NO. 07-05-0280-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL C APRIL 17, 2006

______________________________ ROSA MIRELES, INDIVIDUALLY AND ON B EHALF OFTHE EST ATE OF R

AUL MIRE LES, JR., DECEASED MINOR AND RAMON LANDE ROS, APPELLANTS V. JEFF ASHLEY, INDIVIDUALLY AND ASHLEY CATTLE COMPANY, INC., APPELLEE S

_________________________________ FROM THE 222 ND DISTRICT COURT OF DEAF SMITH COUNTY ; NO. CI-04E -091; HON ORABLE R OLAND SA UL, JUDGE

_______________________________ Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
OPINION Appellants, Rosa Mireles and Ramon Landeros (collectively, “Mireles”), appeal the trial court’s grantof a no-evidence summary judgment in favor of appellees, Jeff Ash ley and AshleyCattle Company, Inc. (collectively, “Ashley”), on Mireles’s claim that A shley was negligent in hiring Jimmy West. We reverse and remand.1 Mireles’s respon s e does not purport to address the issue of West, Ashley, and

SouthwestFeedyard’s liability as joint venturers and the e vidence presented does n o t address this issue. 2 Background
On March 17, 2004, West, hauling cattle for Ashley, ran a red light an d collid ed with
a vehicle containing Landeros and Raul Mireles, Jr. As a result of the collision, Rau l Mireles was killed and Landeros sustained serious injuries.
Mireles filed su it again st West for neglige nce, Ashl ey for neg ligent h iring, an d West, Ashleyand Sou thwest Fe edyard, L .P., for li ability as joint e nterpri sers. Aft er discovery, Ashleyfiled a motion for summary judgment alleging that Mireles had no evidence that: (1) Ashley k new or sh ould hav e known of any rea son not to hire West, (2) any inquiry would have resulted in the conclusion that Westwas a negligent contractor, and (3) Ashley and West had formed a joint enterprise. Mireles filed a respo ns e to Ashl ey’s summ ary ju dg ment motion, which included excerpts of West’s deposition, an affidavit of David Dwinell, the resul ts of an i nvestiga tion into West’s d riving re cord, and statement s made to the police immediately following the colli sion. 1 The trial court granted Ashley’s motion for summary

judgmentand enter ed judgment that Mireles take nothing by their suit against Ashley. Following entry of this summary judgment, the trial court sev ered Mire les’s cl aims against Ashley, and Mireles appealed. Byone issue, Mireles contends that the evidence provide d in resp onse toAshley’s summary

judgment motion was sufficient to overcome a no-evidence motion because such evide nce demonstra ted that ( 1) Ashle y had a d uty to, bu t did not , inquire into We st’ s3

background, and (2) had such an inquiry been made, Ashley would have discovered that West was not qualified for the job.
Standard of Review
After adequate time for discovery, a party may move for a summary judgment on the basis that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. T EX
. R. C IV
. P. 166a(i). The motion mu st state th e elemen ts for whi ch there i s no evid ence. Id

. On appeal from the granting of a no- evi dence summary judgment, we review any evidence produced by the non-movant in the light most favorable to t he non-movan t, disregarding all con trary evid ence and infere nces. See Merrell Dow Pharm., Inc. v. Havner , 953 S.W.2d 70 6, 711 (T ex. 1997 ); Roth v. FFP Operating Partners, L.P. , 994 S.W.2d 190, 195 (Tex.App.–Amaril lo 1999, pet. denied). A no-evidence summary judgment is improperlygranted if the non-movant presents more than a scintilla of probative evidence to ra ise a genuine issue of material fact as to the element on which the motion is based. Id

. More than a scintilla of evidence ex ists when such evidence rises to a level that would enable reasonable and fair-minded persons to differ in their conclus ions. Id . Less than a scintilla of evide nce exi sts to sup port a fact when the evidence is so weak as to do no more than cre at e a mere s urmise or suspici on of thefact. See Havner , 953 S.W.2d at 711; Kindred v. Con/Chem, Inc. , 650 S .W. 2d 61, 63(Tex. 19 83). If the trial court does not specify the basi s on whi ch it gra nted summa ry ju dg ment, the judgment will be affirmed if4

anyof the grounds in the motion are meritorious. State Far m Fire & Cas. Co. v. S.S. , 858 S.W.2d 37 4, 380-81 (Tex. 19 93). Negligent Hiring
Texas recognizes a cause of action for negligently

hiring a n indepe ndent con tractor. Wasson v. Stracener , 786 S.W.2d 414, 422 (Tex.App.–Texarkana 199 0, writ denied). One hiring an independent contr actor may be held responsi ble for th e contrac tor’s neg ligent a cts if (1) the employer knew o r should have known that the contractor was incompetent and (2 ) a third per son was i njured be cause of the contra ctor’s in competence. Id . A person
em ploying a n independent contractor is required to use ordinary care i n hiring the contracto r. See King v. Assocs. Commercial Co rp. , 744 S.W.2d 209, 213 (Tex.App.–Texarkana 1987, wr it d e nied); Jones v. Sw. Newspapers Corp. , 694 S.W.2d 455, 458 (Tex.App.–Amarillo 1985, no writ). If the performance of the contract requires driving a vehicl e, the pe rson empl oying th e indepe ndent con tr actor is requi red to investig ate the independent contractor’s competency to drive. See Wasson , 786 S.W.2d at 422; Webb v. Justice Life Ins. Co. , 563 S.W.2d 347, 349 (Tex.App.–Dallas 19 78 , no writ).
To prevail on her claim for negligent hiring, Mirele s will have to prove that West’s incompetence was the reason that Landeros was killed and Raul Mireles was injured, the second element of a clai m of negl igent hi ring. However , at the outset, we note that Ashley’s motion for summary j udgment does not expressly challenge this e lement of Mireles’s cause of action. A motion for no evide nce summary judgment must state the2 As Mireles presented m ore th an a scintilla of evidence that Ashley conducted no

inquiry into West’s driving history, we need not and do not address what amount of inqui ry is neces sary to co nstitute the exer cise of d ue care. See King , 744 S.W.2d at 213.

5 elementsas to wh ich thereis no ev idence. T EX
. R. C IV
. P. 166a(i). A no evidence motion for summary judgment that is not specific in challengi ng a p articular element is legally insufficientas a matte r of l aw to sup port a sum mary judgm ent on th at basis. See Callaghan Ranch, Ltd. v. Killam , 53 S.W.3 d 1, 3 (Te x.App.–S an Anton io 2000, p et

. denied). Therefore, the trial court could not have properly based its granto f summary judgment in favor of Ashley on any deficiency i n Mireles’s evidence relating to this element of her cl aim. Mireles contends that she presented more than a scintill a of evidence to raise a genuine fact issue reg arding whether Ashley knew or should have kn own that West was incompetent. Mirelesoffe red excerpts of West’s

deposit ion, in w hich Wes t testifie d that, prior to being hired by Ashley, Ashley did not request a copy of West’s commercial driver’s license, Ashleydid not ask him about his driving history, and he was unaware of whether Ashleyperformed any back ground ch eck on hi m. As the job that was subject to Ashley and West’s contract necessarily required West t o drive, Ashley h ad an aff irmative duty to inquireinto Wes t’s compe tency to d rive. See Wasson , 786 S.W.2 d at 422; Webb , 563 S.W.2d at 349. We conclud e that, when v iewed in the light most favorable to Mireles, West’s deposition testimony co nstitut es more than a scintilla of evidence that Ashl ey did not inquire into West’s competency to drive. 23 Svidlow also identifies a ninth citation t hat was is sued to West as a result of the accidentupon which this su it is bas ed. However, we will not consider this citation in assess ing whether West was an incompetent driver because the citation was not issue d until after West had been hired by Ashley and, therefore, woul d be no evidence of whether Ashley “ knew or s hould ha ve known ” that Wes t was an incompetent drive r. 6 Ashleyconte n ds that i t had to h ave actua l knowle dge of We st’s inco mpetency to drive before it would be held to a duty to inquire into his driving history. We disagree. Initially, we note that Ashley’s interpretation of the “knew or should have known” standard would render the “should have known” portion meaningless because a pe rson hiring an independent

contractor would only be liable for negligent hiring if they actually knew of the contractor’s incompe tence. Fu rther, Wasson and Webb place a duty on all persons hiring an indep endent co ntractor to perform work that requires the contractor to drive to inqui re into the c ont ractor’s competency to drive

. See Wasson , 786 S.W. 2d at 422 ; Webb , 563 S.W.2d at 349. As a result, Ashley “should have known” of any incidents in West’s driving history tha t would have bee n discov ered had Ashley inquired into Wes t’s compe tency to drive. However, Ashley could not know that West was an incompetent driver unless West was, in fact, an incompe tent driv er. See Wasson , 786 S.W.2d at 422. Therefore, Mireles
was further required t o present mo re than a scintilla of evidence that West was a n incompetentdriver. Mireles p rovided, as summary judgment evidence , an affi davit a nd report from Fred Svidlow identifying the results of his s earch of p ublic re cords rel ating to Wes t’s driving history and copies of four Department of Publi c Safety reports of Wes t’ s citations for violations of traffic laws an d commerci al transp ort regul ations. In his af fidavit, Svidlow identifi es eight

c itations issued to West over a five and a half year period. 3 Of4 As we have found no negl igen t hiring cases that specify when an independ ent

contra ctor’s negative driving history constitutes some evidence of i ncompetence, we ar e guided by the Broesche court’s discussion of incompetence and recklessness in negligent entrustment cases. 7 these eight citations, five were for speed ing and another was for ope rating an unsafe vehicle on the roadways. While the jurisprudence on n egl igent hiring speaks in terms of competence, a person may be incompetent by reason of his reckless ness. See Broesche
v. Bullock , 427 S.W.2d 89, 93 (Tex.Civ.App.–Houston [ 14 th Dist.] 19 68, writ r ef’d n.r.e .). 4 Proof of one previous traffic violation is grossly inadeq uate to establish a driver’s incompetencyor reckle ssness. Id . Howeve r, p roof of s even citations for moving traffic violations in the span of three years is some evidencethat a driver is reckless and incompetent. Id . We conclude that Mireles’s proof that West had received eight

citations
over five and half years is more than a scintill a of evidence that West was an incompetent and reckl ess drive r.
Conclusion Having found that Mireles presented mor e than a scintill a of evid ence as to each elementof her claim for negligent hiring challenged by Ashley, we reverse the trial court’s summary judgment and remand this case for further proceedings.

Mackey K. Hancock Justice