Opinion issued December 28, 2021.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-19-00504-CV

———————————

MARK BROWN, Appellant

V.

WILLIAM MCCLURE, ECCL 4:12, LLC, AND NEXTGEN PARKING, 

LLC, Appellees

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Case No. 2017-33189

MEMORANDUM OPINION1

1 We issued our original opinion and judgment in this appeal on July 29, 2021. 

Appellees William McClure and ECCL d/b/a Nextgen Parking, LLC filed a motion 

for rehearing. We grant the motion for rehearing, withdraw our July 29, 2021 

opinion and judgment, and issue this opinion and judgment in their place.
2

In this personal injury case, appellant Mark Brown (“Brown”) appeals the trial 

court’s order granting summary judgment to appellee ECCL d/b/a Nextgen Parking, 

LLC2(“ECCL”) on Brown’s claims for negligent entrustment and negligent 

supervision and final judgment rendered on the jury’s verdict against appellee

William McClure (“McClure”) awarding Brown $1,000 in damages and $25,186.04 

in court costs. In three issues, Brown contends the trial court erred when it (1) denied 

him the right to depose McClure’s experts, (2) granted summary judgment in favor

of ECCL on his negligent entrustment and negligent supervision claims, and (3) 

excluded certain records from trial. We affirm.

Background

ECCL provides parking management systems throughout North America. 

McClure is a minority owner and manager at ECCL. He is employed at ECCL as a 

Chief Engineer in field operations management. McClure uses a company-supplied 

vehicle for work and for “de minimis” personal use. 

On June 20, 2015, McClure was driving ECCL’s company vehicle on his day 

off to run a personal errand when he collided with Brown’s vehicle. At the time of 

the accident, McClure was leaving the parking lot of an apartment complex to enter 

a two-way street. As McClure exited the parking lot’s gate, he crossed over the 

2

In its order, the trial court noted that ECCL d/b/a Nextgen Parking, LLC “was 

incorrectly sued as ‘ECCL 4 12, LLC’ and ‘NextGen Parking LLC.’”
3

southbound lane and turned left into the northbound lane. As he turned left, he failed 

to see Brown traveling in the northbound lane and struck the rear left-side of 

Brown’s vehicle. 

A. Pretrial Proceedings

Nearly two years later, on May 17, 2017, Brown sued ECCL asserting causes 

of action for negligence based on vicarious liability, negligent hiring, supervision, 

training, or retention, and negligent entrustment of a motor vehicle. ECCL answered 

asserting a general denial and several affirmative defenses. Brown later amended 

his petition to assert a claim for negligence against McClure. McClure answered 

asserting a general denial and affirmative defenses. 

1. Dispositive Motions

On August 1, 2017, ECCL filed a traditional motion for summary judgment 

arguing it was entitled to judgment as a matter of law on Brown’s vicarious liability 

and negligence claims. Brown filed a response to ECCL’s motion for summary 

judgment and, in the alternative, a motion for continuance, arguing ECCL’s motion 

was premature because relevant discovery was still outstanding.

On October 3, 2017, Brown moved to compel ECCL’s and McClure’s 

responses to discovery requests and later amended his motion. The trial court 

granted in part and denied in part Brown’s amended motion to compel. Brown then 

filed a supplemental response to ECCL’s motion for summary judgment and, in the 
4

alternative, a motion for continuance, and supplemental motion to compel, asserting 

ECCL had not complied with the trial court’s order on Brown’s motion to compel. 

The trial court denied ECCL’s motion for summary judgment and Brown’s motion 

for continuance. 

On February 6, 2018, the trial court issued its docket control order. A week 

later, on February 13, 2018, Brown filed a combined traditional motion for summary 

judgment on his negligence claim against McClure and a no-evidence motion for 

summary judgment on ECCL’s and McClure’s affirmative defenses. On February

16, 2018, ECCL and McClure filed a motion to compel an independent medical 

examination of Brown, who claimed he had “suffered severe injuries, including . . . 

a traumatic brain injury” because of the collision. Brown opposed the motion. 

The parties continued to have several discovery disputes over the course of 

the litigation resulting in several telephonic discovery conferences with the trial 

court. On March 21, 2018, the trial court sent a letter to counsel advising them that 

due to the parties’ inability to cooperate with each other during the discovery process 

and the data size of the emails and attachments sent for discovery disputes, it would 

appoint a discovery master for the parties. On April 9, 2018, the trial court entered 

an order appointing a master in chancery.3

3

In its order, the court noted that although the case “seems to be an ordinary personal 

injury matter . . . counsel have decided that the case needs to consume massive 

resources both for its clients and for this Court.” The court stated:
5

ECCL then filed a combined traditional and no-evidence motion for summary 

judgment asserting that Brown had no evidence to support his claims and therefore 

ECCL was entitled to summary judgment as a matter of law.4 The trial court (1) 

granted ECCL’s traditional and no-evidence motion for summary judgment on all of 

Brown’s claims against it, and (2) denied Brown’s traditional motion for summary 

judgment on his negligence claim against McClure and no-evidence motion for 

summary judgment on ECCL’s and McClure’s affirmative defenses. Brown filed a 

motion for rehearing of the trial court’s order granting summary judgment in favor 

of ECCL, which the trial court denied.

2. Expert Depositions and Medical Examination 

By letter dated July 12, 2018, Brown requested that McClure provide dates 

for the depositions of five of McClure’s experts—Dr. Sebastian Bawab, Dr. David 

We have come to this situation because the Parties refuse to work with 

each other, find each other “to be unreasonable,” and have wholly 

failed to comport with this Court’s discovery protocol. Further, [the] 

Court has been inundated with electronic messages that cause the 

Court not to be able to communicate with its staff or other counsel 

because of the sheer size of the e-mail correspondence. The Court can 

no longer handle this matter in the due course of its business. This 

Court finds that this case is exceptional because of the actions of 

counsel involved in the case and that there is good cause for an 

appointment of a Master in Chancery.

4 ECCL contends that it moved for summary judgment on all of Brown’s claims while 

Brown asserts that ECCL failed to move for summary judgment on his negligent 

supervision claim.
6

B. Rosenfield, Dr. Walter Harrell, Dr. William Wellborn, and Dr. Leonard 

Hershkowitz—on or before July 16, 2018, noting that if McClure did not respond by 

then, Brown’s counsel would notice the depositions at her convenience. The next 

day, McClure’s counsel responded that (1) despite defense counsel’s previously 

providing dates for the deposition of at least two of the requested experts, Brown’s 

counsel had failed to notice the depositions, and (2) pursuant to Texas Rule of Civil 

Procedure 195.3(b), McClure had the right to depose plaintiffs’ experts prior to the 

deposition of any defense expert on the same subject and therefore she would not 

provide deposition dates until Brown first provided deposition dates for his experts.

Brown’s counsel unilaterally noticed the depositions of the five requested 

expert witnesses. McClure moved to quash the depositions as well as the deposition 

of Dr. Huma Haider, one of Brown’s experts. Brown moved to compel the expert 

depositions. Following a hearing, the discovery master ordered that (1) McClure 

make his five expert witnesses available for deposition between September 17 and 

30, 2018, and (2) Brown notice the deposition of Dr. Haider between August 27, 

2018 and September 14, 2018. Brown eventually deposed Dr. Rosenfield, but he 

did not depose the rest of McClure’s experts.5

On October 31, 2018, the trial court held a pretrial hearing. Among the 

pending discovery disputes were McClure’s request for an independent medical 

5 McClure de-designated Dr. Wellborn as his expert on September 27, 2018.
7

examination of Brown and Brown’s request for additional records he believed 

existed and had not yet been produced from a company that had conducted 

surveillance of him. After announcing that trial would begin on either December 10 

or 13, 2018, the trial court stated:

And on this discovery motion, I’m either going to stop discovery as of 

today and—well, as of whenever the discovery deadline was or you 

both get the discovery you want. If you don’t get the [medical] 

examination, they don’t get to put on evidence of the TBI [traumatic 

brain injury]. I’m going to give you guys about five minutes to figure 

that out and then I’ll come back in and whatever decision you want to 

make we’ll go with.

Following the break, the parties agreed to begin trial on December 13. 

Brown’s counsel informed the trial court that he would go forward with the defense’s 

medical examination (“DME”) of Brown and McClure’s counsel confirmed that 

McClure had produced all surveillance records in his possession. 

Later during the same pretrial hearing, Brown’s counsel complained about 

“significant violations of the discovery master orders,” in particular, McClure’s 

alleged failure to make his experts available for deposition. In response, the trial 

court stated, “You know what, it seems to me that it’s a lot easier just to shut down 

discovery. Let’s just do that.” Brown’s counsel then asked whether the DME would 

still go forward, to which the trial judge replied, “It’s done. No, it’s not going 

forward. That’s exactly why you don’t get to put on TBI evidence.” 
8

The following exchange later took place:

[Brown’s counsel]: Judge, we’d like to do the DME and close discovery 

after the DME. Can we at least do that?

[Brown’s counsel]: We will take defendant’s experts live at trial.

[Brown’s counsel]: We need to present our TBI case.

[The Court]: I don’t know. Can you? 

[Brown’s counsel]: Yes.

[The Court]: If I say okay to that, will this end all the discovery issues 

we have in this case? 

[Brown’s counsel]: Yes.

[McClure’s counsel]: I don’t have a problem with that if that’s the way 

the Court wants to deal with this case. 

[Brown’s counsel]: We can take the witnesses live.

. . . . 

[The Court]: This case will go to trial on December 3rd at 9:00 a.m.6

Each side will have six hours to present their case. Six hours includes 

both direct and cross. If there’s a need for any sort of pretrial, it will 

occur the week prior and it’s my understanding—I’m going to have to 

have both sides agree to this—if this DME goes forward tomorrow, 

there are no other outstanding discovery issues that will have to be ruled 

on by this court or a discovery master in this matter. Is that correct?

[Brown’s counsel]: Correct. 

[McClure’s counsel]: Yes. 

6 The trial court reset the trial date from December 13.
9

[The Court]: Okay. I’ll let the DME go forward. Thank you-all.

3. Dr. Bradley Shore and SPECT Scan Images

On November 14, 2018, the trial court held a hearing on McClure’s motion to 

strike one of Brown’s designated experts, Dr. Bradley Shore (“Dr. Shore”), and to 

exclude his late-produced report concerning certain Single-Photon Emission 

Computerized Tomography (“SPECT”) imaging studies.7 Dr. Shore is a reading 

radiologist at CereScan who reviewed diagnostic SPECT scan images of Brown’s 

brain. McClure argued that Dr. Shore’s report was a late-designated expert report, 

while Brown responded that the report was an admissible medical record. The trial 

court excluded Dr. Shore’s report but ultimately admitted the SPECT scan images 

at trial, allowing another of Brown’s experts, Dr. Shelly Savant, to testify about the 

images.

B. Trial Proceedings

At trial, McClure admitted the car accident was his fault, but he contested 

Brown’s claimed damages and injuries. The trial court directed a verdict that 

McClure was liable for the accident based on his admission. Thus, during trial, the 

parties focused on Brown’s purported injuries and damages, in particular, his alleged 

traumatic brain injury.

7 SPECT scans, or MRI spectroscopy, look at metabolites in the brain as a function 

of blood flow.
10

During the five-day trial, the jury heard testimony, both live and by 

deposition, from several fact and expert witnesses. At the conclusion of trial, the 

jury rendered its verdict finding that Brown’s damages proximately caused by the 

June 20, 2015 accident totaled $1,000 in past physical pain. In accordance with the 

jury’s verdict, the trial court signed a final judgment on April 10, 2019, awarding 

Brown $1,000 in damages, pre- and post-judgment interest, and taxable court costs 

totaling $25,186.04.

Brown filed a motion for new trial, which was overruled by operation of law. 

This appeal followed.

Pretrial Hearing Discovery Rulings

In his first issue, Brown contends that during the October 31, 2018 pretrial 

hearing, the trial court abused its discretion by denying him the right to depose 

McClure’s experts despite the discovery master’s three previous orders compelling 

McClure to make his experts available for depositions. McClure argues that (1) 

Brown waived his right to appeal the alleged denial of expert depositions, (2) the 

trial court did not abuse its broad discretion when it enforced its docket control order, 

and (3) any error was rendered harmless by Brown’s cross-examination of 

McClure’s experts at trial.
11

A. Standard of Review 

The scope of discovery rests within the discretion of the trial court. See Flores 

v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989); In re Morgan, 507 

S.W.3d 400, 403 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Trial courts have 

broad discretion in matters of discovery. See Clanton v. Clark, 639 S.W.2d 929, 931 

(Tex. 1982) (“[T]he court is given wide discretion in managing its docket, and we 

will not interfere with the exercise of that discretion absent a showing of clear 

abuse.”); Macy v. Waste Mgmt., Inc., 294 S.W.3d 638, 651 (Tex. App.—Houston 

[1st Dist.] 2009, no pet.). The same standard applies to a trial court’s ruling on 

requests to obtain additional discovery. Wheeler v. Methodist Hosp., 95 S.W.3d 628, 

643-44 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A party who claims the trial 

court abused its discretion in a discovery matter labors under a heavy burden—it 

must establish that, under the circumstances of the case, “the facts and law permitted 

the trial court to make but one decision.” Shell Oil Co. v. Smith, 814 S.W.2d 237, 

241 (Tex. App.—Houston [14th Dist.] 1991, no writ) (emphasis in original).

B. Analysis

Brown does not dispute he failed to preserve error on his deposition discovery 

dispute issue. Rather, he contends the trial court forced his counsel into a Hobson’s

choice, making him choose between conceding his discovery dispute or death 
12

penalty sanctions. He argues that, as a result, any failure to preserve error does not 

foreclose him from raising his deposition discovery issue on appeal.8

Brown points to the following statement by the trial court addressing the 

parties’ dispute about the requested medical examination of Brown:

And on this discovery motion, I’m either going to stop discovery as of 

today and—well, as of whenever the discovery deadline was or you 

both get the discovery you want. If you [McClure] don’t get the 

examination, they don’t get to put on evidence of the TBI [traumatic 

brain injury]. I’m going to give you guys about five minutes to figure 

that out and then I’ll come back in and whatever decision you want to 

make we’ll go with.

Brown asserts that “[a]fter the threat, [his] counsel agreed to submit to the defense 

medical examination.” Brown also contends the trial court forced him into another 

Hobson’s choice when it sua sponte threatened him with death penalty sanctions 

without prior notice; that is, not permitting him to present evidence of his traumatic 

8 Although Brown concedes no Texas court has adopted this “Hobson’s choice” 

preservation exception, he urges us to adopt the holding in Acuity v. Rex, LLC, 929 

F.3d 995 (8th Cir. 2019). In Acuity, the Eighth Circuit Court of Appeals found that 

an insurer had not waived its right to appeal the district court’s order requiring it to 

deposit $21 million into the court’s registry by amending its complaint to dismiss 

its interpleader claim because although the insurer could have avoided dismissal of 

its claim by depositing the $21 million, the requirement to deposit such a large sum 

confronted the company with “a patently coercive predicament.” Id. at 999. The 

facts of Acuity are distinguishable and nothing in the holding convinces us that we 

should adopt a “Hobson’s choice” preservation rule. We decline to apply the 

holding of Acuity to this case. See generally Penrod Drilling Corp. v. Williams, 868 

S.W.2d 294, 296 (Tex. 1993) (“While Texas courts may certainly draw upon the 

precedents of the Fifth Circuit, or any other federal or state court . . . they are 

obligated to follow only higher Texas courts and the United States Supreme Court.”) 

(emphasis in original).
13

brain injury if he persisted in objecting to the trial court’s decision to close discovery 

which he claims prevented him from deposing McClure’s experts. Brown argues 

that, in the face of this “coercive” threat, he agreed to examine McClure’s experts 

live at trial.

The record shows that after the trial court offered the parties the choice of 

proceeding to trial without further discovery or re-opening the discovery period to 

permit both parties to obtain the discovery each sought, Brown elected to move 

forward with the DME and examine McClure’s experts live at trial.9 Brown’s 

counsel informed the trial court that if the court permitted Brown to take McClure’s 

experts at trial, the discovery disputes would end:

[Brown’s counsel]: Judge, we’d like to do the DME and close discovery 

after the DME. Can we at least do that?

[Brown’s counsel]: We will take defendant’s experts live at trial.

[Brown’s counsel]: We need to present our TBI case.

[The Court]: I don’t know. Can you? 

[Brown’s counsel]: Yes.

[The Court]: If I say okay to that, will this end all the discovery issues 

we have in this case? 

[Brown’s counsel]: Yes.

9 The pretrial hearing took place on October 31, 2018. Per the trial court’s scheduling 

order, discovery had previously closed on October 1, 2018. 
14

[McClure’s counsel]: I don't have a problem with that if that’s the way 

the Court wants to deal with this case. 

[Brown’s counsel]: We can take the witnesses live.

. . . . 

[The Court]: This case will go to trial on December 3rd10 at 9:00 a.m. 

Each side will have six hours to present their case. Six hours includes 

both direct and cross. If there’s a need for any sort of pretrial, it will 

occur the week prior and it’s my understanding—I’m going to have to 

have both sides agree to this—if this DME goes forward tomorrow, 

there are no other outstanding discovery issues that will have to be ruled 

on by this court or a discovery master in this matter. Is that correct?

[Brown’s counsel]: Correct. 

[McClure’s counsel]: Yes.

Brown made no further objections. He likewise did not move for a 

continuance or other relief at the pretrial hearing, nor did he seek mandamus review 

or re-urge his motions to compel the expert deposition as grounds either for a trial 

continuance or a basis to re-open discovery. Consequently, Brown waived his ability 

to appeal the trial court’s October 31, 2018 pretrial discovery rulings. See Meyer v. 

Cathey, 167 S.W.3d 327, 333 (Tex. 2005) (“[T]he failure to obtain a pretrial ruling 

on discovery disputes that exist before commencement of trial constitutes a waiver 

of any claim for sanctions based on that conduct.”) (quoting Remington Arms Co., 

Inc. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993)); see also WWW.URBAN.INC. v. 

10 The trial court reset the trial date from December 13.
15

Drummond, 508 S.W.3d 657, 678 (Tex. App.—Houston [1st Dist.] 2016, no pet.); 

Graves v. Tomlinson, 329 S.W.3d 128, 150 (Tex. App.— Houston [14th Dist.] 2010, 

pet. denied).

Even absent waiver, Brown failed to show the trial court abused its 

considerable discretion in its pretrial discovery rulings. Although Brown contends 

the trial court’s ruling on October 31, 2018 amounted to sua sponte discovery death 

penalty sanctions against him, this argument ignores that, pursuant to the court’s 

docket control order, the discovery period closed on October 1, 2018–thirty days 

before the parties’ pretrial hearing on October 31, 2018. Thus, Brown’s request to 

depose McClure’s experts was in essence a request to modify the trial court’s docket 

control order. Under Texas Rule of Civil Procedure 190.5, a trial court “may modify 

a discovery control plan at any time and must do so when the interest of justice 

requires.” TEX. R. CIV. P. 190.5. We find nothing in the record showing the trial 

court abused its discretion in determining that no “interest of justice” existed 

requiring modification of the existing discovery control plan. Similarly, Rule 190.5 

did not require the trial court to allow additional discovery. See id. (“[T]he court 

must allow additional discovery . . . related to new, amended or supplemental 

pleadings, or new information disclosed in a discovery response or in an amended 

or supplemental response” or “regarding matters that have changed materially after

the discovery cutoff . . . .”). 
16

We also note that despite the trial court’s ruling, per Brown’s suggestion, 

Brown proceeded to examine McClure’s experts live at trial. And Brown has not 

indicated what, if any, additional testimony he would have been able to elicit from

the experts or present at trial for purposes of our review.11

We conclude the trial court did not abuse its discretion in its pretrial hearing 

discovery rulings. We overrule Brown’s first issue.

Summary Judgment

In his second issue, Brown contends the trial court erred when it granted 

summary judgment in favor of ECCL on his negligent entrustment and negligent

supervision claims.12

11

 McClure presented four medical experts at trial: Drs. Rosenfield, Reynolds, 

Hershkowitz, and Boake. Brown deposed Dr. Rosenfield prior to trial and his trial 

testimony was presented via deposition excerpts. At trial, Brown’s counsel crossexamined Drs. Boake and Reynolds and chose not to cross-examine Dr. 

Hershkowitz. Thus, Brown cannot complain on appeal about his inability to present 

further testimony as to Drs. Hershkowitz and Rosenfield. And as concerns Drs. 

Reynolds and Boake, Brown did not request additional time during the trial to 

examine the doctors nor does the record reflect what, if any, additional testimony 

Brown would have been able to present at trial had he been afforded the opportunity 

to depose those experts. Before trial, McClure timely disclosed the substance of 

these witnesses’ mental impressions and opinions and the bases for them, along with 

any expert reports they prepared.

12

 Brown does not appeal the trial court’s order granting summary judgment in favor 

of ECCL on Brown’s vicarious liability and negligent hiring claims. 
17

A. Standard of Review

We review a trial court’s grant of summary judgment de novo. Travelers Ins. 

Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When reviewing a summary 

judgment motion, we must (1) take as true all evidence favorable to the nonmovant 

and (2) indulge every reasonable inference and resolve any doubts in the 

nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 

2005) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 

2003)). If a trial court grants summary judgment without specifying the grounds for 

granting the motion, we must uphold the trial court’s judgment if any one of the 

grounds is meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. 

App.—Houston [1st Dist.] 2005, pet. denied).

In a traditional summary judgment motion, the movant has the burden to show 

that no genuine issue of material fact exists and that the trial court should grant 

judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. 

Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant 

moving for traditional summary judgment must negate at least one essential element 

of the challenged cause of action or establish each element of an affirmative defense. 

Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

In a no-evidence motion for summary judgment, the movant asserts no 

evidence supports an essential element of the nonmovant’s claim on which the 
18

nonmovant has the burden of proof at trial. See TEX. R. CIV. P. 166a(i); 

Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). 

The burden then shifts to the nonmovant to present evidence raising a genuine issue 

of material fact as to each challenged element. Mack Trucks, Inc. v. Tamez, 206 

S.W.3d 572, 582 (Tex. 2006); Hahn v. Love, 321 S.W.3d 517, 524 (Tex. App.—

Houston [1st Dist.] 2009, no pet.). Where, as here, a trial court grants a summary 

judgment involving both no-evidence and traditional grounds, we ordinarily address 

the no-evidence grounds first. See PAS, Inc. v. Engel, 350 S.W.3d 602, 607 (Tex. 

App.—Houston [14th Dist.] 2011, no pet.).

B. Negligent Entrustment

To prevail on a negligent entrustment claim, a plaintiff must prove (1) the 

entrustment of a vehicle by the owner, (2) to an unlicensed, incompetent, or reckless 

driver, (3) that the owner knew or should have known to be unlicensed, incompetent, 

or reckless, (4) that the driver was negligent on the occasion in question, and (5) the 

driver’s negligence proximately caused the accident and plaintiff’s injuries. 

Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007); Ramirez 

v. Colonial Freight Warehouse Co., Inc., 434 S.W.3d 244, 253-54 (Tex. App.—

Houston [1st Dist.] 2014, pet. denied). In its no-evidence motion, ECCL moved for 

summary judgment on elements two and three of Brown’s negligent entrustment 
19

claim. Brown therefore had the burden to present more than a scintilla of evidence 

to support these two elements.

In his summary judgment response and on appeal, Brown contends he 

presented more than a scintilla of evidence that McClure was an incompetent or 

reckless driver, and that ECCL knew or should have known that McClure was 

reckless or incompetent. In support of his argument, Brown points to McClure’s 

driving record showing that McClure received speeding tickets in 2011 and 2013, 

and a ticket for making an improper turn in 2013. Brown also points to McClure’s 

completion of two unspecified driving safety courses in 2005 and 2012.

In determining whether these tickets and driving safety courses create a fact 

issue as to whether McClure was an incompetent or reckless driver, we note the 

“important distinction between an operator who is ‘incompetent or reckless’ and one 

who is merely ‘negligent.’” 4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 

905, 909–10 (Tex. 2016). Because negligent entrustment “requires a showing of 

more than just general negligence,” it is not enough to show, for example, that a 

driver might have had a momentary lapse in judgment or otherwise acted 

negligently. Id. at 910–11.

In Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007),

the Texas Supreme Court rendered a take-nothing summary judgment on an injured 

motorist’s negligent entrustment claim. See 236 S.W.3d at 758. The Court held that 
20

evidence showing the driver had received a speeding ticket while employed by the 

defendant coupled with evidence showing that in the three-year period before he was

hired, the driver had been cited for driving without liability insurance and for rearending another car, was insufficient to raise a fact issue on recklessness or 

incompetence. See id.

Here, McClure’s driving record—similar to the driver’s record in Mayes—

included one ticket for an improper turn, two speeding tickets, and two unspecified 

driving safety courses. Nothing in the record showed any prior accidents involving 

McClure or that he was otherwise careless or reckless to such an extent as to be 

unable to safely operate an automobile. See Mejia-Rosa v. John Moore Servs, Inc., 

No. 01-17-00955-CV, 2019 WL 3330972, at *9 (Tex. App.—Houston [1st Dist.] 

July 25, 2019, no pet.) (mem. op.) (concluding evidence showing defendant received 

one citation for moving violation and one for rear-ending another car was 

insufficient to survive summary judgment); Hous. Cab Co. v. Fields, 249 S.W.3d

741, 746–47 (Tex. App.—Beaumont 2008, no pet.) (holding two convictions for 

driving without insurance, one citation for injury accident, and one license 

suspension for failure to carry insurance was legally insufficient to support jury’s 

reckless or incompetent finding); Nobbie v. Agency Rent-A-Car, Inc., 763 S.W.2d 

590, 593 (Tex. App.—Corpus Christi 1988, writ denied) (holding two license 
21

suspensions, one speeding ticket, and one citation for defective headlamp legally 

insufficient to support incompetence or recklessness finding).

We conclude Brown failed to raise a genuine issue of material fact over 

whether McClure was an incompetent or reckless driver. See TEX.R.CIV. P. 166a(i); 

Lightning Oil, 520 S.W.3d at 45. The trial court properly granted summary 

judgment on Brown’s negligent entrustment claim.

C. Negligent Supervision

Brown contends the trial court erred in granting summary judgment in favor 

of ECCL on his negligent supervision claim because ECCL’s summary judgment 

motion did not address the specific elements of that claim. ECCL responds it 

specifically challenged and defeated the duty element of Brown’s negligent 

supervision claim. It further argues that even if the trial court erred in granting

summary judgment on Brown’s negligent supervision claim, reversal of the trial 

court’s judgment is not required because a remand on this record would be futile. 

To prevail on a claim for negligent supervision, a plaintiff must prove (1) the 

defendant owed him a legal duty to supervise its employees, (2) the employer 

breached the duty, and (3) the breach proximately caused the plaintiff’s injuries.13 

See Black v. Smith Protective Servs., Inc., No. 01-14-00969-CV, 2016 WL 5400565, 

13 We note the Texas Supreme Court has not ruled definitively on the existence or 

elements of claims for negligent hiring, retention, supervision, or training. See 

Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n.27 (Tex. 2010).
22

at *5 (Tex. App.—Houston [1st Dist.] Sept. 23, 2016, no pet.) (mem. op.); Najera v. 

Recana Solutions, LLC, No. 14-14-00332–CV, 2015 WL 4985085, at *7 (Tex. 

App.—Houston [14th Dist.] Aug. 20, 2015, no pet.) (mem. op.); Dangerfield v. 

Ormsby, 264 S.W.3d 904, 913 (Tex. App.—Fort Worth 2008, no pet.); Gaza v. L. 

Fisher Freight, Inc., No. 04-05-00510-CV, 2006 WL 2818070, at *1 (Tex. App.—

San Antonio Oct. 4, 2006, no pet.) (mem. op.). Claims for negligent hiring,

retention, and supervision are negligence causes of action based on an employer’s 

direct negligence rather than on its vicarious liability. See Mejia-Rosa, 2019 WL 

3330972, at *10.

A summary judgment motion “must stand or fall on the grounds expressly 

presented in the motion.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 

337, 341 (Tex. 1993); Vertex Servs., LLC v. Oceanwide Hous., Inc., 583 S.W.3d 

841, 852 (Tex. App.—Houston [1st Dist.] 2019, no pet.). A trial court can only grant 

summary judgment on the grounds addressed in the summary judgment motion. See 

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (“A judgment that 

grants more relief than a party is entitled to is subject to reversal...”). Unaddressed 

issues or claims cannot be a basis for summary judgment. Blancett v. Lagniappe 

Ventures, Inc., 177 S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.] 2005, no pet.) 

(citing Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983) (per curiam)).
23

In its motion, under both the no-evidence and traditional summary judgment 

headings, ECCL specifically addresses three of Brown’s claims: respondeat 

superior, negligent entrustment, and negligent hiring. ECCL’s motion does not 

address Brown’s negligent supervision claim. Nonetheless, ECCL directs us to the

portion of its traditional summary judgment motion addressing Brown’s negligent 

hiring claim to argue that it challenged and defeated the duty element of Brown’s 

negligent supervision claim as well. That portion of ECCL’s motion states, in 

relevant part: 

33. Texas Civil Practice & Remedies Code § 142.001, et seq. was 

designed to limit claims against employers for negligent hiring and 

supervision of employees. Under that statute, “[a] cause of action may 

not be brought against an employer, general contractor, premises 

owner, or other third party solely for negligently hiring or failing to 

adequately supervise an employee, based on evidence that the 

employee has been convicted of an offense.” Id. at § 142.002.14 

34. A cause of action for negligent hiring of an employee is only 

viable if:15 (1) the employer knew or should have known of a 

conviction; and (2) the employee was convicted of: (A) an offense that 

was committed while performing duties substantially similar to those 

reasonably expected to be performed in the employment, or under 

conditions substantially similar to those reasonably expected to be 

encountered in the employment, (B) an offense listed in Article 

14 Section 142.002 is titled “Limitation on Liability for Hiring Employee Convicted of 

Offense.”

 

15 The exact language in Section 142.002 is not that a cause of action for negligent 

hiring is “only viable if,” but rather that “this section does not preclude a cause of 

action for negligent hiring or the failure of an employer . . . to provide adequate 

supervision of an employee” if the listed elements are established. TEX. CIV. PRAC.

& REM. CODE 142.002(b).
24

42A.054, Code of Criminal Procedure; or (C) a sexually violent 

offense. Id. at § 142.002(b). In other words, under the statute, in order 

to prevail on a claim for negligent hiring or supervision, Plaintiff must 

do far more than merely show that the applicable employee has 

previously been convicted of a criminal offense or offenses.

We do not read this general reference to Texas Civil Practice and Remedies 

Code Section 142.002 as a challenge to the duty element of Brown’s negligent 

supervision claim. The mere fact that the statute addresses when a cause of action 

“for negligent hiring or the failure of an employer . . . to provide adequate 

supervision” may be precluded does not absolve ECCL of its burden to specify the 

elements upon which it sought to defeat Brown’s negligent supervision claim. 

We further note that in the last paragraph of its traditional summary judgment

motion, ECCL expressly concludes: “As such, NextGen [ECCL] cannot be liable for 

negligent hiring as a matter of law, and summary judgment should be granted in its 

favor on this issue.” There is no mention or express request for summary dismissal 

of Brown’s negligent supervision claim. And while it may be true that some of the

elements of negligent supervision and negligent hiring claims may overlap,16 a trial 

court may not grant summary judgment on a claim not before it on a motion for 

summary judgment. We conclude that ECCL’s traditional summary judgment 

motion did not place Brown’s claim for negligent supervision before the trial 

16 That the trial court granted summary judgment on Brown’s negligent hiring claim 

would not necessarily entitle McClure to summary judgment on Brown’s negligent 

supervision claim.
25

court. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (stating 

trial court may not grant summary judgment on grounds not presented in 

motion); Narnia Invs., Ltd. v. Harvestons Sec., Inc., No. 14-10-00244-CV, 2011 WL 

3447611, at *5 (Tex. App.—Houston [14th Dist.] Aug. 9, 2011, no pet.) (mem. op.) 

(holding trial court erred in granting summary judgment on claims not addressed in 

summary judgment motion because motion “neither conclusively disprove[d] any 

element” “nor challenge[d] the existence of any evidence of any element” of 

unmentioned claims).

ECCL also refers to Texas Civil Practice and Remedies Code Section 142.002 

in its no-evidence motion under the section addressing Brown’s negligent hiring 

claim. As noted, these general statements do not identify the elements of Brown’s 

negligent supervision claim ECCL claims to have challenged and therefore do not

satisfy the “specificity requirement” for a no-evidence motion. See TEX. R. CIV. P.

166a(i) (stating no-evidence summary judgment must state “elements as to which

there is no evidence”); see also Nnah v. 125 Interests, Inc., No. 14-15-00443-CV, 

2016 WL 4543685, at *6 (Tex. App.—Houston [14th Dist.] Aug. 31, 2016, pet.

denied) (concluding no-evidence motion that did not address breach of specific 

contract failed to seek judgment on that contract despite global statements that

motion is directed to “all remaining causes of action” and that nonmovant had no 

support for “element numbers 1 through 6”). 
26

While we conclude the trial court erred in granting summary judgment on 

Brown’s negligent supervision claim, we also conclude a remand on this issue would 

be improper and futile on the record before us. Even if Brown’s claim survived 

summary judgment, submission of this additional theory of liability would not entitle

Brown to any greater relief than what the jury already awarded him at trial. McClure 

conceded liability for the accident and the trial court directed a verdict in favor of

Brown on this issue. Thus, the jury’s verdict turned solely on its determination that 

Brown sustained only $1,000 in damages as a result of the accident—a finding 

Brown did not challenge either in the trial court or on appeal.17 McClure tendered 

the full amount owed under the trial court’s final judgment to Brown. Had the trial 

court denied summary judgment on Brown’s negligent supervision claim, and had 

Brown submitted that additional theory of liability to the jury, it would have had no 

effect on the trial court’s directed verdict in favor of Brown on McClure’s liability,

17 Brown did not challenge the legal or factual sufficiency of the evidence supporting 

the jury’s finding that he sustained only $1,000 in damages as a result of the accident 

and has therefore waived any complaints as to the sufficiency of the evidence to 

support the jury’s finding. See Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991) 

(holding challenge based on legal sufficiency of evidence supporting jury finding 

may be preserved for appeal by (1) a motion for directed verdict; (2) a motion for 

judgment notwithstanding the verdict; (3) an objection to the charge; (4) a motion 

to disregard the finding; or (5) a motion for new trial, and factual sufficiency 

challenge on appeal requires party to have preserved challenge in trial court in 

motion for new trial). Consequently, Brown is not entitled to reversal of the trial 

court’s judgment rendered on the jury’s verdict or a new trial on this basis.
27

the submission of Brown’s alleged personal injury damages, or the jury’s verdict 

that Brown sustained only $1,000 in damages.

Brown asserts that, upon remand, the case would begin anew as of the date 

the trial court granted summary judgment in favor of EECL and he would have 

several more months to complete discovery and “amend [his] pleadings based on 

what [he] finds during discovery to include additional damage elements, which more 

likely than not will lead to additional damages other than what the jury awarded at 

trial.” This assertion is incorrect. The only issue upon remand would be ECCL’s 

joint and several liability, if any, for its alleged negligent supervision of McClure 

and the resulting damages the jury already found Brown sustained as a result of the

accident, which damage findings Brown did not challenge and McClure already 

tendered to Brown.

“Erroneous rulings require reversal only if a review of the record reveals the 

error was harmful.” Sw. Energy Prod. Co. v. Berry–Helfand, 491 S.W.3d 699, 728 

(Tex. 2016); Nguyen v. Watts, 605 S.W.3d 761, 791 (Tex. App.—Houston [1st Dist.] 

2020, pet. denied) (quotation omitted). “The harmless error rule states that before

reversing a judgment because of an error of law, the reviewing court must find that 

the error amounted to such a denial of the appellant’s rights as was reasonably 

calculated to cause and probably did cause ‘the rendition of an improper judgment,’

or that the error ‘probably prevented the appellant from properly presenting the case 
28

[on appeal].’” G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) 

(quoting TEX. R. APP. P. 44.1(a)). The harmless error rule applies to all errors, 

including erroneously granting summary judgment or otherwise erroneously 

disposing of a claim. See id. at 297–98; see also Progressive Cty. Mut. Ins. Co. v.

Boyd, 177 S.W.3d 919, 921 (Tex. 2005) (concluding any error committed by 

granting summary judgment on insurance bad-faith and extra-contractual claims was 

harmless because jury’s finding in subsequent proceeding negated coverage, which 

was prerequisite for asserting bad-faith and extra-contractual claims).

Under these circumstances, we decline to remand Brown’s negligent 

supervision claim to the trial court—despite the trial court’s error—because doing 

so would be futile.18 See, e.g., Wilson v. Tex. Parks and Wildlife Dept., 8 S.W.3d 

634, 635 (Tex. 1999) (declining to remand issue regarding whether appellee

controlled river conditions where no evidence of control was offered because 

remand “would be improper and, it appears, futile”); Sabine Offshore Serv., Inc. v. 

City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (declining to remand where 

doing so “would be futile and not in furtherance of judicial economy”). We hold the 

trial court’s error in granting summary judgment on Brown’s negligent supervision 

18 Brown argues the cases cited by ECCL regarding futility are not applicable because 

they do not involve summary judgment review. We are not aware of any 

authority—nor does Brown cite any—limiting an appellate court’s authority to 

decline remand to a particular procedural posture.
29

claim was harmless. See G & H Towing, 347 S.W.3d at 297; see also Tana Oil & 

Gas Corp. v. McCall, 104 S.W.3d 80, 82–83 (Tex. 2003) (concluding trial court’s 

irregular procedure in directing verdict against attorneys was harmless because 

attorneys’ action for tortious interference did not fail for lack of evidence but because 

proof of their claims would not have entitled them to the only damages they sought); 

Flying J Inc. v. Meda, Inc., 373 S.W.3d 680, 690 (Tex. App.—San Antonio 2012, 

no pet.) (holding trial court’s grant of directed verdict and refusal to submit breach

of implied warranty issue to jury where plaintiff submitted probative evidence 

raising fact issue, although error, was harmless because jury’s proportionate 

responsibility findings barred plaintiff’s recovery).

We overrule Brown’s second issue.19

Dr. Shore’s Report

In his third issue, Brown contends the trial court abused its discretion when it 

excluded a two-page medical record from Dr. Shore because the record was 

admissible as a business record under Texas Rule of Civil Procedure 803(6) and 

constituted objective evidence that was both controlling on a material issue and not 

cumulative. He argues that exclusion of Dr. Shore’s medical record caused the 

19 Appellees also argue that negligent supervision remains an unrecognized tort in

Texas. We need not address this issue in light of our disposition of Brown’s second 

issue. 
30

rendition of an improper judgment because proving Brown’s traumatic brain injury 

turned on such record.20 

ECCL asserts the trial court properly excluded Dr. Shore’s two-page letter 

because (1) Dr. Shore was an untimely designated retained testifying expert, not a 

treating physician, (2) the letter was not a medical record, but rather an expert report, 

(3) even if exclusion of the report was error, it was harmless because it was 

cumulative of Brown’s designated expert, Dr. Shelly Savant, who testified live at 

trial about the SPECT imaging, and (4) Brown waived his right to appeal exclusion 

of the report because he failed to show in an offer of proof what additional testimony

he would have elicited from any witnesses based on the report.

We review a trial court’s ruling on the admission or exclusion of evidence 

under an abuse of discretion standard. Horizon/CMS Healthcare Corp. v. Auld, 34 

S.W.3d 887, 906 (Tex. 2000); Owens–Corning Fiberglass Corp. v. Malone, 972 

S.W.2d 35, 43 (Tex. 1998). To obtain reversal of a judgment based on error of the

trial court in the exclusion of evidence, the challenging party must show that (1) the 

trial court did in fact commit error, and (2) the error was reasonably calculated to 

20 In his brief, Brown does not identify what information the report contained or why 

the inability to present such information was harmful. He simply states, without 

more, that proving his traumatic brain injury “turned on Dr. Shore’s medical 

records.” 
31

cause and probably did cause rendition of an improper judgment. Gee v. Liberty 

Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

Under the trial court’s docket control order, Brown’s deadline to designate 

expert witnesses was July 9, 2018. On September 20, 2018—more than two months 

after his expert designation deadline—Brown identified Dr. Shore as a treating 

physician in his Ninth Supplemental Responses to Defendants’ Requests for 

Disclosure and produced Dr. Shore’s two-page report. McClure moved to strike Dr. 

Shore as an untimely designated expert and exclude his report. According to 

McClure, Dr. Shore’s report concerned his review of certain SPECT scan images of 

Brown’s brain, which Brown’s treating neurologist, Dr. Harpual Gill, had taken on

June 8, 2018. 

Dr. Shore’s letter states that he “received a request” to review the SPECT scan 

images of Brown’s brain but does not identify from whom he received the request. 

He also states in his letter that his opinions are based on “a reasonable degree of 

medical probability” but he then lists several caveats and opines that “possible

neurological findings on this scan might be findings consistent with traumatic brain 

injury.” Dr. Shore’s report does not describe any treatment he provided to Brown. 

There is also nothing in the record showing that Dr. Shore did any independent 
32

imaging; rather, the record shows that he reviewed and interpreted pre-existing

images.21 

The trial court held a hearing on McClure’s motion on November 14, 2018. 

At the conclusion of the hearing, the trial court held that Dr. Shore’s letter was an

expert report, not a medical record, and excluded it as untimely. The trial court, 

however, admitted the underlying SPECT scan images and permitted Dr. Savant, 

Brown’s expert, to testify live about them at trial.

Based on the record before us, we conclude the trial court did not abuse its 

discretion in concluding that Dr. Shore’s report was an expert report, rather than a 

medical record, and excluding it as untimely. See TEX. R. CIV. P. 193.6 (“A party 

who fails to make, amend, or supplement a discovery response, including a required 

disclosure, in a timely manner may not introduce in evidence the material or 

information that was not timely disclosed, or offer the testimony of a witness (other 

than a named party) who was not timely identified” absent good cause).

We overrule Brown’s third issue.

21 The record shows that the images referenced in Dr. Shore’s report were ordered by 

Brown’s treating neurologist, Dr. Harpual Gill, who previously interpreted them as 

showing normal findings.
33

Conclusion

We affirm the trial court’s order granting summary judgment to ECCL on all

of Brown’s claims and the trial court’s final judgment.

Veronica Rivas-Molloy

Justice 

Panel consists of Justices Goodman, Hightower, and Rivas-Molloy.