Opinion filed September 25, 2008

Opinion filed September 25, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-07-00118-CV

                                                     __________

     JACQUELYN ELMORE, INDIVIDUALLY AND AS REPRESENTATIVE

  OF THE ESTATE OF RON ELMORE, DECEASED, AND INTERVENOR,

                                      RONNIE ELMORE, Appellants

                                                             V.

                E. SULLIVAN ADVERTISING & DESIGN, INC., Appellee

                                        On Appeal from the 172nd District Court

                                                       Jefferson County, Texas

                                                Trial Court Cause No. E-171,096

                                             M E M O R A N D U M  O P I N I O N

Jacquelyn and Ronnie Elmore, the parents of Ron Elmore, filed a wrongful death action against Heath Channing Hebert and his employer, E. Sullivan Advertising & Design, Inc.  Hebert and his family were on their way to a Labor Day Music Festival in Beaumont when Hebert missed a turn.  Hebert was in the process of making a U-turn when Ron Elmore=s motorcycle struck Hebert=s Toyota Sequoia.  Ron subsequently died from his injuries.  The trial court granted E. Sullivan Advertising=s motion for summary judgment on the ground that Hebert was not acting within the course and scope of his employment when the collision occurred.^[1] We affirm.

Background Facts

E. Sullivan Advertising was a Beaumont advertising agency that had been hired by Perfect Day Enterprises to handle the media advertising for the Labor Day Music Festival.  Eric Sullivan, the president and owner of E. Sullivan, testified that he had personally pursued the account by contacting Angela Baker of Perfect Day Enterprises.

Hebert testified that he was the business manager for E. Sullivan Advertising and that it was his job to run the office, oversee internal employees, and handle the finances and the books.  His responsibilities did not involve selling advertising or the production and design aspects of the business.  It was not part of his job to obtain clients or discuss with clients of E. Sullivan Advertising whether they were happy with the firm=s work.  Hebert was authorized to sign certain types of contracts on behalf of E. Sullivan Advertising, and he did sign a contract to design laminated backstage passes for the festival.

Eric Sullivan testified that he was Hebert=s supervisor, that Hebert was off work on that Labor Day, and that Hebert was not under the supervision of anyone at E. Sullivan Advertising on that Labor Day. Eric Sullivan said that he had not directed any of his employees, including Hebert, to go to the concert.  As it turned out, the other two employees of the firm, Tish Kimball and Kari Riley, also went to the concert.  Sullivan went to the concert by himself to hear the musical group ABad Company,@ and his wife was to join him later when the singer Tracy Byrd performed.

 Hebert testified that he was driving his own Toyota Sequoia when the accident occurred.  Hebert was taking his wife and daughter to attend the Tracy Byrd concert and Labor Day festival at Ford Park.  Hebert said it was his own idea to go to the concert and festival.  Although he knew that Eric Sullivan planned to go to the festival, he had no plans to meet Eric there.  Hebert stated that he bought his own tickets during a lunch break a week before the accident. Hebert explained that E. Sullivan Advertising placed the media for the event, but when the festival started on Labor Day, the firm=s work had been completed. The firm did not have any business or anything to do with the event itself.

Standard of Review

A movant for a traditional summary judgment has the burden to show that there are no genuine issues of material fact and that it is entitled to summary judgment as a matter of law.  Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).  An appellate court reviewing a summary judgment must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the movant.  Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007).  Evidence that favors the movant=s position will not be considered unless it is uncontroverted.  Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).

Plaintiffs who rely on the doctrine of respondeat superior to hold an employer liable have the burden of proving at trial that the employee was acting within the course and scope of his employment at the time of the accident.  Dunlap-Tarrant v. Ass=n Cas. Ins. Co., 213 S.W.3d 452 (Tex. App.CEastland 2006, no pet.); Soto v. Seven Seventeen HBE Corp., 52 S.W.3d 201, 204 (Tex. App.CHouston [14th Dist.] 2000, no pet.); Mata v. Andrews Transp., Inc., 900 S.W.2d 363, 366 (Tex. App.CHouston [14th Dist.] 1995, no writ).  However, a defendant moving for a traditional summary judgment has the burden of establishing that, as a matter of law, the plaintiff has no cause of action against the defendant.  The defendant may carry that burden by conclusively negating one of the elements of plaintiff=s cause of action or by establishing all elements of an affirmative defense to each claim.  Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).  Once the defendant movant presents evidence to establish his or her right to a summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment.  City of Houston, 589 S.W.2d at 678-79; Seelin Med., Inc. v. Invacare Corp., 203 S.W.3d 867, 869 (Tex. App.CEastland 2006, pet. denied).

Because E. Sullivan Advertising moved for a traditional summary judgment, it had the initial burden to establish that Hebert was not acting within the course and scope of his employment at the time of the accident. 

Doctrine of Respondeat Superior

The essential elements of a negligence cause of action are (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach.  Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Ginther v. Domino=s Pizza, Inc., 93 S.W.3d 300, 303 (Tex. App.CHouston [14th Dist] 2002, pet. denied).  The existence of a legal duty is the threshold requirement.

Generally, a person has no duty to control the conduct of another.  Otis Eng=g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983).  Under the theory of respondeat superior, however, an employer may be vicariously liable for the negligent acts of its employee if the employee=s actions are within the course and scope of his employment.  Mayes, 236 S.W.3d at 756.  An employer is liable for the tort of its employee 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.  Id.; Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002).  Thus, the employee=s act (1) must be committed within the scope of the general authority of the employee (2) in furtherance of the employer=s business and (3) for the accomplishment of the object or purpose for which the employee was hired.  Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972); Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971); Bell v. VPSI, Inc., 205 S.W.3d 706, 715 (Tex. App.CFort Worth 2006, no pet.).

E. Sullivan Advertising moved for summary judgment on the grounds that its evidence negated the duty and breach of duty elements essential to the Elmores= claims.  In their depositions, Hebert and Eric Sullivan testified to facts that demonstrated that Hebert was not acting within the course and scope of his employment at the time of the collision.  The trial court granted E. Sullivan Advertising=s motion.

The Elmores raise two issues on appeal.  First, they argue that the trial court erred when it struck the affidavit testimony of their expert, Holly DeLaune, that the Elmores relied on to show that Hebert was acting in the course and scope of his employment.  Second, they argue that the trial court erred in granting the motion for summary judgment because E. Sullivan Advertising failed to conclusively prove that Hebert was not acting within the course and scope of his employment at the time of the collision and that there is a genuine issue of material fact as to whether Hebert was acting within the course and scope of his employment at that time. 

Analysis

E. Sullivan Advertising=s summary judgment evidence showed that it was closed for business on that Labor Day; that Hebert was off work and did not have the authority to conduct any business for E. Sullivan Advertising that day; that Hebert=s boss, Eric Sullivan, did not direct or request Hebert to go to the concert or do anything on behalf of the firm on that day; that Hebert=s responsibilities with the firm did not include working with clients on their events; that Hebert decided on his own to take his family to the concert and festival; and that Hebert was driving his own car at the time of the accident. The evidence showed that Hebert=s actions that day were not within his general authority, were not in furtherance of his employer=s business, and were not made for the accomplishment of the object or purpose for which he was hired.  Therefore, E. Sullivan Advertising established its right to a standard summary judgment by conclusively negating the duty element of the Elmores= cause of action against it.

The burden then shifted to the Elmores to come forward with evidence or law that would preclude summary judgment for E. Sullivan Advertising.  The Elmores attempted to introduce the affidavit of DeLaune, an advertising executive and partner with the firm of Erickson USA LP.  DeLaune stated that she had reviewed the depositions of Eric Sullivan, Hebert, and Athe exhibits relating to the promotion of the Labor Day Festival at Ford Park.@  She then concluded:

Based on industry standards and practices with which I am familiar and have used in my work, it would be imperative for Sullivan Advertising to have persons present who could act on behalf of Sullivan Advertising at the Labor Day Festival to ensure things run smoothly and vendors and customers would be satisfied.

We have reviewed the portions of those depositions and exhibits that were introduced as summary judgment evidence.  The facts set forth in the uncontroverted testimony of Hebert and Eric Sullivan do not support DeLaune=s conclusions. 

The Elmores state that DeLaune Awas hired to review the issues and events of this case . . . to determine whether or not, based on industry custom and practice, Heath Hebert was in the course and scope of his employment.@ Despite the testimony of Hebert and Eric Sullivan that Hebert was off work that day, that Hebert was not directed or requested to attend the concert and festival, and that Hebert=s employee responsibilities did not involve working with the firm=s clients, DeLaune concluded that Hebert must have been going to the festival to Afacilitate or accomplish the smooth running of the event, troubleshoot client concern and promot[e] . . . client retention.@ That conclusion is not a reasonable inference from the facts testified to by Hebert and Eric Sullivan.  The only basis for DeLaune=s conclusion was her assumption that she would have attended the event for those purposes; therefore, Hebert must have done so. 

When an expert=s opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value.  Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).  DeLaune stated that her conclusions concerning Hebert=s duties were based on her knowledge of the media industry and her actual work of promoting events.  DeLaune did not provide a reasonable basis for such an assumption concerning industry custom and practice. It is unreasonable to assume that all media contracts are the same and that all media firms undertake the same responsibilities.  DeLaune did not show how E. Sullivan Advertising=s media contract with Perfect Day Enterprises required E. Sullivan Advertising to have personnel there on Labor Day Ato troubleshoot,@ promote the concert, or work with vendors.  DeLaune stated that Hebert was attending Aa Labor Day Festival that was being promoted solely by his employer, Sullivan Advertising.@  The uncontroverted testimony was that Perfect Day Enterprises was the promoter of the festival and ran the event; E. Sullivan Advertising=s role was to place the media, and its work had been completed when the event began.

The Elmores rely on Allbritton v. Gillespie Rozen, Tanner & Watske, P.C., 180 S.W.3d 889 (Tex. App.CDallas 2005, pet. denied), a legal malpractice case.  However, the expert in Allbritton based his conclusion on underlying facts.  Allbritton and a fellow employee had sued their employer for breach of contract.  The jury found that the employer had breached the contract but awarded no damages to Allbritton despite awarding $4,000,000 to the other employee.  In the subsequent legal malpractice suit, Allbritton=s expert concluded that the former attorneys should have hired an expert witness to both calculate and testify as to Allbritton=s damages.  The expert explained the basis for his opinion, pointing out such facts as Allbritton not having the background or education to calculate his damages and having tried to use a methodology to calculate damages that was not correct.  In contrast, DeLaune=s conclusory opinions were not supported by underlying facts.  The trial court did not err in excluding her affidavit. 

The Elmores attempt to create a fact issue on course and scope of employment by pointing out that Hebert was the business agent and could sign contracts on behalf of E. Sullivan Advertising.  The Elmores= burden was to show that Hebert was acting within the course and scope of employment at the time of the accident.  Bell, 205 S.W.3d at 715. Stated another way, the Elmores had to show that E. Sullivan Advertising had the right of control over Hebert=s physical movements at the time of the accident.  Brown v. Am. Racing Equip., Inc., 933 S.W.2d 734, 735 (Tex. App.CSan Antonio 1996, no writ); Graham v. McCord, 384 S.W.2d 897, 898-99 (Tex. Civ. App.CSan Antonio 1964, no writ).  Hebert=s status as business manager and his authority to sign contracts were not sufficient evidence to raise a fact question on whether Hebert was acting within the course and scope of employment at that time.

 The Elmores also argue that the question of whether an employee is acting within the course and scope of his employment is usually a question of fact.  We agree.  However, there needed to be some testimony of facts that contradicted the facts as related by Hebert and Eric Sullivan.  Although the Elmores attempt to draw an analogy between this case and this court=s opinion in Sw.-Tex. Leasing Co. v. Denise, No. 11-99-00127-CV, 2000 WL 34235126 (Tex. App.CEastland Aug. 3, 2000, no pet.) (not designated for publication), Denise demonstrates what was missing from the Elmores= summary judgment proof.

Denise involved conflicting testimony as to the underlying facts; this case does not have such conflicting testimony.  The trial court had granted Raylin Ann Denise a partial summary judgment that Donnie Taylor was, as a matter of law, in the course and scope of his employment with Advantage Rent-A-Car at the time of Taylor=s collision with Denise.  Denise=s summary judgment evidence included an affidavit by Taylor that stated that he had heard that the Advantage vehicle he was driving at the time of the accident had brake problems, that he was test driving it to see if there were in fact brake problems, and that that was part of his job.  Advantage attached an affidavit sworn to by Donald Livesay, the manager of the Advantage location where Taylor worked, to its response to Denise=s motion for summary judgment.  Livesay stated that Taylor was a service agent, that service agents were not authorized to test drive vehicles unless specifically instructed to do so, and that Taylor had not been instructed to test drive the vehicle.  Livesay also stated that no complaints had been made concerning any problem with the vehicle.  Advantage also attached an affidavit sworn to by the customer who had rented and returned the vehicle just prior to the accident; he stated that he had no problems with the brakes.  Thus, the summary judgment evidence in Denise contained conflicting testimony as to the critical facts, and this court reversed and remanded for a new trial.

In the case before us now, there was no testimony contradicting the facts as related by Hebert and Eric Sullivan.  Even though they were interested witnesses, their testimony was clear, positive, direct, otherwise credible, and free from contradictions and consistencies and could have been readily controverted.  See Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997).  The Elmores could have effectively countered their testimony by opposing evidence if any existed.  The Elmores did not attempt to controvert their testimony through additional deposition testimony, interrogatories, or other discovery.  The depositions of Hebert and Eric Sullivan were competent summary judgment evidence.

The Elmores attempt to discredit their testimony by pointing out that Hebert and Eric Sullivan were brothers-in-law.  That fact does not controvert their testimony or mean that they were not truthful in their testimony.  The Elmores also make a point that Eric Sullivan=s children did not have tickets to the festival even though Eric testified that he had purchased tickets.  Hebert also testified that he had purchased tickets to the festival.  Whether the Sullivan children had free tickets to the festival is not evidence that is relevant to a determination of whether Hebert was within the course and scope of his employment at the time of the accident. Both of the Elmores= issues are overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

September 25, 2008

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

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^[1]In addition to Heath Hebert and his wife, Aspen Hebert, and E. Sullivan Advertising, the Elmores also sued a number of other defendants.  The trial court granted summary judgments for all of the defendants except the Heberts.  The court severed the claims against E. Sullivan Advertising, and the Elmores filed this appeal from that final judgment.