Magee v. G & H TOWING CO.

• Citation: 312 S.W.3d 807
• Decision Date: 14 January 2010
• Docket Number: No. 01-07-00572-CV,01-07-00837-CV.,01-07-00572-CV
• Parties: Cory Wayne MAGEE, Individually, and Tracey D'Ann Mayo, Individually and as Legal Representative of the Estate of Douglas Emery Magee, Deceased, and the Estate of Lois Ann Magee, Deceased, Appellants, v. G & H TOWING COMPANY, Appellee. and Cory Wayne Magee, Individually, and Tracey D'Ann Mayo, Individually and as Legal Representative of the Estate of Douglas Emery Magee, Deceased, and the Estate of Lois Ann Magee, Deceased, Appellants, v. William C. Colson, Appellee.
• Court: Texas Court of Appeals

312 S.W.3d 807

Cory Wayne MAGEE, Individually, and Tracey D'Ann Mayo, Individually and as Legal Representative of the Estate of Douglas Emery Magee, Deceased, and the Estate of Lois Ann Magee, Deceased, Appellants, v. G & H TOWING COMPANY, Appellee. and Cory Wayne Magee, Individually, and Tracey D'Ann Mayo, Individually and as Legal Representative of the Estate of Douglas Emery Magee, Deceased, and the Estate of Lois Ann Magee, Deceased, Appellants, v. William C. Colson, Appellee.

Nos. 01-07-00572-CV, 01-07-00837-CV.

Court of Appeals of Texas, Houston (1st Dist.).

November 30, 2009.

Rehearing Overruled January 14, 2010.

Benjamin L. Hall III, Elizabeth B. Hawkins, The Hall Law Firm, Kathryn V. Smyser, Bond & Smyser LLP, Houston, TX, for Appellants.

Mike Johanson, Paul Gregory Laughlin, Johanson & Fairless, LLP, Sugar Land, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices HIGLEY and NUCHIA.^*

OPINION

SAM NUCHIA, Justice.

In these two related appeals, the probate court granted motions for summary judgment filed by appellees G & H Towing Company (trial court case number 350625-402; appellate case number 01-07-00572-CV) and William C. Colson (trial court case number 35065-401; appellate case number 01-07-00837-CV). The probate court severed the claims against each appellee, making each summary judgment final. The appellants are (1) Cory Wayne Magee, individually, and (2) Tracey D'Ann Mayo, individually and as legal representative of the estate of Douglas Emery Magee, deceased, and the estate of Lois Ann Magee, deceased. We reverse the summary judgment in favor of G & H Towing and affirm the summary judgment in favor of Colson.

Background

Douglas Magee and Lois Magee died from injuries resulting from a collision between their car and a truck driven by Joseph Violante. At the time of the collision, Violante was leaving the premises of a bar where he had been drinking. Violante was subsequently convicted of intoxication manslaughter and sentenced to four years' imprisonment, probated. See TEX. PENAL CODE ANN. §§ 49.08(a), .09(a) (Vernon Supp.2009).

William Colson owned the truck Violante was driving. Both Colson and Violante were employed by G & H Towing as tugboat quartermasters. The two men worked on the same tugboat in a schedule in which one man worked for a period of several days, then the other man relieved him and worked for a similar period.

Because the tugboats did not have a regular route that allowed each man to disembark at the end of his duty shift at the same place that he started, if Colson was relieving Violante, Colson would allow Violante to use his vehicle to drive home, and vice versa. There is summary-judgment evidence that this was a routine practice for employees of G & H Towing. There is also summary-judgment evidence that G & H conducted background checks on employees who drove company vehicles and evidence that G & H did not conduct background checks on employees who shared personal vehicles in situations similar to Colson and Violante's work schedule.

Violante's prior driving record included a February 2002 injury accident, a February 2003 ticket for speeding and no liability insurance, a May 2003 ticket for an excessively wide turn, and a November 2003 injury accident. In addition, Violante had a 1994 conviction for driving while his license was suspended and a 1997 arrest for reckless driving.

Cory Magee and Tracey Mayo sued Violante, G & H Towing, Colson, and others under theories of negligence, negligent hiring, and negligent entrustment. Magee and Mayo asserted claims against G & H Towing both directly and vicariously through Colson, G & H's employee. G & H Towing and Colson each filed motions for summary judgment, which the trial court granted, rendering two interlocutory take-nothing summary judgments. The trial court severed each of the two summary judgments into separate cases, making a separate final summary judgment in favor of G & H Towing and another separate final summary judgment in favor of Colson.

Discussion

In their appeal against G & H Towing, Magee and Mayo bring five issues. The first issue asserts that the probate court rendered summary judgment on a claim that was not raised in G & H Towing's motion for summary judgment, i.e., G & H Towing's vicarious liability for Colson's alleged negligent entrustment of his truck to Violante. See, e.g., McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (holding motion for summary judgment must itself expressly present grounds on which it is made).

G & H Towing's motion for summary judgment recites the specific grounds:

BASIS OF THE MOTION

In applying all relevant authorities and principles to the facts of this case, it will become obvious that Plaintiffs' theories of liability against G & H lack merit. G & H is entitled to summary judgment for the following reasons:

1. Negligence: G & H cannot be held vicariously liable for the actions of Joseph Violante. Mr. Violante was not in the course and scope of his employment with G & H at the time of the accident. Violante was off duty, drinking at a men's club. None of Violante's actions or activities that day were in furtherance of G & H's business, or for the accomplishment of the object for which Violante was employed as a Quartermaster on a towing vessel.

2. Negligent hiring: Nothing in the way G & H hired, trained, retained or supervised its employees constitutes a breach of any duty owed to Plaintiffs, nor could it have been the proximate cause of the Magees' deaths.

3. Negligent Entrustment: G & H is not the owner of the truck and, as a matter of law, could not entrust the truck to Violante. Assuming, arguendo, that G & H could be considered the "entruster" of Colson's truck to Violante (which G & H specifically denies), Violante was a licensed driver and presumed to be competent. G & H had no duty to inquire further into Violante's driving history, as his job duties did not involve operation of a land-based vehicle while in the course and scope of his employment. To the contrary, Violante was a First Mate/Quartermaster on a tugboat.

While G & H's motion for summary judgment contains a specific ground concerning the claim of G & H's negligent entrustment, the motion does not specifically address the claim that G & H was vicariously liable for Colson's alleged negligent entrustment.

Magee and Mayo responded to G & H's motion for summary judgment and pointed out that the motion did not address the vicarious-liability claim for Colson's negligent entrustment. G & H filed a reply to Magee and Mayo's summary-judgment response, in which G & H stated "one of Plaintiffs' primary liability theories against G & H is that G & H has respondeat superior liability for Colson's negligent entrustment of his (Colson's) vehicle to Violante which occurred while Colson was an agent of G & H in the course and scope of his employment with G & H." G & H's reply then specifically addresses the summary-judgment evidence concerning Colson's knowledge of Violante's driving record and ability.

We hold that G & H's motion for summary judgment did not expressly present the ground for G & H's vicarious liability for Colson's alleged negligent entrustment of his truck to Violante. The motion is therefore legally insufficient as a matter of law in regard to that ground. See McConnell, 858 S.W.2d at 342. We, therefore, sustain issue 1.

Magee and Mayo's remaining four issues concern matters that under normal circumstances would not be appealable if the trial court had not erroneously rendered a final judgment. Under Bandera Electric Cooperative, Inc. v. Gilchrist, the supreme court has directed us to treat an erroneous final summary judgment as a final judgment for purposes of appeal and reach all of appellant's issues or points of error. See Bandera, 946 S.W.2d 336, 337 (Tex.1997); see also TEX.R.APP. P. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal."). Magee and Mayo, however, have conditioned the submission of issues 2, 3, 4, and 5, asking this Court to consider those issues only in the event that issue 1 is overruled. Because nothing in Bandera prevents an appellant from conditioning the submission of an issue or point of error, we do not reach issues 2, 3, 4, and 5.¹

Colson appeal

In their appeal against Colson, Magee and Mayo bring two issues. First, they argue they have produced legally sufficient evidence of each element of negligent entrustment, such that the trial court erred in granting Colson's Texas Rule of Civil Procedure 166a(c) and 166a(i) motions for summary judgment. Second, Magee and Mayo argue that Colson's motion for summary judgment contained no other basis on which the trial court could properly render summary judgment, because they are not required to present evidence that the accident occurred while Violante was using the vehicle in a...