                                   NO. 07-05-0280-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                     APRIL 17, 2006

                          ______________________________

                      ROSA MIRELES, INDIVIDUALLY
            AND ON BEHALF OF THE ESTATE OF RAUL MIRELES, JR.,
            DECEASED MINOR AND RAMON LANDEROS, APPELLANTS

                                            V.

                        JEFF ASHLEY, INDIVIDUALLY AND
                   ASHLEY CATTLE COMPANY, INC., APPELLEES
                      _________________________________

           FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

                NO. CI-04E-091; HONORABLE ROLAND SAUL, JUDGE
                        _______________________________


Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                                         OPINION


       Appellants, Rosa Mireles and Ramon Landeros (collectively, “Mireles”), appeal the

trial court’s grant of a no-evidence summary judgment in favor of appellees, Jeff Ashley and

Ashley Cattle Company, Inc. (collectively, “Ashley”), on Mireles’s claim that Ashley was

negligent in hiring Jimmy West. We reverse and remand.
                                        Background


       On March 17, 2004, West, hauling cattle for Ashley, ran a red light and collided with

a vehicle containing Landeros and Raul Mireles, Jr. As a result of the collision, Raul

Mireles was killed and Landeros sustained serious injuries.


       Mireles filed suit against West for negligence, Ashley for negligent hiring, and West,

Ashley and Southwest Feedyard, L.P., for liability as joint enterprisers. After discovery,

Ashley filed a motion for summary judgment alleging that Mireles had no evidence that: (1)

Ashley knew or should have known of any reason not to hire West, (2) any inquiry would

have resulted in the conclusion that West was a negligent contractor, and (3) Ashley and

West had formed a joint enterprise. Mireles filed a response to Ashley’s summary

judgment motion, which included excerpts of West’s deposition, an affidavit of David

Dwinell, the results of an investigation into West’s driving record, and statements made to

the police immediately following the collision.1 The trial court granted Ashley’s motion for

summary judgment and entered judgment that Mireles take nothing by their suit against

Ashley. Following entry of this summary judgment, the trial court severed Mireles’s claims

against Ashley, and Mireles appealed.


       By one issue, Mireles contends that the evidence provided in response to Ashley’s

summary judgment motion was sufficient to overcome a no-evidence motion because such

evidence demonstrated that (1) Ashley had a duty to, but did not, inquire into West’s


       1
       Mireles’s response does not purport to address the issue of West, Ashley, and
Southwest Feedyard’s liability as joint venturers and the evidence presented does not
address this issue.

                                             2
background, and (2) had such an inquiry been made, Ashley would have discovered that

West was not qualified for the job.


                                      Standard of Review


       After adequate time for discovery, a party may move for a summary judgment on the

basis that there is no evidence of one or more essential elements of a claim or defense on

which an adverse party would have the burden of proof at trial. TEX . R. CIV . P. 166a(i). The

motion must state the elements for which there is no evidence. Id.


       On appeal from the granting of a no-evidence summary judgment, we review any

evidence produced by the non-movant in the light most favorable to the non-movant,

disregarding all contrary evidence and inferences. See Merrell Dow Pharm., Inc. v. Havner,

953 S.W.2d 706, 711 (Tex. 1997); Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190,

195 (Tex.App.–Amarillo 1999, pet. denied).         A no-evidence summary judgment is

improperly granted if the non-movant presents more than a scintilla of probative evidence

to raise a genuine issue of material fact as to the element on which the motion is based.

Id. More than a scintilla of evidence exists when such evidence rises to a level that would

enable reasonable and fair-minded persons to differ in their conclusions. Id. Less than a

scintilla of evidence exists to support a fact when the evidence is so weak as to do no more

than create a mere surmise or suspicion of the fact. See Havner, 953 S.W.2d at 711;

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). If the trial court does not

specify the basis on which it granted summary judgment, the judgment will be affirmed if




                                              3
any of the grounds in the motion are meritorious. State Farm Fire & Cas. Co. v. S.S., 858

S.W.2d 374, 380-81 (Tex. 1993).


                                       Negligent Hiring


         Texas recognizes a cause of action for negligently hiring an independent contractor.

Wasson v. Stracener, 786 S.W.2d 414, 422 (Tex.App.–Texarkana 1990, writ denied). One

hiring an independent contractor may be held responsible for the contractor’s negligent acts

if (1) the employer knew or should have known that the contractor was incompetent and

(2) a third person was injured because of the contractor’s incompetence. Id. A person

employing an independent contractor is required to use ordinary care in hiring the

contractor.      See King v. Assocs. Commercial Corp., 744 S.W.2d 209, 213

(Tex.App.–Texarkana 1987, writ denied); Jones v. Sw. Newspapers Corp., 694 S.W.2d

455, 458 (Tex.App.–Amarillo 1985, no writ). If the performance of the contract requires

driving a vehicle, the person employing the independent contractor is required to

investigate the independent contractor’s competency to drive. See Wasson, 786 S.W.2d

at 422; Webb v. Justice Life Ins. Co., 563 S.W.2d 347, 349 (Tex.App.–Dallas 1978, no

writ).


         To prevail on her claim for negligent hiring, Mireles will have to prove that West’s

incompetence was the reason that Landeros was killed and Raul Mireles was injured, the

second element of a claim of negligent hiring. However, at the outset, we note that

Ashley’s motion for summary judgment does not expressly challenge this element of

Mireles’s cause of action. A motion for no evidence summary judgment must state the


                                              4
elements as to which there is no evidence. TEX . R. CIV . P. 166a(i). A no evidence motion

for summary judgment that is not specific in challenging a particular element is legally

insufficient as a matter of law to support a summary judgment on that basis. See

Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex.App.–San Antonio 2000, pet.

denied). Therefore, the trial court could not have properly based its grant of summary

judgment in favor of Ashley on any deficiency in Mireles’s evidence relating to this element

of her claim.


           Mireles contends that she presented more than a scintilla of evidence to raise a

genuine fact issue regarding whether Ashley knew or should have known that West was

incompetent. Mireles offered excerpts of West’s deposition, in which West testified that,

prior to being hired by Ashley, Ashley did not request a copy of West’s commercial driver’s

license, Ashley did not ask him about his driving history, and he was unaware of whether

Ashley performed any background check on him. As the job that was subject to Ashley and

West’s contract necessarily required West to drive, Ashley had an affirmative duty to

inquire into West’s competency to drive. See Wasson, 786 S.W.2d at 422; Webb, 563

S.W.2d at 349. We conclude that, when viewed in the light most favorable to Mireles,

West’s deposition testimony constitutes more than a scintilla of evidence that Ashley did

not inquire into West’s competency to drive.2




       2
         As Mireles presented more than a scintilla of evidence that Ashley conducted no
inquiry into West’s driving history, we need not and do not address what amount of inquiry
is necessary to constitute the exercise of due care. See King, 744 S.W.2d at 213.

                                              5
         Ashley contends that it had to have actual knowledge of West’s incompetency to

drive before it would be held to a duty to inquire into his driving history. We disagree.

Initially, we note that Ashley’s interpretation of the “knew or should have known” standard

would render the “should have known” portion meaningless because a person hiring an

independent contractor would only be liable for negligent hiring if they actually knew of the

contractor’s incompetence. Further, Wasson and Webb place a duty on all persons hiring

an independent contractor to perform work that requires the contractor to drive to inquire

into the contractor’s competency to drive. See Wasson, 786 S.W.2d at 422; Webb, 563

S.W.2d at 349. As a result, Ashley “should have known” of any incidents in West’s driving

history that would have been discovered had Ashley inquired into West’s competency to

drive.


         However, Ashley could not know that West was an incompetent driver unless West

was, in fact, an incompetent driver. See Wasson, 786 S.W.2d at 422. Therefore, Mireles

was further required to present more than a scintilla of evidence that West was an

incompetent driver. Mireles provided, as summary judgment evidence, an affidavit and

report from Fred Svidlow identifying the results of his search of public records relating to

West’s driving history and copies of four Department of Public Safety reports of West’s

citations for violations of traffic laws and commercial transport regulations. In his affidavit,

Svidlow identifies eight citations issued to West over a five and a half year period.3 Of


         3
         Svidlow also identifies a ninth citation that was issued to West as a result of the
accident upon which this suit is based. However, we will not consider this citation in
assessing whether West was an incompetent driver because the citation was not issued
until after West had been hired by Ashley and, therefore, would be no evidence of whether
Ashley “knew or should have known” that West was an incompetent driver.

                                               6
these eight citations, five were for speeding and another was for operating an unsafe

vehicle on the roadways. While the jurisprudence on negligent hiring speaks in terms of

competence, a person may be incompetent by reason of his recklessness. See Broesche

v. Bullock, 427 S.W.2d 89, 93 (Tex.Civ.App.–Houston [14th Dist.] 1968, writ ref’d n.r.e.).4

Proof of one previous traffic violation is grossly inadequate to establish a driver’s

incompetency or recklessness. Id. However, proof of seven citations for moving traffic

violations in the span of three years is some evidence that a driver is reckless and

incompetent. Id. We conclude that Mireles’s proof that West had received eight citations

over five and half years is more than a scintilla of evidence that West was an incompetent

and reckless driver.


                                        Conclusion


       Having found that Mireles presented more than a scintilla of evidence as to each

element of her claim for negligent hiring challenged by Ashley, we reverse the trial court’s

summary judgment and remand this case for further proceedings.




                                          Mackey K. Hancock
                                              Justice




       4
       As we have found no negligent hiring cases that specify when an independent
contractor’s negative driving history constitutes some evidence of incompetence, we are
guided by the Broesche court’s discussion of incompetence and recklessness in negligent
entrustment cases.

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