Estate of Puckett v. Arvizu

• Decision Date: 10 November 2010
• Docket Number: No. 09–09–00453–CV.,09–09–00453–CV.
• Citation: Estate of Puckett v. Arvizu, 364 S.W.3d 309 (Tex. App. 2010)
• Parties: The Estate of George PUCKETT d/b/a Puckett Auto Sales, Appellant, v. Juana Lorena ARVIZU, Individually and a/n/f of Jonathan Rene Arvizu, Montgomery County Auto Auction, Edward Cantu and Allstate Insurance Company, Appellees.
• Court: Texas Court of Appeals

364 S.W.3d 309

The Estate of George PUCKETT d/b/a Puckett Auto Sales, Appellant,

v.Juana Lorena ARVIZU, Individually and a/n/f of Jonathan Rene Arvizu, Montgomery County Auto Auction, Edward Cantu and Allstate Insurance Company, Appellees.

No. 09–09–00453–CV.

Court of Appeals of Texas, Beaumont.

Nov. 10, 2010.

Levon G. Hovnatanian, Bruce E. Ramage, Kevin Cain, Martin, Disiere, Jefferson & Wisdom, L.L.P., Philip A. Werner, Michelle Le, Werner Ayers, L.L.P., Houston, for appellant.

Toni M. Triplett, Triplett Law Firm, Jack McKinley, Ramey, Chandler, McKinley

& Zito, P.C., Houston, Thomas E. Quirk, Law Offices of Aaron & Quirk, San Antonio, for Appellees.

Before McKEITHEN, C.J., KREGER and HORTON, JJ.

MEMORANDUM OPINION

STEVE McKEITHEN, Chief Justice.

AppelleeJuana Lorena Arvizu, individually and as next friend of Jonathan Rene Arvizu(“Arvizu”), sued appelleesMontgomery County Auto Auction(“MCAA”) and Edward Cantu, as well as appellant The Estate of George Puckett d/b/a Puckett Auto Sales (“Puckett”),¹ for personal injuries sustained when her vehicle was struck by a vehicle owned by Puckett and driven by Cantu.²Arvizu contended that Cantu was operating the vehicle for George's benefit, and that Cantu was “acting within the course and scope of his employment for defendant[MCAA], and was about his employer's business and affairs.”The jury found that Cantu was an employee of MCAA, but was on a mission for George's benefit and was subject to control by George as to the details of the work.In three issues, The Estate of George Puckett d/b/a Puckett Auto Sales argues that the jury's answers to questions in the charge fatally conflict.We reverse the trial court's judgment solely as to The Estate of George Puckett d/b/a Puckett Auto Sales and remand the cause for further proceedings consistent with this opinion.

The Evidence

George Puckett(“George”) testified by deposition that he was self-employed as the owner of Puckett Auto Sales, a wholesale used car business.³George explained that his business sells automobiles to dealers or in auctions.George testified that he sells cars at MCAA every Monday.George testified that most of the time, MCAA picked up cars from him, and he explained that he would “tell [MCAA] what I want for [a vehicle].They either get that, or they get something real close.And I want to sell it, I sell it.If not, I just don't sell it.”According to George, he always had cars that did not sell, and he could leave the vehicles with MCAA for the following week's sale, or MCAA would deliver them to George if he believed he could sell them himself.George testified that MCAA would also deliver unsold vehicles to the ADESA auction for him.George testified that he sometimes called MCAA and asked MCAA to move a vehicle for him.

George explained that he does not have a written agreement with MCAA.George stated that he owned the vehicle that was involved in the accident with Arvizu.MCAA picked up the vehicle and transported it to MCAA's lot to sell it, but the vehicle did not sell that evening, so he instructed MCAA to deliver the vehicle to the ADESA auction.George testified that he expected one of MCAA's drivers to drive the vehicle to the ADESA lot, which was thirty to forty miles from MCAA's lot.George explained that he has never requested information from MCAA concerning MCAA's drivers.George testified that he believed he had seen Cantu before, and that Cantu was “a driver from [MCAA].”George also testified that when MCAA transported his unsold cars to the ADESA auction, he left it to MCAA to entrust the vehicles to competent drivers, and he had nothing to do with who MCAA chose to hire as drivers.George explained he did not know who was driving the vehicle that struck Arvizu until he received notification that the accident had occurred.

George learned of the accident when an employee of MCAA informed him that it had occurred.George testified that when the accident occurred, MCAA was transporting the vehicle for George's business purposes, and that MCAA had his permission to have one of MCAA's drivers drive the vehicle to the ADESA auction.George testified that he never rejected particular MCAA drivers, and when asked whether he could have told MCAA who he wanted to drive the car, he responded, “I guess I could have.”When asked whether he could have instructed MCAA not to use a particular driver to drive his cars, George responded, “... I was not familiar with very many of them.”

Buddy Cheney, the general manager of America's Auto Auction, which was formerly known as MCAA, testified that George did business with MCAA on a weekly basis.Cheney characterized Puckett Auto Sales as a “high volume dealer.”According to Cheney, Cantu was employed with MCAA as a driver when the accident occurred.Cheney explained that MCAA did not receive compensation for picking up vehicles and bringing them to the auction because doing so was part of MCAA's customer service and was a known benefit throughout the industry.When asked how drivers were assigned to pick up vehicles, Cheney replied, “There's no specific designation.Mr. Puckett would call and say I have 20 vehicles.And we would send a van with drivers, not 20 drivers.If we had to make two trips or three trips, we would just recycle those drivers....”

According to Cheney, when MCAA needed drivers, MCAA would place an ad in the newspaper, interview potential drivers, and hire them.Cheney explained that to serve as a driver for MCAA, a person had to be over twenty-one years of age, have a valid driver's license, and have a good driving record.The requirements to serve as a driver were dictated by MCAA's insurance company.Cheney testified that George occasionally requested the assistance of MCAA's drivers to pick up vehicles.Cheney also testified that George did not request information concerning the qualifications of MCAA's drivers, nor did George ask for the names of the individuals who would be driving his vehicles or request that any particular driver not handle one of his vehicles.In addition, Cheney explained that when the accident occurred, George had not given instructions to MCAA about what route he wanted MCAA to take in transporting his vehicles to the ADESA auction.Cheney also testified that George never asked for information about the route MCAA's drivers would use to take his vehicles from MCAA to the ADESA auction.Cheney testified that he learned of the accident involving Cantu and Arvizu when he received a call from MCAA, and Cheney went to the accident scene and spoke to Cantu.According to Cheney, MCAA's assistant manager, general manager, and some of the other drivers also came to the accident scene.Cheney testified that someone from MCAA notified George of the accident.

Cheney explained that Cantu was driving the vehicle when the accident occurred, and that Cantu was driving the vehicle as part of his employment with MCAA.Cheney testified that Cantu regularly transported vehicles as part of his job duties with MCAA.Cheney explained that upon receiving instructions from George to move Puckett's vehicles, MCAA assembled its drivers and assigned vehicles to them randomly unless “somebody c[ould]n't drive a standard transmission.”George instructed MCAA to move the vehicle in question to the ADESA auction, and an MCAA employee gave Cantu the keys to the vehicle and instructed Cantu to move the vehicle from MCAA to the ADESA auction.

Cheney testified that George did not assign Cantu to the vehicle in question.According to Cheney, if George had told MCAA not to use Cantu as a driver for Puckett Auto Sales's vehicles, MCAA would have done as Puckett requested.Cheney also testified that the route Cantu took was “just the common sense route to take.It's the shortest, quickest means to get there.”Cheney explained that if George had requested that the driver take a particular route, MCAA would have accommodated the request, but that George had never made such a request.Cheney testified that George did not have the right to fire Cantu or to reprimand Cantu, and that when the accident occurred, George had no control over Cantu's actions.According to Cheney, with respect to the speed, route, fuel needs, and other details of the trip, more than one person might have had control, but all of the individuals who had such control were MCAA employees.

George's widow, Linda, testified that she began working with George in the car business in 1990.Linda explained that her husband did most of his business with dealers such as MCAA rather than with retail customers.When asked how MCAA was compensated if her husband wanted to sell vehicles through MCAA, Linda testified, “Well, from us, they get a seller's fee.And if [Puckett] sold the car, they also got a buyer's fee.So, that's where they made their money.”Linda testified that when George needed cars to be transported to the auction, she would telephone MCAA and tell them how many cars needed to be picked up, and MCAA “went from there.”Linda explained that George sometimes asked MCAA to transport vehicles to other facilities, but he did not dictate who was to drive the car, did not select the route, and did not dictate the time that the cars were to be moved.When asked whether she could think of any detail concerning the trip from MCAA to the ADESA auction, Linda testified that George did not dictate any terms to MCAA other than the destination of the vehicles.According to Linda, no written agreements existed between MCAA and George.Linda explained that she did not know Cantu personally, but she recognized his name.Linda opined that because Cantu was MCAA's employee, George was not responsible for the accident and the resulting damages.

At the conclusion of the evidence, the trial court conducted a charge conference.During the charge conference, Puckett's counsel lodged the following objections:

I would also point out to the Court ... that the...