Clanton v. Interstate Telecomms., Inc., NUMBER 13-19-00107-CV
| Decision Date | 16 April 2020 |
| Docket Number | NUMBER 13-19-00107-CV |
| Parties | RUSSELL GARNETT CLANTON AND GABRIEL FRED GARCIA, Appellants, v. INTERSTATE TELECOMMUNICATIONS, INC., Appellee. |
| Court | Texas Court of Appeals |
On appeal from the County Court at Law No. 2 of Nueces County, Texas.
Before Chief Justice Contreras and Justices Longoria and Hinojosa
Appellants Russell Garnett Clanton and Gabriel Fred Garcia appeal a summary judgment granted in favor of appellee Interstate Telecommunications, Inc. (ITI). By five issues, which we treat as three, appellants argue that the trial court erred when it: (1) granted summary judgment on appellants' negligent-hiring claim; (2) overruled appellants' objections to ITI's summary judgment evidence; and (3) granted summary judgment on appellants' vicarious-liability claim. We reverse and remand for further proceedings consistent with this memorandum opinion.
On or around September 10, 2016, appellants were involved in a car accident with a vehicle driven by Justin Kell, an employee of ITI. In their live petition, appellants alleged that Kell was attempting to pass their vehicle "at an excessive rate of speed" when "Kell lost control and struck [appellants'] truck, causing both vehicles to run off the road and roll over several times." Kell was driving back to Corpus Christi, Texas after an overnight trip to McAllen, Texas to service payphones at the request of ITI.
Appellants brought suit against Kell, ITI, and Michelle Roddel.1 They alleged Kell was acting in the course and scope of employment and asserted causes of action against ITI for negligent hiring and for vicarious liability. ITI filed a traditional motion for summary judgment arguing that it did not owe a duty to appellants because Kell "was not in the course and scope of his employment when [appellants'] alleged damages were sustained . . . ."2 In support of its motion, ITI attached an affidavit by its president, Frank Zimmerer, and answers by Kell and Roddel to ITI's requests for admissions.
Appellants filed a response to ITI's motion for summary judgment; attached excerpts from depositions of Zimmerer, Kell, and Roddel; and objected to the evidence submitted by ITI in support of its motion. After a hearing, the trial court overruled appellants' objections, granted summary judgment to ITI, and dismissed "the claims asserted by" appellants. Appellants filed a motion to sever their claims against ITI, and the trial court granted it. This appeal followed.
We review a trial court's decision on a motion for summary judgment de novo. Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam). In a traditional motion for summary judgment, the movant has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Katy Venture, 469 S.W.3d at 163. Evidence raises a genuine issue of material fact if reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). A defendant who conclusively negates at least one of the elements of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
Once the moving party produces evidence establishing its right to summary judgment as a matter of law, the burden shifts to the nonmovant to produce evidence that raises a genuine issue of material fact. Walker v. Harris, 924 S.W.2d 375, 376 (Tex. 1996). To determine if the nonmovant raised a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. Hawthorne v. Guenther, 461 S.W.3d 218, 221 (Tex. App.—San Antonio 2015, pet. denied). If the trial court grants summary judgment without specifying the grounds for granting the motion, then we must uphold the trial court's judgment if any of the asserted grounds are meritorious. Davis v. West, 433 S.W.3d 101, 109 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Rogers v. RREF II CB Acquisitions, LLC, 533 S.W.3d 419, 426 (Tex. App.—Corpus Christi-Edinburg 2016, no pet.). A trial court abuses its discretion when it rules without regard for any guiding rules or principles. Id.
By their first issue, appellants argue that the trial court erred when it granted appellee's motion for summary judgment in regard to their negligent hiring claim.
To prevail on a cause of action for negligent hiring, a plaintiff must prove: (1) the employer owed the plaintiff a duty to hire, supervise, train, or retain competent employees; (2) the employer breached that duty; (3) the employee committed a tort; and (4) the employer's breach and the employee's tort proximately caused the plaintiff's injury.3 See THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 573 (Tex. App.—Amarillo 2010, pet. denied); EMI Music Mex., S.A. de C.V. v. Rodriguez, 97 S.W.3d 847, 858 (Tex. App.—Corpus Christi-Edinburg 2003, no pet.); see also Endeavor Energy Res., L.P. v. Cuevas, 593 S.W.3d 307, ___, 2019 WL 1966625, at *2-3 (Tex. 2019). A claim for negligent hiring is based on direct liability, not on vicarious liability. Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78, 100-01 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.—Fort Worth 2008, no pet.). An employer owes a duty to the general public to ascertain the qualifications and competence of the employee it hires, especially when the employees are engaged in occupations that require skill or experience and that could be hazardous to the safety of others. Dangerfield, 264 S.W.3d at 912. The main advantage of a negligent-hiring claim is that it does not require a finding that the employee was acting in the scope of employment when the tortious act occurred. See Moore Freight Servs., Inc. v. Munoz, 545 S.W.3d 85, 98 (Tex. App.—El Paso 2017, pet. denied); Soon Phat, L.P., 396 S.W.3d at 100; Dietes v. Baker Serv. Tools, 739 S.W.2d 405, 408 (Tex. App.—Corpus Christi-Edinburg 1987, writ denied) ("[A]n action for negligent hiring provides a remedy to injured third parties who would be foreclosed from recovery under the master-servant doctrine since the wrongful acts of employees in these cases are likely to be outside the scope of employment or not in furtherance of the master's business.").
In its motion for summary judgment, ITI's only argument was that it owed no duty to appellants because Kell was not in the course and scope of employment at the time of the accident; however, that the defendant acted within the course and scope of employment is not an element of a negligent hiring claim. See Munoz, 545 S.W.3d at 98; Dietes, 739 S.W.2d at 408 (). Accordingly, ITI was not entitled to summary judgment on appellants' claim for negligent hiring. See TEX. R. CIV. P. 166a(c); Nall, 404 S.W.3d at 555; McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).
ITI argues on appeal that, because Kell was not acting in the course and scope of employment, his actions were not "job related," and that this disproves that the accident was foreseeable. See Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (per curiam) (); see also Moore v. Strike, LLC, No. 04-16-00324-CV, 2017 WL 96130, at *7 (Tex. App.—San Antonio Jan. 11, 2017, no pet.) (mem. op.) (concluding that summary judgment on negligent hiring claim was proper because defendant argued conduct was not foreseeable because it was not job-related and out of the course and scope of employment). We are not persuaded. ITI did not argue in its motion that Kell not acting in the course and scope of employment defeated any of the elements of a negligent hiring cause of action or that it impacted foreseeability in any way. See TEX. R. CIV. P. 166a(c) (); Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (per curiam) (); Seaway Prods. Pipeline Co. v. Hanley, 153 S.W.3d 643, 649 (Tex. App.—Fort Worth 2004, no pet.) (providing that the grounds in the motion are sufficiently specific if they give "fair notice" to the nonmovant).
We sustain appellants' first issue.
By their second issue, appellants argue that the trial court erred when it overruled appellants' objections to ITI's summary judgment evidence.
In support of its motion for summary judgment, ITI attached responses to requests for admissions it propounded to Roddel and Kell.
Kell's responses provided:
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