Opinion issued August 1 5 , 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 17
- 00 689
- CV

——————————— DIANE PEREZ AND RICK Y PEREZ , Appella nt s V. GREATER HOUSTON TRAN SPORTATION COMPANY D /B/A AND / OR A/K/A YELLOW CAB COM PANY AND / OR YELLOW CAB, AND

DELWENDE NIKIEMA , Appell e e s
On Appeal from the 234th District Court

Harris County, Texas Tr ial Court Ca se No. 2016
- 32437

MEMORANDUM OPINION Appellants Diane and Ricky Perez sued appellee Greater Houston Transportation Company d/b/a a nd / or a /k/a Yellow Cab Company and/or Yellow Cab ( GHTC ) for personal injuries Diane suffered in a collision with a cab driver,2

asserting a cause of action for negligence under respondeat superior and joint

enterprise theories

. The trial court granted no - e viden ce summary judgment in favor of GHTC and ordered that the Perezes take nothing by their claims against GH TC. In their sole issue on appeal, the Perezes assert that the trial court erred in granting summary judgment in favor of GHTC on their claim for negli gence under a respondeat superior theory. Because we conclude that the Perez es presented evidence raising a fact question on the challenged elements of their claim, we reverse and remand. Background Delwende Nikiema was driving a taxicab to pick u p a passenger when he collided with Diane Perez’s vehicle. The Perez es allege that Nikiema caused the

cra sh after he ran a stop sign while speeding and that Diane sustained injuries as a result of the accident. GHTC owned the taxicab , and it held the taxic ab’s permit issued by the C ity of Houston

. Nikiema leased the taxicab from GHTC through an “Independent C ontractor License and Vehicle Lease Purchase Option Agreement.” The Perezes filed a personal injury suit against Nikiema and GHTC. 1 In their suit agai n st GHTC, the Perezes alleged that the company was negligent due to inadequate training and policies for its drivers. They also alleged that GHTC was

1 The Pe rezes nonsuited t heir claim a gainst Nikiema following the trial court’s granting of GHTC’s no

- evidence motion for summary judgment. Nikiema is not a pa rty t o this appeal.3

liable for Nikiema’s negligence under theories of respondeat superior and joint enterprise, among others. GHT C filed a no

- evidence and a traditional motion for summary judgment.
In r elevant part, it contended that the Perezes had no evidence to support their claim that GHTC was vicariously liable for Diane’s injury under a theory of respondeat superi or or joint

- e nterprise liability. GHTC asserted that Nikiema was not an emplo yee of GHTC and that he was not acting within the course and scope of his “alleged” employment with GHTC at the time of the accident. GHTC’s
summary - judgment evidence included, am ong other doc uments, the independent contractor and vehicle lease agr eement between Nikiema and GHTC and the affidavit of Ed Kargbo , the Director of Marketing and Driver Services for GHTC

. 2 The agreement between GHTC and Nikiema stated that it was an “Inde pendent Contr actor License and Vehicle Purchas e Option Agreement.” It granted Nikiema a license to operate GHTC’s taxicab, obligating Nikiema to pay a set weekly fee to lease the taxicab and the specialized taxicab equipment installed in it . The agreemen t also establis hed an independent

- contractor r elationship between GHTC and Nikiema. The agreement stated that GHTC “does not have the right to control the details of how [ Nikiema ] will acquire and transport Passengers

2 Also included were Nikiema’s City of Houston taxi l icense issued August 6, 2013, a nd reco rds indicati ng that GHTC pulled Nikiema’s driving records on August 1, 2013, December 16, 2013, and March 24, 2014.4

under this Agreement, and that [GHTC] give s no instru ctions as to how, when, where, or e ven if the Licensee utilizes the Goods and Services or operates the Taxicab.” Nikiema received his revenue from passengers. GHTC provided Nikiema with specified amounts of indemnification liability coverage, a nd it

recomm ended he obtain additional insuran ce coverage. Under the terms of the agreement, GHTC was not obligated to provide driver training, but the agreement did provide, “Before [GHTC] is willing to execute this Agreement, [Nikiema] is encouraged to c omplete the Business Orientation Program provi ded by [ GHTC .]” Under the agreement, Nikiema also granted GHTC the right to sell advertising on and in the taxicab and the right to collect all revenue from such advertisements, and in exchange he received a w eekly lease r ebate. Kargbo’s aff

idavit likewise stated that : Nikiema was an independent
contractor ; GHTC did not have the right to control the details of Nikiema ’s work or the right to control Nikiema in any manner ; GHTC provided a computerized dispatch sy stem, but Nik iema was not requir ed to use it, and if he did use it, he was not required to accept the fare. Kargbo averred that the City of Houston passed ordinances that controlled Nikiema’s performance of his duties as a taxicab operator, and GHTC did not contro l his work beyond what it was required to do under City ordinances.5

The Perezes responded to GHTC’s motion for summary judgment and asserted that the agreement relied upon by GHTC was “a mere sham or subterfuge designed to conceal the true legal status of the p arties ” and that extrinsic evidence provided “ more than a scintilla of evidence ” that GHTC had an actual right to control Nikiema. In support of its argument, the y offered the deposition s of Nikiema and Kargbo.
Dur ing his dep osition , Nikiema testified that he entered into the independent contractor agreement with GHTC , but he was not provided with a copy of the contract to review before signing the agreement , and he was not given time to review it s terms. GHTC ins tructed him where to sign or initial the con tract and where not to. He considered GHTC to be his employer. Nikiema testified that, a s part of his agreement with GHTC, he paid a set weekly fee to lease the taxicab, and he had an option to purchase the veh icle at the end of the agreement. The taxica b was outfitted with specialized equipment , including a credit

- card swiper, stool light, taxi meter, GPS system, and dispatch system. The equipment belonged to GHTC, and GHTC was responsible for the maintenance o f the equipment, as well as maintenance and repairs on the vehicle. Nikiema testified that he was responsible for ga s, tolls, any traffic tickets, and the cost of oil and transmission changes.6

Nikiema further testified that , before contacting GHTC, he did not h ave a taxi license , n or did he have an y experience driving a taxicab or operating any specialized equipment for taxi ca bs. He attended a cou rse with GHTC over several days in which he received training on how to operate the specialized taxicab equipment. GH TC instructed him on how to deal with passengers , identified safety precautions to follow while driving, and provided him with study materials to
prepare for the taxi license exam. Kargbo also testified during his deposition that Nikiema completed GHTC’ s business orientation program and a defe nsive driving course at GH TC

. In his deposition, Nikiema indicated that , although he was not required to use GHTC’s dispatch system, he obtained all , or 99% , of his fares through the company’s dispatch system , and he had no customers of his own. GHT C moni tored the location of its vehicles, and it would send information about potential fares to drivers based on the driver’s proximity to the passenger pick

- up location. Nikiema acknowledged that he was free to accept o r reject any potential far es generated th rough the GHTC dispatch system , but he understood that he was expected to accept fares and that it was his “duty” to do so. He stated that GHTC had penalized him on numerous occasions for rejecting fares. If he rejected a fare for an “important customer,” or if there were no other available vehicles in the

area, GHTC dispatch would call his mobile phone and order him to accept the fare.7

When he rejected fares under those circumstances, t he vehicle’s computer system would be shut down and the stool light wou ld deactivate. Nikiema testified that he determined his own shifts, but if the taxi meter was off for two or three hours during the shift, GHTC would give him “downtime.” Nikiema testified in his deposition that he gene rally was ent itled to keep all cash p ayments and all credit card payments , minus a processing fee, that he received from passengers. He was required to provide receipts to customers , and the re ceipts were branded with GHTC company information. W he n he accepted a METROLift account fare, howeve r, he did not receive any payment from the passenger. Instead he would complete the trip and provide the ride information to GHTC , which would th en pay him directly. At the time the accident with Diane Perez o ccurred, Nikiema was on his way to pick up a M ETROLift account passenger who he had accepted th rough the GHTC dispatch system. He testified that he contacted GHTC dispatch immedi at ely after the accident “seeking advice,” as he had been trained by GHTC to do. GHTC contacted the police . Nikiema’s testim ony also established that he was prohibited from working for anyone but GHTC ; GHTC had instructed Nik ie ma to take the shortest route to pick up and to drop off passengers; and this route was provided to him by the GPS device installed in the taxicab.8

The trial court granted GHTC ’s no - evidence motion for summary judgment, but it did not rule o n GHTC’s traditional motion for summary judgment

. Analysis On appeal, the Perezes argue in their sole i ssue that the trial court erred in granting GHTC’s no - evidence m otion for summary judgment because they presented evide nc e raising a fact question on GHTC’s liability for negligence based on their respondeat superior claim

. They assert that the y presented “substantial evidence” that GHTC had the right of control of Nik iema ’s work and that the accident occurred in the course and scope of his employment with GHTC, making the company vicariously liable for his negligence. A. Standard of Review After an adequate time for discovery has passed, a party may move for summary judg ment on the ground that there is no evidenc e of one or more essential elements of a claim or defense on which the nonmovant would have the burden of proof at trial. T EX
. R. C IV
. P

. 166a(i). The motion must state the elements as to which there is no evidenc e. T EX
. R. C IV
. P . 166a(i). The reviewing c ou rt must grant the motion unless the nonmovant produces summary

- judgment evidence raising a genuine issue of material fact. Id .; see Mac k Trucks, Inc. v. Tamez , 206 S.W.3d 572, 5 82 (Tex. 2006). If the nonmovant p roduce s e vidence “ that w ould enable9

reasona bl e and fair

- minded jurors to differ in their conclusions, ” a genuine issue of material fact exists. See Hamilton v. Wilson , 249 S.W.3d 4 25, 426 (Tex. 2008).
A no

- evidence motion for summary judgment is essentiall y a directed verdict granted before trial. Ma ck Trucks , 206 S.W.3d at 581

– 82 . We apply the same legal sufficiency standard in reviewing a no

- evide nce summary judgment as we apply i n reviewing a directed verdict. See i d. at 582. Accordingly, we review the e vidence in the l ight most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005)

. Evidence that favors the movant’ s position will not be consid er ed unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co. , 391 S.W.2d 41, 47 (Tex. 1965)

. B. No - Evidence Summary Judgment on Respo ndeat Superior Under the doctrine of respondeat superior, an employer may be vicariously l ia ble for the negligence of its employee who was acting within the scope of his employment, even though the employer has not personally committed a wrong. St. Joseph Hosp. v. Wolff

, 94 S.W.3d 513, 541

–

42 (Tex. 2002) ; Wilson v. Davis , 305 S.W. 3d 57, 66

– 67 ( Te x. App.

— Houston [1st Dist.] 2009, no pet.). An entity that hires an independent contractor, however, is generally not vicariously liable for the10

negligence of the i ndependent contractor. Baptist Mem’ l Hosp. Sys. v. Sampson , 969 S.W.2d 945, 947 (Tex. 1998 )

. 1. Right of C

ontrol Whether Nikiema is an employee or an independent contractor of GHTC turns on the question of GHTC’s right to control Nikiema’s work. Whether one i s an independent contractor or an employee is measured by the amount of cont rol the emplo ye r exerts, or has the right to exert, over the details of the work performed. Newspapers, Inc. v. Love , 380 S.W.2d 582, 591 (Tex. 1964). When, as here, a contract est ablishes an independent

- contractor relationship and does not grant control o ver the deta il s of the work to the principal, evidence outside the contract must be produced to show that despite the contract terms, the true operating agreement vested the right of control in the principal. Id. at 592; Farrell v. Greater Houston Transp. Co. , 908 S.W .2 d 1, 3 (Tex. App.

— Houston [1st Dist.] 1995, writ denied)

. Absent extrinsic evidence indicating that the contract was a subterfuge or sham , that the hiring party exerc ised control in a manner inconsistent with the contract provisions, or that the contract h as been modified by a subsequent express or implied agreement, the contract is determinative on the nature of the parties’ relationship. Love , 380 S.W.2d at 592 ; Wei dner v. Sanchez , 14 S.W.3d 353, 373 (Tex. App.

— Houston [14th Dist.] 2000, no pet.)

. Evid en ce of

“ [s] poradic action directing the details of the work ” or an “occasional assertion of11

control” is not sufficient to override the contract. Farrell , 908 S.W.2d a t 3

. The assumption of an exercise of control must be “ so persistent and the a cquiescenc e therein so pronounced as to raise an inference that at the time of the act or omission giving rise to liability, the parties by implied consent and acquiescence had a greed that the principal might have the right to control the details of the

wo rk. ” Love , 3 80 S.W.2d at 592

. Courts measure the right to control by considering factors such as: (1) the independent nature of the worker’s business; (2) the worker’s obligatio n to furnish necessary tools, supplies, and materials to perform the job; (3) the worker ’s right to control the progress of the work except as to final results; (4) the time for which the worker is employed; and (5) the method of payment, whether by unit o f time or by the job . Limestone Prod s . Distrib

. , Inc. v. McNamara , 71 S.W.3d 3 08, 31 2 (Tex. 2002); INA of Tex

. v. Torres , 808 S.W.2d 291, 293 (Tex. App.

— Houston [1st Dist.] 1991, no writ). It is not required that all five factors be present to ma ke a finding on the right to control. Thompson v. Travelers Indem. Co. of R

. I

. , 789 S.W. 2d 277, 278 (Tex. 1990) ; s ee McClure v. Greater San Antonio Transp. Co. , SA

- 08

- CA

- 112

- FB, 2009 WL 10670178, at *9 (W.D. Tex. Mar. 24, 2009)

. That a “person is normally an independent contractor does not preclude a finding of agency as to the pa rticular tra nsaction at issue.” Weidner , 14 S.W.3d at 37 3

– 7 4.12

The Perezes argue that the trial court erred in granting summary judgment in favor of GHTC on the theory of respondeat superior because they presented “overwhelming” summary judgment evidence tha t , despite the terms of the agreement between GHTC and Nikiema, GHTC nevertheless exercised a level of control over Nikiema that indicated he was an employee rather than an indepe ndent contractor . They argued that this extrinsic evidence was sufficient to

cr eate a fa ct issue on their respondeat superior claim. Examining the summary - judgment evidence on GHTC’s right to control Nikiema’s work, and hence his status as an independent contractor or employee, we agree with the Perezes that the y produced evidence raising a g enuine issue of material fact on their respondeat superior claim. The first measure of the right to control, the independent nature of the worker’s business, relates to who has the right to control the details and methods of
t he work. White v. DR & PA Del iverance, Ltd. , No. 01

- 12

- 00227

- CV, 2014 WL 767218, at *5 (Tex. App.

— Houston [1st Dist.] Feb. 25, 2014, no pet.) (citing
Limestone , 71 S.W.3d at 312 , and Wolff , 94 S.W.3d at 542). Uncontroverted
summary - judgment evidence esta bl ished that Nikiema generally controlled the days and hours he worked. However, in contradiction to the terms of the agreement and GHTC ’s assertions that Nikiema was not required to accept any fare if he chose to use their dispatch system, Nikiema testifi ed that his dispatch system was13

shut off when he refused certain rides, and he was given “downtime” when his taximeter was inactive for two or three hours during his shift. The Pe rezes also point to Nikiema’s deposition testimony indicating that he did not h ave his own
customers and tha t he relied entirely or almost entirely on GHTC’s dispatch system for fares. As to the second factor, the worker’ s obligation to furnish necessary too ls, supplies, an d materials to perform the job, the summary

- judgment evidence

e stablished that GHTC owne d the taxicab , including all of the specialized equipment installed in it , and Nikiema paid GHTC to lease these items. See , e.g. , Tirres v. El Paso Sand Pr oducts, Inc. , 808 S.W.2d 672 , 674, 676 (Tex. App.

— El Paso 1991, writ denied) (w orker’s a greement to u se equipment furnished by principal was not evidence of right to control); see also White , 2014 WL 767218, at *6 (although employer provided worker some ma terials, worker was obligated to pay for the materials , which supported conclu si on he was independent contractor). Although the contract indicated that training was not included as part of the agreement, Nikiema testified GHTC trained him on how to operate the specialized taxicab equipment. It also instructed him on certain pr ocedures and safety precautio ns and provided him with study materials to prepare for the taxi license

exam.14

Regarding the right to control the progress of Nikiema’s work except as to final results, t he Perezes contend that the evidence shows that GHTC, not Nikiema, controlled the pro gress of his work. They point to evidence that GHTC had control over the advertising and promotion of the cab operation, but the summar y judgment evidence established that Nikiema sold advertising rights of the c ab to GHTC. Nikiema also testified in his d eposition that GHTC had instructed him to take the shortest route to pick up and to drop off passengers and this route was provided to him by the GPS device that GHTC owned and had installed in the taxicab

. The Perezes al so presented some evidence regardin g the time that Nikiema was employed by GHTC. Perez testified that he considered GHTC his employer. Nikiema further testified that , before w orking for GHTC, he did not have a taxi license , n or did he have any experien ce driving a taxicab or operating any

s pecialized equipment for taxicabs. He attended a training course with GHTC on how to operate the specialized taxicab equipment , and GHTC ins tructed him on how to deal with passengers , identified safety precautions to follow while driving, and provided him with study materials to prepare for the taxi license exam. Kargbo also testified during his deposition that Nikiema completed GHTC’s busi ness orientation program and a defensive driving course at GHTC. The evidenc e also established that Nikema first enter ed into an agreement with GHTC approximately15

eleven months before the accident and that, at the time of the accident, the parties had ent ered into an agreement that would expire at the end of one year but could be

ca ncelled at any time

. Finally, regarding the method of payment, i t is undisputed that Nikiema was paid by the job , and for typical fares he was paid directly by his customers.
Ho wever, Nikiema testified that he did not receive payment from customers for
M ET RO Lift account fares, such as the one h e had taken at the time of the accident in this case. According to his deposition testimony, he received compensation for these fares fro m GHTC directly. See Weidner , 14 S.W.3d at 374

– 75 (holding that fact that “[a] p er son is normally an independent contra ctor does not preclude a finding of agency as to the particular transaction at issue”). Viewing the evidence in the light most favorable to the Perezes, as we must, we conclude that they raised a material fact issue on their respondeat superior claim. Alt hough GHTC presented evidence of the agreement between itself and Nikiema that expressly stat ed t hat Nikiema was an independent contractor, t he Perezes presented evidence outside the contract from which a factfinder could d ete rmine that the true operating agree ment vested the right of control in GHTC.
See Love , 380 S.W.2d at 592, Farrell , 908 S.W.2d at 3. The evidence produced by the Perezes

— na mely, Nikiema’s deposition testimony

— constitutes some ev ide nce that GHTC exercised control over Nikiema in a manner inco nsistent with the16

agreement’s provisions or that the agreement had been modified by a subsequent implied agree ment. See Love , 380 S.W.2d at 592, Weidner , 14 S.W.3d at 373. GHTC asserts that it s c ontract provided that Nikiema was an independent
contrac tor a nd that the summary - judgment evidence presented by the Perezes failed to establish that GHTC took any actions beyond those required for compliance with ordinances of the City of Houston

. GHTC arg ues that the facts of this case are akin to those presen ted t o this court in Farrell , 908 S.W.2d 1. In Farrell , this court affirmed a summary judgment in favor of a cab compa ny and held, as a matter of law, that a cab driver was an independent contractor.
Lik e Nikiema, the cab driver in Farrell had entered int o an independent

contractor agreement with the cab company, Yellow Cab. Id. at 3. The summary judgment evidence in tha t case established that: Yellow Cab provided a computerized dispatch system, but t he d river was not required to use it, or to accept any f

ares if he did ; the driver paid a fee to operate to Yellow Cab to be licensed under its cab operating permit and to us e its radio and dispatch system; and the driver’s total compensation came from pay ment s by customers. Id. The
summary - judgment evidence in Farr ell also established that: Yellow Cab did not monitor how, where, or when the driver worked, and it did not know where or if he was operating his taxicab; the driver determined the route he took when delivering a customer; although the title to the ca b lis ted Yellow Cab, the driver was listed as17

the vehicle’s “beneficial owner” and stated that the driver could have t itle assigned to him if the cab left the Yellow Cab fleet; the driver was responsi ble for all maintenance expenses on the cab; and the dri ver w as covered under Yellow Cab’s self

- insurance certificate. Id. at 3

– 4. Farrell , therefore , is distinguishable in sev eral key ways. Here, GHTC presented evidence that it provided a dispatch system, b ut N ikiema was not required to use it. Nikiema present ed co ntradictory testimony , asserting that he got all, or nearly all, of his fares through the dispatch system and that, despite the terms of the agreement, he was pressured by GHTC to take far es u nder certain circumstances. Nikiema also testified that, co ntrar y to the terms of the agreement, GHTC required him to take the shortest routes when picking up and droppin g off fares and that the route was set by the GPS device owned by GHTC and install ed
i n the taxicab. He also testified that GHTC was aware of whe n his meter was running and would give him “downtime” when his taxi meter was off for two or three hours during his shift

. T here is a further key difference between this case and Farrell in rel ation to the nature of Nikiema’s business and GHTC’s right to co ntrol his work. In Farrell , u ncontradicted evidence showed that the driver controlled how, when, where, an d if he worked. 908 S.W.2d at 4. Here, by contrast, Nikiema’s testimony is some ev iden ce that GHTC penalized him for rejecting fares18

or for periods of inac tivity during a shift. Although GHTC denies this activity, we conclude that this evidence raises a mat erial question of fact on the right to control. GHTC correctly notes that at leas t so me of its supervision and direction of Nikiema’s work was requi red f or it to comply with C ity ordinances. See H OU
. O RD
. §§ 46

- 11(c) (requiring permittees of vehicles equipped wi th GPS to “collect, maintain, and provide to the director .

. . all real

- time trac king information .

. . including .

. . GPS location data, an d whe ther or not the licensee is engaged with a
passenger ” ); 46

- 18 (permittee required to submit written lease con tract, certificate of title, and self

- insurance); 46

- 114 (requiring driver to take the shortest route ). The evidence nevertheless raises a fac t que stion regarding whether GHTC’s control over Nikiema’s work rendered him an employee rather than an independen t contractor. In addition to the evidence of things GHTC did to comply with City

o rdin ances, there is at least some evidence that GHTC provide d tra ining and study materials to Nikiema and penalized him for rejecting fares or remaining idle during his shift s. Nikiema relied almost exclusively on GHTC’s dispatch system at the time of the acci dent and , when he struck Diane’s vehicle, he was on his way t o pick up a METRO Lift fare for which he would be compensated directly by GHTC

. See McClure , 2009 WL 10670178 , at *15. Viewing t he evidence in the light most favorable to the Perezes, and
constru ing all reasonable inferences and resolving any doubts i n the ir favor, we19

conclude that they produced evidence that would enable reasonable and fair

minded factfinder s to con clude that GHTC exercised a right to control Nikiema ’s work such that he was an em ploy ee of GH TC at the time of the accident, and not an i ndepe ndent contractor

. Thus, the trial court erred in granting GHTC’s no

evidence motion for summary judgment on this element of the ir respondeat superior claim. 2. Course and scope of employment Under the doc trine of respondeat superior, the plaintiff must e stabl ish not only that the negligent party was an employee but also that the employee was acting within the scope of his employment

. See Wolff , 94 S.W.3d at 541

– 42

. To establish that a party was acting within the scope of his employment, a plaintiff
must s how o nly that the act was: (1) within the general authority given to the employee; (2) in fu rtherance of the employer’ s business; and (3) for the accomplishment of the object for which the e mployee was employed. Leadon v. Kimbrough Bros. Lumber Co. , 484 S. W.2d 567, 569 (Tex. 1972); Drooker v. Saeilo Motors , 756 S.W.2d 394, 397 (Tex. App.

— Houston [1st Dist.] 1988, writ denie d)

. It is uncontroverted that at the time of the accident, Nikiema wa s driving a taxicab owned by and permitted to GHTC . It is also unc ontro verted that he was on his way to pick up a passenger f or a METRO Lift account f are that he had rec eived20

and accepted through the GHTC dispatch system. Nikiema was follo wing the rou te provided by GHTC’s GPS device that it had installed in the taxicab , and , if he had completed the trip, GHTC would have be en responsible for compensating him for the fare

. Accordingly , the Perezes’ summary

- judgment evidence raises a genuine i ssue of mate rial fact as to whether Nikiema was operating the taxicab within the

co urse and scope of his alleged employment with GHTC at the time of the accident. We conclude that the P erezes produced summary

- judgment evidence raising a genuine issue of m aterial fact as to whether GHTC actually exercised control over Nikiema’s work at t he ti me of the accident , such that he was acting as an employee and not an independent contractor , and whether Nikiema was acting within the scope of that alleged employment at the time of the accident

. Accordingly, the trial court erred in granting GHTC’ s no - evidence motion for summary judgment on the Perezes’ repondeat superior claim. We sustain the Pereze s’ sole issue on appeal.21 Conclusion We reverse the judgment of the tri al court and remand the case to the trial court for further proceedings.

R ichard Hightower Justice Panel consists of Justices Keyes, Goodman , and Hightower

.