Opinion issued March 17, 2016




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-15-00596-CV
                             ———————————
                       JOSEPH ELMER BACA, Appellant
                                          V.
   PEDRO SANCHEZ JR. INDIVIDUALLY AND D/B/A POINT 2 POINT
                      TOWING, Appellee


                    On Appeal from the 295th District Court
                             Harris County, Texas
                       Trial Court Case No. 2014-48289


                           MEMORANDUM OPINION

      In this appeal from a summary judgment, we determine whether evidence

exists to support a claim for vicarious liability. Finding no error, we affirm.
                                 BACKGROUND

        Joseph Baca was driving home after meeting a friend for breakfast when his

car overheated. Baca called his mechanic, who provided him with the phone

number for Pedro Sanchez’s company, Point 2 Point Towing. Baca called Point 2

Point Towing and asked for a tow. Shortly afterward, a flatbed tow truck driver

arrived to transport his car.

        Baca rode in the passenger cab of the tow truck to his mechanic’s shop.

The tow truck driver parked at the shop and exited the truck. As Baca climbed out

of the passenger side of the cab, the driver pulled a lever to tilt the truck bed back

and unload Baca’s car. This caused the truck to jerk. The movement jostled Baca

as he exited, and he fell to the ground. Baca injured his shoulder and his hip in the

fall.

        Baca sued Pedro Sanchez and Point 2 Point Towing for negligence. In his

original petition, Baca named Sanchez as the driver who towed his car. Baca later

learned, however, that Sanchez was not the driver of the tow truck on the day he

was injured. In his deposition, Baca admitted that he did not recognize Sanchez as

the driver. Baca, however, produced a photograph of a flatbed tow truck that he

claimed was the one that he fell from that he took while the truck sat in a tow yard

six months after the accident.




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      In his deposition, Sanchez denied towing Baca’s car and denied owning a

flatbed tow truck. He explained that he referred jobs to other towing companies as

a professional courtesy when he was too busy to respond to a request for a tow

truck. Sanchez presented photos of a similar-looking flatbed truck to the one that

Baca photographed six months after the accident; the name of a different towing

company was written on the side.

      Sanchez moved for a traditional and a no-evidence summary judgment on

the basis that he was not the driver who committed the alleged negligence and that

there was no evidence that Sanchez owed any duty to Baca. In response, Baca

amended his petition, alleging that Sanchez was vicariously responsible for the

driver’s alleged negligence in operating the flatbed lift.

                                    DISCUSSION

      On appeal, Baca contends that the trial court erred in granting summary

judgment because some evidence supports his claim that Sanchez is vicariously

liable for the tow truck driver’s negligent acts.

      I.     Standard of Review

      We review de novo the trial court’s ruling on a motion for summary

judgment. Samuel v. Fed. Home Loan Mortg. Corp., 434 S.W.3d 230, 233 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (citing Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)). When reviewing a



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summary judgment, we credit all evidence favorable to the nonmovant and resolve

any doubts in the nonmovant’s favor. 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); Sci. Spectrum v. Martinez, 941 S.W.2d 910, 911

(Tex. 1997).

      Traditional summary judgment is proper only if the movant establishes that

there is no genuine issue of material fact and that the movant is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c). The motion must state the

specific grounds relied upon for summary judgment. Id. A defendant moving for

traditional summary judgment must conclusively negate at least one essential

element of each of the plaintiff’s causes of action or conclusively establish each

element of an affirmative defense. Sci. Spectrum, Inc., 941 S.W.2d at 911.

      After adequate time for discovery, a party may move for a no-evidence

summary judgment on the ground that no evidence exists to support one or more

essential elements of a claim or defense on which the opposing party has the

burden of proof. TEX. R. CIV. P. 166a(i). The trial court must grant the motion

unless the nonmovant produces summary judgment evidence raising a genuine

issue of material fact. Id. More than a scintilla of evidence exists if the evidence

“would allow reasonable and fair-minded people to differ in their conclusions.”

Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003).



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      II.    Analysis

      Baca contends that an agency relationship existed between Sanchez and the

tow truck driver based on the driver’s apparent authority to act for Sanchez. He

points out that neither Sanchez nor the tow truck driver informed Baca that the

driver did not work for Sanchez.         Baca contends that this principal-agent

relationship makes Sanchez vicariously liable for the driver’s actions.

      Under the doctrine of vicarious liability, an employer may be liable for the

negligence of an agent or employee acting within the scope of the agency or

employment.     Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947

(Tex. 1998) (citing DeWitt v. Harris Cty., 904 S.W.2d 650, 654 (Tex. 1995);

RESTATEMENT (SECOND)       OF   AGENCY § 219 (1958)).      The summary judgment

record in this case, however, reveals no evidence that Sanchez employed the tow

truck driver or that the driver was his agent in conducting tows.

      Baca, however, urges that the record supports a finding of apparent

authority. A principal may be responsible for the actions of a third party if the

third party acted with apparent authority, even if the apparent agent lacks actual

authority. See Nears v. Holiday Hosp. Franchising, Inc., 295 S.W.3d 787, 793

(Tex. App.—Texarkana 2009, no pet.) (citing Ames v. Great S. Bank, 672 S.W.2d

447, 450 (Tex. 1984)). Apparent authority can be proven through a principal’s

actions, which “clothe an agent with the indicia of authority, thus leading a



                                          5
reasonably prudent person to believe that the agent has the authority she purports

to exercise.” Sampson, 969 S.W.2d at 949 (quoting Ames, 672 S.W.2d at 450). In

evaluating a claim of apparent authority, only the conduct of the principal is

relevant. Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex. 2007) (citing NationsBank,

N.A. v. Dilling, 922 S.W.2d 950, 953 (Tex. 1996) (per curiam)). We thus examine

whether apparent authority existed from the standpoint of a reasonably prudent

person, focusing on the conduct of the principal and the reasonableness of the third

party’s assumptions about that authority. See id. at 182–83 (citing Chastain v.

Cooper & Reed, 257 S.W.2d 422, 427 (Tex. 1953)).

      Sanchez referred Baca’s request to a different towing company under a

mutual referral arrangement with several other towing companies. Under their

arrangement, Sanchez received no payment for his referrals. Sanchez admitted that

he called in requests to the other companies himself, rather than asking the

customer to call one of them.

      Baca points to the evidence that Sanchez failed to disclose that the driver he

sent did not work for him. Baca contends that because Sanchez acted as a broker

between Baca and the driver, the driver had apparent authority to act for Sanchez.

No evidence in the record demonstrates, however, that Baca paid Sanchez or Point

2 Point for the tow, or that the tow truck driver remitted any payment to Sanchez.

Without more, Sanchez’s uncompensated referral to another company does not



                                         6
support vicarious liability.   See Gaines, 235 S.W.3d at 182–83; Dilling, 922

S.W.2d at 953; Ames, 672 S.W.2d at 450; Chastain, 257 S.W.2d at 427.

      Baca asks that we take judicial notice of a government vehicle registration

record presented for the first time in the court of appeals, which he alleges shows

that Sanchez owns a flatbed truck. In connection with this record, he also proffers

a photograph of a Point to Point flatbed truck, which he alleges matches a truck

listed in the registration record. The record and the photograph were not filed in

the trial court and are not part of the summary-judgment record. For that reason,

we decline to consider them. See TEX. R. EVID. 201(b); Harper v. Killion, 348

S.W.2d 521, 523 (Tex. 1961); Hendee v. Dewhurst, 228 S.W.3d 354, 377 (Tex.

App.—Austin 2007, pet. denied); Cherqui v. Westheimer St. Festival Corp., 116

S.W.3d 337, 342 n.2 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“[W]e

cannot consider documents attached as appendices to briefs and must consider a

case based upon the record filed.”); Fields v. City of Tex. City, 864 S.W.2d 66, 69

(Tex. App.—Houston [14th Dist.] 1993, writ denied).




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                                   Conclusion

      We affirm the summary judgment of the trial court.




                                            Jane Bland
                                            Justice

Panel consists of Justices Bland, Brown, and Lloyd.




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