                              Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION
                                        No. 04-11-00851-CV

                               Richard CASTILLO and Patsy Castillo,
                                           Appellants

                                                   v.

                         GULF COAST LIVESTOCK MARKET, L.L.C.,
                                       Appellee

                    From the 79th Judicial District Court, Jim Wells County, Texas
                                  Trial Court No. 10-03-48841-DV
                           Honorable Richard C. Terrell, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 19, 2012

AFFIRMED

           This is an appeal from a take-nothing judgment on claims filed by Richard Castillo and

his wife, Patsy Castillo, against Gulf Coast Livestock Market, L.L.C. Castillo was injured when a

tractor trailer backed into him on Gulf Coast’s premises. The Castillos brought claims against

Gulf Coast for premises liability, negligent hiring of the driver of the tractor trailer, and

negligence. Gulf Coast filed three summary judgment motions, which together addressed all of

the claims brought by the Castillos. The trial court granted all of Gulf Coast’s summary

judgment motions, and rendered final judgment that the Castillos take nothing on their claims.
                                                                                         04-11-00851-CV


On appeal, the Castillos argue the trial court erred in granting summary judgment on their

negligence and negligent hiring claims, and in excluding the affidavit of their expert witness. We

affirm the trial court’s judgment.

                                            BACKGROUND

          Gulf Coast is in the business of brokering the sale of livestock. It operates a livestock

auction barn in Alice, Texas. Ninety-percent of Gulf Coast’s business involves selling animals

that are transported to the auction barn by their owners.

          Castillo is an animal inspector, employed by the Texas Animal Commission.

          On August 5, 2008, Castillo was injured on Gulf Coast’s premises when a tractor trailer

loaded with cattle backed into him. Gulf Coast did not own the tractor trailer. The tractor trailer

was driven by Charles W. Hellen, III, who was not a Gulf Coast employee. Hellen did not own

the tractor trailer, nor did he own the cattle in the tractor trailer. The cattle in the tractor trailer,

owned by someone who is not a party to this case, were being delivered to the auction barn for

sale. The accident occurred when Hellen was backing the tractor trailer into a designated area for

unloading by Gulf Coast employees.

          The Castillos sued Gulf Coast for premises liability, negligence, and negligent hiring.

After answering the suit and conducting discovery, Gulf Coast filed three summary judgment

motions. The first summary judgment motion addressed the Castillos’ premises liability claim.

The trial court granted the first summary judgment motion. This ruling is not challenged on

appeal.

          The second summary judgment motion addressed both the Castillos’ negligence and

negligent hiring claims. In this motion, which was both a traditional and no evidence summary

judgment motion, Gulf Coast asserted the Castillos could not recover on their negligent hiring



                                                  -2-
                                                                                    04-11-00851-CV


claim because (1) Gulf Coast did not hire Hellen and therefore it owed no duty to the Castillos,

and (2) there was no evidence that Gulf Coast hired Hellen on the day of the accident. Attached

to its second summary judgment motion was the affidavit of Gulf Coast managing owner, David

Shelton. In the affidavit, Shelton testified as follows:

               On the date of the accident I had an agreement with Freddie Moore to
       distribute a portion of the proceeds from the sale of livestock in exchange for his
       delivery of livestock to Gulf Coast Livestock Market. On the date of the accident
       I expected Freddie Moore to deliver the livestock to Gulf Coast Livestock Market.
       I did not know that Mr. Moore had hired Charles Hellen to deliver the cattle on
       that day. Gulf Coast Livestock Market had no written agreement with Charles
       Hellen and did not hire him. Gulf Coast Livestock Market is not involved in the
       business of transporting livestock. Neither myself nor Gulf Coast Livestock
       Market were involved in hiring, or the decision to hire, Charles Hellen.

Alternatively, Gulf Coast argued in its second summary judgment motion that the Castillos’

negligence and negligent hiring claims were foreclosed because there was no evidence of

proximate cause.

       The third summary judgment motion addressed the Castillos’ negligence claim, which

was based on a vicarious liability theory. The Castillos alleged Gulf Coast was liable for Hellen’s

negligence because, even if Gulf Coast did not literally employ Hellen, Gulf Coast was liable

because it was a motor carrier and Hellen was its statutory employee. In this motion, which was

a no-evidence summary judgment motion, Gulf Coast alleged there was no evidence it was a

motor carrier as that term is defined in section 643.001(6) of the Texas Transportation Code.

       The Castillos filed responses to the second and third summary judgment motions, and

attached evidence to these responses. The Castillos’ evidence included Hellen’s deposition

testimony, Gulf Coast’s bookkeeping records, and an expert witness affidavit. Gulf Coast

objected to the expert witness affidavit, arguing the expert was not qualified to offer legal

conclusions, and his testimony was conclusory and unreliable. The trial court sustained these



                                                 -3-
                                                                                     04-11-00851-CV


objections, and excluded the expert witness’s affidavit. Thereafter, the trial court granted Gulf

Coast’s second and third summary judgment motions, and rendered judgment that the Castillos

take nothing on their claims. The Castillos appealed.

                        NO-EVIDENCE SUMMARY JUDGMENT STANDARD

         After an adequate time for discovery, a party who does not have the burden of proof at

trial, may move for a no-evidence summary judgment on the ground that there is no evidence of

one or more essential elements of the respondent’s claim or defense. TEX. R. CIV. P. 166a(i).

After a no-evidence summary judgment motion is filed, the burden shifts to the respondent to

present evidence raising a genuine issue of material fact as to the elements specified in the

motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). “The [trial] court must

grant the motion unless the respondent produces summary judgment evidence raising a genuine

issue of material fact.” TEX. R. CIV. P. 166a(i). Appellate courts affirm a no-evidence summary

judgment when (1) there is a complete absence of a vital fact, (2) the court is barred by rules of

law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the

evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively

establishes the opposite of a vital fact. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.

2005).

                                      NEGLIGENCE CLAIM

         The Castillos argue the trial court erred in granting summary judgment as to their

negligence claim because Gulf Coast was Hellen’s statutory employer and therefore was

vicariously liable for Hellen’s negligent conduct. Statutory employment is a theory of vicarious

liability created by the Federal Motor Carrier Safety Regulations (FMCSR). Omega Contracting,

Inc. v. Torres, 191 S.W.3d 828, 848 (Tex. App.—Fort Worth 2006, no pet.). Under the FMCSR,



                                                -4-
                                                                                                      04-11-00851-CV


a “motor carrier” is vicariously liable for the negligence of its “statutory employee” drivers.

Martinez v. Hays Constr., Inc., 355 S.W.3d 170, 184 (Tex. App.—Houston [1st Dist.] 2011, no

pet.); Tamez v. S.W. Motor Transp., Inc., 155 S.W.3d 564, 573 (Tex. App.—San Antonio 2005,

no pet.); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 43 (Tex. App.—Fort Worth 2002, no

pet.).

         The Texas Department of Public Safety has adopted a majority of the FMCSR. 37 TEX.

ADMIN. CODE § 4.11(a) (2012). The FMCSR defines an “employee” as “including an

independent contractor while in the course of operating a commercial motor vehicle.” Id.; 49

C.F.R. § 390.5 (2012). In addition, the FMCSR defines “employer” as “any person engaged in a

business affecting interstate commerce who owns or leases a commercial motor vehicle in

connection with that business, or assigns employees to operate it.” 37 TEX. ADMIN. CODE

§ 4.11(a); 49 C.F.R. § 390.5. Although the FMCSR also defines “motor carrier,” Texas uses the

definition of motor carrier provided in section 643.001(6) of the Texas Transportation Code. 1 37

TEX. ADMIN. CODE § 4.11(b)(1). The Texas Transportation Code defines “motor carrier” as “an

individual, association, corporation, or other legal entity that controls, operates, or directs the

operation of one or more vehicles that transport persons or cargo over a road or highway in this

state.” TEX. TRANSP. CODE ANN. § 643.001(6) (West 2011) (emphasis added).

         Here, Gulf Coast moved for summary judgment asserting there was no evidence it was a

“motor carrier” as that term is defined in § 643.001(6) of the Texas Transportation Code, and

therefore, Hellen could not be its statutory employee. In response, the Castillos contended that

there was some evidence that Gulf Coast was a motor carrier because it controlled, operated, or

1
 The FMCSR provides, “Motor carrier means a for-hire motor carrier or a private motor carrier. The term includes a
motor carrier’s agents, officers and representatives as well as employees responsible for hiring, supervising, training,
assigning, or dispatching of drivers and employees concerned with the installation, inspection, and maintenance of
motor vehicle equipment and/or accessories.” 49 C.F.R. § 390.5.


                                                         -5-
                                                                                    04-11-00851-CV


directed the operation of one or more vehicles that transport persons or cargo over a road or

highway in this state. The Castillos produced evidence in support of their contention.

       The only Texas case applying the definition of “motor carrier” found in section

643.001(6) of the Texas Transportation Code is Martinez v. Hays Constr. Inc., 355 S.W.3d 170,

185 (Tex. App.—Houston [1st Dist.] 2011, no pet.). In Martinez, a construction company was

sued for negligent hiring, negligence, and vicarious liability under the Texas Motor Carrier

Safety Regulations, after a truck driver who was hauling dirt for the construction company was

involved in a fatal traffic accident. Id. at 173. The trial court granted summary judgment in favor

of the construction company, and the plaintiff appealed. The court of appeals reversed,

concluding a material fact issue existed as to whether the construction company controlled,

operated, or directed the operation of dump trucks used to haul dirt for an excavation project and

therefore fell within the definition of “motor carrier” in section 643.001(6) of the Texas

Transportation Code. Id. at 185.

       The summary judgment evidence in Martinez showed the construction company had

contracted with a county to perform excavation work at a particular site. Id. at 173. The

excavation work consisted of removing dirt from the excavation site and hauling it to another

site. Id. The construction company obtained quotes from multiple truck drivers about hauling the

dirt on a per-load basis. Id. After the construction company and the truck drivers agreed on a cost

per load, the construction company called the drivers each day and requested their services based

on the amount of dirt that needed to be removed from the excavation site. Id. When the truck

drivers arrived at the excavation site to pick up a load, construction company employees would

check their drivers’ licenses and proof of insurance. Id. at 174. Construction company employees

would then load the dump trucks at the excavation site. Id. The truck drivers had no control over



                                               -6-
                                                                                      04-11-00851-CV


how much dirt was loaded in their trucks, and could not request removal of the dirt if they felt

the truck was overloaded. Id. The truck drivers would then deliver the dirt to the drop-off site. Id.

At the drop-off site, the truck drivers were given a receipt for each load delivered, and were

ultimately paid based on the number of receipts they obtained. Id. The construction company

also provided hauling permits for the truck drivers. Id. After viewing the evidence in the light

most favorable to the non-movant, the First Court of Appeals concluded that the evidence in

Martinez raised a material fact issue as to whether the construction company fell within the

definition of motor carrier provided in section 643.001(6) of the Texas Transportation Code. Id.

at 185.

          Here, the Castillos maintain they presented evidence raising a genuine issue of material

fact as to whether Gulf Coast controlled, operated, or directed Hellen’s work. To raise a genuine

issue of material fact as to whether Gulf Coast was a motor carrier, the Castillos had to produce

more than a scintilla of evidence that Gulf Coast controlled, operated, or directed the operation

of the tractor trailer driven by Hellen. See TEX. TRANSP. CODE ANN. § 643.001(6) (West 2011)

(emphasis added). A no-evidence summary judgment motion is properly granted when the

respondent fails to bring forth more than a scintilla of probative evidence that raises a genuine

issue of material fact. See Sanchez v. Mulvaney, 274 S.W.3d 708, 711 (Tex. App.—San Antonio

2008, no pet.); TEX. R. CIV. P. 166a(i). More than a scintilla exists if the evidence would allow

reasonable and fair-minded people to differ in their conclusions. Sanchez, 274 S.W.3d at 711.

Less than a scintilla exists if the evidence is so weak as to do no more than create a mere surmise

or suspicion of a fact. Id.

          The Castillos produced three relevant pieces of evidence. First, the Castillos produced the

deposition testimony of Gulf Coast’s managing owner, David Shelton. Shelton acknowledged in



                                                 -7-
                                                                                    04-11-00851-CV


his deposition that Gulf Coast’s website stated it had “hauling available.” Shelton explained this

meant that Gulf Coast could find a truck and a trucker to transport a customer’s livestock to its

facility. Shelton testified that ninety percent of the livestock sold by Gulf Coast was transported

by the owners themselves; Gulf Coast arranged hauling for about ten percent of the livestock it

sold. Shelton further testified that when a customer inquired about hauling, Gulf Coast would

identify a trucker to transport the livestock, and would contact the trucker. According to Shelton,

Gulf Coast would tell the trucker how many heads of livestock were involved and where they

were located. Shelton further testified the trucker, not Gulf Coast, was responsible for his truck.

When the trucker arrived at the auction barn, Gulf Coast employees would unload the livestock

from the trailers. According to Shelton, Gulf Coast was responsible for the livestock as it stepped

onto its property; however, Gulf Coast employees were instructed not to enter the delivery

trucks.

          Second, the Castillos produced the deposition testimony of Gulf Coast’s assistant

manager and yard foreman, Richard Shimer. Shimer testified that Gulf Coast accommodates its

customers in a variety of ways, including assisting those customers who are unable to bring

livestock to its auction barn on their own. Shimer stated he owned a truck and trailer and, if a

customer needed help transporting a small load of livestock to the auction barn, he would haul

the livestock himself. Shimer stated that if he hauled livestock for a customer in his truck he

would either be paid on the spot, or he would receive a check from Gulf Coast. Shimer explained

this fee was not part of his salary from Gulf Coast, but was paid out of the seller’s fee. Shimer

further stated Gulf Coast did not have a list of truckers it called when a client expressed a need

for hauling.




                                               -8-
                                                                                      04-11-00851-CV


       Third, the Castillos produced a sign that was posted near the accident site stating,

“Loading and unloading of livestock is to be done by employees only.”

       The Castillos contend their case is similar to the situation presented in Martinez, where

the First Court concluded that a material fact issue existed as to whether the construction

company was a motor carrier under the definition provided in section 643.001(6) of the Texas

Transportation Code. Id. at 185. We disagree. The present case is distinguishable from Martinez.

In Martinez, the evidence showed the construction company was ultimately responsible for

hauling dirt from the construction project. Id. Additionally, the construction company obtained

hauling permits and determined the ultimate location for transporting and unloading the dirt; the

construction company’s employees actually loaded each dump truck, checked each driver’s

license and proof of insurance, and informed each driver where to take the dirt; and the

construction company indirectly paid the drivers on a per-load basis. Id.

       Here, by contrast, Gulf Coast exercised no control over the drivers and the trucks. Gulf

Coast contacted drivers on an as-needed basis to accommodate a small percentage of its

customers. Gulf Coast’s employees did not perform the loading, nor did Gulf Coast direct the

size of the load at the pick-up site. Gulf Coast did not direct the route to be taken by the drivers,

nor did it exercise any other control over the trucks or the drivers as they transported the

livestock to Gulf Coast’s auction barn. Although Gulf Coast’s employees unloaded the livestock

on Gulf Coast’s premises, this was done only after the truck was parked in the unloading area. In

fact, the evidence showed that Gulf Coast employees were expressly instructed not to enter the

trucks delivering livestock, and to begin unloading only after the truck was parked in the

designated unloading area. Finally, the sign on Gulf Coast’s property stating, “Loading and

unloading of livestock is to be done by employees only,” was not specific to drivers hauling



                                                -9-
                                                                                     04-11-00851-CV


livestock on behalf of a third party. The sign applied to all of the drivers delivering livestock to

the auction barn.

       We conclude the Castillos failed to bring forth more than a scintilla of evidence that Gulf

Coast controlled, operated, or directed the operation of one or more vehicles that transport

persons or cargo over a road or highway in this state. See TEX. TRANSP. CODE ANN.

§ 643.001(6); see also Alaubali v. Rite Aid Corp., 320 F. App’x 765, 767-68 (9th Cir. 2008)

(concluding the defendant was not acting as a motor carrier when it hired a third party to provide

transportation services, and the third party controlled the execution of those services). Absent

such evidence, Gulf Coast was not a motor carrier, and could not be vicariously liable for

Hellen’s negligent conduct. We, therefore, conclude the trial court did not err in granting

summary judgment on the Castillos’ negligence claim.

                                   NEGLIGENT HIRING CLAIM

       Next, the Castillos argue the trial court erred in granting summary judgment as to their

negligent hiring claim. The Texas Supreme Court has “not ruled definitively on the existence,

elements, and scope” of negligent hiring claims. Waffle House, Inc. v. Williams, 313 S.W.3d 796,

804 n. 27 (Tex. 2010). However, Texas appellate courts have ruled that a negligent hiring claim

is a simple negligence cause of action based on an employer’s direct negligence. Morris, 78

S.W.3d at 49; Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex. App.—Houston [1st Dist.] 1999,

pet. denied); see Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.—Houston [14th

Dist.] 1998, pet. denied); Doege v. Sid Peterson Mem’l Hosp., No. 04-04-00570-CV, 2005 WL

1521193, at *7 (Tex. App.—San Antonio 2005, pet. denied); Malone v. Ellis Timber, Inc., 990

S.W.2d 933, 936 (Tex. App.—Beaumont 1999, no pet.). To prevail on a simple negligence

action, the plaintiff must prove (1) a legal duty, (2) a breach of that duty by the defendant, and



                                               - 10 -
                                                                                    04-11-00851-CV


(3) damages proximately caused by the breach. Greater Houston Transp. Co. v. Phillips, 801

S.W.2d 523, 525 (Tex. 1990); see Doege, 2005 WL 1521193, at *7. The basis of responsibility

for negligent hiring is the employer’s own negligence in hiring an incompetent individual whom

the employer knows, or by the exercise of reasonable care, should have known to be incompetent

or unfit, thereby creating an unreasonable risk of harm to others. Donaldson v. J.D. Transp. Co.,

Inc., No. 04-04-00607-CV, 2005 WL 1458230, at *2 (Tex. App.—San Antonio 2005, no pet.).

       Generally, there is no duty to control the conduct of third persons unless a special

relationship exists between the actor and the third person that imposes a duty upon the actor to

control the third person’s conduct. Triplex Commc’n, Inc. v. Riley, 900 S.W.2d 716, 720 (Tex.

1995); Verinakis, 987 S.W.2d at 97. Special relationships giving rise to such a duty include the

relationship between employer and employee, and independent contractor and contractee,

provided the contractee retains the right to control the contractor’s work. Phillips, 801 S.W.2d at

525; Verinakis, 987 S.W.2d at 97.

       “To raise a genuine issue of material fact . . . the evidence must transcend mere

suspicion.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). 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, no evidence. Id.

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

       In its second summary judgment motion, which invoked both the traditional and no-

evidence standards, Gulf Coast asserted it was entitled to summary judgment on the Castillos’

negligent hiring claim because (1) it had no duty to control Hellen’s conduct because it did not

hire Hellen; and (2) there was no evidence it hired Hellen. If the Castillos failed to produce more

than a scintilla of evidence under the no-evidence standard, there is no need to determine



                                               - 11 -
                                                                                    04-11-00851-CV


whether Gulf Coast’s summary judgment proof satisfied the traditional summary judgment

standard. See id. at 600; TEX. R. CIV. P. 166a(c).

       To support their contention that they produced evidence raising a material fact issue as to

whether Gulf Coast hired Hellen on the day of the accident, the Castillos point to Gulf Coast’s

bookkeeping records and Hellen’s deposition testimony. The bookkeeping records, which consist

of four pages titled, “Account Quick Report,” cover the years 2008 to 2011. Each page lists by

date, check number, and amount, checks paid to Hellen. The first page lists a payment of $55.00

on August 6, 2008, for “SALE 08/05/…” and a payment of $300.00 on August 11, 2008, for

“SALE 08/05/…” However, the summary judgment evidence established that the checks Gulf

Coast issued to Hellen were paid out of the sale proceeds due to the livestock owner. This

evidence was uncontroverted. Therefore, under the circumstances presented in this case, the

bookkeeping records showing checks payable to Hellen did not constitute evidence that Gulf

Coast hired Hellen as a contractor on the day of the accident.

       Hellen’s deposition testimony was as follows:

       Q:     Do me a favor and explain to me, please, how you’re notified from Gulf
       Coast [Livestock Market, LLC] that there’s livestock that they want you to pick
       up and deliver to them.

       A:       Well, I’ll get a call that they have a load for me to—to the sale barn, and
       I’ll just go pick them up. I’ll get a phone call from either Dick Shimer or David
       [Shelton] or Freddy Moore that receives the cattle.

       ***

       Q:      Okay. So essentially what would happen when Gulf Coast would have a
       load for you to transport is they would contact you, David Shelton or Dick Shimer
       or Freddy Moore would call you and say, Mr. Hellen we want you to pick up
       some livestock? Is that pretty much how it would go?

       A:      Yes, sir.

       Q:      And you would say something like, where do you want me—

                                                - 12 -
                                                                                    04-11-00851-CV


       A:      I’ll get—

       Q:      —to pick it up?

       A:      I’ll get them there. I already know where to pick them up and where to go.

       Q:    Okay. Is that what happened for the load that you were delivering on
       August 5, 2008?

       A:      Had to be.

(emphasis added). The summary judgment evidence in this case showed that Shimer and Shelton

were representatives of Gulf Coast; and Moore, who operated a separate business called

Hebbronville Pens, was not a representative of Gulf Coast.

       Contrary to the representations made in the Castillos’ brief, Hellen did not testify that

Gulf Coast hired him on the day of the accident. Hellen only testified that either a representative

from Gulf Coast or a representative from Hebbronville Pens notified him that there was a load of

cattle for him to pick up. In fact, Hellen was not directly asked who hired him. Rather, Hellen

was asked how he was notified that livestock needed to be taken to Gulf Coast’s auction barn. In

response, Hellen indicated that it “[h]ad to be” either Shimer, Shelton, or Moore, who notified

him on the day of the accident. We conclude Hellen’s equivocal deposition testimony was so

weak it did no more than create a mere surmise or suspicion that he was hired by Gulf Coast. See

id. at 601; Madisonville State Bank, N.A. v. Citizens Bank of Texas, N.A., 184 S.W.3d 835, 839

(Tex. App.—Beaumont 2006, no pet.) (holding testimony did not constitute more than a scintilla

of evidence when it was at best equivocal).

       The Castillos argue in their brief that “Gulf Coast cannot escape the reality that either it

hired Hellen or it hired the entity that hired [] Hellen to transport livestock for Gulf Coast

without checking the competence of either.” At oral argument, the Castillos again argued it did

not matter if the evidence showed that Gulf Coast hired Hellen to transport the cattle, or if the

                                               - 13 -
                                                                                     04-11-00851-CV


evidence showed Gulf Coast hired Hebbronville Pens to transport the cattle. We disagree. If

Hebbronville Pens hired Hellen to transport the cattle, the relationship between Hellen and Gulf

Coast would be too attenuated to support a claim for negligent hiring. See Malone, 990 S.W.2d at

936 (concluding the relationship between the employer and the contractor was too attenuated to

support a claim for negligent hiring when there was no evidence that an employer hired the

contractor to transport timber to a mill).

       We conclude the Castillos presented no more than a scintilla of evidence that Gulf Coast

hired Hellen to transport cattle on the day of the accident. As a consequence, the Castillos failed

to meet their burden of producing summary judgment evidence raising a genuine issue of

material fact. We, therefore, conclude the trial court did not err in granting summary judgment

on the Castillos’ negligent hiring claim.

                                EXCLUSION OF THE EXPERT’S AFFIDAVIT

       Finally, the Castillos argue the trial court abused its discretion in excluding the affidavit

of their commercial trucking and safety expert, Roger C. Allen. To obtain reversal of a judgment

based on the erroneous admission or exclusion of evidence, an appellant must show that the trial

court’s ruling was in error, and that the error probably caused the rendition of an improper

judgment. See TEX. R. APP. P. 44.1; State v. Cent. Expressway Sign Assoc., 302 S.W.3d 866, 870

(Tex. 2009); Doncaster v. Hernaiz, 161 S.W.3d 594, 601 (Tex. App.—San Antonio 2005, no

pet.). In other words, to successfully challenge an evidentiary ruling on appeal, an appellant must

show that the judgment turns on the particular excluded evidence. Doncaster, 161 S.W.3d at 601.

       Here, the Castillos essentially argue the exclusion of Allen’s affidavit caused the

rendition of an improper judgment because Allen’s affidavit had a direct bearing on the

proximate cause elements of their claims. Yet, we have already concluded the summary



                                               - 14 -
                                                                                     04-11-00851-CV


judgment was properly granted on grounds other than the absence of evidence of proximate

cause. The Castillos’ argument concerning the exclusion of the expert witness’s affidavit is

therefore unnecessary to the disposition of this appeal. See TEX. R. APP. P. 47.1.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                          Karen Angelini, Justice




                                                 - 15 -
