Opinion
No. 04-17-00255-CV
05-09-2018
Marcus SOLOMAN, Appellant v. WHATABURGER RESTAURANTS, LLC, Appellee
MEMORANDUM OPINION
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2017CI01312
Honorable Stephani A. Walsh, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice AFFIRMED
Marcus Soloman appeals a summary judgment granted in favor of Whataburger Restaurant, LLC, asserting the evidence raised a genuine issue of material fact that precluded summary judgment. We affirm the trial court's judgment.
BACKGROUND
Soloman sued Jeromy McCormick and Whataburger for injuries he sustained as a result of an automobile accident. When the accident occurred, Soloman was a passenger in a vehicle being driven by McCormick. In his lawsuit, Soloman alleged McCormick's negligence caused the accident, and Whataburger was vicariously liable for McCormick's negligence.
Whataburger moved for summary judgment asserting McCormick was not in the course and scope of his employment when the accident occurred. After considering the motion and Soloman's response, the trial court signed an order granting Whataburger's motion. Soloman filed a motion for new trial which the trial court denied. Soloman appeals.
STANDARD OF REVIEW
We review a trial court's order granting a summary judgment de novo. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017). To prevail on a traditional motion for summary judgment, the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017); see also TEX. R. CIV. P. 166a(c).
"An appellate court reviewing a summary judgment must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion." Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007). Applying this standard, the appellate court "must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented." Id. at 755. "An issue is conclusively established if reasonable minds could not differ about the conclusion to be drawn from the facts in the record." Cmty. Health Sys. Prof'l Servs. Corp., 525 S.W.3d at 681 (internal quotation omitted).
SUMMARY JUDGMENT EVIDENCE CONSIDERED BY THE TRIAL COURT
Before we consider the trial court's ruling on Whataburger's motion, we must first determine what evidence the trial court considered in making its ruling. No one disputes the trial court considered the evidence cited in and attached to Whataburger's motion and Soloman's response. However, Soloman argues the trial court also considered the evidence attached to his motion for new trial. Soloman further argues the evidence attached to his motion for new trial was not additional evidence but only references to additional pages of the deposition transcripts attached to his response.
Soloman attached three complete deposition transcripts to his summary judgment response. The law is well-settled that "when presenting summary-judgment proof, a party must specifically identify the supporting proof on file that it seeks to have considered by the trial court." Gonzales v. Shing Wai Brass & Metal Wares Factory, Ltd., 190 S.W.3d 742, 746 (Tex. App.—San Antonio 2005, no pet.); see also Rollins v. Tex. Coll., 515 S.W.3d 364, 369 (Tex. App.—Tyler 2016, pet. denied) ("Referencing attached documents only generally does not relieve a respondent of directing the trial court to where in such documents the issues set forth in the response are raised."); Lawson v. Keene, No. 03-13-00498-CV, 2016 WL 767772, at *2 n.2 (Tex. App.—Austin Feb. 23, 2016, pet. denied) (mem. op.) (noting court would only consider evidence referenced in the response); Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.—San Antonio 2003, no pet.) ("The trial court was not required to search the record for evidence raising a material fact issue without more specific guidance from [respondent]."). As a result, a respondent cannot attach an entire deposition transcript to his response as summary judgment evidence without citing the specific pages in the transcript on which the respondent relies. See Gonzales, 190 S.W.3d at 746 ("Attaching entire documents to a motion for summary judgment or to a response and referencing them only generally does not relieve the party of pointing out to the trial court where in the documents the issues set forth in the motion or response are raised."); see also Rollins, 515 S.W.3d at 369. Therefore, Soloman's argument that his motion for new trial did not present any additional evidence fails to the extent his motion for new trial cited to additional pages of the deposition transcripts he attached to his response.
After reviewing Soloman's response and motion for new trial, we conclude Soloman's motion for new trial cited additional pages of the deposition testimony that were not cited in Soloman's response. Accordingly, we next determine whether the trial court considered this additional evidence.
"When a motion [for new trial] is filed after the rendition of [a] summary judgment, a trial court has the discretion to consider the [evidence supporting] the post-judgment motion ... and reaffirm its summary judgment based on the entire record." PNP Petroleum I, LP v. Taylor, 438 S.W.3d 723, 729 (Tex. App.—San Antonio 2014, pet. denied) (internal quotation omitted). "Where the trial court affirmatively indicates on the record that it accepted or considered the evidence attached to a motion [for new trial], this court reviews the summary judgment based upon the grounds and proof in both prejudgment and post-judgment filings." Id. at 730 (internal quotation omitted); see also Wakefield v. Ayers, No. 01-14-00648-CV, 2016 WL 4536454, at *6 (Tex. App.—Houston [1st Dist.] Aug. 30, 2016, no pet.) (mem. op.) ("An order denying a motion to vacate or reconsider does not 'affirmatively indicate[ ]' that the trial court considered later-filed evidence, submitted with a post-summary-judgment motion, when it merely states that the trial court 'considered the motion, all responses, and argument of counsel' and 'does not state [that the trial court] considered the evidence attached to the motion.'") (quoting McMahan v. Greenwood, 108 S.W.3d 467, 499-500 (Tex. App.-Houston [14th Dist.] 2003, pet. denied)); Stephens v. Dolcefino, 126 S.W.3d 120, 134 (Tex. App.—Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex. 2006) (holding trial court considered evidence attached to motion for new trial when the trial court stated at the hearing on the motion for new trial that it would "include the evidence offered today in the summary judgment record").
In this case, Soloman argues the trial court considered the evidence attached to his motion for new trial because the reporter's record from the hearing on his motion shows the trial court listened to the arguments. We disagree that the trial court listening to the arguments presented at a hearing on a motion for new trial is an affirmative indication that the trial court considered the evidence attached to the motion for new trial. Furthermore, in this case, the trial court's written order stated that the trial court "review[ed] the evidence previously entered into the record in this case." Because the trial court's order "affirmatively indicates on the record" that it considered only the evidence "previously entered" and not the evidence presented in the motion for new trial, we only consider the evidence cited in and attached to Whataburger's motion and Soloman's response. We do not consider the additional pages of the deposition transcripts cited in Soloman's motion for new trial that were not cited in Soloman's response.
The inclusion of this statement in the trial court's order emphasizes a question posed by the trial court at the hearing on the motion for new trial. Around the same time Soloman's attorney referred to page 54 of Soloman's deposition testimony in which Soloman testified he overheard Vargas tell McCormick to drive him to the other Whataburger location, the trial court asked, "Is that part of the summary judgment originally?" Although page 54 is not cited in Soloman's response, Soloman's attorney stated, "And page 34 of Soloman and page 54 of Soloman. They're cited specifically in our response."
ANALYSIS
Soloman contends the trial court erred in granting summary judgment because the evidence raised a genuine issue of material fact with regard to whether McCormick was within the course and scope of his employment when the accident occurred. Soloman also argues the facts do not present a "special mission" case. Alternatively, Soloman argues if this court determines a "special mission" case is presented, the evidence was not required to show that Whataburger controlled the route or mode of transportation because McCormick was not driving to or from his primary place of employment.
"Generally, a person has no duty to control the conduct of another." Goodyear Tire & Rubber Co., 236 S.W.3d at 757; see also Lerma v. Pipe Movers, Inc., No. 04-16-00739-CV, 2018 WL 1402043, at *3 (Tex. App.—San Antonio Mar. 21, 2018, no pet. h.). "Under the theory of respondeat superior, however, an employer may be vicariously liable for the negligent acts of its employee if the employee's actions are within the course and scope of his employment." Goodyear Tire & Rubber Co., 236 S.W.3d at 757; see also Lerma, 2018 WL 1402043, at *3. "To determine whether an employee's acts are within the course and scope of his employment, we ask whether the employee's act [1] falls within the scope of the employee's general authority, [2] is in furtherance of the employer's business, and [3] is for the accomplishment of the object for which the employee was hired." Lerma, 2018 WL 1402043, at *3; see also Goodyear Tire & Rubber Co., 236 S.W.3d at 757. "The employee's acts must be of the same general nature as the conduct authorized or incidental to the conduct authorized to be within the scope of employment." Goodyear Tire & Rubber Co., 236 S.W.3d at 757; Lerma, 2018 WL 1402043, at *3.
On the date of the accident, Soloman was employed by Whataburger. McCormick was his assistant manager, and Freddie Vargas was his manager. In Soloman's affidavit attached to his response, Soloman testified he informed Vargas and McCormick that he needed to work additional hours or he would have to seek other employment. Soloman further testified Vargas told him to go to another Whataburger location to ask if that location would give him additional hours. Soloman testified Vargas's statement was made in front of McCormick. Finally, Soloman testified McCormick came to his house on the date of the accident to provide him with transportation to the other Whataburger location so he could inquire about additional hours. Soloman argues this testimony established that McCormick was within the course and scope of his employment in transporting Soloman because Vargas testified in his deposition that Whataburger's greatest asset is its employees and turnover or losing employees hurts Whataburger's operation.
Even viewing Soloman's affidavit in the light most favorable to him, the affidavit does not raise a genuine issue of material fact on any of the three prongs legally required to show McCormick was acting within the course and scope of his employment. With regard to whether driving Soloman to another location fell within the scope of McCormick's general authority, the summary judgment evidence conclusively established McCormick is only authorized to work when he is clocked in, and McCormick was not clocked in on the day of the accident. Although McCormick sometimes used his personal vehicle in furtherance of Whataburger's business by making bank deposits when instructed, the evidence established McCormick was always clocked in before performing any such tasks or errands. In addition, Soloman's affidavit does not contain any evidence that Vargas instructed McCormick to drive Soloman to the other Whataburger location. Stating that McCormick heard Vargas tell Soloman he could inquire about additional hours at another Whataburger location does not establish Vargas instructed McCormick to drive Soloman. Finally, the summary judgment evidence conclusively established that taking any action, including driving Soloman to another Whataburger location, while not clocked in would not be for the accomplishment of the object for which McCormick was hired. Instead, the summary judgment evidence established that McCormick and Soloman were friends, and McCormick was driving Soloman to the other Whataburger location on their day off to help him out.
With regard to the "special mission" doctrine, "[a] special mission is a specific errand that an employee performs for her employer, either as part of her duties or at her employer's request." Lerma, 2018 WL 1402043, at *5. In this case, Whataburger presented Vargas's and McCormick's deposition testimony establishing that McCormick was not clocked in when he drove Soloman to the other Whataburger location and Vargas never requested McCormick to drive Soloman. Furthermore, Texas courts, including this court, have held that an employee is not engaged in the furtherance of the employer's business under the special mission doctrine when the employer neither requires any particular means of travel nor directs the employee to take a particular route. See, e.g., Mancil v. Stroud, No. 11-13-00354-CV, 2016 WL 932949, at *6 (Tex. App.—Eastland Mar. 10, 2016, no pet.) (mem. op.); Soto v. Seven Seventeen HBE Corp., 52 S.W.3d 201, 206 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Upton v. Gensco, Inc., 962 S.W.2d 620, 622 (Tex. App.—Fort Worth 1997, pet. denied); Brown v. Am. Racing Equip., Inc., 933 S.W.2d 734, 736 (Tex. App.—San Antonio 1996, no writ); J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636 (Tex. App.—San Antonio 1993, no writ). In this case, McCormick was driving his own car, and Vargas testified he was not even aware that Soloman and McCormick were driving to the other Whataburger location. Accordingly, even if this could be considered a "special mission" case, the summary judgment evidence conclusively established Whataburger did not require any particular means of travel and did not direct McCormick to take a particular route.
Soloman's affidavit testimony that McCormick overheard Vargas tell Soloman he could inquire about additional hours at another Whataburger location is no evidence that Vargas requested McCormick to drive Soloman.
CONCLUSION
The trial court's judgment is affirmed.
Rebeca C. Martinez, Justice