1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-20-00115-CV 

________________

LITISHA PESHOFF, Appellant

V.

KLEIN INVESTMENTS, INC., Appellee

________________________________________________________________________ 

On Appeal from the 172nd District Court

Jefferson County, Texas

Trial Cause No. E-201,156

________________________________________________________________________ 

MEMORANDUM OPINION

Litisha Peshoff appeals the trial court’s final summary judgment dismissing 

all of her claims against Klein Investments, Inc. In three issues on appeal, Peshoff 

argues that the trial court erred 1) when it refused to consider her late filed response 

to the motion for summary judgment; 2) when it granted summary judgment on 

issues not pleaded for; and 3) when it subsequently denied her motion for new trial. 

For the reasons set forth, we affirm.
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Background

In October 2016, Peshoff was driving a vehicle with her passenger Noel 

Jackowski, in Jefferson County. Stephen Hartman began following her in a black 

pickup truck. Hartman was a “bounty hunter” employed and licensed “with Klein”

who provided investigation services. Klein had a contract with Al Reed Bail Bonds 

to apprehend its clients who, after being bonded out of jail, had failed to appear for 

court or otherwise violated the terms of their bond. Al Reed held a bail bond on 

Jackowski, the passenger. 

According to Peshoff’s pleadings, Hartman began to drive in an unsafe and 

threatening manner–speeding, pulling alongside Peshoff several times, and 

following at an unsafe distance. Peshoff and Jackowski could see Hartman leering 

at them as he attempted to close the distance between their cars. After several 

minutes of this terrifying behavior, Hartman pulled alongside Peshoff, rolled down 

his window, and ordered Peshoff to pull to the side of the road. Not knowing 

Hartman, Peshoff did not comply. Peshoff was fearful of Hartman’s threatening and 

unsafe behavior. It is undisputed that Peshoff saw Hartman pull alongside her 

vehicle and point a gun at her vehicle. Peshoff then contacted “authorities.” At an 

intersection, Hartman exited his vehicle and, once again, pointed the gun at Peshoff’s 

vehicle and told Peshoff that he had a warrant for Jackowski’s arrest and Peshoff 

pulled into a church parking lot. Hartman placed Jackowski in handcuffs and the 
3

police arrived. At the scene, Hartman was arrested for deadly conduct and 

unlawfully carrying a weapon. Hartman was subsequently convicted of deadly 

conduct.

Procedural History

In January 2018, Peshoff filed suit against Klein, Stephen L. Hartman, and 

Crime Pays, LLC dba Al Reed Bail Bonds.1 Peshoff alleged Klein was liable for

negligent hiring and supervision. Peshoff further alleged that Klein was vicariously 

liable for the intentional torts of “threat of bodily injury,” “intentional infliction of 

emotional distress,” “intrusion upon seclusion,” “false imprisonment,” and for 

negligence and negligence per se, all alleged to have been committed by Stephen L. 

Hartman while in the course and scope of his employment with Klein or with 

authority delegated to him by Klein. In addition to seeking “economic” damages for 

physical pain, mental anguish and medical care expenses, she sought exemplary 

damages. After the suit had been pending for a year and a half, on June 26, 2019, the 

court entered a Docket Control Order setting trial for January 13, 2020. The relevant 

deadlines were for: discovery (8/23/2019), to file dispositive motions (9/29/2019), 

and it required dispositive motions to be set and heard no later than thirty days prior 

trial (which was 12/13/2019). After the lawsuit had been pending for 21 months, on

1 The trial court signed an order of nonsuit of Peshoff’s claims against Stephen 

L. Hartman and Crimes Pays, LLC dba Al Reed Bail Bonds. They are not parties to 

this appeal.
4

September 27, 2019, Klein filed a Traditional and No Evidence Motion for Summary 

Judgment. Attached to Klein’s motion as summary judgment evidence was 

• Peshoff’s sworn deposition transcript,

• Peshoff’s trial testimony from Hartman’s criminal trial,

• Records of Peshoff’s husband’s criminal convictions for assault committed 

against her, 

• Peshoff’s answers to Klein’s interrogatories, and 

• Peshoff’s medical records. 

On December 5, 2019, Peshoff filed a Verified Motion for Continuance of Hearing 

on Klein’s Motion for Summary Judgment set for hearing on December 12, 2019. 

The trial court held a hearing regarding Klein’s Motion for Summary Judgment and 

Peshoff’s Motion for Continuance. Klein’s attorney objected to the continuance with 

regard to any evidence of Ms. Peshoff’s mental anguish claims because her 

deposition had been taken three months prior to the hearing date:

[DEFENSE COUNSEL FOR KLEIN]: The first part of our motion 

includes Ms. Peshoff’s claim for mental anguish. The transcripts he is 

waiting on are of the defendants, not Ms. Peshoff. She’s been done. He 

has had three months’ notice for whatever evidence he wants to present 

on that. I don’t think there is any basis to get leave to supplement the 

lack of a record on Ms. Peshoff.
5

Over Klein’s objection, the trial court orally granted Peshoff’s motion and 

granted her leave to file a late response. The following exchange occurred at the 

conclusion of the hearing:

THE COURT: Okay. So, I am obviously going to take this under 

advisement at this time. [Plaintiff’s Attorney], I am looking at my 

calendar here. I’m going to give you leave to file a written response; 

and I’m going to rule on this matter via submission on December the 

30th, which is the Monday after Christmas. Okay? Can you hear me, 

sir?

[NO RESPONSE]

...

THE COURT: Can you hear me, [Plaintiff’s Attorney]?

[PLAINTIFF’S ATTORNEY]: I can.

THE COURT: I’m taking the motion under advisement. I’m going to 

rule – I’m going to rule on the motion via submission on the 30th, which 

is the Monday following Christmas. I’m giving you leave to file a 

written response before that date. Okay?

[PLAINTIFF’S ATTORNEY]: Anytime before the 30th?

THE COURT: I am ruling on the 30th. I’m letting you know. I know 

you have health problems. I read your pleadings. Hopefully that will 

give you time to get your written submission.

[PLAINTIFF’S ATTORNEY]: I appreciate the consideration, your 

Honor.

Peshoff filed her Response to Klein’s Motion for Partial Traditional and NoEvidence Summary Judgment by e-file on December 30, 2019, at 9:22 p.m. On 

December 30, 2019, the trial court granted Klein’s Traditional and No Evidence 
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Motion for Summary Judgment, and in the written order, included a memorialization 

of his oral order on plaintiff’s Motion for Continuance filed in connection with the 

earlier hearing on Klein’s summary judgment motion. In its order, the trial court 

stated the following,

The Court finds that Plaintiff’s Motion for Continuance as to the 

hearing on Klein Investment, Inc.’s Traditional and No Evidence 

Motion for Summary Judgment should be granted to allow Plaintiff to 

file a response to the motion on or before Sunday, December 29, 2019. 

The Court finds that Klein Investments, Inc.’s Traditional and No 

Evidence Motion for Summary Judgment will be reset and decided by 

submission on Monday, December 30, 2019, and the Court will 

consider any response filed by Plaintiff, prior to this date. Defendant’s 

objections to restricting the evidence to the depositions taken in this 

matter and which were the basis of Plaintiff’[s] Verified Motion for 

Continuance and restricting Plaintiff’s ability to submit evidence 

submitted by Litisha Peshoff is noted and OVERRULED.

The Court further finds that the reset of Klein Investments, Inc.’s 

Traditional and No Evidence Motion for Summary Judgment does not 

require re-notice of the hearing date set forth in Rule 166a of the Texas 

Rules of Civil Procedure, and the Court finds proper notice of this 

hearing was provided by the movant to Plaintiff.

Following review of the pleadings and evidence on file, filed prior to

Monday, December 30, 2019, the Court, by submission, finds that 

Klein Investments, Inc.’s Traditional and No Evidence Motion for 

Summary Judgment filed in this matter on September 27, 2019 should 

be GRANTED;

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that 

Defendant Klein Investments, Inc.’s Traditional and No Evidence 

Motion for Summary Judgment is hereby GRANTED, and all of Litisha 

Peshoff’s claims asserted in this matter against Klein Investments, Inc. 

are DISMISSED WITH PREJUDICE to the right of Litisha Peshoff to 

refile same in the future.
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Peshoff filed a Verified Motion for New Trial arguing that, although her trial 

counsel stated on the record that her reply to Klein’s motion for summary judgment 

was due “before [December 30th[,]”, Peshoff’s counsel in good faith believed that 

he had asked the Court for leave to file Peshoff’s response to Klein’s motion for 

summary judgment any time on December 30, 2019 not before December 30th. 

Peshoff’s counsel believed this relief had been granted. The trial court denied 

Peshoff’s Motion for New Trial. Peshoff timely filed her appeal.

Issue Two: The Final Summary Judgment is overly broad

We first consider the second issue raised by Peshoff that the order granting 

summary judgment was overbroad. Even if we consider the late-filed response to the 

motion for summary judgment, filed at 9:22 p.m. on December 30, 2019, the 

evidence would not be materially different from that produced by Klein in its motion

for summary judgment. In her second issue, Peshoff argues that the trial court abused 

its discretion by granting Klein summary judgment on an issue that he did not present 

in his motion. Peshoff argues that the trial court erred by granting summary judgment 

on all of “Litisha Peshoff’s claims[,]” because Klein did not challenge her claims for 

threat of bodily injury, intrusion upon seclusion, false imprisonment, and negligence 

per se. It should be noted that Klein’s no evidence motion for summary judgment 

specifically alleged that there was no evidence of: compensable mental anguish 

damages as to the intentional torts pleaded; negligent hiring or supervision as to the 
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negligence and negligence per se claims; the intentional acts of Hartman being 

within the course and scope of his employment as a matter of law; and showing 

Peshoff was entitled to exemplary damages under these circumstances. Thus, Klein 

attacked at least one element of each of Peshoff’s claims that were necessary for 

Peshoff to prevail at trial. We believe that the issues were adequately raised in the 

motion for summary judgment.

We review a trial court’s decision to grant summary judgment de novo. See 

Shell Oil Co. v. Writt, 464 S.W.3d 650, 654 (Tex. 2015). We view the evidence in 

the light most favorable to the nonmovant. Id. In doing so, we indulge every 

reasonable inference and resolve any doubts against the motion. See City of Keller

v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). “Undisputed evidence may be 

conclusive of the absence of a material fact issue, but only if reasonable people could 

not differ in their conclusions as to that evidence.” Buck v. Palmer, 381 S.W.3d 525, 

527 (Tex. 2012) (citation omitted).

After adequate time for discovery, a party may move for summary judgment 

on the ground that there is no evidence of one or more essential elements of a claim 

on which the adverse party has the burden of proof. Tex. R. Civ. P. 166a(i). The 

motion must specify which elements have no evidence. See id. “The court must grant 

the motion unless the respondent produces summary judgment evidence raising a 

genuine issue of material fact.” Id.
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When a no-evidence motion has been filed, it “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.” King Ranch, Inc. 

v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003) (citations omitted). A no evidence 

point will be sustained when (a) there is a complete absence of evidence of a vital 

fact, (b) the court is barred by rules of law or of evidence from giving weight to the 

only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital 

fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the 

opposite of the vital fact. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 

706, 711 (Tex. 1997).

A party moving for traditional summary judgment has the burden of 

establishing there is no genuine issue of material fact as to at least one requisite 

element of the asserted cause of action and that it is entitled to judgment as a matter 

of law. See Tex. R. Civ. P. 166a(c); Lightning Oil Co. v. Anadarko E&P Onshore, 

LLC, 520 S.W.3d 39, 45 (Tex. 2017). When the trial court fails to specify the grounds 

on which it granted summary judgment, we must affirm if any of the summary 

judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 

S.W.3d 868, 872-73 (Tex. 2000). If a defendant files a combined traditional and noevidence summary judgment motion, we first review the judgment under the noevidence standards of Rule 166a(i). See Ford Motor Co. v. Ridgway, 135 S.W.3d 
10

598, 600-01 (Tex. 2004); Werth v. Johnson, 294 S.W.3d 908, 909 (Tex. App.—

Beaumont 2009, no pet.). Accordingly, we limit our discussion of the summary 

judgment grounds to those necessary for the resolution of this appeal. See FM 

Props., 22 S.W.3d at 872-73; Tex. R. App. P. 47.1.

In her petition, Peshoff alleged the following causes of action against Klein: 

[] Threat of Bodily Injury [within the course and scope of 

employment] 

27. Hartman threatened Peshoff with imminent bodily injury by 

pointing a gun at her and threatening to shoot if she did not follow his 

orders. Hartman caused Peshoff to fear imminent, severe bodily injury 

or death. Peshoff’s terror was a foreseeable result of Hartman’s 

unlawful actions.

28. Hartman’s threat injured Peshoff by causing her physical pain, 

mental anguish, and medical care expenses. Because of the malicious 

manner that Hartman committed his unlawful act, Peshoff will suffer 

from future mental anguish, pain and suffering, and medical expenses.

29. Hartman’s acts were performed as an employee of Klein and were

within the scope of that employment or within the authority delegated 

to the employee. Hartman was able to act on behalf of Al Reed only 

because of the professional investigator license obtained through his 

employment with Klein.

[] Intentional Infliction of Emotional Distress

30. Hartman’s extreme and outrageous conduct intentionally inflicted

emotional distress on Peshoff. Hartman pointed a gun at her from a 

moving car, while stopped at an intersection, and while stopped in a 

public parking lot. Hartman threatened to shoot Peshoff if she did not 

comply with his orders.

31. Hartman’s conduct proximately caused Peshoff’s severe emotional

distress because her damages are foreseeable results of Hartman’s 
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malicious actions. Hartman has admitted he intended to inflict distress 

upon Peshoff so she would comply with his orders. Peshoff’s emotional 

distress cannot be remedied by any other cause of action because the 

unique nature of Hartman’s criminal acts.

32. Hartman’s actions have caused Peshoff to suffer from extreme

worry, depression, stress, and anxiety.

33. Hartman’s acts were performed while in Klein’s employment and

were within the scope of that employment, or within the authority 

delegated to him. Hartman was able to act on behalf of Al Reed only 

because of the license obtained through his employment with Klein.

[] Intrusion Upon Seclusion [within the course and scope of 

employment] 

34. Hartman intruded on Peshoff’s seclusion when he intentionally, 

intruded on the private space of her private vehicle, and forced her off 

the road and out of her vehicle. Brandishing a gun in a threating manner 

from a moving vehicle with the intent of removing her from that 

seclusion was highly offensive.

35. Hartman’s acts were performed while in the employment of Klein 

and were within the scope of that employment or within the authority 

delegated to the employee. Hartman was able to act on behalf of 

defendant Al Reed only because of the professional investigator license 

obtained through his employment with Klein. 

[] False Imprisonment [within the course and scope of employment] 

36. Hartman willfully detained Peshoff by threat when he intentionally

pointed a gun at her from a moving car for the purpose of detaining her, 

which was sufficient to overcome Peshoff’s free will.

37. Peshoff did not consent to the detention.

38. Hartman did not have legal authority or justification to detain

Peshoff.
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39. Hartman’s unlawful detention of Peshoff caused injury to her, 

which includes actual damages for physical pain, mental anguish, and 

medical care expenses. Because of the malicious manner that Hartman 

committed his unlawful act, Peshoff will suffer from future mental 

anguish, pain and suffering, and medical expenses.

40. Hartman’s acts were performed while in the employment of Klein

and were within the scope of that employment or within the authority 

delegated to the employee. Hartman was able to act on behalf of Al 

Reed only because of the professional investigator license obtained 

through his employment with Klein.

[] Negligent Hiring and Supervision (Klein) [and Negligence Per 

Se] 

51. Klein had a legal duty to hire and supervise competent employees.

52. Klein breached this duty when it negligently hired, supervised, 

trained, and retained Hartman. Specifically, Klein breached its duty 

when it supported and allowed defendant Hartman to perform and 

continue to perform his duties, which required a professional license 

through Klein, in an unlawful and criminal manner.

53. Klein’s breach of its duty to hire and supervise competent 

employees proximately caused injury to Peshoff, which resulted in the 

damages for physical pain, mental anguish, and medical care expenses. 

Vicarious liability for negligence and negligence per se

 The motion for summary judgment argued Klein owed no duty to Peshoff, 

that he did not breach a duty by negligently hiring/supervising Hartman, and that 

any negligence was not the proximate cause of the injuries to Peshoff. A negligence 

claim requires proof of a legal duty from defendant to plaintiff, a breach of that duty, 

and damages proximately caused by that breach. See Clark v. PFPP Ltd. P’ship, 455 

S.W.3d 283, 287 (Tex. App.—Dallas 2015, no pet.). In determining whether a duty 
13

exists in the circumstances before us, we must determine, as a matter of law, whether 

Klein owed a duty to Peshoff in this instance. The Texas Supreme Court has not 

“ruled definitively on the existence, elements, and scope” of negligent hiring and 

supervision claims. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n.27 (Tex. 

2010). But, in 2019, the Texas Supreme Court stated the following regarding 

negligent hiring cases:

Although we have not ruled definitively on the existence, elements, and 

scope of a negligent-hiring claim, Waffle House, Inc. v. Williams, 313 

S.W.3d 793, 804 n.27 (Tex. 2010), we have recognized that it is 

‘factually similar’ to a claim for negligent entrustment, Wansey v. Hole, 

379 S.W.3d 246, 248 (Tex. 2012) (per curiam). And we have explained 

that a negligent-entrustment claim requires separate negligent acts by 

two parties: the owner’s negligence in entrusting property to another, 

and the entrustee’s negligence in using that property. 4Front 

Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 909 (Tex. 2016).

The plaintiff must prove not only that the entrustee’s negligence 

proximately caused the harm, but also that the ‘risk that caused the 

entrustment or hiring to be negligent also proximately caused the 

plaintiff’s injuries,’ TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240 

(Tex. 2010). In the same way, a negligent-hiring claim requires 

negligence by two separate parties: the employer’s negligence in hiring 

the employee and the employee’s subsequent negligent act or omission. 

Both negligent acts must proximately cause the injury. Wansey, 379 

S.W.3d at 247; Hughes, 306 S.W.3d at 240-41; Fifth Club, Inc. v. 

Ramirez, 196 S.W.3d 788, 796 (Tex. 2006). 

Endeavor Energy Res., L.P. v. Cuevas, 593 S.W.3d 307, 311 (Tex. 2019).

The availability of a negligent-hiring claim, the risk that caused the hiring or 

supervision to be negligent, must also have proximately caused injury to the plaintiff. 

See Hughes, 306 S.W.3d at 240 (concluding that the negligent hiring should have a 
14

similar requirement to negligent entrustment cases which requires that the 

employee’s negligent conduct harm the plaintiff). Even though the Texas Supreme 

Court has “never expressly set out what duty an employer has in hiring employees, 

or said that a negligent hiring claim requires more than just negligent hiring 

practices, there is a broad consensus among Texas courts that such a claim requires 

that the plaintiff suffer some damages from the foreseeable misconduct of an 

employee hired pursuant to the defendant’s negligent practices.” Wansey, 379 

S.W.3d at 247 (citations omitted).

In this case, Peshoff produced no evidence establishing damages due to harm 

caused by Hartman as an employee of Klein. Id. Documents produced by Klein in 

his motion for summary judgment demonstrate that Peshoff suffered no physical 

damages from her encounter with Hartman. In her deposition, Peshoff testified that 

Hartman never physically injured her or damaged her vehicle on the day in question. 

She swore she suffers from emotional damages including “anxiety...depression... 

insomnia[,]” as a result of the encounter with Hartman. And at Hartman’s criminal 

trial, Peshoff testified that she suffered from “nightmares of the whole thing. I’ve 

been put on medicine because I couldn’t sleep, keeping my family up. I’ve literally 

almost attacked my son because he would try to wake me up to get him up for school. 

I go to counseling.” Documents attached to Klein’s summary judgment 

demonstrated Peshoff reported to a physician that in October 2016, the same month 
15

as the incident, she had suffered from “hormones...symptoms began 9 months 

ago[,]” describing the symptoms as “being moderate to severe...occur daily[,] 

[h]orrible mood swings, lack of energy, stress.” Peshoff also reported the symptoms 

started after the birth of her last child, a child born before the incident with Hartman. 

She told her physician that she had a history of anxiety, depressed mood, difficulty 

falling asleep, excessive worry, restlessness, anger, and “[t]he symptoms” are from 

the last “2 years.” Peshoff also admitted that she has never taken time off work after 

the October incident, other than court dates. Peshoff confirmed that before the 

October incident, she was in a physically and emotionally abusive relationship in 

which her ex-husband was later convicted of assault. But she maintained that this 

relationship did not cause her emotional distress or anxiety. She testified that, other 

than the death of her mother, nothing in her life has caused mental anguish except 

the incident with Hartman. Evidence provided in the late filing by Peshoff was no 

different. Even so, Peshoff provided the court with no expert testimony to establish 

a causal link between the incident with Hartman and any symptoms Peshoff reported 

to her health care providers. See Guevara v. Ferrer, 247 S.W.3d 662, 663 (Tex. 

2007).

To defeat Klein’s motion for summary judgment on each of her claims, 

Peshoff was required to submit summary-judgment proof that she suffered damages 

caused by Klein’s employee’s conduct. See Wansey, 379 S.W.3d at 247; Moore 
16

Freight Servs., Inc. v. Munoz, 545 S.W.3d 85, 98 (Tex. App.—El Paso 2017, pet. 

denied) (“The duty of the employer extends only to prevent the employee or 

independent contractor from causing physical harm to a third party. The Plaintiffs 

had to show that [the defendant’s] actions in hiring, supervising, or retaining [their 

employee] were the cause-in-fact of [the plaintiff’s] injuries and that their injuries 

were a foreseeable consequence of [the defendant’s] hiring, supervision, or retention 

of [their employee].”). 

The summary-judgment evidence established that Mr. Hartman committed 

illegal acts against Peshoff. But even though Hartman was convicted of those acts in 

his criminal trial, none of the summary-judgment evidence in this record established 

that Peshoff’s mental and emotional distress was, in fact, caused by Hartman’s 

actions. And even if Hartman’s actions were a cause in fact of Peshoff’s mental and 

emotional distress, Peshoff failed to meet her burden to present summary-judgment 

evidence as to Klein’s alleged negligence in hiring or in supervising Hartman. For 

example, Peshoff provided the court with no summary-judgment evidence from an 

expert, or otherwise, of any training standards that apply to employees of 

investigation firms that do “bounty hunting” for bail bond companies. She did not 

show how any such standards would have kept Hartman from threatening Peshoff 

with a gun. Peshoff also presented no summary-judgment evidence to show Hartman 
17

was not properly trained or supervised. The fact that Klein employed Hartman does 

not automatically make Klein legally liable for Hartman’s criminal acts.

Because there is no evidence that Klein’s negligence in hiring and supervising 

Hartman caused Peshoff’s damages, we will affirm the trial court’s summary 

judgment on the claim of negligent hiring and supervision and negligence per se. See 

Tex. R. Civ. P. 166a(c), (i).

Course and scope of employment liability

In Wheeler v. Free, 638 S.W.3d 731 (Tex. App.—Eastland 2021, pet. denied), 

our sister Eastland court distinguished the analysis necessary to determine “course 

and scope” liability, discussed below, from “negligent hiring and supervision 

liability” discussed above. In Wheeler, the Eastland Court explained:

Negligent hiring, retention, and supervision claims are all simple 

negligence causes of action based on an employer’s direct negligence 

rather than on vicarious liability. Thus a claim for negligent hiring, 

supervision, or retention is not dependent upon a finding that the 

employee was acting in the course and scope of his employment when 

the tortious act occurred. However, the plaintiff’s injury must be the 

result of job-related conduct Were such a connection not required, an 

employer would essentially be an insurer of the safety of every person 

who happens to come into contact with his employee simply because 

of his status as an employee. This nexus requirement is an element of 

foreseeability, and foreseeability is an essential component of both 

proximate cause and duty. Fernea v. Merrill Lynch Pierce Fenner & 

Smith, Inc., 559 S.W.3d 537, 548 (Tex. App.—Austin 2011), judgm’t

withdrawn, appeal dism’d, 2014 Tex. App. LEXIS 12063, [] (Tex.

App.—Austin Nov. 5, 2014, no pet.) (mem. op.); see Mellon Mortg. 

Co. v. Holder, 5 S.W.3d 654, 659 (Tex. 1999).” 

Id. at 738-39 (cleaned up).
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Peshoff also claimed that Klein was liable for Hartman’s intentional torts 

because Hartman was acting in the course and scope of his employment in 

committing the intentional torts. Although the Texas Supreme Court has not ruled 

on the duties an employer of “bounty hunters” for bail bond companies owes to 

innocent bystanders, or the general public, it has set forth factors to consider when 

evaluating the existence of the duties of an employer to customers, or innocent 

bystanders, when an employee, or someone at the direction of an employer, commits 

an intentional tort against the customer or bystander. In Pagayon v. Exxon Mobil 

Corp., 536 S.W.3d 499, 507-08 (Tex. 2017) an Exxon Mobil employee started a 

fight with a customer, Pagayon. The employee and Pagayon had words on the phone 

three days earlier about the employee harassing Pagayon’s son who worked at the 

store with the employee. The day of the altercation, while the employee was on duty, 

Pagayon entered the store, was accosted by the employee, and a fight ensued. 

Pagayon was injured by the employee, hospitalized, and after faulty medical 

procedures, died). The factors the court considered in evaluating whether a duty 

exists are (1) the risk of an occurrence such as this one; (2) whether the foreseeability 

of injury is small and the likelihood of injury is remote; (3) the significance of the 

burden on the employer; (4) the consequences of extending the burden in a case such 

as this; and (5) the social utility in placing such a burden on an employer in this 

circumstance. Id. at 507-08.
19

Applying the factors from Pagayon to our case, the risk of the occurrence (an 

investigator for a bail bond company, Hartman, points a gun at the vehicle of an 

innocent bystander, Peshoff, who is carrying an alleged absconder, Jackowski, in her 

vehicle) was small. There is no evidence showing Klein was on notice that Hartman 

had a prior history of engaging in a similar act. Rather, the issue is whether an 

employer should be required to respond, in advance, to any possible action of an 

agent/employee who is seeking to enforce the contractual provisions of a bail bond 

when dealing with innocent bystanders or the general public. We conclude the 

answer is no. Customers who hire bail bond companies have already been arrested, 

accused of a crime, and placed under court-ordered conditions to comply with the 

bond. When the customer violates the court’s order and an arrest warrant issues, the 

bail bond company seeks to find them and bring them to law enforcement to execute 

the arrest warrant. These companies frequently hire investigators (“bounty hunters”)

to locate the customer. While it is common knowledge that these investigators, or 

their employees or agents, may follow a customer (who has violated the bond and 

now has an outstanding arrest warrant), may run after the customer, may grab or 

tackle the customer to hold them until contact with law enforcement, such a

foreseeable situation is far removed from foreseeing that an employee or agent for 

the investigation service will pursue and point a gun at an innocent bystander who 

may have no knowledge of the circumstances. Whatever duty an investigation 
20

service may have to the general public in this circumstance, it cannot extend to its 

employees pointing guns at innocent bystanders in the absence of a showing that the 

employer knew the employee had previously engaged in similar acts.

We next consider whether the foreseeability of injury is small, and the 

likelihood of injury is remote. Any duty an employer has to control its employees 

should not make it an absolute insurer of their safety and the safety of patrons. Id. 

The second factor weighs against a finding of foreseeability because the burden of 

ensuring that an employee/agent of the investigation company will never engage in 

an intentional tort is significant. Given the independent nature of the “bounty hunter” 

contract employee, who is independently licensed, trained and certified by the state, 

it would place a significant burden on the employer if the employer were not able to 

rely on the training, licensing and certification by the state. The foreseeability that 

an independently licensed, trained, state-certified employee or contractor would pull 

a gun on an innocent bystander, in violation of a penal statute, is remote and such an 

expectation should not be placed on the potential employer to create liability for such 

an unforeseeable act. While we assume the actions of Hartman were extreme, and 

out of the ordinary, to extend liability to an employer in such a situation would render 

the employer liable for the most extreme consequences of its employee/agent’s 

actions no matter how unforeseeable.
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Finally, we are to consider whether the social utility in placing a foreseeability 

burden such as this on investigation firms who employ “bounty hunters” as 

employees or contractors, is great or small. While Klein might have been able, 

somehow, to prevent Hartman from committing this crime, the burden and expense 

of requiring immediate supervision of each contractor or employee seeking to 

enforce bail bond contracts would be physically and financially untenable given that 

the likelihood of an employee/agent committing a crime with a gun is so remote.

Any social utility derived from requiring an employer to be as vigilant as Klein

would have to have been to prevent his employee or agent from committing a crime 

with a gun is minimal and would be shifting the personal responsibility of the 

employee to obey the law from the individual to the employer.

Applying the factors that determine the existence of a duty in this case, we 

conclude that an investigation company who services bail bond companies with 

“bounty hunters”, in the situation presented like the one presented here, owes no 

duty to supervise its employees to protect the general public from its employees 

unforeseen intentional acts. Appellant has not cited any controlling authority stating 

otherwise. Because Peshoff produced no evidence to establish Hartman’s criminal 

conduct was foreseeable, Klein was not liable to Peshoff for Hartman’s intentional 

acts as a matter of law. See Pagayon, 536 S.W.3d at 507-08. Absent a duty to 

prevent these unforeseeable intentional torts, Klein cannot be held liable for them. 
22

The trial court did not abuse its discretion in granting the motion for summary 

judgment.

Exemplary damages

Finally, in her petition, Peshoff also alleges exemplary damages against Klein. 

“Generally, exemplary damages may be awarded only if the claimant proves by clear 

and convincing evidence that the harm at issue results from (1) fraud; (2) malice; or 

(3) gross negligence.” Seber v. Union Pacific R.R. Co., 350 S.W.3d 640, 654 (Tex. 

App.—Houston [14th Dist.] 2011, pet. dism’d) (citing Tex. Civ. Prac. & Rem. Code 

Ann. § 41.003(a)). As we have held that Peshoff failed to provide sufficient evidence 

of negligent hiring and supervision, she is not entitled to exemplary damages. See 

Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (Tex. App.—Houston [14th Dist.] 2011, 

no pet.) (“negligence and gross negligence are not separate causes of action[]”); see 

also Said v. Sugar Creek Country Club, Inc., No. 14-17-00079-CV, 2018 WL 

4177859, at *6 (Tex. App—Houston [14th Dist.] Aug. 31, 2018, pet. denied) (mem. 

op.) (“[A] summary-judgment ground that would support dismissal of [the 

plaintiff’s] negligence claim is sufficiently broad to support the dismissal of the part 

of her negligence claim in which she seeks to recover exemplary damages based on 

an allegation of gross negligence.”). We overrule Peshoff’s second issue.
23

Conclusion

Because we find no abuse of discretion in the granting of the summary 

judgment, even considering the untimely response, it is unnecessary for us to address 

the first and third issues raised by Peshoff concerning the timeliness and 

consideration of her late response to the motion for summary judgment. Having

overruled Peshoff’s second issue on appeal, we affirm the trial court’s judgment.

AFFIRMED.

 ________________________________

 JAY WRIGHT

 Justice

 

Submitted on December 21, 2021

Opinion Delivered February 23, 2023

Before Golemon, C.J., Horton and Wright, JJ.