United States District Court, S.D. Texas, Houston Division
Alison S. Rogers, Plaintiff,
Car Wash Partners, Inc. and CWP Asset Corp., both d/b/a. Mister Car Wash, and John Doe, Defendants.
MEMORANDUM OPINION AND ORDER
H. MILLER SENIOR UNITED STATES DISTRICT JUDGE.
before the court is a motion for summary judgment filed by
defendants Car Wash Partners, Inc. (“CWPI”) and
CWP Asset Corp. (“CWPAC”), both d/b/a Mister Car
Wash (collectively, “Defendants”) (Dkt. 19), and
a motion for partial summary judgment by plaintiff Alison S.
Rogers (Dkt. 20). After reviewing the motions, responses,
replies record evidence, and the applicable law, the court is
of the opinion that Defendants' motion should be DENIED
IN PART and otherwise GRANTED and Rogers's motion should
September 19, 2016, Rogers brought her 2016 Infiniti QX80 to
be washed and detailed at a Mister Car Wash location. Dkts.
13, 19. After the wash and detail were completed, the car was
parked in the Mister Car Wash parking lot. Dkt. 13. Oscar
Ernesto Hernandez Molina, a CWPAC employee, struck
Rogers's unoccupied vehicle while operating another
customer's vehicle. Dkt. 19 ¶ 1. Rogers's
vehicle sustained damage and was towed to Service King, where
Rogers was provided a rental car at CWPAC's expense.
Id. ¶¶ 2, 4. CWPAC's insurance company
paid $13, 718.17 to repair Rogers's vehicle and paid $5,
535.77 for Rogers's use of the rental vehicle.
Id. ¶ 6. Later, Rogers's vehicle was
flooded during Hurricane Harvey, and she received over $70,
000 from her automobile insurance carrier for her totaled
loss. Id. ¶ 7; Dkt. 23 at 6.
September 18, 2018, Rogers sued CWPI and John Doe in the
152nd District Court of Harris Country, Texas for negligence,
negligent entrustment, and negligent hiring, supervision,
training, and retention. Dkt. 1-1. John Doe was the Mister
Car Wash employee who drove a vehicle into Rogers's
vehicle and would later be identified as
Molina. Dkt. 13 at 2; Dkt. 20 at 1. CWPI removed
the case to this court on November 2, 2018. Dkt. 1. On April
24, 2019, Rogers amended her complaint, adding CWPAC as a
defendant and new claims for a breach of an implied warranty
of good and workmanlike performance for the repair or
modification of existing tangible goods and a violation of
the Texas Deceptive Trade Practices Act (“DTPA”)
also under the theory of an implied warranty. Dkt. 13.
have moved for summary judgment. Dkt. 19. Defendants assert
that Rogers's claims fail because (1) Defendants have
previously paid for Rogers's damages and no damages
remain; (2) there is no evidence or insufficient evidence to
support claims of direct negligence and gross negligence
relating to alleged negligent entrustment, negligent hiring,
supervision, training, and retention; (3) Defendants are not
liable for exemplary damages based on the conduct of Molina
because Molina “was not a vice principal of either
corporation, and whose specific conduct in question was not
ratified or approved by” CWPAC or CWPI; and (4)
Rogers's claims of breach of an implied warranty and for
alleged violations of the DTPA “are inapplicable in the
present circumstances.” Id. ¶ 11.
Defendants also request an award of attorneys' fees for
the “groundless” DTPA claim. Id.
Defendants' assertion that no recoverable damages remain,
Rogers argues that (1) recoverable money damages still exist
for loss of use, loss in value, personal injury, and breach
of implied warranty; (2) injunctive relief is also available;
and (3) even if all money damages have been paid, Defendants
are not disposed of liability. Dkt. 23 at 3. Rogers contends
the surveillance video of the accidence is “summary
judgment evidence” of Molina's gross negligence and
recklessness and that “a reasonable fact finder may
conclude from the video that Molina's actions were
malicious.” Id. at 10. Rogers further asserts
that there are disputed facts surrounding Defendants'
negligent entrustment with and hiring of Molina. Id.
at 10, 13. Rogers then counters that there was an implied
warranty because she is a consumer and car washing services
to “modify vehicles by increasing their value”
falls within the scope of the DTPA. Id. at 14.
Rogers moves for partial summary judgment on two issues,
seeking a judgment of (1) negligence per se, under the
negligent entrustment claim, because Defendants entrusted a
vehicle to an unlicensed employee; and (2) liability for the
breach of warranty and DTPA claims because Defendants
destroyed Rogers's vehicle rather than cleaned it. Dkt.
20 at 1. Defendants argue that no evidence supports
Rogers's negligent entrustment and negligence per se
claims (Dkt. 22 ¶¶ 11, 13) and that Rogers's
claim for a breach of an implied warranty and DTPA claim fail
as a matter of law (Id. ¶19).
shall grant summary judgment when a “movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “[A] fact is genuinely in dispute
only if a reasonable jury could return a verdict for the
nonmoving party.” Fordoche, Inc. v. Texaco,
Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If
the moving party meets its burden, the burden shifts to the
non-moving party to set forth specific facts showing a
genuine issue for trial. Fed.R.Civ.P. 56(e). The court must
view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of
the non-movant. Envtl. Conservation Org. v. City of
Dallas, 529 F.3d 519, 524 (5th Cir. 2008).
Defendants' Motion for Summary Judgment
court will first consider whether Defendants have
demonstrated the absence of a genuine issue of material fact
and whether Defendants are entitled to attorneys' fees
under the DTPA.