Opinion
NO. 02-17-00148-CV
05-17-2018
NATIONWIDE PROPERTY & CASUALTY INSURANCE COMPANY APPELLANT v. REVIVE MFG., LLC & PAUL TAFF APPELLEES
FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 348-275543-14 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
Appellant Nationwide Property & Casualty Insurance Company appeals the trial court's summary-judgment order in favor of Appellees Revive Mfg., LLC and Paul Taff in this subrogation action stemming from a fire that caused damage to a property owned by Nationwide's insured. In four issues, Nationwide argues that the trial court erred by granting Appellees' no-evidence motion for summary judgment and by denying Nationwide's motions for summary judgment and for new trial. We will affirm in part and reverse and remand in part.
II. BACKGROUND
Richard Fuller d/b/a Fuller Leasing owns several properties in Everman, including one that he leased to "Revive Manufacturing - Paul Taff" pursuant to a commercial lease agreement that began in April 2012. The property is improved with a single story, metal construction building and is insured through Nationwide.
The parties had previously executed a one-year lease agreement that began in February 2006.
Owned by Taff and his wife, Revive is in the business of reclaiming and remanufacturing wooden shipping pallets. One of Revive's employees was Robert Valdez. Jay Suggs, an acquaintance of Taff's but not an employee of Revive's, owned a nearby business and used Revive's equipment on occasion.
At some point during the remanufacturing process, Revive utilized a machine called a "notcher." The record does not reveal the precise manner in which the machine operated, but suffice it to say that sawdust collects in its exhaust chute when wooden boards are notched. Revive admitted that in the past, it had "experienced smoldering fires caused when nails in the wood became hot during the notching and settled among the sawdust resulting from the notching process." Taff therefore had a standing rule that the notcher had to be cleaned out after every use. He also preferred to use the machine only during the morning.
On May 7, 2013, Taff left work around noon, leaving Valdez in charge. According to Suggs, beginning sometime after 4:00 p.m., Valdez and Suggs used the notcher for about an hour and a half. After finishing, Suggs left, and Valdez used a forklift to take the notched runners over to Suggs's shop. Suggs last saw Valdez driving the forklift back to Revive, but he never saw Valdez clean out the notcher, nor did he do so himself.
Taff returned to work early the next morning to find Revive's leased building on fire and damaged. Fuller Leasing made a claim under its insurance policy, which Nationwide paid in the amount of $281,638.68. Nationwide then initiated this subrogation action against Appellees, alleging negligence for failing to clean the notcher and breach of contract for failing to carry insurance and seeking damages in the same amount that it paid Fuller Leasing. Appellees denied Nationwide's claims and filed a third-party petition against Suggs for negligence and statutory theft, averring that Suggs had entered onto Revive's property after hours and convinced Valdez to use the notcher but failed to clean it.
All sides ultimately moved for summary judgment. Nationwide filed two traditional motions on its negligence and contract claims—one on liability and one on damages. Appellees filed a no-evidence motion challenging each element of Nationwide's negligence and contract claims. And Suggs filed a no-evidence motion challenging Appellees' negligence and theft claims.
Nationwide relied on the same evidence in support of both its motion for summary judgment on liability and its response to Appellees' no-evidence motion. The evidence included Taff's deposition testimony, in which Taff confirmed that Valdez had admitted using the notcher with Suggs the night before the fire. When asked what he thought had caused the fire, Taff assumed that Valdez and Suggs had used the notcher and "that that started the fire." The evidence also included the affidavit and report of Phillip Grona, a forensic fire investigator who opined that the "cause of the fire was attributed to improper cleaning and disposal of notching machine debris."
Valdez apparently moved to North Carolina after the fire. The summary-judgment record contains no deposition testimony or affidavit by him.
To prove damages, both in its traditional motion on damages and in response to Appellees' no-evidence motion, Nationwide submitted the affidavit of Rich Gallion, who affirmed that Nationwide had sustained damages in the amount of $281,638.68.
In response to Nationwide's motion for summary judgment on negligence, Appellees acknowledged that Valdez was Revive's employee but argued that he was acting outside the scope of his employment when he and Suggs used the notcher the day before the fire. Appellees also lodged objections to Grona's affidavit and report.
The trial court denied Nationwide's motions, granted Appellees' motion and several of its objections to Grona's affidavit and report, and granted Suggs's motion. Nationwide timely filed a motion for reconsideration and for new trial, which was overruled by operation of law. Only Nationwide appeals.
III. SUMMARY JUDGMENT RULINGS
Nationwide's first three issues challenge the trial court's summary-judgment rulings. Its first issue, Nationwide argues that the trial court erred by granting Appellees' no-evidence motion on Nationwide's negligence claim. In its second issue, Nationwide argues that the trial court erred by granting summary judgment in favor of Appellees on Nationwide's breach-of-contract claim. And in its third issue, Nationwide argues that the trial court erred by denying its traditional motions for summary judgment on liability and damages on its negligence claim.
A. Standard of Review
We review a no-evidence motion for summary judgment under the same legal sufficiency standard as a directed verdict. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). The nonmovant has the burden to produce more than a scintilla of evidence to support each challenged element of its claims. Id. In a traditional motion for summary judgment, the movant has the burden to show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See id.; MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). In reviewing either type of summary-judgment motion, we view the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Merriman, 407 S.W.3d at 248; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
B. Negligence
The elements of Nationwide's negligence claim are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).
1. Duty
Appellees do not appear to dispute that Nationwide met its summary-judgment burden to show that a duty existed, but insofar as they do, Nationwide met its burden. Notwithstanding that the 2012 lease obligated the lessee to "maintain the premises in good and safe condition" and to "surrender the same at termination hereof, in as good condition as received," as Nationwide observes, the common law "imposes upon all persons the duty to exercise ordinary care to avoid injury or damage to the property of others." Elliff v. Texon Drilling Co., 146 Tex. 575, 584, 210 S.W.2d 558, 563 (1948).
2. Breach
Turning to the breach element, Nationwide sought to impose liability upon Appellees for Valdez's negligence in failing to clean the notcher after he and Suggs used it on May 7, 2013. Nationwide thus invoked the common-law doctrine of respondeat superior.
The supreme court recently clarified the general framework for addressing the common-law doctrine of respondeat superior, or vicarious liability. See Painter v. Amerimex Drilling I, Ltd., No. 16-0120, 2017 WL 8794796, at *3 (Tex. Dec. 6, 2017). In the employer-employee context, to prove an employer's vicarious liability for a worker's negligence, the plaintiff must show that at the time of the negligent conduct, the worker (1) was an employee and (2) was acting in the course and scope of his employment. Id. Appellees do not dispute that Valdez was Revive's employee. Under the course-and-scope requirement, vicarious liability arises only if the complained-of act was (1) within the scope of the employee's general authority, (2) in furtherance of the employer's business, and (3) for the accomplishment of the object for which the employee was hired. Id. at *4; Green v. Ransor, Inc., 175 S.W.3d 513, 516 (Tex. App.—Fort Worth 2005, no pet.). Further, the act "'must be of the same general nature as the conduct authorized or incidental to the conduct authorized. Accordingly, if an employee deviates from the performance of his duties for his own purposes, the employer is not responsible for what occurs during that deviation.'" Painter, 2017 WL 8794796, at *4 (quoting Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007)); see Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 720 (Tex. App.—Austin 2004, no pet.) (observing that course and scope of employment is generally a fact issue).
a. Admissions and "Judicial Admissions"
In both its response to Appellees' no-evidence motion and its motion for summary judgment on liability, Nationwide relied in part on five of Appellees' responses to requests for admissions and several "judicial admissions" contained in Appellees' third-party petition to establish Appellees' negligence for Valdez's failure to clean the notcher after using it with Suggs on May 7, 2013. The requests for admissions were as follows:
Admission No. 1:
This defendant was a tenant of plaintiff's insured, Rick Fuller dba Fuller Leasing under a lease for his properties located at 304, 306 & 308 [Thomas Place,] Everman, Texas 76140.
Response:
Admit as to Defendant Revive Mfg. Deny as to Defendant Taff.
Admission No. 2:
This defendant operated a wood product manufacturing business out of that location.
Response:
Admit as to Defendant Revive Mfg. Deny as to Defendant Taff.
Admission No. 3:
On May 8, 2013 a fire at the leasehold caused significant fire, smoke and water damage to the property.
Response:
Admit.
Admission No. 6:The "judicial admissions" contained in Appellees' third-party petition included the following paragraphs:
In the past this defendant had experienced smoldering fires caused when nails in the wood became hot during the notching and settled among the sawdust resulting from the notching process.
Response:
Admit.
Admission No. 15:
This defendant failed to have any insurance and as a result could not pay for the damages to plaintiff's insured property its/his negligence caused.
Response:
Defendants admit that they did not have insurance to cover the incident the subject of this suit.
4. Jay Suggs is an acquaintance of Paul Taff, who, on numerous occasions had expressed to Mr. Taff that he wished to get into the business of reclaiming and re-manufacturing shipping pallets—the same business in which Revive Mfg. is engaged. Mr. Suggs requested that Mr. Taff train him in the methods and processes necessary for such reclamation and re-manufacturing. Not wanting to train a competitor, Mr. Taff declined to train Mr. Suggs.
5. On or about May 8, 2013 Mr. Suggs entered into the premises the subject of this suit after hours and convinced an employee of Revive Mfg., to teach him the very methods and processes Mr. Taff had declined to show him. Apparently after spending a number of hours in this endeavor, Mr. Suggs and the employee decided to call it an evening and shut down the equipment.
6. Upon information and belief, Mr. Suggs failed to properly clean the equipment and the fire the subject of this suit followed.
7. The fire caused in excess of $80,000 in damage to Revive Mfg., equipment and resulted in Revive being sued in a case for a fire in which it played no part.
8. The foregoing facts are realleged and incorporated herein as if set out in full.
9. By failing to properly clean the cutting equipment, Suggs caused the fire the subject of this suit.
We disagree with Nationwide that the admissions constitute any evidence of negligence by Valdez or Appellees. Admitting that Revive had a lease, that a fire caused damage to the property, and that Revive had experienced smoldering fires in the past is no evidence of negligence on May 7, 2013.
Regarding the "judicial admissions," Appellees claimed that Suggs's negligence—not any negligence of their own—caused the fire. And insofar as paragraph 9 can be construed as a judicial admission by Appellees that the fire was caused by failing to properly clean the notcher, a matter we address below, that singular causal fact has no bearing on the negligence question of whether Appellees are vicariously liable for Valdez's failure to clean the notcher after he and Suggs used it on May 7, 2013.
b. Deposition Testimony
Nationwide also relied upon Taff's deposition testimony to establish Appellees' vicarious liability for Valdez's alleged negligence on May 7, 2013, including the following evidence:
• Valdez was the "lead guy" for Taff back in May 2013;
• Valdez was "in charge" when Taff left for the day on May 7, 2013;
• Taff assumed the fire was caused by the notcher;And Nationwide relied upon the following deposition testimony from Suggs:
• Taff and Valdez were the only Revive employees who were authorized to use the notcher;
• Valdez was aware of the risks associated with using the notcher, which included fire;
• there had been smoldering fires in the past;
• Taff had agreed to let Suggs use the notcher in exchange for 10 cents paid per board; and
• Taff did not tell Valdez that Suggs was responsible for cleaning the notcher.
• Taff had previously allowed Suggs to use the notcher several times;
• Suggs did not see Valdez clean the notcher after they used it;
• Suggs was not told that it was his responsibility to clean the notcher;
• on May 7, 2013, Suggs told Taff that he needed to use the notcher, and Taff responded, "That's fine";
• when Suggs first saw Taff on May 8, 2013, Taff said, "[Valdez] must not have cleaned that machine."
Some of this deposition testimony is no evidence that Valdez was acting in the course and scope of his employment, including that Valdez was the "lead guy" when Taff was away, that Valdez was authorized to use the notcher, that Taff had assumed the fire was caused by the notcher, that Valdez understood the risks associated with using the notcher, and that there had been smoldering fires in the past.
However, we cannot say the same for the evidence demonstrating that Suggs's use of the notcher on May 7, 2013, was no different than the previous times that he had used the machine during his job. Specifically, Taff had permitted Suggs to use the machine several times in the past; Taff acknowledged that he and Suggs had an arrangement whereby Suggs would pay Taff 10 cents per board in exchange for using the notcher; when Suggs used the notcher in the past, it was always with Valdez because "[he] was the only one who could operate the machine"; and when Suggs told Taff on May 7, 2013, that he needed to use the notcher, Taff said, "That's fine." When considering course and scope of employment, "'[i]t is the servant's state of mind that is material."' Arbelaez, 149 S.W.3d at 720 n.4 (quoting Restatement (Second) of Agency § 235 cmt. a (1958)). From Valdez's perspective, the inference to be drawn from all of this evidence is that his use of the notcher with Suggs on May 7, 2013, was no different than his use of the notcher with Suggs on any of the other previous within-the-scope-of-employment occasions. See Painter, 2017 WL 8794796, at *4 (requiring act to be of the same general nature as the previously authorized conduct).
Further, we cannot ignore that the general rule for respondeat superior requires that the employee be acting in the course and scope of employment when the negligence occurs. Univ. of Tex. M.D. v. Baker, 401 S.W.3d 246, 261 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (citing Goodyear Tire & Rubber Co., 236 S.W.3d at 757)). Nationwide did not allege that Appellees were vicariously liable for Valdez's negligence in using the notcher with Suggs but rather by failing to clean the notcher after using it. Taff had a standing rule that the notcher had to be cleaned after every use, and Suggs testified that he did not clean the notcher nor see Valdez do so. Thus, even if Valdez's use of the notcher with Suggs could somehow be construed as a deviation from the course and scope of his employment, there is summary-judgment evidence that Valdez nevertheless failed to clean the notcher after it was used, a responsibility that was certainly within the scope of his general authority and in furtherance of Revive's business. See Painter, 2017 WL 8794796, at *4.
Nationwide averred that Valdez had "neglected to clean the notcher of all sawdust and the hot nail parts smoldered into a fire which was discovered the following morning."
Viewing the evidence in the light most favorable to the nonmovant, Nationwide's summary-judgment evidence raised a genuine issue of material fact that Appellees are vicariously liable for Valdez's negligence in failing to clean the notcher after he and Suggs used it on May 7, 2013. The trial court could not have granted Appellees' no-evidence motion on this ground.
3. Causation and Damages
Nationwide expends considerable effort arguing that the trial court abused its discretion by sustaining Appellees' objections to Grona's affidavit and report, wherein Grona opined that the "cause of the fire was attributed to improper cleaning and disposal of notching machine debris." But Nationwide also argues that in Appellees' third-party petition, they judicially admitted that the failure to clean the notcher caused the fire, the very same opinion that Grona expressed in his report. We agree with Nationwide's latter contention and need not address the propriety of the trial court's rulings on Appellees' objections. See Tex. R. App. P. 47.1.
The First Court of Appeals has thoroughly addressed the law applicable to the exact circumstances here:
Generally, a party's pleadings do not constitute summary judgment evidence, even if sworn or verified. A party may, however, plead itself out of court when it pleads facts that affirmatively negate its cause of action. Under those circumstances, the pleadings of a non-movant may constitute summary judgment evidence "when they contain statements rising to the level of judicially admitting a fact or conclusion which is directly adverse to that party's theory of defense or recovery."H2O Solutions, Ltd. v. PM Realty Grp., LP, 438 S.W.3d 606, 616-17 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (citations omitted).
Judicial admissions result "when a party makes a statement of fact which conclusively disproves a right of recovery or defense he currently asserts." The elements for establishing that a statement is a judicial admission are: (1) the statement must be made in the course of a judicial proceeding; (2) it must be made contrary to an essential fact or defense asserted by the party; (3) it must be deliberate, clear, and unequivocal; (4) it cannot be destructive of the opposing party's theory of recovery or defense; and (5) enforcing the statement as a judicial admission would be consistent with public policy. An assertion of fact pleaded in the alternative is not a judicial admission.
Judicial admissions that are clear and unequivocal have a conclusive effect and bar the admitting party from later disputing the admitted fact. . . .
In paragraph 9 of its third-party petition, Appellees stated that "[b]y failing to properly clean the cutting equipment, Suggs caused the fire the subject of this suit." Appellees attributed the negligence to Suggs, but this does not otherwise negate their clear and unequivocal assertion that the fire was caused by failing to clean the notcher—the very same opinion that Gronan expressed in his report. Appellees may not rely on a fact in its action against Suggs but dispute that very same fact in its defense of Nationwide's lawsuit. The statement quite clearly meets each of the requirements set out in H2O Solutions and thus constituted a judicial admission. See id. at 617; Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983) ("Assertions of fact, not pled in the alternative, in the live pleadings of a party are regarded as formal judicial admissions.").
Regarding damages, Nationwide submitted the affidavit of Rich Gallion, who affirmed that Nationwide paid $281,638.68 on Fuller Leasing's claim and sustained damages in the same amount. This, considered with the extent of the other evidence, was sufficient to survive summary judgment.
4. Individual Liability
Nationwide sought to impose personal liability upon Taff for Revive's alleged negligence. Nationwide construed Appellees' no-evidence motion to challenge Taff's individual liability and responded with summary-judgment evidence, but on appeal, aside from a small section contained in its statement of facts, Nationwide's argument includes no briefing on Taff's individual liability, nor do Appellees remotely approach the matter in their briefing. Further, Nationwide sought to hold Taff individually liable for Revive's alleged negligence under tax code section 171.255 on the basis that Revive's corporate charter, while later reinstated, was forfeited when the fire occurred. See Tex. Tax Code Ann. § 171.255(a) (West 2015). Only a few courts have addressed whether section 171.255 applies to "contractual strangers with only tort claims being asserted," just like we have here.Hovel v. Batzri, 490 S.W.3d 132, 149 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). But Nationwide provided no argument or analysis addressing this seemingly complicated, unresolved statutory-construction issue. Nationwide has not shown that the trial court erred by granting summary judgment in favor of Taff individually on Nationwide's negligence claim. We overrule this part of its first issue.
Section 171.255(a) provides in relevant part,
If the corporate privileges of a corporation are forfeited for the failure to file a report or pay a tax or penalty, each director or officer of the corporation is liable for each debt of the corporation that is created or incurred in this state after the date on which the report, tax, or penalty is due and before the corporate privileges are revived. . . .Tex. Tax Code Ann. § 171.255(a).
We affirm the summary judgment on Nationwide's contract claim below, leaving only the negligence claim pending.
5. Holding
Nationwide met its summary-judgment burden to produce evidence that Valdez's failure to clean the notcher after its use on May 7, 2013, proximately caused Nationwide's damages. The trial court therefore erred by granting summary judgment for Revive on Nationwide's negligence claim, but it did not err by granting summary judgment in favor of Taff individually on the same claim. We therefore sustain in part and overrule in part Nationwide's first issue.
C. Breach of Contract
Nationwide pleaded that Appellees breached the 2012 lease agreement by failing to carry liability and property-damage insurance, causing Nationwide to pay Fuller Leasing for the damages that it sustained to its building resulting from the fire. Taff admitted that at the time of the fire, he did not have any insurance. Appellees counter that the lease obligated the lessee to maintain "public liability insurance," not "liability insurance," and because there is no evidence that a member of the public was harmed—"only Nationwide, by and through a claim of subrogation"—"any breach of the public liability insurance provision has not caused damage to Nationwide or its insured." Appellees also direct us to a subrogation-waiver clause, contending that Nationwide simply ignores it.
The summary-judgment evidence contains two leases—the entire February 2006 lease, which expired a year later, and the first page of the April 2012 lease, which was in effect at the time of the fire and expired in April 2015. The insurance provision in question is located on the second page of the February 2006 lease; the portion of the April 2012 lease in evidence does not contain the provision. Nevertheless, Fuller confirmed that aside from the dates, the two leases were "worded mostly the same," and Appellees do not complain that the full April 2012 lease is not in evidence.
The lease provision provides in relevant part that "Lessee, at his expense, shall maintain plate glass and public liability insurance including bodily injury and property damage insuring Lessee and Lessor with minimum coverage as follows: Will list Rick Fuller as Additional Insured." [Emphasis added.]
Nationwide's briefing on this topic consists of the following three sentences:
Further, Taff was aware that the lease required him to have insurance covering both himself and the landlord, Richard Fuller. However by 2008 he quit having insurance because he could not afford it. From that time on through the date of the fire Taff had no form of insurance, personal or otherwise. [Record citations omitted.]Nationwide thus (1) glossed over the lease's plain language, improperly reading "public liability insurance" to merely say "insurance"; (2) set out zero authorities to support its conclusory argument; (3) did not address whether the language is potentially ambiguous—and what effect that might have on the summary judgment; and (4) did not offer any reply to either of Appellees' arguments, both of which clearly called into question Nationwide's argument, implicating unique issues that demand their own briefing and analysis.
We are typically hesitant to conclude that a party waived an issue for inadequate briefing, but when the briefing completely fails rule 38.1(i)'s charge, as it plainly does here, our decision is straightforward. See Tex. R. App. P. 38.1(i). Nationwide waived this part of its second issue. See id.; Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (discussing "long-standing rule" that issue may be waived due to inadequate briefing).
Nationwide also argues that Appellees breached the lease agreement by failing to comply with the provisions obligating them to maintain the premises in a good and safe condition and, at the lease's termination, to surrender the premises in as good a condition as when it was received. Nationwide raises this breach theory for the first time on appeal; it neither pleaded the theory nor relied on it in response to Appellees' no-evidence motion. Because the trial court never considered this new reason to deny Appellee's motion, Nationwide also waived the remainder of its second issue. See Tex. R. App. P. 33.1; see generally Lopez v. Ensign U.S. S. Drilling, LLC, 524 S.W.3d 836, 847 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (declining to address premises-liability theory raised for first time on appeal).
The trial court did not err by granting Appellees' no-evidence motion for summary judgment on Nationwide's breach-of-contract claim. We overrule Nationwide's second issue. D. Nationwide's Motions for Summary Judgment on Liability and Damages—Negligence
In its response to Nationwide's motion on liability, Appellees argued that "[w]hile it is undisputed that [Valdez] was the employee of Defendants, it is equally undisputed that he was not acting within the scope of his employment when he was tricked by Jay Suggs to allow him to use the notching machine that Plaintiff has alleged caused the fire." The only evidence that Appellees submitted was Taff's affidavit. He declared in part,
4. On occasion Mr. Suggs rented equipment he did not have from Revive Mfg., LLC during normal business hours and onsite at Revive Mfg., LLC. Not wanting to allow a competitor to use Revive Mfg., LLC equipment to compete against Revive Mfg., LLC, I
told him he could not use the equipment. I would never have allowed him to use the equipment after hours, since I would have wanted to be able to monitor how it was used and to make sure that the sawdust chutes were cleaned. Additionally, it was my belief that working on such machines only in the mornings would give any embers which may have been formed sufficient time to be discovered and extinguished to prevent fires.Considering the authorities set out above relevant to course and scope of employment, we conclude that Taff's affidavit—in particular, his decision to not allow Suggs to use the notcher and his preference for using the notcher only during the morning—was sufficient to raise a genuine issue of material fact that Valdez was not acting in the course and scope of his employment when he and Suggs used the notcher on May 7, 2013, and, therefore, that Revive is not vicariously liable for Valdez's alleged negligence in failing to clean the notcher after using it. See Painter, 2017 WL 8794796, at *4. Thus, the trial court did not err by denying Nationwide's motion for summary judgment on liability as to negligence. We overrule this part of Nationwide's third issue.
5. On or about May 8, 2013 Mr. Suggs entered the premises of Revive Mfg., LLC after hours and tricked or convinced an employee of Revive Mfg., Robert Valdez, to help him perform operations on equipment owned by Revive Mfg., LLC. Mr. Valdez was not authorized to allow Mr. Suggs to use Revive Mfg., LLC equipment nor was Mr. Valdez to use the equipment on behalf of Mr. Suggs. Mr. Valdez was not paid by me or by Revive Mfg., LLC for the time spent with Mr. Suggs. None of the work done by Mr. Suggs was for the benefit or at the request of Revive Mfg., LLC.
Regarding Nationwide's motion on damages, any damages that Nationwide may ultimately recover must be proximately caused by Revive's negligence. See Doe, 907 S.W.2d at 477. Because fact issues remain on those matters, any matter-of-law determination on damages at this point would be premature. Cf. Huddleston v. Pace, 790 S.W.2d 47, 52 (Tex. App.—San Antonio 1990, writ denied) ("A prerequisite to recovery of damages is the establishment of liability. In the absence of a finding of liability, the question of damages becomes immaterial."); see also Kotlyar v. Metro. Cas. Ins. Co., 192 So. 3d 562, 566 (Fla. 4th DCA 2016) (observing that subrogee stands in shoes of subrogor and that "if the same suit had been filed by the insured, rather than the insurer, there is no doubt that the claims for damages would be unliquidated"). We overrule the remainder of Nationwide's third issue.
IV. MOTION FOR NEW TRIAL
In its fourth issue, Nationwide argues that instead of permitting its motions for reconsideration and new trial to be overruled by operation of law, the trial court should have given it an opportunity to cure the alleged defects contained in Grona's causation affidavit and report. Not only are we reversing the trial court's summary judgment on negligence as to Revive, but we resolved Nationwide's causation issue without reviewing the trial court's rulings on Appellees' objections. Nationwide's fourth issue is therefore moot, and we overrule it.
V. CONCLUSION
Having sustained part of Nationwide's first issue, we reverse the trial court's summary judgment in favor of Revive on Nationwide's negligence claim and remand that claim to the trial court for further proceedings. Having overruled part of Nationwide's first issue, we affirm the trial court's summary judgment in favor of Taff individually on Nationwide's negligence claim.
Having overruled Nationwide's second issue, we affirm the trial court's summary judgment in favor of Appellees on Nationwide's breach-of-contract claim.
Having overruled Nationwide's third issue, we affirm the trial court's order denying Nationwide's motions for summary judgment on both liability and damages as to its negligence claim. We affirm the remainder of the trial court's judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: SUDDERTH, C.J.; MEIER and GABRIEL, JJ. DELIVERED: May 17, 2018