Philip C. Bobbitt v. Robert E. Cantu--Appeal from 53rd District Court of Travis County

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State: Texas

Court: Texas Northern District Court

Docket No: 03-01-00542-CV

Case Date: 03/28/2002

Plaintiff: Slaton, Karen

Defendant: Pitman Photo, Inc., et al.--Appeal from 197th District Court of Cameron County

Preview:Slaton, Karen v. Pitman Photo, Inc., et al.--Appeal from
197th District Court of Cameron County
NUMBER 13-98-579-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
KAREN SLATON, Appellant,
v.
PITMAN PHOTO, INC., MICHAEL WERNER, AND
PROFESSIONAL ADVERTISING CONSULTANTS, INC., Appellees.
On appeal from the 197th District Court of Cameron County, Texas.
O P I N I O N
Before Chief Justice Seerden and Justices Hinojosa and Ya ez
Opinion by Justice Hinojosa
Appellant, Karen Slaton, was injured in an automobile accident on May 12, 1995, on South Padre Island. On February
3, 1997, she filed suit in Cameron County against: (1) Debra Moore (the driver of the vehicle in which Slaton was a
passenger) for negligence; (2) Kevin Maupin (the person who rented the vehicle and gave Moore permission to drive
it) for negligent entrustment; and (3) Pitman Photo, Inc. (Maupin's employer) under the doctrine of respondeat
superior.(1) On May 11, 1998, one day less than three years after the accident, Slaton filed her First Amended Petition
and added two more defendants: (4) Michael Werner, president of Pitman Photo; and (5) Professional Advertising
Consultants, Inc. ("PAC"), another Werner company.
Appellees, Pitman Photo, Werner and PAC, filed their Amended Motion for Summary Judgment(2) on June 8, 1998.
On July 29, 1998, the trial court granted the motion for summary judgment, ordered a severance, and signed a final
take-nothing judgment. By three points of error, Slaton contends the trial court erred in granting the motion for
summary judgment because: (1) a genuine issue of material fact exists regarding whether Moore was acting within the
course and scope of her employment or agency for appellees; (2) the proper statute of limitations is the three-year
statute applicable in Jones Act and general maritime torts; and (3) appellees did not address Slaton's maritime causes of
action in their amended motion for summary judgment.
A. Standard of Review
When reviewing a summary judgment granted under Texas Rule of Civil Procedure 166a(c), an appellate court must
follow these well-established rules:
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(1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law;
(2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the
nonmovant will be taken as true; and
(3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor
of the nonmovant.
American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co.,
690 S.W.2d 546, 548-49 (Tex. 1985); see also Tex. R. Civ. P. 166a. A defendant's motion for summary judgment
should be granted if he disproves at least one essential element of each of the plaintiff's causes of action, or if he
establishes all the elements of an affirmative defense as a matter of law. Grinnell, 951 S.W.2d at 425; Science
Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640,
644 (Tex. 1995). Evidence favoring the movant's position will not be considered unless it is uncontradicted. Great
Amer. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). Once the movant
establishes his right to summary judgment as a matter of law, the burden shifts to the nonmovant to offer any issue or
evidence that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979).
A no-evidence summary judgment granted under Texas Rule Civil Procedure 166a(i) is essentially a pretrial directed
verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply
in reviewing a directed verdict. Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.--Corpus Christi 1999,
pet. filed); Moritz v. Bueche, 980 S.W.2d 849, 853 (Tex. App.--San Antonio 1998, no pet.); Moore v. K Mart Corp.,
981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). We review the evidence in the light most favorable
to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and
inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Zapata, 997 S.W.2d at 747;
Connell v. Connell, 889 S.W.2d 534, 537 (Tex. App.--San Antonio 1994, writ denied). A no-evidence summary
judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue
of material fact. Havner, 953 S.W.2d at 711; Zapata, 997 S.W.2d at 747. Less than a scintilla of evidence exists when
the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Kindred v. Con/Chem, Inc.,
650 S.W.2d 61, 63 (Tex. 1983); Zapata, 997 S.W.2d at 747. More than a scintilla of evidence exists when the evidence
rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d
at 711; Zapata, 997 S.W.2d at 747.
If a summary judgment is granted generally, without specifying the reason, it will be upheld if any ground in the
motion for summary judgment can be sustained. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Weakly v. East,
900 S.W.2d 755, 758 (Tex. App.--Corpus Christi 1995, writ denied); Benavides v. Moore, 848 S.W.2d 190, 192 (Tex.
App.--Corpus Christi 1992, writ denied).
B. Facts
Viewed in the light most favorable to the nonmovant, the summary judgment evidence shows the facts leading up to
the accident as follows: Maupin, Moore's "boyfriend, kind of," who worked as a production manager for Pitman Photo
in Miami, called and invited Moore to attend an American Powerboat Association race to be held on South Padre
Island during the weekend of May 12, 1995. Maupin was to be the navigator of a powerboat owned by PAC, a
company owned by Werner. Werner was also president of Pitman Photo. Moore had previously met Werner and
Maupin at a boat race held in Galveston. Pitman Photo paid PAC for the race expenses. Maupin asked Moore to find a
company that would be willing to provide them with free food in exchange for having its logo placed on the
powerboat, and sent her some American Powerboat Association literature containing the names, addresses and
telephone numbers of some South Padre Island businesses. Moore enlisted a pizza restaurant, which provided the
group with free food and drinks; the powerboat carried the restaurant logo as well as the Pitman Photo logo. Maupin
had to get Werner's approval before this arrangement was finalized. Maupin agreed to pay for Moore's airfare, lodging
and "whatever [Moore] wanted" on the trip. Moore, her daughter Amy, and another mutual friend, Van Shotwell, flew
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together from Houston to South Padre Island.
Maupin volunteered his time at the boat race that weekend; he was not compensated for his time. Navigating the boat
was not part of his duties as a Pitman Photo employee. Maupin's group, which included Werner, arrived at the island
first. They had rented a two-story condominium for the whole group. Maupin met Moore at the airport, where he
rented a Buick Regal in his name alone. He paid for the car rental himself. Werner had brought his own Suburban for
his and the crew's use.
Slaton, a friend of Moore's from Houston, had made her own independent plans to travel to South Padre Island to
watch the boat race. However, her plans fell through, and she arrived at the Island with no place to stay.(3) Moore
asked the group if Slaton could stay at the condominium with the rest of the group. Maupin and Werner reluctantly
agreed. Werner told Moore that Slaton was a "golddigger," and he did not like Moore inviting her along. Werner never
invited Slaton to the race. Slaton ended up sleeping on a couch at the condo.
On the morning of the accident, Moore, Shotwell and Slaton rode on the boat in a parade; they posed for pictures with
the mayor. They wore T-shirts imprinted with the Pitman Photo and pizza restaurant logos, and they passed out menus
from the restaurant. At Maupin's request, Moore used the rental car to run several errands for the boat crew. Alcohol
was consumed during and after the parade. At some point the group returned to the condo. Maupin gave Moore some
money and the keys to the rental car and asked her to run to a nearby "Circle K" convenience store for supplies.(4)
Moore complied, and Slaton went with her. On the return trip, they had a minor collision with another car, causing the
air bags to inflate. Slaton sustained injuries to her face and eye. She was taken to the hospital, but released later that
evening. The boat race was canceled the next day due to bad weather, and the group returned to their respective
homes.
Moore never filled out a job application, received a paycheck, signed an employment contract, or received a W-2 form
from Pitman Photo. She has never considered Pitman Photo her employer. Pitman Photo did not pay for her airfare.
Attending boat races was a hobby of hers, and when Maupin asked her to arrange a sponsorship, she did not ask for
anything in return. Maupin probably would have paid her airfare and other expenses because of their personal
relationship.
C. Motion for Summary Judgment of Werner and PAC
By her second point of error, Slaton contends the trial court erred in granting Werner and PAC's motion for summary
judgment because, even though they were not joined until more than two years after the accident, the federal three-year
statute of limitations for Jones Act and general maritime law torts applies, not the Texas two-year statute of
limitations.
Generally, a suit arising out of a personal injury must be filed within two years of the date the injury occurred. Tex.
Civ Prac. & Rem. Code Ann. 16.003 (Vernon Supp. 2000). However, the statute of limitations for Jones Act and
general maritime law torts is three years from the date the injury occurred. 46 U.S.C. 763a. Which statute of
limitations applies in this case depends on what causes of action were pleaded by Slaton.
In neither the Plaintiff's Original Petition nor the Plaintiff's First Amended Petition (Slaton's last live pleading before
the summary judgment) is there any mention of, or reference to, her reliance on either the Jones Act or federal
maritime law. The amendment adds Werner and PAC as defendants to the lawsuit, and both were sued as the
employers of Moore and Maupin, or in the alternative, as the employers of Slaton.
Pleadings must give fair and reasonable notice of the claims asserted. Tex. R. Civ. P. 47; SmithKline Beecham Corp.
v. Doe, 903 S.W.2d 347, 354 (Tex. 1995); Gilmore v. Lopez, 974 S.W.2d 67, 68 (Tex. App.--San Antonio 1998, pet.
denied); Garner v. Corpus Christi Nat'l Bank, 944 S.W.2d 469, 476-77 (Tex. App.--Corpus Christi 1997, writ denied),
cert. denied, 525 U.S. 965 (1998). A court should uphold a petition containing a cause of action that a person may
reasonably infer from what is specifically stated, even if an element of the cause of action is not specifically alleged.
SmithKline, 944 S.W.2d at 476; Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993).
To show the status of seaman, necessary to maintain a Jones Act claim, there are two essential requirements: (1) an
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employee's duties must contribute to the function of the vessel or to the accomplishment of its mission; and (2) a
seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial
in terms of both its duration and its nature. Harbor Tug & Barge Co. v. Papai, 117 S. Ct. 1535, 1540 (1997) (citing
Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995)); see also 46 U.S.C. 688. To invoke admiralty jurisdiction and assert
a general maritime law claim, the plaintiff must show that: (1) the wrong occurred in navigable waters, and (2) the
wrong had a significant relationship to traditional maritime activity. 46 U.S.C. app. 740; Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co., 513 U.S. 527, 532 (1995) (citing Executive Jet Aviation, Inc. v. Cleveland, 409 U.S.
249 (1972)).
We find nothing in Slaton's pleadings that can be construed as invoking these causes of action. The record shows
appellees filed a vigorous and well-briefed motion for summary judgment, but they did not address any Jones Act or
maritime claims. The claims were first raised by Slaton in her response to appellees' motion for summary judgment.
After reviewing the record, we conclude that Slaton did not plead any Jones Act or maritime causes of action in her
First Amended Petition, and that appellees were not on notice of any such claims.
Because Slaton did not properly plead any Jones Act or maritime causes of action, we hold the three-year federal
statute of limitation does not apply. Because Slaton did not add Werner and PAC as defendants in this case within the
two-year Texas statute of limitations, we hold the trial court did not err in granting their motion for summary
judgment.
We overrule Slaton's second point of error. In light of our disposition of this point of error, it is not necessary to
address Slaton's third point of error. Tex. R. App. P. 47.1.
D. Motion for Summary Judgment of Pitman Photo
By her first point of error, Slaton contends the trial court erred in granting the motion for summary judgment of Pitman
Photo because a genuine issue of material fact exists as to whether Moore was acting within the course and scope of
her employment or agency with Pitman Photo.
Slaton seeks to hold Pitman Photo vicariously liable for the negligence of Moore on the theory that Moore was an
employee or agent of Pitman Photo. 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. Hosp. Sys. v. Sampson, 969 S.W.2d 945,
947 (Tex. 1998); DeWitt v. Harris Co., 904 S.W.2d 650, 654 (Tex. 1995); Restatement (Second) of Agency 219
(1958). The most frequently proffered justification for imposing such liability is that the principal or employer has the
right to control the means and methods of the agent's or employee's work. Sampson, 969 S.W.2d at 947 (citing
Newspapers Inc. v. Love, 380 S.W.2d 582, 585-86 (Tex. 1964)). A mere scintilla of control does not establish an
employer-employee relationship. Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 264 (Tex. App.--Corpus Christi
1997, no writ).
We find no summary judgment evidence showing that Moore was an employee or agent of Pitman Photo, or that she
was acting within the scope of her duties as an agent or employee when the accident occurred. Moore attended the race
at the request of her "kind of" boyfriend, Maupin, who himself was not acting within the scope of his employment
duties. Moore testified that her interest in the boat race was a hobby. Maupin testified that his participation was
voluntary, and that he was not paid for his time that weekend. Werner, the owner of Pitman Photo, testified that
Maupin was not acting within the scope of his employment duties that weekend, and that Moore was never an
employee of Pitman Photo.
The summary judgment evidence shows that a group of mutual acquaintances decided to attend a boat race together at
South Padre Island. The objective was a fun weekend getaway with friends. Slaton has not produced any summary
judgment evidence to contradict this evidence. There is simply no summary judgment evidence that Pitman Photo had
any right to control Moore's actions at the time of Slaton's injury.
We conclude that Moore was not an employee or agent of Pitman Photo, and that she was not acting within the scope
of her duties as an agent or employee of Pitman Photo when the accident occurred. Accordingly, we hold the trial
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court did not err in granting Pitman Photo's motion for summary judgment. We overrule Slaton's first point of error.
We affirm the trial court's order granting appellees' motion for summary judgment.
FEDERICO G. HINOJOSA
Justice
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this
the 10th day of August, 2000.
1. Slaton alleged that Moore and Maupin were employees, agents or servants of Pitman Photo, acting within the scope
of their duties.
2. Pitman Photo had filed a motion for summary judgment on its own behalf before Werner and PAC were added as
defendants. That motion was denied.
3. It is unclear whether Slaton was on the same flight as the Moore group.
4. The "supplies" included cigarettes, water, soft drinks, beer, Zima, and food.
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