving that no genuine issues of material fact exist on at least one essential

element of the cause of action asserted and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Lightning Oil Co. v. Anadarko E&P

Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). A matter is conclusively

established if reasonable people could not differ as to the conclusions to be drawn

from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

If the movant meets its burden, the burden then shifts to the nonmovant to raise a

fact issue precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899

S.W.2d 195, 197 (Tex. 1995).

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

judgment on the basis that there is no evidence of one or more essential elements


                                        12
of a claim on which the adverse party would have the burden of proof at trial. TEX.

R. CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). To

defeat a no-evidence motion, the nonmovant must produce at least a scintilla of

evidence raising a genuine issue of material fact as to the challenged elements.

Lightning Oil, 520 S.W.3d at 45. “More than a scintilla of evidence exists if the

evidence ‘rises to a level that would enable reasonable and fair-minded people to

differ in their conclusions.’” Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366,

376 (Tex. App.—Houston [1st Dist.] 2012, pet denied) (quoting Merrell Dow

Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). We consider the

evidence in the light most favorable to the nonmovant and indulge every

reasonable inference from the evidence in the nonmovant’s favor. Lightning Oil,

520 S.W.3d at 45.

      When, as here, the summary-judgment order does not specify the grounds on

which it was granted, the appealing party must demonstrate that none of the

proposed grounds is sufficient to support the judgment. West v. SMG, 318 S.W.3d

430, 437 (Tex. App.—Houston [1st Dist.] 2010, no pet.). We will affirm a

summary-judgment ruling if any of the grounds asserted in the motion are

meritorious. Lightning Oil, 520 S.W.3d at 45; Beverick v. Koch Power, Inc., 186

S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).




                                        13
B.    Respondeat Superior

      In her first issue, Mejia-Rosa argues that the trial court erred in granting

JMS’s summary-judgment motion on her claim that JMS is liable for Madden’s

negligence and gross negligence based on the doctrine of respondeat superior

because her evidence presented a genuine issue of material fact as to whether

Madden was acting in the course and scope of his employment when the accident

occurred.

      The common-law doctrine of respondeat superior, or vicarious liability, is an

exception to the general rule that a person has no duty to control another’s conduct.

Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018). It provides

that “liability for one person’s fault may be imputed to another who is himself

entirely without fault solely because of the relationship between them.” Painter,

561 S.W.3d at 130 (quoting St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 540 (Tex.

2002)).

      To prove an employer’s vicarious liability for an employee’s negligence, the

plaintiff must show that, at the time of the negligent conduct, the employee was

acting in the course and scope of his employment. Painter, 561 S.W.3d at 131. In

the “course and scope of employment” means within the scope of the employee’s

general authority, in furtherance of the employer’s business, and for the

accomplishment of the object for which he was hired. Id. (quoting Goodyear Tire


                                         14
& Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007)). Additionally, to be

within the scope of employment, the employee’s act must be of the same general

nature as, or incidental to, the authorized conduct. Id. Thus if an employee deviates

from the performance of his duties for his own purposes, his employer is not

responsible for what occurs during that deviation. Id.

      Mejia-Rosa challenged the trial court’s rendition of summary judgment on

her respondeat superior claim on both no-evidence and traditional grounds.

Because it is dispositive, we begin our review with the traditional motion. See

Deweese, 2014 WL 6998063, at *2 n.1; Poag, 317 S.W.3d at 825; see also TEX. R.

APP. P. 47.1.

      In its traditional motion, JMS relied on the “coming-and-going rule,” which

states that an employee is not in the course and scope of his employment while

driving to and from work. See Painter, 561 S.W.3d at 136, 139. It argued, and we

agree, that Madden’s affidavit and deposition testimony conclusively proved that

he was on his way home from work, and thus was not acting in the course and

scope of his employment when the accident occurred. See City of Keller, 168

S.W.3d at 816 (matter conclusively established if reasonable people could not

differ as to conclusions to be drawn from evidence). Thus, the burden shifted to

Mejia-Rosa. See Siegler, 899 S.W.2d at 197 (if traditional summary-judgment




                                         15
movant conclusively establishes entitlement to judgment, burden shifts to

nonmovant to raise genuine, material fact issue precluding summary judgment).

      To survive summary judgment, Mejia-Rosa was required to present evidence

that Madden’s actions were within the scope of his general authority, in

furtherance of JMS’s business, for the accomplishment of the object for which he

was hired, and of the same general nature as or incident to the authorized conduct.

See Painter, 561 S.W.3d at 131. In her response, Mejia-Rosa argued that a fact

issue exists as to whether the coming-and-going rule applies in this case because

Madden was driving a JMS van.2

      Mejia-Rosa is correct that because Madden was driving a JMS van when the

accident occurred, a presumption arose that he was acting within the scope of his

employment. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357

(Tex. 1971) (“It is recognized in Texas that when it is proved that the truck was

owned by the defendant and that the driver was in the employment of defendant, a

presumption arises that the driver was acting within the scope of his employment

when the accident occurred.”); see also Lara v. City of Hempstead, No.

01-15-00987-CV, 2016 WL 3964794, at *4 (Tex. App.—Houston [1st Dist.] July

2
      Mejia-Rosa has not argued that Madden was on a “special mission.” See Painter v.
      Amerimex Drilling I, Ltd., 561 S.W.3d 125, 136 (Tex. 2018) (recognizing
      exception to coming-and-going rule “when an employee has undertaken ‘a special
      mission at the direction of his employer’ or is otherwise performing ‘a service in
      furtherance of [his] employer’s business with the express or implied approval of
      [his] employer.’” (citation omitted)).

                                          16
21, 2016, pet. denied) (mem. op.) (in governmental immunity context, “[i]n

automobile collision cases [under the Tort Claims Act] a presumption arises that

the driver was acting within the scope of his employment by the defendant when it

is proved that the employer owned the vehicle and employed the driver”). The

presumption “is not evidence but rather a rule of procedure . . . that is overcome

when positive evidence to the contrary is introduced.” Green v. Ransor, Inc., 175

S.W.3d 513, 516 (Tex. App.—Fort Worth 2005, no pet.). Relevant here, if there is

evidence that the driver was on a personal errand, or otherwise not in the

furtherance of his employer’s business, the presumption vanishes. Williams v.

Great W. Distrib. Co. of Amarillo, No. 12-16-00095-CV, 2016 WL 7322802, at *3

(Tex. App.—Tyler Dec. 16, 2016, no pet.) (mem. op.).

      Madden’s affidavit and deposition testimony effectively rebutted the

presumption by establishing that he was returning home from work and was not

acting in furtherance of JMS’s business when the accident occurred. See, e.g.,

Molina v. City of Pasadena, No. 14-17-00524-CV, 2018 WL 3977945, at *4 (Tex.

App.—Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem. op.) (in sovereign

immunity context, presumption was rebutted where accident occurred while

employee was returning to work after eating lunch); Morris v. JTM Materials, Inc.,

78 S.W.3d 28, 47–48 (Tex. App.—Fort Worth 2002, no pet.) (“In this case,

[employee] stated in his affidavit that, instead of driving directly to [worksite], he


                                         17
drove the tractor-trailer to his sister’s house to see if she would pick him up at [the

worksite]. He was leaving his sister’s house when the accident occurred. This

evidence that [he] went on a personal errand, from which he was returning when

the accident occurred, rebuts the presumption that he was in the course and scope

of his employment.”); J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 637–38 (Tex.

App.—San Antonio 1993, no writ) (plaintiff failed to raise fact issue regarding

course and scope of employment where driver, who was in company vehicle and

on 24–hour call, got into an accident returning to worksite after having left to have

dinner in another town).

      The burden then shifted to Mejia-Rosa to produce other evidence that

Madden was in the course and scope of his employment. See Molina, 2018 WL

3977945, at *4 (once employer rebuts presumption, “[i]t is then the plaintiff’s

burden to produce other evidence that the driver was in the course and scope of his

employment” (citing Robertson Tank Lines, 468 S.W.2d at 358)); Williams, 2016

WL 7322802, at *3 (“Once the presumption is rebutted, the burden is on the

plaintiff to produce other evidence that the driver was within the scope of his

employment.”)

      Mejia-Rosa responded by presenting a record of calls placed and received on

Madden’s company cell phone, which she argued establishes a fact issue regarding

course and scope. But the phone records do not show that Madden was on a phone


                                          18
call at the time of the accident. Instead, they indicate that the last call placed or

received on his company cell phone ended a half-hour before the accident and that

there were two brief calls beginning about a half-hour after the accident. See Univ.

of Tex. M.D. Anderson Cancer Ctr. v. Baker, 401 S.W.3d 246, 261 (Tex. App.—

Houston [14th Dist.] 2012, pet. denied) (citing Mayes, 236 S.W.3d at 757) (“The

general rule for respondeat superior requires . . . that the employee be acting in the

course and scope of employment when the negligence occurs.”). Further, there is

no evidence in the record revealing the substance of these calls, i.e., whether they

were work-related. See, e.g., Atlantic Indus., Inc. v. Blair, 457 S.W.3d 511, 516

(Tex. App.—El Paso 2014), reversed on other grounds, 482 S.W.3d 57 (Tex.

2016) (driver’s testimony that while driving around, he placed phone call to

supervisor three and-a-half hours prior to accident and could not recall specifics of

call but conceded that in addition to discussing personal issues, he and supervisor

could have discussed work was not evidence that he was operating in course and

scope of his employment when accident occurred).

      Even if the record contained evidence that the phone calls were work-

related, such evidence would be insufficient to present a fact issue here because the

purpose of Madden’s drive was simply to go home, not to further any business of

JMS. Compare Mayes, 236 S.W.3d at 757 (evidence tire company employee was

driving company truck loaded with tires he planned to deliver later, was available


                                         19
via pager 24 hours a day, and was not restricted from using the truck for personal

business, did not raise genuine issue of material fact as to whether he was acting in

furtherance of employer’s business or for accomplishment of object for which

employer hired him because he was on personal errand at the time of the accident),

and J & C Drilling, 866 S.W.2d at 637 (evidence that employee who had accident

while on call and driving company car back to worksite after getting something to

eat picked up two of his “hands” at some point during trip did not raise issue of

course and scope absent evidence that he did so at direction of or for benefit of

employer), with Painter, 561 S.W.3d at 137–39 (fact issue existed regarding course

and scope when accident occurred while employee was driving crew to bunkhouse

and evidence showed employee’s job duties included driving crew between

bunkhouse and drilling site).

      Thus, the cell phone records do not rebut JMS’s evidence showing that

Madden was driving home from work and was not engaged in JMS business when

the accident occurred. Accordingly, the records do not present a fact issue with

regard to whether Madden was engaged in JMS’s business at the time of the

accident. See Mayes, 236 S.W.3d at 757; see also Bell v. VPSI, Inc., 205 S.W.3d

706, 718 (Tex. App.—Fort Worth 2006, no pet.) (“Even when driving a vehicle

furnished by the employer, the employee is generally not in the course and scope




                                         20
while going to and returning from work unless he is directed by his employer or

furthering the employer’s business.”).

      Mejia-Rosa next argued that JMS’s internal policies establish a fact issue as

to whether Madden was on call at the time of the accident. Specifically, JMS’s

“On-Call Policy” and Employee Handbook state that JMS electricians may be

required to be on call “during certain times of the year” and “must be readily

reachable by telephone.” But evidence that an employee in Madden’s position may

be required to be on call at certain times of the year does nothing to controvert

Madden’s direct testimony that he was not on call at the time of the accident, nor

had he ever been on call for JMS. Madden’s testimony rebutted any inference that

might have otherwise been drawn from JMS’s internal company policies.

      Moreover, “[b]eing subject to call, without more, is insufficient to place an

employee within the course and scope of his employment” for vicarious liability

purposes. Blair, 457 S.W.3d at 516. This is so even if the on-call employee was

driving a company car or a car bearing the company’s logo when the accident

occurred. See, e.g., Mayes, 236 S.W.3d at 757 (summary-judgment evidence that

employee on personal errand was driving company truck loaded with company

products for delivery, was available via pager 24 hours a day, and was not

restricted from using truck for personal business, insufficient to raise genuine issue

of fact regarding course and scope); Blair, 457 S.W.3d at 517 (evidence that


                                         21
employee was on call and driving truck with company logo insufficient to support

determination that he was within course and scope of his employment at time of

accident); J & C Drilling, 866 S.W.2d at 637 (fact that employee involved in

accident while driving company car was required to be on 24-hour call “not

sufficient to raise an issue of course and scope”). Thus, even if it were genuinely at

issue, Madden’s on-call status, even combined with the fact that he was driving a

company van, would be insufficient to defeat JMS’s summary-judgment motion.

      Left with the singular undisputed fact that Madden was a JMS employee and

was driving a company van when the accident occurred and given Madden’s

uncontroverted testimony establishing that he was not working at the time of the

accident, we conclude that Mejia-Rosa has failed to present a genuine issue with

regard to course and scope. See Robertson Tank Lines, 468 S.W.2d at 359–60

(“Although the facts of ownership of the truck and the employment of the driver

remain in the case after the presumption is rebutted, those facts standing alone

have no probative value on the actions or legal relationship of the driver at the time

of [the] accident; they do not support an inference, or the conclusion, that he was

acting within the scope of his employment.”); Williams, 2016 WL 7322802, at *3

(“Unaided by the presumption or other affirmative evidence, the fact that the

employee was driving his employer’s vehicle at the time of the accident does not

constitute probative evidence that the employee was acting within the scope of his


                                         22
employment and is insufficient to raise a fact issue.”); Bell, 205 S.W.3d at 716

(“Once the presumption is rebutted, ownership of the vehicle by the employer and

employment of the driver are insufficient to raise the issue of course and scope of

employment.”).

      Because the evidence conclusively established that Madden was not acting

in the course and scope of his employment at the time of the accident, the trial

court properly granted JMS’s respondeat superior summary-judgment motion on

traditional grounds. See TEX. R. CIV. P. 166a(c); see also Mayes, 236 S.W.3d at

757 (summary judgment properly granted when uncontroverted testimony of driver

showed he was on personal errand at time of accident).

      We overrule Mejia-Rosa’s first issue.

C.    Direct Liability

      In her second issue, Mejia-Rosa argues that the trial court erred in granting

JMS’s summary-judgment motion because she presented evidence to raise genuine

issues of material fact as to whether JMS was negligent in entrusting a company

van to Madden, and in hiring, retaining, supervising, monitoring, and training him.

      1.    Negligent Entrustment

      To establish liability under a negligent entrustment theory for injuries arising

from a vehicle collision, the plaintiff must show that: (1) the defendant entrusted

the vehicle to the driver; (2) the driver was unlicensed, incompetent, or reckless;


                                         23
(3) at the time of the entrustment, the defendant knew or should have known that

the driver was an unlicensed, incompetent, or reckless driver; (4) the driver was

negligent on the occasion in question; and (5) the driver’s negligence proximately

caused the accident. Mayes, 236 S.W.3d at 758; Magee v. G & H Towing Co., 388

S.W.3d 711, 717 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

      JMS moved for summary judgment on Mejia-Rosa’s negligent entrustment

claim on both traditional and no-evidence grounds. We first address the no-

evidence motion. See Merriman, 407 S.W.3d at 248 (appellate courts should

ordinarily first address no-evidence motion).

      In its no-evidence motion, JMS challenged the second and third negligent-

entrustment elements. Regarding the first, Mejia-Rosa responded by presenting

evidence of the two citations Madden received in his first year driving the

company van, which she argued raised an issue regarding whether he was a

reckless or incompetent driver (such that JMS was negligent in continuing to

entrust Madden with the van).3

      In determining whether the two citations are sufficient to create a fact issue

as to whether Madden was an incompetent or reckless driver, we are mindful of the

“important distinction between an operator who is ‘incompetent or reckless’ and

one who is merely ‘negligent.’” 4Front Engineered Sols., Inc. v. Rosales, 505

3
      Mejia-Rosa does not argue that Madden was unlicensed.

                                         24
S.W.3d 905, 909–10 (Tex. 2016). Because negligent entrustment “requires a

showing of more than just general negligence,” it is not enough to show, for

example, that a driver might have a momentary lapse in judgment or otherwise act

negligently. Id. at 910–11.

      Madden received a camera ticket for running a red light and a citation for

rear-ending the car in front of him in a four-car pileup. Under similar facts, the

Supreme Court of Texas rendered a take-nothing summary judgment on an injured

motorist’s negligent entrustment claims. In Goodyear Tire & Rubber Co. v. Mayes,

the court held that evidence showing that in the three-year period before he was

hired, the driver had been cited for driving without liability insurance and for rear-

ending another car, and that while employed by the defendant, he had received a

speeding ticket, was insufficient to raise a fact issue on recklessness or

incompetence. See 236 S.W.3d at 758. Here, as in Mayes, evidence of one citation

for a moving violation and one for rear-ending another car is insufficient to survive

summary-judgment. See id.; see also Robson v. Gilbreath, 267 S.W.3d 401, 406

(Tex. App.—Austin 2008, pet. denied) (“Mere involvement in a collision does not

create an inference or conclusion that a driver is incompetent or reckless.”);

compare Hous. Cab Co. v. Fields, 249 S.W.3d 741, 746–47 (Tex. App.—

Beaumont 2008, no pet.) (two convictions for driving without insurance, one

citation for injury accident, and one license suspension for failure to carry


                                         25
insurance legally insufficient to support jury’s reckless or incompetent finding),

and Nobbie v. Agency Rent-A-Car, Inc., 763 S.W.2d 590, 593 (Tex. App.—Corpus

Christi 1988, writ denied) (two license suspensions, one speeding ticket, and one

citation for defective headlamp legally insufficient to support incompetence or

recklessness finding), with Blair, 457 S.W.3d at 518 (driver’s five DWI arrests

including two convictions supported jury’s recklessness finding in negligent

entrustment claim), and Pesina v. Hudson, 132 S.W.3d 133, 135, 139 (Tex. App.—

Amarillo 2004, no pet.) (summary-judgment evidence of three incidents of driving

under the influence of drugs or alcohol, two minor collisions, and one speeding

ticket in two-year period preceding accident sufficient to raise fact issue as to

driver’s recklessness or incompetence).

      Finally, we briefly address Mejia-Rosa’s argument that JMS’s failure to

observe its own High Risk Driver policies is evidence of breach. Because JMS’s

actions prove nothing about Madden’s driving capabilities, evidence that it did not

comply with its internal policies does not relieve Mejia-Rosa of her summary-

judgment burden; she still must present evidence that Madden was a reckless or

incompetent driver. See Hous. Cab, 249 S.W.3d at 748 (rejecting argument that

company’s violation of its own policy can be legally sufficient evidence of

incompetence for negligent entrustment claim).




                                          26
      Accordingly, we hold that Mejia-Rosa failed to raise a genuine fact issue

regarding whether Madden was an incompetent or reckless driver. See TEX. R. CIV.

P. 166a(i); Lightning Oil, 520 S.W.3d at 45.

      2.    General Negligence

      In her live petition, Mejia-Rosa alleged that JMS was negligent in hiring and

retaining Madden (“negligent hiring claims”), as well as in training, supervising,

and monitoring him (“negligent training and supervision claims”).4 These are all

simple negligence causes of action based on an employer’s direct negligence rather

than on vicarious liability. See Black v. Smith Protective Servs., Inc., No.

01-14-00969-CV, 2016 WL 5400565, at *3 (Tex. App.—Houston [1st Dist.] Sept.

23, 2016, no pet.) (mem. op.); Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex.

App.—Fort Worth 2008, no pet.). Accordingly, to prevail on each of her claims,

Mejia-Rosa must prove that JMS owed her a legal duty, that it breached that duty,

and that its breach proximately caused her to suffer damages. See Black, 2016 WL

5400565, at *3; Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

In its no-evidence motion, JMS challenged each of these elements on each of

Mejia-Rosa’s negligence claims.




4
      We divide these five separate causes of action into two groups for the sake of
      simplicity and clarity in our analysis.

                                        27
Negligent Hiring

      We begin and end our negligent-hiring inquiry with the element of breach.

Mejia-Rosa contends that JMS breached a duty to her when it hired Madden

because it failed to first “properly evaluate his driving qualifications.” According

to Mejia-Rosa, the 400-question written test JMS required Madden to pass before it

hired him was inadequate because it was not dedicated entirely to driver safety.

She also contends that JMS was negligent in retaining Madden after learning that

he had received two traffic citations within the first 12 months of his employment.

But as explained below, the sufficiency of the measures JMS took to ensure that

Madden was a safe driver is immaterial here, because the record contains no

evidence that Madden was an unlicensed, incompetent, or unfit driver.

      To establish breach in a negligent hiring claim, the plaintiff must show that

the defendant created an unreasonable risk of harm to others by hiring someone it

knew, or by the exercise of reasonable care should have known, was incompetent

or unfit. Dangerfield, 264 S.W.3d at 912. “An employer is not negligent when

there is nothing in the employee’s background that would cause a reasonable

employer not to hire or retain the employee.” Martinez v. Hays Const., Inc., 355

S.W.3d 170, 180 (Tex. App.—Houston [1st Dist.] 2011, no pet.), disapproved on

other grounds by Gonzalez v. Ramirez, 463 S.W.3d 499 (Tex. 2015). Thus,

Mejia-Rosa must prove that Madden was unfit or incompetent to prevail on her


                                        28
negligent   hiring   claim.   See   Martinez   v.   Wahl    Landscape,    Inc.,   No.

04-11-00091-CV, 2012 WL 1363030, at *4 (Tex. App.—San Antonio Apr. 18,

2012, no pet.) (mem. op.) (“Absent evidence of incompetence, [plaintiffs] cannot

support their claims for negligent hiring, retention, and supervision.”); Mireles v.

Ashley, 201 S.W.3d 779, 783 (Tex. App.—Amarillo 2006, no pet.) (to survive

summary judgment, plaintiff must present more than a scintilla of evidence

employee was an incompetent driver because employer “could not know that

[employee] was an incompetent driver unless [he] was, in fact, an incompetent

driver”); Schleicher v. Church & Dwight Co, No. 01-96-00613-CV, 1998 WL

163699, at *5 (Tex. App.—Houston [1st Dist.] Apr. 9, 1998, no pet.) (“[B]efore an

employer may be held liable under the doctrine of negligent retention, the plaintiff

must prove the unfitness or incompetence of the employee.”).

      For the same reasons we held above that Mejia-Rosa failed to present

evidence that Madden was unlicensed, reckless, or incompetent to avoid dismissal

of her negligent entrustment claim, we hold that she has not presented evidence

establishing a genuine issue of fact as to whether Madden was incompetent or unfit

as is necessary to survive no-evidence summary judgment on her negligent hiring

claim.5 That is, the two traffic citations—the only evidence Mejia-Rosa offered to


5
      Because authority addressing this element of negligent hiring claims is scant,
      courts have looked to negligent entrustment caselaw addressing incompetence and
      recklessness in evaluating whether a driver was unfit or incompetent. See Farwah
                                         29
show that Madden was an incompetent or unfit driver—are not enough to create a

fact issue. See Mayes, 236 S.W.3d at 758 (citations for driving without liability

insurance and rear-ending another car in three-year period prior to hiring and one

citation for speeding while employed by defendant insufficient to show driver

incompetent or reckless); Hous. Cab, 249 S.W.3d at 746–47 (two convictions for

driving without insurance, one citation for injury accident, and one license

suspension for failure to carry insurance legally insufficient to support recklessness

or incompetence finding); Nobbie, 763 S.W.2d at 593 (two license suspensions,

one speeding ticket, and one citation for defective headlamp legally insufficient to

support incompetence or recklessness finding).

      Because Mejia-Rosa failed to present evidence of breach, we hold that the

trial court properly granted JMS’s no-evidence summary-judgment motion on her

negligent hiring claim. See TEX. R. CIV. P. 166a(i).6


      v. Prosperous Mar. Corp., 220 S.W.3d 585, 598 (Tex. App.—Beaumont 2007, no
      pet.) (in negligent hiring case, driver’s incompetency “typically proven by
      showing that the driver is unlicensed or reckless” under negligent entrustment
      caselaw); Mireles v. Ashley, 201 S.W.3d 779, 783–84 & 783 n.4 (Tex. App.—
      Amarillo 2006, no pet.) (consulting negligent entrustment cases to inform
      incompetence inquiry for negligent hiring claim).
6
      Because we hold that Mejia-Rosa failed to present evidence that Madden was an
      incompetent or unfit driver, we need not address her argument that JMS breached
      a standard of care by violating its own High Risk Driver policy. We note,
      however, that a company’s noncompliance with its own internal procedures does
      not establish a standard of care for a negligence claim. FFE Transp. Servs., Inc. v.
      Fulgham, 154 S.W.3d 84, 92 (Tex. 2004) (“[Defendant]’s self-imposed policy
      with regard to inspection of its trailers, taken alone, does not establish the standard
      of care that a reasonably prudent operator would follow.”).
                                            30
Negligent Training

      Mejia-Rosa contends that JMS breached its duty to her by failing to properly

train Madden as a driver because “the only driving safety training that Madden

received after he was hired consisted of three ride-alongs.” Here again, Mejia-Rosa

failed to present any evidence of breach.

      To satisfy her burden to show that a genuine issue of fact exists as to the

element of breach on her negligent training claim, Mejia-Rosa had to present

evidence that a reasonably prudent employer would have provided training beyond

that which was given. See Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 312 (Tex.

App.—Houston [1st Dist.] 2007, no pet.) (affirming summary judgment on

negligent training claim where plaintiff “produced no evidence showing that

training or instruction beyond that given by [employer] would be necessary or

proper by a reasonably prudent employer”); see also Najera v. Recana Sols., LLC,

No. 14-14-00332-CV, 2015 WL 4985085, at *7 (Tex. App.—Houston [14th Dist.]

Aug. 20, 2015, no pet.) (mem. op.) (summary judgment proof failed to raise

genuine issue of material fact on breach of duty to train where plaintiff did not

“provide any evidence regarding what training a reasonably prudent employer

could or should have provided to prevent or stop the assault”); Castillo v. Gared,

Inc., 1 S.W.3d 781, 786 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)




                                            31
(“[Plaintiff] has produced no evidence that the policies advocated . . . are necessary

or desirable, or that the failure to have such policies constitutes negligence.”).

      Mejia-Rosa’s only evidence that a reasonably prudent employer would have

provided training beyond that which was given was an excerpt from JMS’s Fleet

Safety Program Manual stating that JMS would provide periodic driver safety

training and obtain annual driving records for its drivers. But as the Texas Supreme

Court has explained, a company’s self-imposed policy or practice, “taken alone,

does not establish the standard of care that a reasonably prudent operator would

follow.” FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 92 (Tex. 2004). We

therefore conclude that she failed to present any evidence to show that a reasonably

prudent employer would have provided driver training beyond that provided

Madden.7 See Aleman, 227 S.W.3d at 312.

      Accordingly, we hold that because Mejia-Rosa failed to present a fact issue

regarding breach, the trial court properly granted JMS’s no-evidence summary

judgment motion dismissing her negligent training claim. See TEX. R. CIV. P.

166a(i).




7
      We also note that Madden’s deposition testimony states that he attended a weekly
      training program that included driver safety.

                                          32
      3.    Gross Negligence

      In her live petition, Mejia-Rosa alleged that JMS was grossly negligent both

directly in hiring, training, and entrusting Madden with a company van, and

vicariously under the doctrine of respondeat superior.

      “[A] gross-negligence finding is relevant only to an assessment of punitive

damages.” Nowzaradan v. Ryans, 347 S.W.3d 734, 741 (Tex. App.—Houston

[14th Dist.] 2011, no pet.); see TEX. CIV. PRAC. & REM. CODE § 41.003 (exemplary

damages recoverable for fraud, malice, or gross negligence). A plaintiff may not

recover punitive damages unless she proves her entitlement to actual damages.

TEX. CIV. PRAC. & REM. CODE § 41.004(a) (“[E]xemplary damages may be

awarded only if damages other than nominal damages are awarded.”); Fed.

Express Corp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex. 1993) (“Recovery of

punitive damages requires a finding of an independent tort with accompanying

actual damages.”); Avdeef v. Powers, No. 05-11-01369-CV, 2012 WL 3115067, at

*1 (Tex. App.—Dallas July 11, 2012, no pet.) (mem. op.) (“Because [plaintiff]

asserted no grounds on which he could recover actual damages, he asserted no

grounds under which he might be entitled to recover exemplary damages.”).

      Accordingly, Mejia-Rosa’s gross-negligence claims do not survive our

determination that the trial court properly granted summary judgment dismissing

her predicate claims. See, e.g., Martinez v. Arafat, No. 01-15-00161-CV, 2016 WL


                                         33
743805, at *5 (Tex. App.—Houston [1st Dist.] Feb. 25, 2016, no pet.) (mem. op.)

(“Because there is no evidence to support [plaintiff]’s negligence claim against

[defendant], his gross negligence claim also fails.”); Samson v. Ghadially, No.

14-12-00522-CV, 2013 WL 4477863, at *4 n.14 (Tex. App.—Houston [14th Dist.]

Aug. 20, 2013, no pet.) (mem. op.) (“Because [plaintiff] adduced no evidence of

any of his claims, he also could not establish exemplary damages.”).

      We overrule Mejia-Rosa’s second issue.

                                   Conclusion

      We affirm the trial court’s summary judgment in favor of JMS.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Keyes, Higley, and Landau.




                                        34
