No. 01-15-00161-CV 

IN THE COURT OF APPEALS

FOR THE FIRST JUDICIAL DISTRICT

HOUSTON, TEXAS

CAMILLO MARTINEZ O/B/O DECEASED, YOLANDA MARTINEZ,

APPELLANT

V.

NABELL “BILL” ARAFAT D/B/A TEXAS CAR STEREO,

APPELLEE

Appealed from the 270th Judicial District Court

Harris County, Texas

Trial Court Cause No. 2011-44754-A 

APPELLANT’S REPLY BRIEF

Husain Law + Associates, P.C. 

Joshua R. Leske

State Bar No. 24060162

5858 Westheimer, Suite 400

Houston, Texas 77057

(713) 621-8900

(713) 621-8909 – Facsimile

jleske@hlalawfirm.com

COUNSEL FOR APPELLANT

APPELLANT REQUESTS ORAL ARGUMENT

ACCEPTED

01-15-00161-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

8/18/2015 4:31:04 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 8/18/2015 4:31:04 PM CHRISTOPHER A. PRINE Clerk
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Table of Contents..............................................................................2

TABLE OF CONTENTS

Index of Authorities...........................................................................3

Argument & Authorities.....................................................................5

ISSUE ONE: The trial court erred in granting summary judgment because genuine 

issues of material fact exist, thus precluding summary judgment, regarding (1) 

whether Appellee had the right to control the vehicle Rodriguez was operating; (2) 

whether Appellee entrusted the vehicle to Rodriguez; (3) whether Rodriguez was 

in the course and scope of his employment with Appellee at the time of the 

accident; and (4) whether Appellee was grossly negligent..............................5

A. Fact Issues exist about whether Appellee retained control over the vehicle 

Rodriguez was driving and whether Appellee entrusted the vehicle to 

Rodriguez..............................................................................5

B. A fact issue exists as to whether Rodriguez was in course and scope.........7

Deviation..............................................................................10

C. A fact issue exists as to whether Appellee was grossly negligent.............11

Prayer..........................................................................................13

Certificate of Compliance..................................................................14

Certificate of Service........................................................................15
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INDEX OF AUTHORITIES

Cases:

Arbelaez v. Just Brakes Corp., 

149 S.W.3d 717 (Tex. App.-Austin 2004).......................................10

Baker Hotel of Dallas v. Rogers, 

157 S.W.2d 940 (Tex. Civ. App.-Dallas 1941)....................................9

Best Steel Bldgs., Inc. v. Hardin,

553 S.W.2d 122 (Tex. App.-Tyler 1977, no writ)...............................10

City of Keller v. Wilson, 

168 S.W.3d 802 (Tex. 2005).........................................................5

Dictaphone Corp. v. Torrealba, 520 S.W.2d 869

(Tex. Civ. App.--Houston [14th Dist.] 1975, writ ref'd n.r.e.).................11

Eubanks v. Hughes Engineering Co., 

369 S.W.2d 49 (Tex.Civ.App.-Fort Worth 1963, writ ref'd n.r.e.).............8

Garay v. G.R. Birdwell Constr., L.P., 

2014 Tex. App. LEXIS 12710 (Tex. App.-Houston [1st Dist.] 2014)........12

General Motors Corp. v. Sanchez, 

997 S.W.2d 584 (Tex. 1999).......................................................12

Gilgon, Inc. v. Hart,

893 S.W.2d 562 (Tex. App.-Corpus Christi 1996, pet. denied)...........10, 11

GTE Southwest, Inc. v. Bruce, 

998 S.W.2d 605 (Tex. 1999).........................................................7

Hanna v. Lott, 

888 S.W.2d 132 (Tex.App.-Tyler 1994).....................................11, 13

Hooper v. Pitney Bowes, 

895 S.W.2d 773 (Tex. App.-Texarkana 1995)....................................9
4

Howard v. American Paper Stock Co., 

523 S.W.2d 744 (Tex.Civ.App.-Fort Worth 1975)...............................8

J. V. Harrison Truck Lines, Inc. v. Larson, 

663 S.W.2d 37 (Tex. App.-Houston [14th Dist.] 1983, writ ref'd n.r.e.)......9

Josey-Miller Co. v. Sheppard, 

357 S.W.2d 488 (Tex. Civ. App.-Beaumont 1962, no writ)...................11

Merrell Dow Pharm., Inc. v. Havner, 

953 S.W.2d 706 (Tex.1997).........................................................5

Nixon v. Mr. Prop. Mgmt. Co., 

690 S.W.2d 546 (Tex.1985).........................................................5

Ramos v. Frito-Lay, Inc., 

784 S.W.2d 667 (Tex. 1990).........................................................9

Texas Workers' Comp. Comm'n v. Garcia, 

893 S.W.2d 504 (Tex. 1995).........................................................8

Wal-Mart Stores, Inc. v. Alexander, 

868 S.W.2d 322 (Tex. 1993)...................................................11, 12

Wrenn v. G.A.T.X. Logistics, Inc., 

73 S.W.3d 489 (Tex. App.-Fort Worth 2002).....................................7

Rules:

Tex. R. App. P. 9.4(i)(1)....................................................................14

Tex. R. App. P. 9.4(i)(2)(D) ..............................................................14

Tex. R. App. P. 9.4(i)(3) ...................................................................14

Tex. R. Civ. P. 166a(c) ......................................................................5

Tex. R. Civ. P. 166a(i) .......................................................................5
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ARGUMENT & AUTHORITIES

ISSUE ONE: The trial court erred in granting summary judgment because 

genuine issues of material fact exist, thus precluding summary judgment, regarding 

(1) whether Appellee had the right to control the vehicle Miguel Zapeta-Rodriguez 

(“Rodriguez”) was operating; (2) whether Appellee entrusted the vehicle to 

Rodriguez; (3) whether Rodriguez was in the course and scope of his employment 

with Appellee at the time of the accident; and (4) whether Appellee was grossly 

negligent.

For the purposes of this appeal, the central question which this Court must 

address is whether Appellant presented evidence sufficient to create a question of 

fact regarding each of the above issues. TEX. R. CIV. P. 166a(c),(i); see also 

Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Nixon v. 

Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); City of Keller v. 

Wilson, 168 S.W.3d 802, 825 (Tex. 2005). The evidence presented by Appellant to 

the trial court satisfied his burden on each of these points. Thus, summary 

judgment was improper. 

A. Fact issues exist about whether Appellee retained control over the 

vehicle Rodriguez was driving and whether Appellee entrusted the 

vehicle to Rodriguez.

Appellee’s control over Martina Ortiz Grifaldo’s (“Grifaldo”) vehicle is 

established given the evidence that the vehicle was originally brought in during 
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business hours for repairs on the eve of the accident, July 8, 2011. C.R. 88-89 at 

19:4-13; 22:23-23:6.1

The testimony of Alejandro Gomez (“Gomez”), Rodriguez’s roommate at 

the time, establishes that Grifaldo’s vehicle was dropped off at Appellee’s facility 

on July 8, 2011, and that Rodriguez drove the vehicle home that same evening. 

Grifaldo’s vehicle was being brought in to be repaired by 

one of Appellee’s employees. C.R. 81-82 at 75:2-12; 78:13-20. The vehicle was 

experiencing electrical issues and an employee of Appellee was going to fix it. 

C.R. 81-82 at 75:2-12; 78:13-20. This testimony was corroborated by Rodriguez. 

C.R. 61 at 72:8-24; C.R. 63 at 74:7-9. 

“Q. Did he tell you if the vehicle had been dropped off 

or given to him while he was at work on Friday?

A. He only told me that they brought it to him during 

work -- during his work, and he didn't tell me the time.

Q. So sometime while he was at work, the car was 

brought to him; is that correct?

A. Yes.” C.R. 89 at 22:23 to 23: 6 (emphasis added). 

Appellee cites to the testimony of Alexander Buentello, Edson Carrizales, 

and Rodriguez to support its contention that Grifaldo’s vehicle was not in its 

possession or control the day before the accident. However, Messrs. Buentello and 

Carrizales’ testimony cannot be taken at face value given the fact that they 

 1 For the purposes of this Reply Brief, all citations to the Court Record (“C.R.”) shall refer to the 

Court Record filed on July 9, 2015. Grifaldo was previously a named Defendant in the 

underlying matter. C.R. 18-19. 
7

are/were employees of Appellee at all pertinent times. The testimony of Rodriguez, 

a named Defendant in the underlying matter, is directly contradicted by Gomez’s 

testimony. Gomez is the sole disinterested witness in this entire case. 

Likewise, it is immaterial what time Rodriguez showed up at Appellee’s 

facility on July 9, 2011. The key issue, which Appellant has provided sufficient 

evidence of, is that Grifaldo’s vehicle was at Appellee’s facility on July 8, 2011, 

and Rodriguez drove it home from work on July 8, 2011. Thus, Appellant 

presented sufficient evidence to create a question of fact that (1) Grifaldo’s vehicle 

was brought to Appellee’s facility for repairs; (2) those repairs were to be done by 

one of Appellee’s employees; (3) the vehicle was originally at Appellee’s facility 

on July 8, 2011; and (4) Rodriguez took the vehicle from Appellee’s facility on 

July 8, 2011. Appellee’s allowed Rodriguez to drive the vehicle from their facility 

on July 8, 2011, and Rodriguez intended to bring it back for repairs. Appellee’s 

summary judgment, therefore, should have been denied. 

B. A fact issue exists as to whether Rodriguez was in course and scope.

“An employee’s conduct is within the scope of employment when that 

conduct is of the same general nature as that authorized or incidental to the conduct 

authorized.” Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 494 (Tex. App.-

Fort Worth 2002). Course and scope of employment is generally a fact issue like 

negligence or proximate cause. See, e.g., GTE Southwest, Inc. v. Bruce, 998 
8

S.W.2d 605, 618 (Tex. 1999); Texas Workers' Comp. Comm'n v. Garcia, 893 

S.W.2d 504, 515 (Tex. 1995). The Court reviews the evidence in the light most 

favorable to the non-movant, crediting such evidence if reasonable jurors could, 

and disregarding contrary evidence unless reasonable jurors could not. Wilson at 

825.

Rodriguez’s duties and responsibilities in his job were described in general

terms as “he did whatever was needed of him.” C.R. 98 at 7:9-13. Appellant 

attempts to limit the testimony regarding Rodriguez’s job duties to bolster its 

argument that Rodriguez was not allowed to drive any vehicles. However, this 

testimony is broad enough to include driving customer’s vehicles. The object for 

which Rodriguez was hired was to perform work and assist his employer in 

whatever way was required. 

Further, there is no dispute that Rodriguez’s purpose for driving the vehicle 

on July 9, 2011, was to benefit his employer. Grifaldo’s car was being brought 

back to Appellee’s facility for repairs; repairs for which Appellee would expect 

payment. C.R. 63 at 74:3-9. If the purpose of serving the master's business actuates 

the servant to any appreciable extent, the master is subject to liability if the act 

otherwise is within the service of his employer.2

 2 Howard v. American Paper Stock Co., 523 S.W.2d 744 (Tex.Civ.App.--Fort Worth 1975) 

(emphasis added) reformed and aff'd 528 S.W.2d 576 (Tex. 1975); Eubanks v. Hughes 

Engineering Co., 369 S.W.2d 49 (Tex.Civ.App.-- Fort Worth 1963, writ ref'd n.r.e.).

Rodriguez testified that:
9

“Q. The main reason for you driving the car on Saturday 

morning was to get the alarm fixed; is that correct?

A. I was going to work. And at that time, I was going to 

give one more job to the company.” C.R. 105-106 at 

80:22 to 81:1 (emphasis added). 

Therefore, Rodriguez was acting within his general authority and furthering the 

business interests of this employer because he was bringing a customer and 

revenue to Appellee. 

Even if Rodriguez was not permitted to drive customer’s vehicles, the fact 

that an employee does an act that is unauthorized or that would not be approved by 

his employer does not mean that the employee was outside the scope of his 

employment. Hooper v. Pitney Bowes, 895 S.W.2d 773, 777 (Tex. App.-Texarkana 

1995). The employer is liable for the act of his employee, even if the specific act is 

unauthorized or contrary to express orders, so long as the act is done while the 

employee is acting within his general authority and for the benefit of the 

employer.3

 3 Ramos v. Frito-Lay, Inc., 784 S.W.2d 667 (Tex. 1990); J. V. Harrison Truck Lines, Inc. v. 

Larson, 663 S.W.2d 37 (Tex. App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.); Baker Hotel of 

Dallas v. Rogers, 157 S.W.2d 940 (Tex. Civ. App.--Dallas 1941), writ ref'd per curiam, 138 Tex. 

398, 160 S.W.2d 522 (1942).

As established by the evidence, supra, Rodriguez was doing “whatever 

was needed of him” and was bringing business to Appellee. Therefore, Rodriguez 

was still in the course and scope of his employment since he was (1) acting within 

his general authority and (2) was acting with an intent to benefit his employer. 
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Deviation

When considering course and scope of employment, "it is the servant's state 

of mind that is material, and the servant's conduct can be within the course and 

scope of employment if the servant is actuated to some extent by an intent to serve 

the master." Arbelaez v. Just Brakes Corp., 149 S.W.3d 717 (Tex. App.-Austin 

2004). "The fact that the preponderate motive of the servant is to benefit himself or 

a third person does not prevent the act from being within the scope of 

employment." Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 123 (Tex. App.-

Tyler 1977, no writ). Even "personal errands" can be in furtherance of an 

employer's business if they directly or indirectly benefit the employer.4

Rodriguez did not completely deviate from his job to either (1) go get a part 

for a friend at the junkyard or (2) to bring Grifaldo’s car in as a favor to her. While 

each of these proposed purposes may have been purely personal, the overarching 

purpose for driving Grifaldo’s vehicle that day was to benefit his employer. The 

work on Grifaldo’s vehicle was going to be performed at Appellee’s facility and 

Rodriguez expected Appellee to be paid for the work. 

 4 See, e.g., Arbelaez at 722 (holding that employer failed to prove the employee's conduct was 

purely personal errand not in furtherance of the business where the employee's errand -a 

breakfast run - benefited the employer, albeit indirectly); see also Gilgon, Inc. v. Hart, 893 

S.W.2d 562, 569 (Tex. App.-Corpus Christi 1996, pet. denied) (holding that an employee may 

remain within the course of employment while on an errand that combines work-related tasks 

with purely personal chores).
11

Even if Rodriguez was personally benefitted to some degree by a personal 

errand, his action of driving Grifaldo’s vehicle to Appellee’s facility on July 9, 

2011, could still be within the course and scope of his employment.5

The foregoing reveals that Appellant presented sufficient evidence to create 

a question of fact regarding whether Rodriguez was in the course and scope of his 

employment at the time of the accident. Therefore, the trial court erred when it 

granted Appellee’s summary judgment. 

Assuming 

that Rodriguez brought the vehicle to Appellee as a favor for Grifaldo, Appellee 

still would have benefited from the repair work to the vehicle. Rodriguez was still 

acting within his general authority, his actions were benefitting his employer, and 

he was accomplishing an act for which he was hired. 

C. A fact issue exists as to whether Appellee was grossly negligent.

Gross negligence is established if “there is some evidence that (a) the 

defendant’s conduct created an extreme risk of harm, and (b) the defendant was 

aware of the existence of the extreme risk.” Hanna v. Lott, 888 S.W.2d 132, 137 

(Tex.App.-Tyler 1994) (citing Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 

 5 See Gilgon, Inc. v. Hart, 893 S.W.2d 562, 568 (Tex. App.--Corpus Christi 1994, writ denied)

(employee's actions may still be within course and scope of employment even if private matters 

are mixed with business errand); Dictaphone Corp. v. Torrealba, 520 S.W.2d 869, 872 (Tex. 

Civ. App.-Houston [14th Dist.] 1975, writ ref'd n.r.e.) ("Conduct may be within the scope of 

employment, although done in part to serve the purposes of the servant or of a third person.") 

(citing Restatement (Second) of Agency § 236 (1958)); Josey-Miller Co. v. Sheppard, 357 

S.W.2d 488, 490 (Tex. Civ. App.--Beaumont 1962, no writ) (employee still within course and 

scope even when "there is a mingling of the master's business with the servant's business").
12

322, 326 (Tex. 1993)). Gross negligence is the entire want of care which would 

raise the belief that the act or omission complained of was the result of a conscious 

indifference to the rights or welfare of the person or persons to be affected by it. 

See Wal-Mart at 325. 

A plaintiff may prove the elements of gross negligence through 

circumstantial evidence. Garay v. G.R. Birdwell Constr., L.P., 2014 Tex. App. 

LEXIS 12710, *25 (Tex. App.-Houston [1st Dist.] 2014). The evidence is legally 

sufficient if it rises to a level that would enable reasonable and fair-minded people 

to differ in their conclusions. See General Motors Corp. v. Sanchez, 997 S.W.2d 

584, 595 (Tex. 1999).

The records clearly evinces that Rodriguez was an unlicensed epileptic 

driver at the time of the accident. C.R. 111-114. Despite Appellee being aware of 

both these facts, it expressly or impliedly permitted Rodriguez to take the vehicle 

from their facility on July 8, 2011, with the intent that it be brought back the 

following day. C.R. 88-89 at 19:4-13; 22:23 to 23:6. Permitting an individual who 

suffers from epilepsy and who is otherwise not permitted to drive involved an 

undeniably extreme risk of harm to others. Appellee was aware of the risk but 

permitted Rodriguez to drive the vehicle anyway and/or took no steps to prevent 

him from driving. 
13

At the time Appellee entrusted Grifaldo’s vehicle to Rodriguez with the 

purpose of bringing it back the following day, there was an unmistakable extreme 

risk of serious injury. Appellee undoubtedly knew of the peril, and its acquiescence 

to Rodriguez’s use of the vehicle, or its failure to prevent his use of the vehicle, 

demonstrates Appellee’s apathy. Thus, the a fact finder could determine that 

Appellee was consciously indifferent to the safety of others in failing to forbid or 

prevent Rodriguez from driving Grifaldo’s vehicle. See Hanna at 137. 

Therefore, Appellant presented sufficient evidence of Appellee’s gross 

negligence, either by their entrustment of the vehicle to Rodriguez or vicariously as 

his employer. The trial court, therefore, erred when it granted Appellee’s summary 

judgment. 

PRAYER

For the above reasons, Appellant presented sufficient evidence to raise 

genuine issues of material fact, thus precluding summary judgment, regarding (1) 

whether Appellee had the right to control the vehicle Rodriguez was operating; (2) 

whether Appellee entrusted the vehicle to Rodriguez; (3) whether Rodriguez was 

in the course and scope of his employment with Appellee at the time of the 

accident; and (4) whether Appellee was grossly negligent.

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this 

Court reverse the trial court’s order granting Appellee’s traditional and no-
14

evidence motion for summary judgment and remand this matter to the trial court 

for further proceedings. 

Respectfully submitted,

HUSAIN LAW + ASSOCIATES, P.C.

By: /s/ Joshua R. Leske

Joshua R. Leske

Texas Bar No.: 24060162

5858 Westheimer, Suite 400

Houston, Texas 77057

Telephone (713) 621-8900

Facsimile (713) 621-8909

jleske@hlalawfirm.com

COUNSEL FOR APPELLANT

CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4(i)(3), this is to certify that this brief complies 

with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(D). This brief 

contains 2,291 words in a proportionally spaced typeface, exclusive of the 

exempted portions set forth in Tex. R. App. P. 9.4(i)(1). This brief has been 

prepared using Times New Roman 14-point in text and Times New Roman 12-

point in footnotes produced by Microsoft Word software. 

/s/ Joshua R. Leske

Joshua R. Leske
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CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was filed electronically 

with the court and served upon all known counsel of record as follows on August 

18, 2015:

Via E-Filing & E-Service 

Mr. Troy A. Williams

Ms. Robin N. Blanchette

Germer PLLC

333 Clay Street, Suite 4950

Houston, Texas 77002

Via E-Filing & E-Service 

Mr. Joseph M. Heard

Heard & Medack, P.C. 

9494 Southwest Freeway, Suite 700

Houston, Texas 77074

/s/ Joshua R. Leske

Joshua R. Leske