Johnnie Melton and Shelley Melton v. Big Creek Construction, Ltd. and WFMM, LLC

• Court: Court of Appeals of Texas
• Decided: April 24, 2025
• Docket: 01-23-00245-CV
• Status: Published

Opinion

Opinion issued April 24, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00245-CV ——————————— JOHNNIE MELTON AND SHELLEY MELTON, Appellants V. BIG CREEK CONSTRUCTION, LTD. AND WFMM, LLC, Appellees

On Appeal from the 82nd District Court Falls County, Texas1 Trial Court Case No. CV40970

MEMORANDUM OPINION

1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal to this Court. See Misc. Docket No. 23–9017 (Tex. Mar. 21, 2023); see also TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases); TEX. R. APP. P. 41.3 (“In cases transferred by the Supreme Court from one court of appeals to another, the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court . . . .”). Appellants, Johnnie and Shelley Melton (collectively, the “Meltons”),

challenge the trial court’s rendition of summary judgment in favor of appellees, Big

Creek Construction, Ltd. (“Big Creek”) and WFMM, LLC (“WFMM”), in the

Meltons’ suit against Big Creek and WFMM for negligence. In five issues, the

Meltons contend that the trial court erred in granting Big Creek and WFMM

summary judgment and denying the Meltons’ second motion for leave.

We affirm.

Background

In their second amended petition, the Meltons alleged that on November 8,

2020, Tomas Treto-Trinidad (“Trinidad”), an employee of Big Creek, severely

injured Johnnie in a vehicle collision. According to the Meltons, Trinidad, while

driving a Dodge RAM pickup truck with a trailer attached, “negligently cross[ed]

the centerline of Highway 77, at or near Big Creek Bridge,” in Falls County, Texas

and struck Johnnie’s pickup truck “head-on.” “The force of the collision caused

[Johnnie’s truck] to slide counterclockwise and roll several times” before “strik[ing]

the concrete guardrail with the left side” of the truck. Johnnie’s pickup truck

“eventually . . . rest[ed] facing northeast in the northbound lane of travel and

shoulder.” Trinidad was pronounced dead at the scene of the vehicle collision, and

the Meltons allegedly suffered “property damage, bodily injuries, and horrific

damages.”

2 The Meltons further alleged that at the time of the vehicle collision, Trinidad

was employed by Big Creek and on his way to Giddings, Texas “to a Super 8 motel

room purchased by Big Creek and its general partner,” WFMM, “to further

Trinidad’s employment for Big Creek, and to benefit the general partnership

between Big Creek and WFMM in performance of [a] contract between the Texas

Department of Transportation and WFMM.” According to the Meltons, Trinidad’s

father, David G. Treto (“Treto”), who was also an employee of Big Creek, owned

the Dodge RAM pickup truck that Trinidad was driving at the time of the vehicle

collision, and Big Creek-owned the trailer which Trinidad was pulling at the time of

the collision.

The Meltons brought direct liability claims against Big Creek and WFMM for

negligence, negligent entrustment, negligent supervision or control, and negligent

training. The Meltons also brought a claim for vicarious liability against Big Creek

and WFMM based on the purported negligent acts of Trinidad.2

As to damages, the Meltons sought reasonable past and future medical

expenses, past and future physical pain and suffering, past and future physical

impairment, loss of past and future earnings, loss of past and future household

services, loss of consortium, mental anguish, and disfigurement.

2 The Meltons alleged negligence claims against Treto, Trinidad’s father as well. Those claims are not at issue in this appeal.

3 Big Creek and WFMM answered,3 generally denying the allegations in the

Meltons’ petition and asserting certain affirmative defenses. In their answers, Big

Creek and WFMM also asserted that Trinidad was not acting in the course and scope

of his employment with Big Creek at the time of the vehicle collision. Trinidad was

not “on a special mission directed by WFMM or Big Creek nor was he furthering

the business interests of WFMM or Big Creek with WFMM’s or Big Creek’s

authority when the [vehicle collision] occurred.” Additionally, Big Creek and

WFMM asserted that Trinidad was not authorized to pull a Big Creek trailer with

his personal pickup truck, they “owed no legal duty to” the Meltons, and they were

not liable to the Meltons in the capacities in which they had been sued.

Big Creek and WFMM then moved for summary judgment on the Meltons’

negligence claims against them, asserting that they were entitled to judgment as a

matter of law and there was no evidence that Big Creek and WFMM owed a duty to

the Meltons.4 In their motion for summary judgment, Big Creek and WFMM

explained that Trinidad was employed by Big Creek as a foreman of an asphalt crew.

WFMM was the general partner of Big Creek, but had no relationship with Trinidad

and did not employ him.

3 Big Creek and WFMM filed separate answers. 4 Big Creek and WFMM filed a motion for summary judgment and then a supplement to their summary-judgment motion. We discuss together the motion, the supplement, and the evidence attached to both.

4 Trinidad was assigned to “the State Highway 304 Bastrop job[site] near

Giddings.” Trinidad’s asphalt crew had completed their work at a Giddings jobsite

and moved their equipment to the Bastrop jobsite on Friday, November 6, 2020.

After work on November 6, 2020, the asphalt crew members had the option of going

home for the weekend. The asphalt crew members would be staying at a Super 8

motel in Giddings the following week while working at the Bastrop jobsite.

All activities between the end of the workday on Friday, November 6, 2020

and the start of the workday the following Monday were on personal time for the

asphalt crew members. After work on November 6, 2020, Trinidad drove to Waco,

Texas in a personal pickup truck for the weekend to spend time with his family.

Trinidad was not to resume work until Monday, November 9, 2020. The asphalt

crew members were not compensated for commuting back to the jobsite if they went

home for the weekend and no mileage associated with such was reimbursed. Pay

for the asphalt crew members would begin again on Monday, November 9, 2020

when work commenced.

According to Trinidad’s sister, Brenda Treto-Murillo (“Murillo”), Trinidad

parked a Big Creek-owned trailer at her home in Waco on Friday, November 6, 2020.

Trinidad stayed at Murillo’s home that weekend to visit his family. The Big Creek

trailer remained at Murillo’s home until about 3:00 p.m. on Sunday, November 8,

5 2020, when Trinidad left Murillo’s home driving his personal pickup truck and

pulling the Big Creek trailer.

At approximately 3:58 p.m. on November 8, 2020, Trinidad used “a Big

Creek fuel card” at a gas station to fill up his personal pickup truck. This was against

Big Creek policy; Big Creek fuel cards were not to be used for a personal vehicle.

Around 4:20 p.m., Trinidad was involved in a vehicle collision with Johnnie on

Highway 77 in Falls County. While driving, Trinidad was intoxicated and “crossed

over the center line of Highway 77 into [Johnnie’s] lane of travel and struck

[Johnnie’s pickup truck] head-on.” At the time of the vehicle collision, Trinidad

was pulling a Big Creek-owned trailer with his personal pickup truck. It was against

Big Creek policy for an employee to pull a Big Creek trailer with his personal pickup

truck.

Big Creek and WFMM further explained that Big Creek “had a strict no

drinking and driving policy,” and Big Creek did not know of Trinidad’s drinking or

intoxication on Sunday, November 8, 2020. Big Creek also had no knowledge of

Trinidad’s travel plans on November 8, 2020, and Big Creek “did not mandate any

[employee’s] driving routes or the manner of travel back to the [Super 8 motel] or

to the jobsite after weekend travel.”

According to Big Creek and WFMM, Trinidad, as an asphalt foreman, had

“no authority to hire or fire employees or to remove Big Creek’s property from a

6 jobsite without the permission of [Big Creek] management or his supervisor.”

Typically, at the end of a work week, Big Creek’s trailers were locked and secured

at jobsites. Big Creek also had a storage yard in Giddings where trailers could be

locked and secured over a weekend. The asphalt crew members were not allowed

to take home tools from their jobsite or trailers. There was no “business reason” for

Trinidad to remove a Big Creek trailer from the Bastrop jobsite and take it to Waco

with him for the weekend.5 Further, Big Creek did not authorize Trinidad to take a

trailer to Waco over the weekend, and Kent Dalsing, Trinidad’s immediate

supervisor, did not know that Trinidad had removed a trailer from the jobsite until

after the vehicle collision. Trinidad violated Big Creek policy by removing a trailer

from the jobsite and by pulling a Big Creek trailer behind his personal pickup truck.

Additionally, Big Creek and WFMM explained that Big Creek “provided

motel accommodations [in Giddings] for employees working out of town,” but Big

Creek did not direct Trinidad to travel to the Super 8 motel on November 8, 2020.

And Big Creek had no knowledge that Trinidad was driving to the motel on Sunday,

November 8, 2020. Trinidad did not receive compensation from Big Creek for the

5 Trinidad would not be going to Big Creek’s “Lorena plant for supplies” during the weekend. And Big Creek mandated that employees could only use personal vehicles for company business if it was authorized by management “via a Vehicle Agreement.” Trinidad was not “participating in th[e] Vehicle Agreement program, so he was not authorized to use” his personal pickup truck to pull a Big Creek trailer.

7 time he spent driving to and from work, and he was “not being compensated or

reimbursed for mileage at the time” of the vehicle collision.

Big Creek and WFMM argued that they were entitled to judgment as a matter

of law on the Meltons’ negligence claims against them because they owed no legal

duty to the Meltons. According to Big Creek and WFMM, Trinidad was not acting

in the course and scope of his employment at the time of the vehicle collision under

the “coming and going rule” and the Meltons could not establish any exceptions to

the “coming and going rule.”6 (Internal quotations omitted.) Specifically, Trinidad

allegedly caused a vehicle collision while driving on a public road during non-work

hours traveling back to a jobsite after a weekend off, and the summary-judgment

evidence established that the vehicle collision had nothing to do with Trinidad

performing work in furtherance of Big Creek’s business. The fact that Trinidad was

pulling a Big Creek trailer with his personal pickup truck at the time of the vehicle

collision did not negate the application of the “coming and going rule” nor did the

fact that Trinidad used a Big Creek fuel card to put gas in his personal pickup truck

on Sunday, November 8, 2020.

6 Big Creek and WFMM asserted that the “special mission exception” to the “coming and going rule” did not apply. (Internal quotations omitted.) Trinidad’s actions were not for “the business benefit” of Big Creek, and Trinidad’s actions in taking the trailer to Waco over the weekend and pulling it with his personal pickup truck were prohibited by Big Creek policy.

8 Further, Big Creek and WFMM asserted that an employer is generally under

no duty to control the off-duty conduct of an employee. And Big Creek did not

know, or have reason to anticipate, that Trinidad would consume alcohol to the point

of intoxication and cause the vehicle collision with Johnnie on Sunday, November

8, 2020. Simply put, Big Creek, Trinidad’s employer, and WFMM, the general

partner of Trinidad’s employer, had no duty to “police the off-duty weekend conduct

of employees, particularly when they [had been] drinking without the knowledge of

the[ir] employer.”7

Big Creek attached to its summary-judgment motion the affidavit of Dalsing,

a general superintendent employed by Big Creek. In his affidavit, Dalsing testified

that Trinidad was employed by Big Creek as an asphalt superintendent or foreman

of an asphalt crew.8 As an asphalt superintendent, Trinidad had “no authority to hire

or fire employees or to remove Big Creek’s property from [a] jobsite without the

permission of [the] company manager” or Dalsing. Trinidad reported to Dalsing,

and Dalsing was responsible for “directing the work of [Trinidad] and his asphalt

crew in November 2020.” Trinidad was assigned to the “State Highway 304 Bastrop

job[site] near Giddings . . . as of November 6, 2020.”

7 Big Creek and WFMM also raised “no evidence points as to key issues relating to [its] no duty argument[].” 8 Dalsing noted that Trinidad was not an employee of WFMM and had no relationship with WFMM. Dalsing also had no employment relationship with WFMM.

9 Dalsing further testified that Trinidad “last worked for Big Creek on Friday,

November 6, 2020.” The last text message correspondence Dalsing had with

Trinidad was on the morning of Friday, November 6, 2020. Trinidad and his asphalt

crew had the weekend off work, and he was not due back on the job until the morning

of Monday, November 9, 2020. Trinidad’s job would not have resumed, and he

would not have been compensated by Big Creek, until November 9, 2020 “when his

[asphalt] crew resumed work on the Bastrop job[site].” Although Trinidad could

have driven a Big Creek-owned pickup truck over the weekend, Trinidad chose to

drive a personal pickup truck to Waco.

According to Dalsing, at approximately 3:58 p.m., on Sunday, November 8,

2020, Trinidad “gassed up a vehicle and used a Big Creek fuel card” at the gas

station. Trinidad’s personal pickup truck was not a Big Creek vehicle, and Trinidad

violated Big Creek policy if he filled up his personal pickup truck using the Big

Creek fuel card.9

Dalsing further testified that Big Creek “strictly prohibit[ed] employees from

drinking and driving.” Dalsing had “no knowledge of [Trinidad’s] drinking (let

alone his intoxication) on Sunday, November 8, 2020, and [he] exercised no control

9 Big Creek and WFMM attached a copy of Big Creek’s policies to Dalsing’s affidavit. Big Creek and WFMM also attached a copy of Big Creek’s “Driver Fuel Policy,” which stated that a Big Creek fuel card was not allowed to be used for filling up personal vehicles with gas. Trinidad signed the “Driver Fuel Policy.”

10 over [Trinidad’s] activities on the day of the [vehicle collision].” Dalsing noted that

Trinidad was “free to drive to the jobsite on Monday or to spend Sunday night at the

Super 8 [m]otel in Giddings.” Dalsing did not direct Trinidad to travel to Giddings

on November 8, 2020, and he had no knowledge of Trinidad’s travel plans or route

on November 8, 2020.

As to the trailer that Trinidad was pulling with his personal pickup truck on

November 8, 2020, Dalsing testified that typically, at the end of a work week, trailers

were locked and secured at a jobsite. Alternatively, Big Creek had a storage yard in

Giddings where trailers could be secured over a weekend. Dalsing was unaware of

any “business reason why [Trinidad] would [have] remove[d] [a] trailer from the

[Bastrop] jobsite” on November 6, 2020 and taken it to Waco with him. Any

supplies needed by Trinidad and his asphalt crew were transported to him on an

as-needed basis. Trinidad did not pick up any supplies with the Big Creek-owned

trailer over the weekend.

According to Dalsing, he did not know that Trinidad had removed a Big Creek

trailer from the Bastrop jobsite on November 6, 2020, and Trinidad violated Big

Creek policy by removing the trailer. Dalsing had not directed Trinidad to return

the trailer to the jobsite because Dalsing was not aware that it had been removed.

Dalsing also explained that Trinidad did not receive any compensation from

Big Creek for the time he spent driving to and from his jobsite, and Trinidad was not

11 being compensated or reimbursed for mileage at the time of the vehicle collision on

November 8, 2020. Although Big Creek provided motel accommodations for

employees working out of town and Trinidad could have stayed at the Super 8 motel

in Giddings, Big Creek did not direct or require Trinidad to travel there on November

8, 2020. Dalsing did not know that Trinidad was driving to the motel at the time of

the vehicle collision.

Big Creek and WFMM also attached the affidavit of Leonard Vaughan to their

summary-judgment motion. In his affidavit, Vaughan testified that he was an

accident reconstruction expert, and he had been asked to reconstruct the vehicle

collision between Trinidad and Johnnie.

According to Vaughan, the vehicle collision occurred on November 8, 2020

at 4:20 p.m. Trinidad was driving a 2018 Dodge RAM pickup truck, which was

registered to his father, Treto. Trinidad was pulling a 2019 “white box trailer”

owned by Big Creek. Trinidad was traveling southbound on Highway 77 south of

Waco, while Johnnie was driving a 2020 Ford F350 pickup truck northbound on

Highway 77. While driving, Trinidad crossed the center line and collided head-on

with Johnnie’s pickup truck. Trinidad had a blood-alcohol concentration of 0.15. In

Vaughan’s opinion, the Big Creek trailer that Trinidad was pulling did not contribute

to the vehicle collision.

12 Additionally, Big Creek and WFMM attached to their summary-judgment

motion excerpts from the deposition testimony of Treto, Trinidad’s father. Treto

testified that Trinidad’s job position with Big Creek was foreman. The pickup truck

that Trinidad was driving on November 8, 2020 was under Treto’s name, but it was

Trinidad’s personal pickup truck. Trinidad was “paying for it.” Trinidad would

drive his personal pickup truck “all his hours when he was off of work.” According

to Treto, Big Creek-owned the trailer that Trinidad was pulling at the time of the

vehicle collision. Trinidad was not taking the trailer to a jobsite though; he was

bringing it to his motel. Treto did not know if Trinidad was allowed to take the

trailer off the jobsite, and according to Treto, sometimes the trailers stayed at the

jobsite.

Treto also testified that Trinidad was not permitted to use a Big Creek-owned

pickup truck for personal use, and Big Creek did not allow employees to use their

fuel card when putting gas in their personal vehicle. Trinidad was in Waco to visit

his family, and the Big Creek trailer was parked in Trinidad’s sister’s driveway for

the weekend. Treto did not know if Trinidad was allowed to pull the Big Creek-

owned trailer on the weekend of the vehicle collision.

Big Creek and WFMM attached to their supplement to their

summary-judgment motion excerpts from the deposition testimony of Ricardo

Martinez, a machine operator for Big Creek. In his deposition, Martinez testified

13 that as a machine operator he “place[d] down asphalt” and was a member of a “road

crew.” Big Creek sometimes paid for a motel room for Martinez if he was working

at a jobsite too far from home.

While working for Big Creek, Martinez did not bring home tools from the

jobsite. He also never brought a Big Creek trailer home with him. Instead, the

trailers could be taken to “a small yard” or left on “the side of the road.” Martinez,

who sometimes pulled trailers from a completed jobsite to a new jobsite, never towed

a Big Creek trailer with his personal vehicle. It was only appropriate for Martinez

to drive his personal vehicle from his home to a jobsite and then back home; his

personal vehicle was never used for work because that was prohibited.

In November 2020, Martinez was working as a machine operator. His crew’s

first day at the Bastrop jobsite was on Friday, November 6, 2020. Before starting at

the Bastrop jobsite, Martinez was working at the Giddings jobsite, where he had

worked from June 2020 until November 5, 2020. At the Giddings jobsite, Trinidad

was the crew’s foreman or supervisor. After work on Friday, November 6, 2020,

Martinez drove him to Mexia, Texas. Big Creek did not reimburse him for mileage

when he was driving his personal vehicle.

On Sunday, November 8, 2020, Martinez’s asphalt crew was not working

because they did not work on Sundays. Friday, November 6, 2020 was the crew’s

last day of work. On November 8, 2020, Martinez drove to Giddings to check into

14 the Super 8 motel so that he would be ready to start work on Monday morning.

Martinez was not paid for his travel time to the Super 8 motel; Big Creek only paid

for his motel room. Martinez received no compensation from Big Creek until he

arrived at the jobsite on Monday, November 9, 2020. Members of Martinez’s

asphalt crew were not required by Big Creek to stay at the motel on Sunday,

November 8, 2020; he also had the option of driving from home directly to the

jobsite on Monday morning.

Martinez further noted that while his crew worked at the Giddings jobsite,

Trinidad would return the Big Creek trailer to “the yard,” which was fenced and able

to be locked. “[T]he yard” in Giddings was available to store trailers while the

asphalt crew worked at both the Giddings and Bastrop jobsites. According to

Martinez, a specific trailer was assigned to his crew. On Friday, November 6, 2020,

when Trinidad left the Bastrop jobsite, he said, “Alright, fellas, we’ll see you

Monday,” and drove away pulling the Big Creek trailer with his personal pickup

truck. (Internal quotations omitted.) At the time, Martinez did not know if Trinidad

took the Big Creek trailer to Waco or to “the yard in Giddings” where he could leave

it secured. Martinez had never seen Trinidad take a Big Creek trailer home with him

on the weekends.

Further, according to Martinez, Trinidad never went “to the Lorena plant to

replenish or get new supplies” on a weekend. Instead, during the week, Trinidad

15 would send someone if he needed new material or supplies. Martinez did not know

of any business reason why Trinidad would pull the Big Creek trailer to Waco for

the weekend.

Martinez also stated that he never took a Big Creek trailer from a jobsite with

his personal vehicle. He also never took a Big Creek trailer home from a jobsite

using a Big Creek vehicle. Martinez was not allowed to use a Big Creek fuel card

to put gas in his personal vehicle, and it was inappropriate to remove a fuel card from

a Big Creek vehicle because each card was assigned to a specific Big Creek vehicle.

Martinez did not know if Trinidad had been authorized to pull a Big Creek trailer

with his personal pickup truck.

Martinez testified that Big Creek had “rules about drinking and driving.” It

was not acceptable for an employee to drive a Big Creek vehicle or pull a Big Creek

trailer if an employee had been drinking alcohol.

Big Creek and WFMM also attached to their supplement to their

summary-judgment motion the affidavit of Chris Wolfe, the chief financial officer

of Big Creek. In his affidavit, Wolfe testified that Big Creek’s road crews, including

“paving crews,” were assigned to jobsites “as their base of operations.” Road crews

were not based out of any of Big Creek’s office locations.

Wolfe also testified that Big Creek’s records showed that at the time of the

vehicle collision, Trinidad was a foreman of a paving crew that had been assigned

16 to a jobsite in Bastrop. Previously, Trinidad’s crew had been assigned to a jobsite

near Giddings, but on Friday, November 6, 2020, the crew moved equipment to the

Bastrop jobsite “to be ready to start that part of the job on the [coming] Monday.”

Trinidad and his crew were allowed to stay at a motel in Giddings while working at

both the Giddings and Bastrop jobsites, but Big Creek did not require Trinidad or

his crew members to stay at a motel on the Sunday night prior to work beginning on

Monday.

According to Wolfe, neither Trinidad nor his crew members were

compensated for the time they spent commuting from where they had spent the

weekend to Giddings on Sunday, November 8, 2020 or to Bastrop on Monday,

November 9, 2020. Compensable hours for Trinidad and his crew began on Monday

morning when work commenced at the Bastrop jobsite. Although Trinidad was

guaranteed “60 hours of pay each week as a foreman, his commute time to and from

[a] jobsite[] was not included in calculating his hours.” “All activities between the

end of the workday on Friday and the start of the new [work] day on Monday [were]

personal time” for Trinidad and his crew. Big Creek did not “mandate any worker’s

driving route[] or the manner of travel back to the [m]otel or to the jobsite after

weekend travel.” Big Creek did not reimburse its employees, including a foreman

of a road crew, for any expenses, such as mileage or gas, in commuting to a jobsite

17 in a personal vehicle, unless Big Creek and the employee had “a Vehicle

Agreement.”

Wolfe further explained that Big Creek’s equipment, including trailers, were

assigned to Big Creek road crews, as necessary, so that they could perform their road

construction activities. A work trailer was used by Trinidad’s crew, and Big Creek

provided a locked and fenced location near Giddings where the trailer could be

stored when it was not in use at either the Giddings or Bastrop jobsite. The assigned

trailer could also have been “parked [at the jobsite] with machinery protecting it

from being stolen.” Trinidad had not been “contractually obligated, compensated,

or requested by Big Creek to protect or safeguard [his crew’s] trailer over a weekend

between work weeks.”

Additionally, a Big Creek pickup truck had been assigned to Trinidad’s crew

for Trinidad’s use. At the time of the vehicle collision, Trinidad’s assigned Big

Creek pickup truck was “in the shop for mechanical repairs.” While that pickup

truck was being repaired, additional Big Creek pickup trucks were available for use

by Trinidad.

Although certain Big Creek supervisors and foremen were authorized to drive

personal vehicles on Big Creek jobsites and for Big Creek company business, none

of them could do so without signing a “Vehicle Agreement.” Foremen, like

Trinidad, who had been authorized to drive a Big Creek vehicle were not allowed to

18 participate in the “Vehicle Agreement program.” At the time of his death, Trinidad

was not participating in the “Vehicle Agreement program” and was not authorized

to use his personal pickup truck for Big Creek business.

Wolfe further testified that he had not found any Big Creek record that showed

that Trinidad was allowed to remove the Big Creek trailer assigned to his crew from

the Bastrop and Giddings area and pull it to Waco over the weekend. The removal

of Big Creek equipment, like a Big Creek trailer, from a jobsite required

management approval. There was no record showing that management had

approved Trinidad removing the Big Creek trailer from the jobsite in the Bastrop

and Giddings area over the weekend when the vehicle collision occurred. There was

also no record indicating that there was a business purpose for removing the trailer

from the Bastrop and Giddings area. Big Creek policy prohibited employees, like

Trinidad, from pulling Big Creek trailers with their personal vehicles, unless the

personal vehicle was the subject of a “Vehicle Agreement,” which Trinidad’s

personal pickup truck was not.

Finally, Big Creek and WFMM attached to their supplement to their

summary-judgment motion excerpts from the deposition testimony of Murillo,

Trinidad’s sister. In her deposition, Murillo testified that she first saw Trinidad on

the night of Friday, November 6, 2020 at their parents’ home. Trinidad was driving

his personal pickup truck, pulling a trailer, and was coming from work. Murillo

19 knew that Trinidad had come straight from where he had been working to their

parents’ house.

Trinidad had dinner at their parents’ house, and then, Trinidad and Murillo

drove separately to her house. Trinidad parked his personal pickup truck and the

trailer in Murillo’s driveway. Murillo noted that Trinidad kept personal equipment

and Big Creek equipment in the trailer, and he liked to organize it. There was no

fence around Murillo’s driveway area and no way to lock the area. Murillo did not

know if Trinidad was allowed to take the Big Creek trailer off the jobsite.

Trinidad stayed at Murillo’s home all weekend.10 On Saturday, Trinidad

unhooked his personal pickup truck from the trailer and went to the grocery store.

This was the only time that Trinidad left Murillo’s home that weekend. The trailer

stayed parked at Murillo’s home until about 3:00 p.m. on Sunday, November 8,

2020, when Trinidad left. Trinidad never took the trailer anywhere the entire

weekend.

According to Murillo, Trinidad left on Sunday to go to the motel in Giddings

“to get ready for Monday.” In general, at the end of a weekend, Trinidad would

either leave Sunday afternoon or at 4:00 a.m. on Monday morning. It depended on

10 Murillo noted that on Saturday, November 7, 2020, her parents came to her house and she and Trinidad hung out outside with them; it was just a normal family gathering.

20 how he felt. On Sunday, November 8, 2020, Trinidad “was not working that day.”11

He was simply commuting to the motel.

In response to Big Creek and WFMM’s summary-judgment motion and

supplement, the Meltons filed their third amended petition. Their third amended

petition largely mirrored their second amended petition but included additional

details related to their negligence claims against Big Creek and WFMM. For

instance, the Meltons alleged that at the time of the vehicle collision Trinidad was

employed by WFMM’s general partner, Big Creek, and was pulling Big Creek’s

trailer “in furtherance of his employment with Big Creek to Giddings . . . to a Super

8 motel room purchased by Big Creek and its general partner WFMM to further

Trinidad’s employment for Big Creek and to benefit the general partnership between

Big Creek and WFMM.”

The Meltons again brought direct liability claims against Big Creek and

WFMM for negligence, negligent entrustment, negligent supervision or control, and

negligent training, and they added a direct liability claim against Big Creek and

WFMM for gross negligence. The Meltons also continued to bring a claim for

vicarious liability against Big Creek and WFMM based on the purported negligent

acts of Trinidad.

11 Murillo testified that her husband worked for Big Creek for seven years and he never worked on a Sunday.

21 As to their direct liability claims, the Meltons asserted that Big Creek and

WFMM were liable for the damages suffered by the Meltons “at the hands of

Trinidad.”12 According to the Meltons, Big Creek and WFMM owed a duty to

exercise ordinary care “to be certain that Big Creek’s employee[,] Trinidad[,] was

properly licensed” and “properly trained to operate WFMM and its general partner

Big Creek’s trailer,” including “pull[ing] [the] trailer from job[site] to job[site] or

wherever Trinidad . . . believed it was necessary for the . . . trailer to be.” Big Creek

and WFMM further had a duty to exercise ordinary care to be certain that Trinidad

“could and would operate WFMM and its general partner Big Creek’s . . . trailer

reasonably and prudently before entrusting Trinidad to move the . . . [t]railer and

[its] necessary contents in order to perform the contract [with] the Texas Department

of Transportation.”

The Meltons also asserted that Big Creek and WFMM were negligent and

grossly negligent “in the[ir] retention of Trinidad” as an employee and in their

allowing Trinidad to continue operating Big Creek pickup trucks and pulling trailers,

when Big Creek knew or should have known that Trinidad: (1) was convicted on

June 3, 2020 of the offense of driving while intoxicated in Burleson County, Texas

12 As to WFMM, the Meltons alleged that because WFMM was the general partner of Big Creek and would execute contracts with the Texas Department of Transportation “to benefit” WFMM and Big Creek, WFMM was jointly and severally liable, along with Big Creek, “for the damages suffered by [the Meltons] at the hands of” Trinidad, Big Creek’s employee.

22 where Big Creek “had a contract with [the Texas Department of Transportation] for

highway construction”; (2) received a “safety violation ticket” from a Big Creek

superintendent for “backing into ‘skid/steer,’” while using a Big Creek vehicle, and

causing property damages; (3) was arrested in Sante Fe, New Mexico on October

26, 2019 for the offense of driving while intoxicated and the infractions of speeding

fifty miles per hour over the speed limit and having no insurance; (4) was the “at

fault driver involved in a [vehicle collision]” on June 24, 2019, while using a Big

Creek vehicle, and received a “safety violation ticket” from a Big Creek

superintendent for failure to control a pickup truck; (5) was “the contributing fault

driver,” in a vehicle collision on June 23, 2019 in Brazos County, Texas causing

property damage; (6) received a “safety violation ticket” from a Big Creek

supervisor on October 24, 2018, for failing to wear a safety reflective vest while on

a jobsite thereby violating Big Creek policy; (7) was operating a vehicle on July 2,

2016 in McClennan County, Texas when he was involved in a vehicle collision

which resulted in him striking “a concrete base for a light pole” and causing property

damage; (8) was the “at fault operator of a motor vehicle involved in a [car]

collision,” on November 16, 2014, that resulted in property damage; (9) received a

“safety violation ticket” for causing a collision on February 12, 2012 while driving

a Big Creek vehicle and striking a fence; (10) received a “safety violation ticket” on

October 24, 2011 for not wearing a hard hat while on the job in violation of Big

23 Creek policy; and (11) had an expired driver’s license when hired by Big Creek. Big

Creek and WFMM’s negligence was the proximate cause of the Meltons’ damages.

As to their vicarious liability claim against Big Creek and WFMM, the

Meltons asserted that Trinidad, at the time of the vehicle collision, was acting within

the scope and course of his employment with Big Creek because he was pulling Big

Creek’s trailer. And as such, Big Creek and WFMM were liable under the doctrine

of respondeat superior for the negligent acts of Trinidad.

As to damages, the Meltons sought reasonable past and future medical

expenses, past and future physical pain and suffering, including scarring, past and

future physical impairment, loss of past and future earnings, loss of past and future

household services, loss of consortium, mental anguish, and disfigurement. And the

Meltons sought exemplary damages.

The Meltons also filed a response to Big Creek and WFMM’s

summary-judgment motion and supplement. In their response, the Meltons noted

that Big Creek and WFMM’s summary-judgment motion focused on the duty

element of the Meltons’ negligence claims. But according to the Meltons, Big Creek

and WFMM owed them a duty as Trinidad’s employer because he was acting in the

course and scope of his employment while he was driving back to the Super 8 motel

24 in Giddings on Sunday, November 8, 2020, so that he could start work on Monday.13

The Meltons asserted that this was obvious because Big Creek was paying for

Trinidad’s motel room in Giddings,14 which was near the jobsite where he would be

working the following week, and because he was towing a Big Creek trailer holding

equipment that was essential to the Trinidad’s crew’s work. Additionally, according

to the Meltons, there was evidence that other Big Creek foremen or supervisors had

moved Big Creek trailers in the past, and trailers left at jobsites were susceptible to

theft. Further, Trinidad had “stopped at Big Creek’s Lorena plant over the weekend;

a plant where he could restock equipment.” Because such evidence created issues

of material fact as to whether Trinidad was acting in the course and scope of his

employment at the time of the vehicle collision with Johnnie, the Meltons requested

that the trial court deny summary judgment on their direct liability and vicarious

liability negligence claims.

The Meltons attached to their summary-judgment response additional

excerpts from Treto’s deposition testimony. In his deposition, Treto testified that

Trinidad told him that Big Creek had bought him a trailer for work, and Trinidad

13 The Meltons, in their response, asserted that the “coming and going rule” did not apply because the special-mission exception was applicable to the case. 14 The Meltons also asserted that Big Creek and WFMM reimbursed Trinidad for his travel expenses, including fuel, lodging, and food.

25 would use the trailer to store his tools at the jobsite. It was not Trinidad’s trailer

though, Big Creek-owned it; but it was Trinidad’s responsibility.

Treto also testified that he had seen Trinidad pull the Big Creek trailer with

his personal pickup truck, but Trinidad typically drove a pickup truck owned by Big

Creek. Trinidad never used the Big Creek-owned pickup truck for personal use

because Big Creek did not allow it. Treto, who also worked for Big Creek, had never

pulled Big Creek equipment with his personal pickup truck.

Treto further testified that Trinidad would pull the Big Creek trailer to Waco

sometimes because he did not want to leave it at a motel. Trinidad had the right to

make sure the trailer was safe and in a good location. Trinidad would also sometimes

keep the Big Creek trailer at the motel where he was staying so that it would be close

to the jobsite or if he was concerned about the safety of the trailer in Big Creek’s

storage yard. However, Treto also noted that sometimes the Big Creek trailers

“live[d]” at the jobsite, and there was a storage yard where the trailer could be left.

Treto did not know if Trinidad was authorized to take a Big Creek trailer with him

on the weekend of the vehicle collision.

Additionally, Treto testified that at the time of the vehicle collision, Trinidad

was pulling the Big Creek trailer to a motel where Big Creek was providing rooms

for Trinidad’s crew. The weekend of the vehicle collision, Trinidad had been in

Waco staying at his sister’s house, and the family had a get-together at the house on

26 Saturday night. Trinidad drank two or three beers that night. Trinidad’s personal

pickup truck was parked at his sister’s house all weekend, with the Big Creek trailer

hitched to it.

Treto also testified that at times, Trinidad would go to Big Creek’s Lorena

plant to pick up safety items for his crew, but Treto did not know how often that

happened or whether Trinidad went to the Lorena plant the weekend that the vehicle

collision occurred. Trinidad would not take the Big Creek trailer to the Lorena plant

though, only his personal pickup truck.

Treto further testified that he did not know if Trinidad was allowed to use a

Big Creek fuel card on his personal pickup truck if he was pulling a Big Creek trailer,

but Treto also stated that Big Truck did not allow employees to use the fuel card to

put gas in their personal vehicles. Treto did not know which, if any, of Trinidad’s

actions had been authorized by Big Creek management. For instance, he did not

know whether Big Creek management allowed Trinidad to pull the Big Creek trailer

off the jobsite, and he did not know what Trinidad was instructed to do with the

trailer for his crew other than that Trinidad was allowed to put tools, sensors, and

keys inside it.

The Meltons also attached to their summary-judgment response additional

excerpts from Martinez’s deposition testimony. In his deposition, Martinez testified

that he was a machine operator for Big Creek, and in that role, he “place[d] down

27 asphalt.” Martinez had the same job in November 2020, and he was part of a road

crew for Big Creek.

Martinez’s current supervisor had a Big Creek pickup truck assigned to him,

and he would sometimes pull a Big Creek trailer with his truck. Yet, the supervisor

did not ever take the trailer home from the jobsite. If the trailer was not being used,

it was either left in a storage yard or on the side of the road. After a job was complete,

the trailer would be taken to the next jobsite. Martinez’s previous supervisor drove

his personal pickup truck to work, but he never pulled a Big Creek trailer with his

personal pickup truck. Martinez never took a Big Creek trailer home with him, and

he was not aware of anyone taking a Big Creek trailer to their home. Additionally,

Martinez never pulled a Big Creek trailer with his personal vehicle, and no one he

ever worked with had pulled a Big Creek trailer with their personal vehicle.

According to Martinez, it was against Big Creek policy to use a personal vehicle to

do Big Creek work; an employee was only allowed to drive their personal vehicle

from his home to a jobsite and back.

Martinez further testified that there were times when his asphalt crew would

stay at a motel that was paid for by Big Creek. Big Creek did not pay Martinez for

his travel time from his home to the motel. When Martinez was working at a jobsite

away from his home, he received $15 a day to help pay for food and gas. On Sunday,

November 8, 2020, Martinez drove his personal pickup truck from his home in

28 Mexia to Giddings because he “needed to start out the job the next morning . . . in

Giddings.” Martinez would drive a Big Creek pickup truck from the motel to the

jobsite on Monday.

As to Trinidad, Martinez testified that Trinidad was the foreman of the asphalt

crew that was working at the Bastrop jobsite. Trinidad’s Big Creek pickup truck

was in the shop. There were two other Big Creek pickup trucks that were assigned

to two other members of the crew. Trinidad and the two other crew members with

Big Creek pickup trucks would drive those trucks to and from the jobsite. Because

Trinidad was the foreman of the crew, he would have had a trailer where all the tools

for the job were kept and that could be locked. Martinez described the trailer as “a

closed-in trailer” with doors at the back, like a “U-Haul” trailer. (Internal quotations

omitted.) It was owned by Big Creek.

According to Martinez, on Thursday, November 5, 2020, Trinidad’s asphalt

crew was working in Giddings, and on Friday, November 6, 2020, Trinidad’s crew

was working in Bastrop. While working in Giddings, Trinidad would keep the Big

Creek trailer at the storage yard, which was fenced and could be locked. Martinez

stated that the crew began “actual physical work” in Bastrop on November 6, 2020.

That morning, Trinidad had picked up the Big Creek trailer from the storage yard.

At the end of the workday on November 6, 2020, Martinez assumed that Trinidad

was either going to leave the Big Creek trailer at the storage yard in Giddings or take

29 it with him, but Trinidad would not have left it at the Bastrop jobsite. Martinez

would not know if Trinidad was taking the trailer to Waco though.

Additionally, the Meltons attached to their summary-judgment response

excerpts from the deposition testimony of Carol Stone, a Big Creek employee. In

her deposition, Stone testified that Big Creek did “[h]eavy highway” construction.

Big Creek’s corporate office was in Lorena. Related to Big Creek’s work in

November 2020 in Giddings, Stone testified that employees working at the Giddings

jobsite stayed at the Super 8 motel in Giddings, and Big Creek paid for their motel

rooms. Big Creek would lease a block of rooms at the motel to be set aside for

employees so that they would be available if an employee wanted to stay. Trinidad

was assigned to the asphalt crew, and he was a foreman. Trinidad did not work on

either Saturdays or Sundays.

Stone further testified that at the time of the vehicle collision, Trinidad was

pulling a Big Creek-owned trailer, and he was driving on Highway 77. Stone did

not know where Trinidad was going. Before the vehicle collision, Trinidad’s fuel

card was used. Stone did not believe that Trinidad was acting in the course and

scope of his employment at the time of the vehicle collision. Trinidad was not

supposed to the take the Big Creek trailer off the jobsite. But Trinidad was taking

the trailer back to the jobsite; it contained items used at the jobsite.

30 The Meltons also attached to their summary-judgment response a “Workers

Compensation – First Report of Injury or Illness” form that was completed by Stone

related to the vehicle collision. The form listed the location of the vehicle collision

as Highway 77 near Chilton, Texas and noted that a Big Creek enclosed trailer had

been damaged. In her deposition testimony, Stone noted that she had filed the

“report only form” with a “workers’ compensation carrier” to notify it that a Big

Creek employee had died. According to Stone, she filed the “report only form” to

let the insurance company “know that it happened” so that it would not “be

blindsided if someone made a claim.” But she did not think that the vehicle collision

was a workers’ compensation issue.

Further, the Meltons attached to their summary-judgment response additional

excerpts from the deposition testimony of Wolfe. Wolfe noted that Trinidad was an

employee of Big Creek and the foreman of an asphalt crew. Following the vehicle

collision, “a report of injury” was made to Big Creek’s “[w]orker’s [c]ompensation

carrier” for information purposes only.

As to the trailer, Wolfe testified that it was owned by Big Creek, and it would

have been “assigned to the crew.” If the trailer had been assigned to a crew’s

foreman, it would have been his responsibility to make sure that it was safe and

secure.

31 Wolfe also explained that Big Creek paid for Super 8 motel rooms for its

hourly and salaried employees. At a jobsite, employees could leave certain

equipment and pickup trucks overnight, although Big Creek-owned pickup trucks

were typically driven away at night.

According to Wolfe, Trinidad should not have used a Big Creek fuel card to

fill up his personal pickup truck with gas even if his Big Creek pickup truck was not

available for him to use. Employees were allowed to drive their personal vehicles

home from a jobsite and back, but they were not allowed to use the fuel cards while

driving their personal vehicles. Employees were not allowed to use their personal

vehicles for any Big Creek business unless they had a “Vehicle Use Agreement.”

Additionally, the Meltons attached to their summary-judgment response a

“Major Crash Investigation” report by the Texas Highway Patrol Division. The

“Investigator’s Memo” contained in the report noted that the vehicle collision

involving Trinidad and Johnnie occurred on Sunday, November 8, 2020 on Highway

77 in Falls County at about 4:20 p.m. Trinidad was driving a Dodge Ram pickup

truck and towing a box trailer. Johnnie was driving a Ford F-350 pickup truck.

Trinidad was driving his pickup truck southbound on the two-lane highway, but

before the vehicle collision, a witness saw Trinidad’s truck cross the yellow center

line separating the southbound and northbound lanes of travel. Trinidad’s pickup

truck struck the front left side of Johnnie’s pickup truck with the front left side of

32 his pickup truck. Johnnie’s pickup truck rolled an unknown number of times before

coming to rest on its wheels. Trinidad’s pickup truck continued southbound rotating

counterclockwise until it came to rest across the entire roadway. Before the vehicle

collision, Trinidad was seen “swerving back and forth between the shoulder and the

oncoming lane of traffic.”

Trinidad was pronounced dead at the scene of the vehicle collision, and

Johnnie suffered a left hip fracture, muscle tear in his right lower leg, and several

broken bones in his right foot. Later testing showed that Trinidad’s blood alcohol

concentration was 0.150 grams of alcohol per 100 milliliters of blood, indicating that

he was intoxicated at the time of the vehicle collision.

The Investigator’s Memo also explained that law enforcement spoke to

Trinidad’s family, who stated that Trinidad had been drinking alcohol earlier in the

day on November 8, 2020 and became angry when his family members told him to

stop because he had to “drive later.” Trinidad, who had been at his parents’ home,

left. Trinidad’s brother stated that Trinidad might have gone to his sister’s house to

pick up clothes, but he did not recall when Trinidad left. Trinidad could have been

intoxicated when he left his parents’ house.

Trinidad’s brother also did not know Trinidad’s intended destination on the

afternoon of November 8, 2020, but he thought he was going to the “Bryan/College

Station” area of Texas where he had been staying. Trinidad’s brother also stated that

33 Trinidad had been “staying in a [m]otel in Giddings . . . for work.” When asked why

Trinidad “might have been on the road he was [driving] on” at the time of the vehicle

collision, Trinidad’s brother did not know. According to his brother, Trinidad

worked as a “supervisor for an asphalt crew and the last day he worked was on

Friday[,] November 6, 2020.” His brother also stated that Trinidad “stopped by the

office on Saturday[,] November 7[,] [2020] to pick up the trailer he was towing but

did not perform any work.”

Finally, the Meltons attached to their summary-judgment response excerpts

from the deposition testimony of Texas Department of Public Safety State Trooper

J. Duncan, who testified that during his investigation of the vehicle collision he

sought to determine if Trinidad was “authorized to be pulling [a] trailer” on

November 8, 2020. Duncan spoke to someone “at Big Creek’s office” and was told

that Trinidad “was a supervisory for a . . . paving crew . . . and it[] [was] not

uncommon for them to pick up the trailer when they’re off to get ready . . . to get to

the next job.”15

The trial court held a hearing on Big Creek and WFMM’s summary-judgment

motion. Following the hearing, the Meltons filed their first motion for leave to file

a supplemental response to the summary-judgment motion as well as a supplemental

response. They attached excerpts from additional deposition testimony to their

15 Big Creek and WFMM filed a reply to the Meltons’ summary-judgment response.

34 supplemental response. After Big Creek and WFMM responded to the Meltons’

motion for leave and supplemental response, the trial court granted the Meltons’

motion and considered their supplemental response and its attached evidence in

making its summary-judgment ruling.

The Meltons then filed a second motion for leave to file a supplemental

response to Big Creek and WFMM’s summary-judgment motion to which they

attached additional pages of deposition testimony. In their motion, the Meltons

asserted that they had inadvertently left out certain pages of the deposition testimony

of Dalsing when they filed their first supplemental response to the

summary-judgment motion. Big Creek and WFMM opposed the Meltons’ second

motion for leave.

Subsequently, the trial court, without specifying the ground, granted Big

Creek and WFMM summary-judgment motion and ordered that the Meltons take

nothing on their negligence claims against Big Creek and WFMM.

The Meltons then filed a motion for reconsideration of the trial court’s

summary-judgment ruling, which the trial court denied. The trial court also denied

the Meltons’ second motion for leave to file a supplemental response to Big Creek

and WFMM’s summary-judgment motion.

35 Summary Judgment

In their first issue, the Meltons argue that the trial court erred in granting Big

Creek and WFMM summary judgment on the Meltons’ vicarious liability negligence

claim because a fact issue existed as to whether Trinidad was “acting in the course

and scope of his employment” with Big Creek at the time of the vehicle collision.

In their fourth issue, the Meltons argue that the trial court erred in granting Big Creek

and WFMM summary judgment on the Meltons’ direct liability claims for

negligence, gross negligence, negligent entrustment, negligent supervision or

control, and negligent training because Big Creek and WFMM “did not move for

summary judgment on” those claims.

We review a trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true

all evidence favorable to the non-movant, and we indulge every reasonable inference

and resolve any doubts in the non-movant’s favor. Valence Operating, 164 S.W.3d

at 661; Knott, 128 S.W.3d at 215. If a trial court grants summary judgment without

specifying the grounds for granting the motion, we must uphold the trial court’s

judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power,

Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

36 A party seeking summary judgment may combine in a single motion a request

for summary judgment under the no-evidence standard with a request for summary

judgment as a matter of law.16 Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex.

2004). To prevail on a matter-of-law summary-judgment motion, the movant must

establish that no genuine issue of material fact exists and the trial court should grant

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.

Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a

defendant moves for a matter-of-law summary judgment, it must either: (1) disprove

at least one essential element of the plaintiff’s cause of action, or (2) plead and

conclusively establish each essential element of an affirmative defense, thereby

defeating the plaintiff’s cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341

(Tex. 1995); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Once

the movant meets its burden, the burden shifts to the non-movant to raise a genuine

issue of material fact precluding summary judgment. See Siegler, 899 S.W.2d at

197; Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691 (Tex. App.—

Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine issue of fact if

16 Although Big Creek and WFMM moved for summary judgment on both no-evidence and matter-of-law grounds, because it is dispositive of the Meltons’ appeal, we only review the trial court’s ruling on Big Creek and WFMM’s matter-of-law summary-judgment motion. See Mejia-Rosa v. John Moore Servs., Inc., No. 01-17-00955-CV, 2019 WL 3330972, at *5 (Tex. App.—Houston [1st Dist.] July 25, 2019, no pet.) (mem. op.); see also TEX. R. APP. P. 47.1.

37 reasonable and fair-minded fact finders could differ in their conclusions in light of

all the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 755 (Tex. 2007).

A. Vicarious Liability Claim

In their first issue, the Meltons argue that the trial court erred in granting

summary judgment on their vicarious liability negligence claim against Big Creek

and WFMM because “material questions of fact [existed] as to whether [Trinidad]

was acting in the course and scope of his employment” with Big Creek at the time

of the vehicle collision and as to whether the special mission exception to the

“coming and going rule” applied to Trinidad.

The common-law doctrine of respondeat superior, or vicarious liability, is an

exception to the general rule that a person has no duty to control another’s conduct.

Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130–31 (Tex. 2018). It

provides that “liability for one person’s fault may be imputed to another who is

himself entirely without fault solely because of the relationship between them.” Id.

at 130 (internal quotations omitted).

To prove an employer’s vicarious liability for an employee’s negligence, the

plaintiffs must show that, at the time of the negligent conduct, the employee was

acting in the course and scope of his employment. Id. at 131. In the “course and

scope of employment” means within the scope of the employee’s general authority,

38 in furtherance of the employer’s business, and for the accomplishment of the object

for which he was hired. Id. Additionally, to be within the scope of employment, the

employee’s act must be of the same general nature as, or incidental to, the authorized

conduct. Id. Thus, if an employee deviates from the performance of his duties for

his own purposes, his employer is not responsible for what occurs during that

deviation. Id.

Big Creek and WFMM moved for summary judgment as a matter of law on

the Meltons’ vicarious liability negligence claim arguing that they owed no legal

duty to the Meltons because Trinidad was not acting in the course and scope of his

employment with Big Creek at the time of the vehicle collision. According to Big

Creek and WFMM, the “coming and going rule” applied and the Meltons could not

establish an exception to the “coming and going rule” as a matter of law.

The “coming and going rule” provides that an employee is not acting in the

course and scope of his employment when he is driving to and from work. Id. at

139; Mejia-Rosa v. John Moore Servs., Inc., No. 01-17-00955-CV, 2019 WL

3330972, at *6 (Tex. App.—Houston [1st Dist.] July 25, 2019, no pet.) (mem. op.).

The “coming and going rule” reflects that a vehicle collision while traveling to and

from work does not generally arise from a person’s employment but instead from

the risks and hazards inherent to the driving public. See Smith v. Tex. Emp. Ins.

Ass’n, 105 S.W.2d 192, 193 (Tex. [Comm’n Op.] 1937); see also City of Houston v.

39 Stoffer, No. 01-23-00335-CV, 2024 WL 3417137, at *4 (Tex. App.—Houston [1st

Dist.] July 16, 2024, pet. filed) (mem. op.) (“The rationale informing the rule is that

travelers on public roads are equally susceptible to the hazards of doing so, whether

employed or not.”). “Such travel hazards do not arise out of the business of an

employer; thus, the law does not hold the employer liable for injuries resulting from

engaging in these risks.” Cameron Int’l Corp. v. Martinez, 662 S.W.3d 373, 376

(Tex. 2022).

It is undisputed that the vehicle collision happened in the afternoon on

Sunday, November 8, 2020, and Trinidad was driving his personal pickup truck at

the time of the collision. See Farrell v. Comm. Structures & Interiors, Inc., No.

05-02-00031-CV, 2002 WL 31411022, at *1 (Tex. App.—Dallas Oct. 28, 2002, no

pet.) (not designated for publication) (“Generally, an employee is not in the course

and scope of employment while traveling in his own vehicle to and from work.”);

Wilie v. Signature Geophysical Servs., Inc., 65 S.W.3d 355, 359 (Tex. App.—

Houston [14th Dist.] 2001, pet. denied); Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d

354, 355–56 (Tex. App.—El Paso 1993, no writ); cf. Robertson Tank Lines, Inc. v.

Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971) (presumption arose that driver of

truck acting in scope of his employment when collision occurred where truck owned

by defendant and driver was employed by defendant). In their appellees’ brief, Big

Creek and WFMM acknowledge that Trinidad was “driving from Waco to a [m]otel

40 in Giddings” when the vehicle collision occurred, and thus, they assert that he was,

“at the very most, commuting” in his personal pickup truck.

To establish that Trinidad was not acting in the course and scope of his

employment with Big Creek, but rather was commuting, on Sunday, November 8,

2020, Big Creek and WFMM attached to their summary-judgment motion the

affidavit of Dalsing, a general superintendent employed by Big Creek. In his

affidavit, Dalsing testified that Trinidad was employed by Big Creek as an asphalt

superintendent or a foreman of an asphalt crew. In November 2020, Trinidad

reported to Dalsing and Dalsing was responsible for “directing the work of

[Trinidad] and his asphalt crew.” As of November 6, 2020, Trinidad was assigned

to a Bastrop jobsite near Giddings.

Dalsing testified that before his death, Trinidad’s last day of work with Big

Creek was Friday, November 6, 2020. Trinidad had the weekend—November 7,

2020 and November 8, 2020—off work, and Trinidad drove his personal pickup

truck to Waco that weekend. Trinidad was not due back to work until Monday,

November 9, 2020, and Trinidad would not be compensated by Big Creek until

November 9, 2020 “when his [asphalt] crew resumed work on the Bastrop job[site].”

Trinidad could drive to the Bastrop jobsite from Waco on Monday morning, or he

could drive to Giddings on Sunday, November 8, 2020 and spend the night at a Super

8 motel. Dalsing did not tell Trinidad to drive to Giddings on November 8, 2020,

41 and he had no knowledge of Trinidad’s travel plans on November 8, 2020. Big

Creek did not require Trinidad to drive to Giddings or stay at the Super 8 motel on

November 8, 2020, although it would have paid for Trinidad’s motel room if he had

wanted to stay there on the night of November 8, 2020.

Big Creek and WFMM also attached to their summary-judgment motion

excerpts from the deposition testimony of Martinez, a member of Trindad’s asphalt

crew in November 2020. Martinez testified that from June 2020 to November 5,

2020, his asphalt crew worked at a jobsite near Giddings where Trinidad was the

foreman. On Friday, November 6, 2020, the asphalt crew began working at a

Bastrop jobsite. Friday was the crew’s last day of work, and after work on Friday,

Martinez drove home to Mexia in his personal vehicle. Sunday, November 8, 2020

was not a workday for the asphalt crew. Martinez drove to the Super 8 motel in

Giddings on November 8, 2020, but he was not required to do so. Martinez received

no compensation from Big Creek until he arrived at the Bastrop jobsite on Monday,

November 9, 2020.

Additionally, Big Creek and WFMM attached to their summary-judgment

motion excerpts from the deposition testimony of Treto, Trinidad’s father, and

Murillo, Trinidad’s sister. Treto testified that on the weekend of November 8, 2020,

Trinidad was in Waco visiting his family. And Murillo explained that Trinidad

arrived at her parents’ home on the night of Friday, November 6, 2020 after leaving

42 work. Trinidad was driving his personal pickup truck on November 6, 2020 and

came straight from work to their parents’ home. According to Treto, Trinidad drove

his personal pickup truck “all his hours when he was off of work.”

Murillo also testified that Trinidad stayed at her home all weekend, until about

3:00 p.m. on Sunday, November 8, 2020, when Trinidad left. According to Murillo,

Trinidad left on Sunday to go to the motel in Giddings “to get ready for Monday.”

Trinidad was not working on Sunday, November 8, 2020; he was commuting to the

motel.

We conclude that Big Creek and WFMM established as a matter of law that

the “coming and going rule” applied in this case. Trinidad was, at most, commuting

at the time of the vehicle collision and was not acting in the course and scope of his

employment with Big Creek. See Wilie, 65 S.W.3d at 359 (“An employee is

generally not in the course and scope of employment while driving his own vehicle

to and from his place of work.”); cf. Gant v. Dumas Glass & Mirror, Inc., 935

S.W.2d 202, 212 (Tex. App.—Amarillo 1996, no pet.) (even though employee

driving employer’s truck at time of collision, employee not acting in course and

scope of his employment when returning from eating lunch and was en route to

work). Thus, the burden then shifted to the Meltons to establish a genuine issue of

material fact precluding summary judgment.

43 In their summary-judgment response, the Meltons asserted that a fact issue

existed as to whether Trinidad was acting in the course and scope of his employment

at the time of the vehicle collision because Big Creek was paying for Trinidad’s

motel room in Giddings, which was where he was heading on Sunday, November 8,

2020, and near the Bastrop jobsite where he would be working the following week,

Big Creek and WFMM reimbursed Trinidad for his travel expenses, including fuel,

lodging, and food, Trinidad was pulling a Big Creek trailer holding equipment used

by Trinidad’s asphalt crew, and Trinidad “stopped at Big Creek’s Lorena plant over

the weekend; a plant where he could restock equipment.”

However, the facts of this case are like those in Smith v. Universal Electric

Construction Co., 30 S.W.3d 435 (Tex. App.—Tyler 2000, no pet.). In Smith,

Thomas Rodgers worked for Universal Electric Construction Company

(“Universal”) as a laborer on a four-man crew building substations. Smith, 30

S.W.3d at 437. Rodgers was assigned to work at a building project about

two-and-a-half hours away from his home. Id. Instead of returning to his home each

night, Universal gave Rodgers the option of staying, at Universal’s expense, in a

motel near his jobsite. Id. At the end of a workday, Rodgers would drive his

personal pickup truck back to the motel to stay the night. Id.

One night, while Rodgers was driving his pickup truck to the motel, he struck

and injured Charles Brian Smith, the plaintiff, who was driving a motorcycle. Id. at

44 437–38. Smith then sued Universal, asserting that Universal was vicariously liable

for Rodgers’s negligence. Id. at 438.

On appeal, the appellate court noted that employers may be held liable for the

negligent acts of their employees under a theory of respondent superior if the

employees’ actions were in the course and scope of their employment. Id. It also

explained that in Texas, employers are not liable for vehicle collisions involving

their employees while they are traveling to and from work. Id. And that rule had

been extended to employees traveling to and from a temporary job site, even when

their employer was providing mileage reimbursement for the employee’s travel. Id.

The court then held that Rodgers was not acting in the course and scope of his

employment when he was traveling in his personal pickup truck to his motel after

completing his work for the day. Id. at 438–39, 441. The fact that Universal was

paying for Rodgers’s motel room or that Rodgers was staying at the motel overnight

while he worked on a building project for Universal that was far from his home did

not transform Rodgers’s commute to an act in the course and scope of his

employment with Universal. Id. at 440–41.

Here, the Meltons are incorrect that the fact that Big Creek was paying for

Trinidad’s motel room in Giddings, which was where he was heading on Sunday,

November 8, 2020, and near the Bastrop jobsite where he would be working the

following week, does not raise a genuine issue of material fact that Trinidad was

45 acting in the course and scope of his employment at the time of the vehicle collision.

See id. Further, to the extent that the Meltons are correct that Big Creek and WFMM

were reimbursing Trinidad for his travel expenses on Sunday, November 8, 2020,

this also does not raise a genuine issue of material fact that Trinidad was acting in

the course and scope of his employment at the time of the vehicle collision. See

Duran v. United States, No. 2:20-CV-00179, 2023 WL 2499941, at *4 (S.D. Tex.

Feb. 21, 2023) (order) (applying Texas law to determine coming and going rule

applied even if employee was driving employer-owned vehicle and being

reimbursed for travel expenses); Silvas v. Harrie, No. P:17-CV-00034-DC, 2018

WL 6427345, at *3 (W.D. Tex. Oct. 4, 2018) (order) (“Texas courts have held that

an employer is not liable even when it furnishes or pays for its employee’s

transportation or reimburses its employee for travel expenses . . . .”); Mancil v.

Stroud, No. 11-13-00354-CV, 2016 WL 932949, at *4 (Tex. App.—Eastland Mar.

10, 2016, no pet.) (mem. op.) (employee not acting in course and scope of

employment at time of collision even where employee compensated for his fuel

costs); Wilson v. H.E. Butt Grocery Co., 758 S.W.2d 904, 907 (Tex. App.—Corpus

Christi–Edinburg 1988, no writ) (mileage compensation does not place employee in

course and scope of employment while traveling to and from work).

Additionally, as to the Meltons’ assertion that because Trinidad was pulling a

Big Creek-owned trailer containing work-related equipment at the time of the

46 vehicle collision, a genuine issue of material fact existed as to whether Trinidad was

acting in the course and scope of his employment, we disagree. Texas courts have

previously explained that “[m]erely transporting work-related items is insufficient,

by itself, to keep [an employee] within the course and scope of his employment.”

Farrell, 2002 WL 31411022, at *2 (although employee was transporting job-related

equipment with personal vehicle, not acting in course and scope of his employment

where employee was communting from his home to his jobsite); see also Soto v.

Seven Seventeen HBE Corp., 52 S.W.3d 201, 207–08 (Tex. App.—Houston [14th

Dist.] 2000, no pet.) (holding evidence sufficient to support jury’s finding that

employee was not acting in course and scope of his employment where employee

was driving from his home to work to return his employer’s keys); Direkly v. ARA

Devcon, Inc., 866 S.W.2d 652, 654–55 (Tex. App.—Houston [1st Dist.] 1993, writ

dism’d w.o.j.) (although employee was transporting briefcase containing work

papers home at time of vehicle collision with intent to work at home, evidence

insufficient to raise fact issue on course and scope of employment where employee

was involved in collision en route to her home).

The Meltons, in their summary-judgment response, also sought to invoke the

“special mission exception” to the “coming and going rule.” In doing so, they argued

that Trinidad was acting in the course and scope of his employment because he was

on a special mission for Big Creek.

47 The “special mission” doctrine is an exception to the general rule that an

employee is not acting in the course and scope of his employment when driving his

own or another vehicle to and from work. See Mancil v. Stroud, No.

11-13-00354-CV, 2016 WL 932949, at *6 (Tex. App.—Eastland Mar. 10, 2016, no

pet.). But to be on a special mission, an employee must be completing a special task

at his employer’s direction or performing a generally assigned duty “in furtherance

of [his] employer’s business with express or implied approval of [his] employer.”

Painter, 561 S.W.3d at 136, 139; see also Upton v. Gensco, Inc., 962 S.W.2d 620,

621 (Tex. App.—Fort Worth 1997, pet. denied). Assigned duties are not anything

tangentially work related, but rather, they must involve an expected and defined job

responsibility, such as the contractually assigned duty to transport coworkers to and

from a jobsite as recognized by the Texas Supreme Court in Painter. See Painter,

561 S.W.3d at 139.

In their summary-judgment response, the Meltons argued that the “special

mission exception” applied in the instant case because “[r]emote construction

work[,] like that [Trinidad] performed[,] has often fallen under the special-mission

exception.” In doing so, the Meltons relied on the Texas Supreme Court’s opinion

in Painter.

In Painter, a drilling-company employee, J.C. Burchett, was driving three of

his coworkers from a drilling site to an employer-provided bunkhouse after a shift

48 when he struck a car, causing a rollover. Id. at 128–29. Two of the coworkers were

killed, while Burchett and the third coworker, Steven Painter, were injured. Id. at

129. Painter filed suit against his employer, alleging that the employer was

vicariously liable for Burchett’s negligence. Id. The employer then moved for

summary judgment, arguing that it was entitled to judgment as a matter of law on

Painter’s vicarious liability negligence claim because the employer did not control

the details of Burchett’s work at the time of the vehicle collision and thus Burchett

was not acting in the course and scope of his employment. Id. at 130. After the trial

court granted the employer’s summary-judgment motion, Painter appealed. Id.

On appeal, the Texas Supreme Court explained that it had long recognized

that an employer was vicariously liable for its employee’s negligent acts if those acts

were in the course and course of his employment. Id. at 131. Whether an employee

was acting in the course and scope of his employment hinged on an objective

assessment of “whether the employee was doing his job when he committed a

[negligent] act.” Id. at 132. And the court noted that Painter, in response to his

employer’s summary-judgment motion, presented evidence that one of Burchett’s

job duties as a driller on the drilling site was to drive his coworkers to and from the

drilling site and Burchett was paid for performing that task. Id. at 133, 135 (Painter

presented evidence “that one of [Burchett’s] specific duties as a driller—and one for

49 which he was paid additional money over his regular salary—was to provide the

crew transportation to and from the drilling site”).

However, the employer had argued that the “coming and going rule” applied

to the case making the employer not liable for the acts of its employee, Burchett,

because he was traveling to and from work. Id. at 136. In response, the Texas

Supreme Court explained that an exception existed to the “coming and going rule,”

which provided that an employee is acting in the course and scope of his employment

when he is completing a special task at his employer’s direction or is performing a

generally assigned duty “in furtherance of [his] employer’s business with express or

implied approval of [his] employer.” Id. at 136, 139 (alterations in original) (internal

quotations omitted).

In Painter, the employer had contractually agreed to pay a specific

employee—a driller—to carry out a specific task—driving coworkers between the

bunkhouse and the drilling site. Id. at 137. And the employee drove his coworkers

as part of his assigned job duties and was doing so at the time of the vehicle collision.

Id. Notably, the “special mission exception” only applied because the employee was

performing a regular or specifically assigned duty for the benefit of his employer.

Id. at 139 (explaining specifically assigned duty in case was “driving other workers

to the workplace”).

50 Big Creek and WFMM attached to their summary-judgment motion evidence

establishing that Trinidad was not performing a regular or specifically assigned duty

for the benefit of Big Creek at the time of the vehicle collision. That evidence

showed that Trinidad’s asphalt crew began working at the Bastrop jobsite on Friday,

November 6, 2020. A specific Big Creek trailer was assigned to the asphalt crew

and was used to store tools. After completing work on November 6, 2020, Trinidad

chose to drive his personal pickup truck and pull the Big Creek trailer to visit his

family in Waco for the weekend. It was against Big Creek policy for Trinidad to use

his personal pickup truck for Big Creek business, to pull a Big Creek trailer with his

personal pickup truck, and to take the trailer to Waco for the weekend. Martinez, a

member of Trinidad’s asphalt crew, had never seen Trinidad take a Big Creek trailer

home with him on the weekends. Removal of Big Creek equipment, like a Big Creek

trailer, from a jobsite required management’s approval, and there was no record

showing that management had approved Trinidad removing the trailer from the

Bastrop jobsite over the weekend the vehicle collision occurred.

Instead, Big Creek offered Trinidad’s asphalt crew two options for securing

their assigned trailer over a weekend: the trailer could either be taken to a Big Creek

storage yard, which Trinidad had done before, or it could have been left at the jobsite.

Trinidad was not “contractually obligated, compensated, or requested by Big Creek

to protect or safeguard [his crew’s] trailer over a weekend between work weeks.”

51 Trinidad was also not compensated for the time he spent commuting to and from the

jobsite, and Big Creek did not reimburse Trinidad for any expenses such as mileage

or gas when he was commuting to and from a jobsite in his personal pickup truck.

Dalsing, Trinidad’s supervisor, did not direct Trinidad to travel to Giddings on

November 8, 2020, and he had no knowledge that Trinidad was traveling in his

personal pickup truck, while pulling a Big Creek trailer, on the weekend of the

vehicle collision. There was not any “business reason why [Trinidad] would [have]

remove[d] [a] trailer from the [Bastrop] jobsite” on November 6, 2020 and taken it

to Waco with him.

Notably, in contrast to Painter, the Meltons, along with their

summary-judgment response, presented no evidence that Big Creek had

contractually agreed to pay Trinidad to carry out a specific task, namely driving the

Big Creek trailer to Waco or guarding the Big Creek trailer over the weekend, or

that Big Creek paid Trinidad for doing so. Painter, 561 S.W.3d at 137. And the

Meltons presented no evidence that pulling the Big Creek trailer to Waco was one

of Trinidad’s assigned job duties. Id. The “special mission exception” only applies

when an employee is performing a regular or specifically assigned duty for the

benefit of his employer, which the Meltons’ summary-judgment evidence does not

show. Id. at 139 (explaining specifically assigned duty in case was “driving other

workers to the workplace”); see also Cameron, 662 S.W.3d at 376–77

52 (“special-mission exception d[id] not apply” where neither employer nor “its

supervisory personnel directed [employee] to travel to [other city] or to purchase

food, water, or fuel for other workers or for the worksite generally”). Accordingly,

we conclude that the Meltons did not establish a genuine issue of material fact as to

whether the “special mission exception” to the “coming and going rule” applied.

Based on the foregoing, we hold that the trial court did not err in granting Big

Creek and WFMM summary judgment on the Meltons’ vicarious liability negligence

claim because Trinidad was not acting in the course and scope of his employment

with Big Creek as a matter of law.

We overrule the Meltons’ first issue.

B. Direct Liability Claims

In their fourth issue, the Meltons argue that the trial court erred in granting

Big Creek and WFMM summary judgment on the Meltons’ direct liability claims

for negligence, gross negligence, negligent entrustment, negligent supervision or

control, and negligent training because Big Creek and WFMM “did not move for

Generally, a trial court may not grant summary judgment on grounds that were

not presented or addressed by the movants in their motion. Nall v. Plunkett, 404

S.W.3d 552, 555 (Tex. 2013); Konogeris v. Pinnacle Health Facilities GP I, LLC,

657 S.W.3d 421, 426 (Tex. App.—El Paso 2022, no pet.); see also G & H Towing

53 Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (recognizing that “[g]ranting a

summary judgment on a claim not addressed in a summary judgment motion . . . is,

as a general rule, reversible error”). As a corollary to this principle, when the

plaintiffs amend their pleadings to add a new claim or theory of recovery after the

defendants have moved for summary judgment, the defendants must ordinarily file

an amended summary judgment motion to address the newly raised claims or

theories before the trial court may grant a summary judgment on the plaintiffs’ entire

case. See Konogeris, 657 S.W.3d at 426; Blancett v. Lagniappe Ventures, Inc., 177

S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

However, it is not necessary for the defendants to file an amended or

supplemental motion if their original summary-judgment motion was broad enough

to encompass and address the plaintiffs’ newly raised claims or theories of liability,

and so long as the motion negates at least one element of the new and previously

asserted claims. See Konogeris, 657 S.W.3d at 426–27; Rotating Servs. Indus., Inc.

v. Harris, 245 S.W.3d 476, 487 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)

(court may grant summary judgment without any amended motion where original

“motion for summary judgment conclusively negates a common element of the

newly and previously pleaded claims or when the original motion is broad enough

to encompass the newly asserted claims” (internal quotations omitted)); see also

Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 502 (Tex. App.—

54 Houston [1st Dist.] 1995, no writ) (where moving parties’ motion for summary

judgment addressed claims that nonmovant subsequently specified and “clarified”

in its amended counterclaim, there was no need for moving party to amend its

summary-judgment motion).

In their second amended petition, the Meltons brought direct liability claims

against Big Creek and WFMM for negligence, negligent entrustment, negligent

supervision or control, and negligent training. Notably, in their second amended

petition, the Meltons alleged that Big Creek and WFMM owed “a duty to exercise

care that a reasonably prudent and careful person, corporation and partner would use

to avoid harm to others under circumstances” like those described in the petition.

Further, Big Creek and WFMM “had a duty to exercise ordinary care to be certain

that Big Creek’s employee Trinidad was properly licensed” and “properly trained to

operate” “WFMM[’s] and . . . Big Creek’s . . . [t]railer,” and they had a duty to

“entrust [the] . . . [t]railer to properly licensed employees, properly trained

employees, and qualified employees which Trinidad was not.” Additionally, the

Meltons alleged that Big Creek and WFMM had a “duty to exercise ordinary care to

be certain that Trinidad could and would operate . . . [the] [t]railer reasonably and

prudently before entrusting Trinidad to move the . . . [t]railer and [its] necessary

contents in order to perform the contract [with] the Texas Department of

Transportation.”

55 According to the Meltons, their injuries and damages were proximately

caused by Big Creek’s and WFMM’s negligence and disregard for their duties. And

the Meltons alleged WFMM and Big Creek were both “jointly and severally” liable

under the theories of negligence, negligent entrustment, negligent supervision or

control, and negligent training. Although the Meltons alleged in their second

amended petition a vicarious liability claim based on Trinidad’s negligence, it is

clear from their petition that they also were asserting direct liability negligence

claims against Big Creek and WFMM.

After the Meltons filed their second amended petition, Big Creek and WFMM

moved for summary judgment on the Meltons’ direct liability negligence claims and

their vicarious liability negligence claim, asserting that Big Creek and WFMM owed

no duty to the Meltons. Although the Meltons filed a third amended petition in

response to Big Creek and WFMM’s summary-judgment motion, the third amended

petition largely mirrored their second amended petition, and they again brought

direct liability claims for negligence, gross negligence, negligent entrustment,

negligent supervision or control, and negligent training as well as a vicarious liability

claim against Big Creek and WFMM based on the purported negligent acts of

Trinidad. See Silver Gryphon, LLC v. Bank of N.Y. Mellon, 529 S.W.3d 595, 598

(Tex. App.—Houston [14th Dist.] 2017, no pet.) (“[A]n amended, supplemental, or

new motion for summary judgment is not always necessary when (1) an amended

56 petition ‘essentially reiterates’ previously pleaded theories of liability; (2) a ground

asserted in a motion for summary judgment conclusively negates a common element

of the newly and previously pleaded claims; or (3) the original motion is broad

enough to encompass the newly asserted claims.”); In re Estate of Brown, No.

06-16-00057-CV, 2017 WL 1173897, at *3 (Tex. App.—Texarkana Mar. 30, 2017,

no pet.) (mem. op.) (“[W]here an amended petition merely reiterates the causes of

action previously pleaded in an original petition, an order granting summary

judgment as to the original petition resolves all of the claims pending between the

parties notwithstanding the existence of an amended petition.”).

The elements of a negligence cause of action are duty, breach of that duty, and

damages proximately caused by the breach. See Greater Houston Transp. Co. v.

Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Dangerfield v. Ormsby, 264 S.W.3d 904,

912 (Tex. App.—Fort Worth 2008, no pet.). “[N]egligence and gross negligence are

not separable causes of action but are inextricably intertwined.” Ford Motor Co. v.

Miles, 967 S.W.2d 377, 390 (Tex. 1998) (Gonzalez, J., concurring). Further,

negligent hiring, training, retention, and supervision claims are simply negligence

causes of actions based on an employer’s direct negligence. Dangerfield, 264

S.W.3d at 912. The threshold inquiry in any negligence case is whether the

defendants owe a legal duty to the plaintiffs. Phillips, 801 S.W.2d at 525; see also

AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 298–99 (Tex. 2020) (“The

57 existence of a duty of care is an element of . . . negligence, negligence per se, and

gross negligence claims.”); 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.) (agreeing

duty is element of negligent hiring, retention, and supervision claims); Knight v. City

Streets, L.L.C., 167 S.W.3d 580, 584 (Tex. App.—Houston [14th Dist.] 2005, no

pet.) (to prevail on negligent supervision claim, plaintiff needed to prove defendant

owed him legal duty to supervise its employees). The nonexistence of a duty ends

the inquiry into whether negligence liability may be imposed. Nat’l Convenience

Stores Inc. v. Matherne, 987 S.W.2d 145, 148 (Tex. App.—Houston [14th Dist.]

1999, no pet.).

Here, the entirety of Big Creek and WFMM’s summary-judgment motion was

focused on whether they owed a duty to the Meltons and the fact that a lack of a duty

negated all the Meltons’ direct liability and vicarious liability negligence claims. In

fact, the Meltons, in their summary-judgment response, noted that Big Creek and

WFMM’s summary-judgment motion focused on the duty element of the Meltons’

negligence claims. On appeal, the Meltons only argue that the trial court erred in

granting Big Creek and WFMM summary judgment on the Meltons’ direct liability

negligence claims because they “were not addressed by [the] motion for summary

judgment.” But this is not the case. See Ellis v. Precision Engine Rebuilders, Inc.,

68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“If summary

58 judgment may have been rendered, properly or improperly, on a ground not

challenged, the judgment must be affirmed.”).

Because we conclude that Big Creek and WFMM did raise arguments in their

summary-judgment motion as to the Meltons’ direct liability negligence claims,

contrary to the Meltons’ argument on appeal, we hold that the trial court did not err

in granting summary judgment on the Meltons’ direct liability negligence claims.

We overrule the Meltons’ fourth issue.

Second Motion for Leave

In their fifth issue, the Meltons argue that the trial court erred in denying their

second motion for leave to file a supplemental response to Big Creek and WFMM’s

summary-judgment motion because the Meltons had inadvertently left out certain

pages of the deposition testimony of Dalsing when they filed their first supplemental

response to the summary-judgment motion.

We review a trial court’s ruling on a motion for leave to file a late

summary-judgment response or late summary-judgment evidence for an abuse of

discretion. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex.

2002); Michal v. Nexion Health at Garland, Inc., No. 05-21-00693-CV, 2022 WL

16706979, at *3, *5 (Tex. App.—Dallas Nov. 4, 2022, pet. denied) (mem. op.). A

trial court abuses its discretion when it acts without reference to any guiding rules

59 or principles. Carpenter, 98 S.W.3d at 687; Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241–42 (Tex. 1985).

In a summary-judgment proceeding, the non-movants may file and serve

opposing affidavits or other written responses no later than seven days prior to the

scheduled date of the summary-judgment hearing. TEX. R. CIV. P. 166a(c). The

non-movants must obtain leave to file evidence after that deadline. Id.

A motion for leave to file a late summary-judgment response or late

summary-judgment evidence should be granted when the non-movants establish

good cause for failing to timely respond by showing that (1) the failure to respond

was not intentional or the result of conscious indifference, but the result of accident

or mistake and (2) allowing the late response will occasion no undue delay or

otherwise injure the party seeking summary judgment. Carpenter, 98 S.W.3d at

688; Michal, 2022 WL 16706979, at *5. Conscious indifference is more than

negligence; it involves behavior such as a “pattern of ignoring deadlines and

warnings from the opposing party.” Levine v. Shackelford, Melton & McKinley,

L.L.P., 248 S.W.3d 166, 168–69 (Tex. 2008) (discussing conscious indifference in

default-judgment context). Even if a trial court abuses its discretion by not admitting

the non-movants’ late summary-judgment evidence, the trial court’s judgment will

not be reversed unless the error “probably caused the rendition of an improper

60 judgment.” TEX. R. APP. P. 44.1(a)(1); Tex. Petroleum Land Mgmt., LLC v.

McMillan, 641 S.W.3d 831, 848–49 (Tex. App.—Eastland 2022, no pet.).

In their second motion for leave to file a supplemental response to Big Creek

and WFMM’s summary-judgment motion, the Meltons asserted that they had

inadvertently left out a few pages of Dalsing’s deposition testimony when they filed

their first motion for leave to file a supplemental response and their supplemental

response, to which they had attached excerpts of Dalsing’s deposition testimony.

Notably, the trial court, before rendering summary judgment, granted the Meltons’

first motion for leave and considered their supplemental response as well as its

attached evidence—excerpts from Dalsing’s deposition testimony.17

Here, we have concluded that Big Creek and WFMM established as a matter

of law that Trinidad was not acting in the course and scope of his employment at the

time of the vehicle collision, and after reviewing the few pages of Dalsing’s

deposition testimony that the Meltons complained were “left out,” we conclude that

the evidence the Meltons sought to supplement does not affect our determination

that Trinidad was not acting in his course and scope of his employment. Thus, any

17 The trial court also considered the inadvertently admitted deposition pages in ruling on the Meltons’ motion for reconsideration of the trial court’s summary-judgment ruling. In their motion for reconsideration, the Meltons asserted that the trial court should have granted their second motion for leave to file a supplemental summary-judgment response so that the court could consider the missing deposition pages.

61 error by the trial court in denying the Meltons’ second motion for leave to file a

supplemental response to Big Creek and WFMM’s summary-judgment motion was

harmless. See McMillan, 641 S.W.3d at 849–50 (explaining because “the evidence

with which [the non-movants] sought to supplement was irrelevant,” to extent trial

court erred in excluding it, “such exclusion was harmless”).

We overrule the Meltons’ fifth issue.18

Conclusion

We affirm the judgment of the trial court.

Kristin Guiney Justice

Panel consists of Chief Justice Adams and Justices Gunn and Guiney.

18 Based on our resolution of the Meltons’ first, fourth, and fifth issues, we need not address their second and third issues. See TEX. R. APP. P. 47.1.