Court of Appeals of Texas, Fourth District, San Antonio
the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 06-11-45222-CV Honorable Richard C. Terrell,
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice
Beth Watkins, Justice
PATRICIA O. ALVAREZ, JUSTICE
Los Santos was employed by Ram Production Services, Inc. when
he was killed in a motor vehicle accident while driving from
his residence to the ranch where he was assigned to work. In
the underlying cause, Juan's wife, Noela De Los Santos,
both individually and as next friend of Kimberly A. Ruiz,
sought judicial review of the Texas Department of Insurance,
Division of Workers' Compensation appeals panel's
decision upholding a hearing officer's decision that Juan
was not in the course and scope of his employment at the time
of the accident.
the parties filed competing motions for summary judgment, the
trial court denied Ram Production's insurance
carrier's motion. The trial court concluded as a matter
of law that Juan was in the course and scope of his
employment at the time of the accident, reversed the appeals
panel's decision, and granted summary judgment for Noela.
Home Assurance Company, Ram Production's workers'
compensation insurance carrier, appeals the trial court's
judgment. The sole issue presented on appeal asks "Was
the truck [Juan] was driving at the time of the accident
gratuitously furnished by [Ram Production] rendering him
outside the course and scope of his employment?" We
reverse the trial court's judgment and remand the cause
to the trial court for further proceedings.
the second appeal arising from a summary judgment entered in
Noela's favor in the underlying cause. The judgment
considered in the prior appeal was similarly based on
competing motions for summary judgment. The first summary
judgment, however, was based exclusively on agreed facts
stipulated by the parties. This court reversed the first
summary judgment, holding genuine issues of material fact
existed as to whether Juan's travel at the time of the
accident originated in Ram Production's business. See
Am. Home Assurance Co. v. De Los Santos (De Los Santos
I), No. 04-10-00852-CV, 2012 WL 4096258 (Tex. App.-San
Antonio Sept. 19, 2012, pet. denied) (mem. op.).
the cause was remanded, American Home moved for summary
judgment on no-evidence and traditional grounds again
asserting that Juan was not in the course and scope of his
employment at the time of the accident. Noela filed a
response and cross-motion for summary judgment, and American
Home filed a reply. In addition to the previously agreed,
stipulated facts, American Home filed an affidavit from Ram
Production's owner who was also Juan's supervisor,
and Noela filed her own affidavit and payroll records from
Ram Production. After hearing the competing motions, the
trial court concluded as a matter of law that Juan was in the
course and scope of his employment. The trial court denied
American Home's motion and granted summary judgment for
review a trial court's order granting summary judgment de
novo, taking 'as true all evidence favorable to the
nonmovant,' and 'indulg[ing] every reasonable
inference and resolv[ing] any doubts in the nonmovant's
favor.'" Cmty. Health Sys. Prof'l Servs.
Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017)
(alterations in original) (quoting Provident Life &
Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.
2003)). "[W]hen [a] motion asserts both no-evidence and
traditional grounds, we first review the no-evidence
court properly grants a "a defendant's no-evidence
motion for summary judgment if the plaintiff has produced no
more than a scintilla of evidence on an essential element of
the cause of action, that is, if the plaintiff's evidence
does not rise 'to a level that would enable reasonable
and fair-minded people to differ in their
conclusions.'" Dall. Morning News, Inc. v.
Tatum, 554 S.W.3d 614, 625 (Tex. 2018) (quoting Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600-01 (Tex.
2004)). "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." King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)
(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61,
63 (Tex. 1983)).
prevail on a traditional motion for summary judgment,
however, the movant must 'show that no genuine issue of
material fact exists and that it is entitled to judgment as a
matter of law.'" Hansen, 525 S.W.3d at 681
(quoting Provident Life, 128 S.W.3d at 216).
"An issue is conclusively established 'if reasonable
minds could not differ about the conclusion to be drawn from
the facts in the record.'" Id. (quoting
Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex.
the parties file competing summary judgment motions and the
trial court grants one and denies the other, 'we consider
the summary judgment evidence presented by both sides,
determine all questions presented, and if the trial court
erred, render the judgment the trial court should have
rendered.'" Tex. Workforce Comm'n v. Wichita
Cty., 548 S.W.3d 489, ...