A. Bases for Summary Judgment that Appellants Do Not Challenge
First, at oral argument, appellants confirmed that they are not challenging the summary judgment rendered on (1) their claims against AWC for “negligence, gross negligence, and negligence per se,” except for their claims for “permissive use” negligence and vice-principal-liability negligence, and (2) their vicarious-liability theories of negligent entrustment and joint enterprise. Consistent with these representations, their brief does not challenge the rendition of judgment on the vicarious-liability theories of negligent entrustment and joint enterprise.
Second, although AWC’s summary-judgment motion did not attack appellants’ claim that AWC wasnegligent in controlling its intoxicated employee, Jeannie Davis, appellants do not challenge the summary judgment for having disposed of this negligence claim.
Third, we note that, although appellant Stevenson pleaded that AWC was vicariously liable for any direct liability that Sam Davis might have to appellants, appellantsdo not challengetherendition of judgment on this vicarious-liability basis; rather, their briefing focuses solely on AWC’s vicarious liability for Jeannie Davis’s negligence under various liability theories.
Accordingly, we must affirm the summary judgment rendered on the following claims and liability theories:
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any direct-liability claims against AWC for negligence, gross negligence, and negligence per se, including that for negligent control of an intoxicated employee, but not those for “permissive use” and vice-principal-liability negligence; |
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joint-enterprise liability of AWC; |
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vicarious-liability of AWC for its negligent entrustment of the vehicle to Jeanne Davis; and |
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vicarious-liability of AWC for Sam Davis’s actions underlying all claims against him. |
See Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001) (holding that court of appeals errs in reversing summary judgment on claim when appellant does not complain of judgment’s rendition on that claim); Bates v. Dallas Indep. Sch. Dist., 952 S.W.2d 543, 550 (Tex. App.—Dallas 1997, writ denied) (providing that appellate court may refuse to consider issue conceded by party at oral argument); accord Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 909 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
B. Respondeat Superior
In issue two, appellants argue that the trial court erred in rendering summary judgment for AWC on the basis of respondeat superior liability for Jeannie Davis’s negligence, gross negligence, and negligence per se.
1. The Law
“Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong.” Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). “[A]n employer is liable for its employee’s tort only when the tortious act falls within the scope of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired.” Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). The employee’s actionable conduct must be of the same general nature as the conduct authorized by the employer or must be incidental to the conduct authorized by the employer. Id. Therefore,“if an employee deviates from the performance of his duties for his own purposes, the employer is not responsible for what occurs during that deviation.” Id.
2. The Relevant Facts
Jeannie Davis went to care for or to ride the horse at the stables of Ava Urbanovsky about one to three times a week. She generally went to the stables from
6:00 to 9:00 p.m. on weekday evenings, after leaving work at AWC around 5:00 p.m., or during the daytime on the weekends.
On February 27, 2002, a work day, Jeannie Davis went to the stables to tend to the horse some time between 6:15 and 7:00 p.m. She called her husband from the stables at about 6:45 p.m. Urbanovsky twice talked to Jeannie Davis in person at the stables: the first time, between 7:00 and 8:30 p.m.; the second time, about 30 to 40 minutes later. Urbanovsky and Jeannie Davis continued working with the horses at the stable for another hour after Urbanovsky came out the second time, until about
10:00 that evening. When Urbanovsky left, Jeannie Davis told her that Jeannie would finish putting the horse up, braid his tail, and turn out the lights, all of which Urbanovsky estimated would have taken Jeannie Davis only about another 30 minutes to complete, so that Jeannie Davis might have finished with the horse between 10:30 and 10:45 p.m.
Urbanovsky testified that Jeannie Davis did not appear or smell intoxicated, and that Urbanovsky did not observe Jeannie drink alcohol, either time that Urbanovsky spoke with Jeannie at the stable that night. The accident occurred about
1:00 on the morning of February 28, 2002—approximately two to two and a half hours after the time that Urbanovskyestimatedthat Jeannie Davis would have left the stables. It was uncommon for Jeannie Davis to stay out past 11:00 or 11:30 at night. Her normal practice was to return home after having tended to the horse. It would have taken her only about 30 minutes to return home from the stables, but she did not go home; instead, she drove in what appears to have been a completely different direction on the highway, then had the accident two and a half hours later after having become highly intoxicated. No one had any idea where Jeannie Davis went after having tended to the horse.
3. Discussion
Appellants contend that they presented summary-judgment evidence raising a fact issue on whether the horse or the vehicle were owned by AWC or Jeannie Davis and, thus, on whether Jeannie Davis was on her “employer[’s] business to feed and care for the company horse” at the time of the accident. However, we need not determine if appellants raised genuine issues of material fact concerning the ownership of the horse or vehicle in order to dispose of this challenge, and we thus assume without deciding for the moment that appellants raised a fact issue on these matters. Our focus is instead on whether Jeannie Davis was in the course and scope of her employment with AWC during the two to two and a half hours after having cared for the horse, in which time period she deviated from her usual route home, became highly intoxicated, and had the accident. The undisputed evidence is that Jeannie Davis did not appear intoxicated or smell of alcohol when she tended the horse until at least 10:00 the night before the accident; that she was estimated to have remained at the stables only about 30 or 45 minutes more; that she normally returned home after caring for the horse, which was a 30-minute drive; and that she deviated from that usual schedule and course that night for two to two and a half hours, during which time she became highly intoxicated. The summary-judgment evidence thus conclusively established that Jeannie Davis was not acting “in furtherance of the employer’s business” after she finished caring for the horse and that she deviated from her usual route home, for whatever her own purposes were, and became intoxicated over the next two and a half hours. See Minyard Food Stores, Inc., 80 S.W.3d at 577.
We hold that AWC was entitled to traditional summary judgment on appellants’ vicarious-liabilitytheorythat it was liable for Jeannie Davis’s negligence, gross negligence, or negligence per se based on respondeat superior. Accordingly, we further hold that the trial court properly rendered summary judgment on appellants’ theory that AWC was liable under respondeat superior.
We overrule issue two.
C. Alter Ego and “Reverse” Corporate Veil Piercing
In their first issue, appellants argue that the trial court erred in rendering summary judgment in favor of AWC on the basis that no alter ego liability existed for Jeannie Davis’s tortious acts.
Piercing the corporate veil is not a cause of action, but is instead a means of imposing liability for an underlying cause of action. Gallagher v. McClure Bintliff, 740 S.W.2d 118, 119 (Tex. App.—Austin 1987, writ denied). In general, courts will “disregard the corporate fiction, even though corporate formalities have been observed and corporate and individual property have been kept separately, when the corporate form has been used as part of a basically unfair device to achieve an inequitable result.” Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex. 1986).5 Specifically, courts disregard the corporate fiction in tort cases in six general instances:
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when the fiction is used as a means of perpetrating fraud; |
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where a corporation is organized and operated as a mere tool or |
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business conduit of another . . . ; |
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(3)
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where the corporate fiction is resorted to as a means of evading an existing legal obligation;
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(4)
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where the corporate fiction is employed to achieve or perpetrate monopoly;
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(5)
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where the corporate fiction is used to circumvent a statute; and
Castleberry has been limited by statute. See TEX. BUS. CORP. ACT ANN. art. 2.21(2), (3) (Vernon 2003) (recodified effective January 1, 2006 at TEX. BUS. ORGS. CODE ANN. § 2.223 by Act of May 13, 2003, 78th Leg., R.S., ch. 182, § 1, 2003 Tex. Gen. Laws 267, 427); see also Willis v. Donnelly, 199 S.W.3d 262, 271–72 (Tex. 2006) (recognizing that article 2.21 limited Castleberry in specific situations). However, this case does not involve a contractual obligation or anything arising from it, which is the general application of article 2.21. See TEX. BUS. CORP. ACT ANN. art. 2.21(2); see also Gerard Gaspard II, ATexas Guide to Piercing & Preserving the Corporate Veil, 31-SEP Bull. Bus. L. Sec. St. B. Tex. 24, 34 (Sept. 1994) [hereinafter “Gaspard”] (“[T]he amendments do not in any way limit the application of any of the possible corporate disregard theories [from Castleberry] to a tort claim.”). Additionally, article 2.21 limits the use of alter ego and like theories when a claimant seeks to hold a shareholder liable for a corporate obligation; here, in contrast, appellants seek to hold a corporation liable for its shareholder’s tortious action under a reverse-piercing theory. SeeIn re Moore, 379 BR 284, 292 n.7 (N.D. Tex. 2007); Glenn D. West, W. Benton Lewis Jr., Corporations, 61 SMU L. Rev. 743, 746–47 (Summer 2008). Accordingly, article 2.21 does not apply.
(6) where the corporate fiction is relied upon as a protection of crime or to justify wrong. Id. at 272 (footnotes omitted; emphasis added). The court also indicated that “[i]nadequate capitalization is another basis for disregarding the corporate fiction.” Id. at 272 n.3. Disregard of the corporate fiction on any of the bases identified above is “an equitable doctrine” to which “Texas takes a flexible fact-specific approach focusing on equity.” Castleberry, 721 S.W.2d at 273. In large part because of this focus on equity, “[t]he different bases for disregarding the corporate fiction involve questions of fact,” which, absent “very special circumstances,” “should be determined by the jury.” Id. at 277. “Courts have generallybeenless reluctant to disregard the corporate entity in tort cases than in breach of contract cases.” See Lucas v. Tex. Indus., Inc., 696 S.W.2d 372, 375 (Tex. 1984). Nonetheless, the corporate fiction generally will
not be disregarded absent exceptional circumstances. See Lucas, 696 S.W.2d at 374. Each of the bases identified in Castleberry for disregarding the corporate form
“involve[s] some type of wrongdoing” —or in the words of Castleberry, injustice or inequity. “By ‘injustice’ and ‘inequity’ we do not mean a subjective perception of unfairness by an individualjudgeorjuror; rather, these words are used in Castleberry
Gaspard at 31; see SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 454 (Tex. 2008) (“Each example [of the six examples given in Castleberry] involved an element ofabuseofthe corporate structure, including example (2), alter ego . . . .”).
as shorthand references for the kinds of abuse, specifically identified, that the corporate structure should not shield—fraud, evasion of existing obligations, circumvention of statutes, monopolization, criminal conduct, and the like.” SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444,455 (Tex. 2008) (citation and footnote omitted). Therefore, although “the relationship between two entities” is one consideration to disregarding the corporate form, “[t]he other consideration is whether the entities’ use of limited liability was illegitimate.” Id.
The alter ego theory of liability occurs under the second situation, italicized above, from Castleberry: “where a corporation is organized and operated as a mere tool or business conduit of another . . . .” Castleberry, 721 S.W.2d at 272. “Alter ego applies when there is such unity between corporation and individual that the separateness of the corporation has ceased and holding only the corporation liable would result in injustice.” Id. It “is shown from the total dealings of the corporation and the individual, including the degree to which corporate formalities have been followed and corporate and individual property have been kept separately, the amount of financial interest, ownership and control the individual maintains over the corporation, and whether the corporation has been used for personal purposes.” Id. Its rationale is that “‘if the shareholders themselves disregard the separation of the corporate enterprise, the law will also disregard it so far as necessary to protect individual and corporate creditors.’” (quoting HENRY WINTHROP BALLANTINE, BALLANTINE ON CORPORATIONS § 123 at 294 (1946)).
Appellants seek to hold AWC liable for its shareholder’s tortious acts, which is a theory of “outsider reverse corporate veil piercing.” See Zahra Spiritual Trust
v. U.S., 910 F. 2d 240, 243–44 (5th Cir. 1990) (applying Texas alter ego law to reverse-piercing situation); Glenn D. West, W. Benton Lewis Jr., Corporations, 61 SMU L. Rev. 743, 747, 748 (Summer 2008) (“In an outsider reverse veil piercing claim, the creditors of a shareholder of a corporation attempt to execute upon the assets of that corporationin orderto satisfyclaims against suchshareholder.”) (citing Gregory S. Crespi, The Reverse Pierce Doctrine: Applying Appropriate Standards, 16 J. Corp. L. 33, 37–38, 55–56 (Fall 1990)). Although an outsider reverse-piercing case can involve some unique policy considerations, similar equitable principles apply to both direct- and reverse-piercing, such as that the veil will be pierced only when necessary to prevent an injustice and in “exceptional circumstances.” See e.g., Cappuccitti v. Gulf Indus. Prods., Inc., 222 S.W.3d 468, 481–82 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (applying direct veil piercing alter ego principles to reverse corporate veil piercing situation); In re Moore, 379 B.R. 284, 294–95, 296 (N.D. Tex. 2007) (same, although also noting considerations that might apply in some reverse-piercing situations, such as consequences to creditors and innocent stakeholders and priorities under bankruptcy law).
2. Application of the Law to the Facts
AWC argues on appeal that reverse corporate veil piercing is only a post-judgment collection mechanism, but it did not raise this argument until its summary-judgment reply. “[A] movant may not use a reply brief . . . to assert new grounds for summary judgment.” Comm’y Initiatives, Inc. v. Chase Bank of Tex., N.A., 153 S.W.3d 270, 280 (Tex. App.—El Paso 2004, no pet.); see Sanchez v. Mulvaney, 274 S.W.3d 708, (Tex. App.—San Antonio 2008, no pet.) (“[A] movant may not use a reply brief . . . to assert new grounds for summary judgment. Therefore, we do not consider any arguments raised in [the movant’s]replyand we will consider only those grounds specifically raised in [his] motion for summary judgment in order to determine the basis on which he moved for judgment.”).
AWC’s no-evidence summary-judgment motion attacked both elements of appellants’ alter ego liability theory: (1) lack of separateness and (2) injustice. 7 See Castleberry, 721 S.W.2d at 272. Appellants argue that the trial court erred in rendering summary judgment because they produced some evidence to support each of these elements.
AWC also moved for traditional summary judgment on the ground that the only underlying claim on which alter ego liability was premised was that of negligent entrustment, which AWC had conclusively disproven. This ground does not support summary judgment, however, because appellants’ allegations of alter ego liability were not premised solely on negligent entrustment.
a. Whether appellants presented some evidence that there was “such unity between corporation and individual that the separateness of the corporation has ceased,” see Castleberry, 721 S.W.2d at 272
When viewed in the light most favorable to appellants, the evidence showed
the following: ! The Davises severely undercapitalized AWC; ! The Davises’ personal expenses were repeatedly paid from funds
in AWC’s corporate accounts. ! A substantial number of those funds could not be considered advance dividends because, for example, they exceeded profits. ! The Davises did not adhere to corporate formalities like documenting corporate resolutions, such as for dividend payments, adopting policies or procedures for paying out dividends, or maintaining AWC’s financialrecords in conformity
with generally accepted accounting principles. We hold that this was some evidence that the Davises and AWC disregarded the corporate form of AWC from its incorporationin 2000 until the 2002 accident to such an extent that AWC’s corporate separateness ceased to exist. Accordingly, we hold that the trial court could not properly have rendered summary judgment for AWC on this element of alter ego.
b. Whether appellants presented some evidence that “holding only [Jeannie Davis] liable would result in injustice,” see Castleberry, 721 S.W.2d at 272
This case presents an unusual situation for reverse corporate veil piercing because the summary-judgment evidence, when viewed in the light most favorable to appellants, showed that the Davises disregarded the corporate form by using AWC’s assets to enrich themselves, rather than by sheltering their personal assets in AWC and thereby limiting their personal liability. It also showed that AWC was not making a profit and that, according to appellants’ own tax consultant, AWC was severely undercapitalized and had a bleak future precisely because the Davises had used AWC’s money for personal expenses even when AWC was not profitable.
Nonetheless (1) the determination of whether to pierce the corporate veil is a
question of fact absent “very special circumstances”; (2) courts have been lessreluctant to disregard the corporate entity in tort cases than in breach-of-contract
cases; and (3) to carry their summary-judgment burden, appellants had to produceonly just more than a scintilla of evidence. 10 In support of their summary-judgment response, appellants produced the inventory filed for Jeannie Davis’s estate. That inventory showed that Jeannie had only around $23,000 of personal assets to compensate appellants’ families for the death of their children—despite the fact that she had allegedly benefitted from taking AWC’s assets. The inventory also recited that Jeannie’s shares in AWC had no value, meaning that the sale of those shares
Castleberry, 721 S.W.2d at 277.
See Lucas v. Tex. Indus., Inc., 696 S.W.2d 372, 375 (Tex. 1984).
See Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 263 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
could not be used to satisfy any judgment for appellants. Additionally, appellants’
summary-judgment evidence included a summary of insurance coverage for the
vehicle involved in the collision, which indicates liability coverage of only
“25,000/50,000.” This is some evidence that appellants would be harmed if the
corporate veil that Jeannie herself was alleged to have repeatedly and flagrantly
disregarded was not pierced to allow appellants whatever additional recovery they
might obtain from AWC’s assets. See Mancorp, Inc. v. Culpepper, 836 S.W.2d 844,
846 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (applying pre-Castleberry
authority to hold that “[t]he ‘injustice’ to be avoided in [direct] alter ego cases is that
of leaving the plaintiff with an uncollectible judgment against the corporation, while
allowing its alter ego to go free.”) (emphasis added).11
Before Castleberry, in direct-piercing alter ego cases, it had been generally understood that the plaintiff himself had to suffer harm before the corporation’s veil would be pierced, which in tort cases often meant that the corporation was undercapitalized—in this reverse-piercing situation, the equivalentwould be Jeannie Davis’s having insufficient funds. See Lucas, 696 S.W.2d at 374–75 (reasoning, for alter ego to apply in tort case, that “the financial strength or weakness of the corporate tortfeasor is an important consideration” because “[i]f the corporation responsible for the plaintiff’s injury is capable of paying a judgment upon proof of liability, then no reason would exist to attempt to pierce the corporate veil and have shareholders pay for the injury,” but if “the corporation sued is not reasonably capitalized in light of the nature and risk of its business, the need might arise to attempt to pierce thecorporate veil and hold the parent corporation liable.”); Roy E. Thos. Constr. Co. v. Arbs, 692 S.W.2d 926, 937–38 (Tex. App.—Fort Worth 1985), writ ref’d n.r.e., 700 S.W.2d 919 (Tex. 1985); ROBERT W. HAMILTON et al., 20 TEXAS PRACTICE SERIES, Business Organizations § 26.12 (2nd ed. 2004) [hereinafter “Business Organizations”]. We need not decide if Castleberry
Because appellants produced evidence that would demonstrate the type of injustice for which reverse corporate veil piercing would lie, summary judgment on this basis would have been improper.
4. Conclusion
We hold that the trial court erred in rendering summary judgment on appellants’ claims allegingthat AWC wasvicariouslyliablefor the negligence, gross negligence, and negligence per se of Jeannie Davis on the basis of its being her alter ego.
We sustain appellants’ first issue.
D. Other Claims, Vicarious-Liability Theories, and Defensive Allegations That Were Not Expressly Attacked By AWC’s Summary-Judgment Motion
In issue three, appellants argue that the trial court erred in rendering summary judgment on the following claims, liability theories, and allegations because they were not addressed in AWC’s summary-judgment motion: (1) the claims of “permissive use” and “vice-principal-liability” negligence;(2) the vicarious-liability theories of ostensible agency, apparent agency, and agency by estoppel; and (3) the
eased that burden by removing that requirement from corporate veil piercing law—see, e.g., Pan E. Exploration Co. v. Hufo Oils, 855 F.2d 1106, 1132 (5th Cir. 1988) and Business Organizations, § 26.13—because, even if Castleberry did not relieve a plaintiff from having to demonstrate harm to himself, appellants produced some evidence that they were harmed.
plaintiff appellants’ three requests for declaratory relief.12
It is well settled that “[a] motion for summary judgment must itself expressly
present the grounds upon which it is made, and must stand or fall on these grounds
alone.” Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997).
Accordingly, “[i]t is axiomatic that one may not be granted judgment as a matter of
law on a cause of action not addressed in a summary judgment proceeding.”
Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983). It is thus
generally reversible error for a trial court to render summary judgment on a claim not
addressed in the summary-judgment motion. See Dubose v. Worker’s Medical, P.A.,
117 S.W.3d 916, 922 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
Appellants also contend that their allegations of “estoppel byconduct, estoppel by action, estoppel by oath, judicial estoppel, [and] equitable estoppel” regarding the Davises’ ability to claim dividends were “theories of liability,” on which the trial court could not render summary judgment sua sponte. However, these allegations are not theories of liability or claims; rather, they are akin to affirmative defenses. See Stanolind Oil & Gas Co. v. Midas Oil Co., 143 S.W.2d 138, 141 (Tex. Civ. App.—Austin 1940, writ ref’d) (concluding that allegation of estoppel by conduct was allegation of affirmative defense); Sefzik v.City of McKinney, 198 S.W.3d 884, 895 (Tex. App.—Dallas 2006, no pet.) (indicating that equitable estoppel is affirmative defense); Dallas Sales Co. Inc. v. Carlisle Silver Co., 134 S.W.3d 928, 931 (Tex. App.—Waco 2004, pet. denied)(indicating thatjudicialestoppel is affirmative defense). A defendant moving for summary judgment against a plaintiff’s claims and theories of liability need not also attack the plaintiff’s “defensive” allegations (e.g., this type of estoppel). See Dobbs v. Camco, Inc., 445 S.W.2d 565, 571 (Tex. Civ. App.—Houston [1st Dist.] 1969, writ ref’d n.r.e.).
Nonetheless, some courts of appeals, including our own, have recognized a very limited exception to the general rule. Although the exception’s application has been expressed in various ways,13 it can be reduced to two: (1) when the movant has conclusively proved or disproved a matter (usually corresponding to a claim’s element or to an affirmative defense) that would also preclude the unaddressed claim as a matter of law or (2) when the unaddressed claim is derivative of the addressed claim, and the movant proved its entitlement to summary judgment on that addressed
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The unaddressed claim is a mere reiteration of a claim on which the |
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movant has already shown itself entitled to summary judgment. See, |
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e.g., Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476, 487 (Tex. |
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App.—Houston [1st Dist.] 2007, pet. denied). |
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The movant has conclusively disproven an ultimate fact that is central |
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to the unaddressed causes of action. See Smith v. Heard, 980 S.W.2d |
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693, 697 (Tex. App.—San Antonio 1998, pet. denied). |
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The motion conclusively disproves an element common both to the |
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claim that the motion attacked and to the claim that the motion did not |
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attack. See, e.g., Harris, 245 S.W.3d at 487. |
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The unaddressed causes of action are derivative of the addressed cause |
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of action, see Dubose v. Worker’s Medical, P.A., 117 S.W.3d 916, 922 |
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(Tex. App.—Houston [14th Dist.] 2003, no pet.). |
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The motion’s grounds are broad enough to address (or to contemplate |
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or to encompass) the unaddressed claims. See, e.g., Harris, 245 S.W.3d |
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at 487; Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex. |
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App.—Houston [1st Dist.] 2005, no pet.). |
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The unaddressed claims were “contemplated” by the motion’s grounds. |
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See Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 503 |
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(Tex. App.—Houston [1st Dist.] 1995), writ denied, 11 S.W.3d 188 |
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(Tex. 2000) (disapproving language unrelated to cited holding). |
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claim. (See citations in footnote 13, supra.) For the exception to apply, this Court
has always required a very tight fit between what was proved or disproved in the
motion and what elements the unaddressed claim, as it was alleged, required:14
otherwise, the exception could swallow the rule.
Relying on the exception, AWC argues that the trial court properly rendered
judgment on claims and liability theories not challenged directly in its summary-
judgment motion. For two reasons, we conclude that the exception does not apply.
First, apart from appellants’ requests for declaratory relief, none of the
unaddressed liability theories or claims is derivative of any other. As for the requests
for declaratoryrelief,AWC did not conclusively prove its entitlement to judgment on
the liability theories underlying these requests. For example, two of the declaratory
See, e.g., Harris, 245 S.W.3d at 487–88 (applying exception to newly added estoppel claims that were “but alternative statements of [plaintiff’s] previously asserted claims to the [insurance] policy proceeds,” when motion had conclusively established that plaintiffs were not entitled to policy’s proceeds); Hall, 177 S.W.3d at 651 (refusing to apply exception because assault claim, which motion had attacked, had different elements from claim for intentional infliction of emotional distress, which motion had not attacked, even though both claims arose out of same general incident); Blancett, 177 S.W.3d at 592 (“[T]he exception . . . does not apply . . . because the two theories [relating to allegations that defendant created and maintained unsafe condition in stairway] that [defendant] asserted in its summary judgment motion as to why it owed no duty to [plaintiff] do not conclusively negate [plaintiff’s] assertion in her supplemental petition that [defendant] allegedly made negligent repairs or failed to repair the alleged defect.”).
requests were derivative of appellants’ alter ego liability theory against AWC, on which we have already held that there is a fact issue. The third declaratory request asked for a determination of who owned the vehicle, making it derivative of the “ownership” element of negligent entrustment,15 a ground on which AWC did seek summary judgment. However, the certificate of title that AWC produced created only a rebuttable presumption of the Davises’ ownership, see, e.g., Dean v. Lowery, 952 S.W.2d 637 (Tex. App.—Beaumont 1997, pet. denied), and appellants rebutted that presumption with evidence that the Davises had used funds from an AWC account to make all payments for the vehicle and that AWC sometimes paid for gasoline and maintenance. See Kelly v. Circle K Corp., No. 01-87-00778-CV, 1988 WL 114030, at *2 (Tex. App.—Houston [1st Dist.] Oct. 27, 1988, writ denied) (not designated for publication) (holding that summary judgment for lack of standing or capacity to sue was improper because presumption of ownership in person other than plaintiff arising from car’s title certificate was rebutted by testimony that plaintiff paid for car with her own money, drove car, and was car’s actual owner).
Second, as alleged, the elements of the claims and theories on which AWC sought summary judgment were not exactly the same as those on which it did not. Compare Baptist Mem’l Hosp. Sys., 969 S.W.2d at 947 (elements of respondeat
See, e.g., Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987).
superior) and Castleberry, 721 S.W.2d at 271 (elements of alter ego) with Baptist Mem’l Hosp. Sys., 969 S.W.2d at 947, 947 n.2 (elements of various agency theories). Although there is some similarity in the abstract between the elements of a vice-principal-liability negligence claim (not challenged here) and a respondeat superior liability theory (challenged and conclusively disproved here),16 appellants’ allegations supporting this claim and theory differed in one important respect: for the vice-principal-liability claim, appellants also alleged that Jeannie Davis, as AWC’s vice principal and in a supervisory capacity, negligently allowed herself, as employee, to drive drunk. The proof and arguments supporting AWC’s respondeat superior summary-judgment ground do not fully address this vice-principal-liability allegation. We will not evaluate the propriety of judgment’s rendition on the unaddressed claim when the elements are not exactly the same, when any differences between the claim and the theory were not fully explored below, and when the case must be remanded in any event.
Compare, e.g., Rhodes, Inc. v. Duncan, 623 S.W.2d 741, 744 (Tex. App.—Houston [1st Dist.] 1981, no writ) (“liability . . . is limited to those acts which are referable to the company’s business to which the vice principal is expressly, impliedly or apparently authorized to transact”) with Goodman, 80 S.W.3d at 577 (employee’s acts must be “within the scope of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired”). Because “permissive use” has not been recognized as a cause of action, it has no elements to compare against the elements of the claims and theories on which AWC sought summary judgment. Compare Renfrow, 130 S.W.2d 70; Coronado, 596 S.W.2d 502.
3. Disposition
We hold that the trial court erred in rendering summary judgment on (1) the claims of “permissive use” and vice-principal-liability negligence; (2) the vicarious-liability theories of ostensible agency, apparent agency, and agency by estoppel; and
(3) the plaintiff appellants’ three requests for declaratory relief. We sustain issue three to the extent that it complained of judgment’s rendition on these claims, requests, and liability theories.