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Affirmed and Opinion filed January 23,=20 2007.

 

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-06-00100-CV

____________

 

SAM=20 ZARZANA, = Appellant

 

V.

 

DONALD=20 ASHLEY AND CHARLES ASHLEY D/B/A MEINEKE CAR CARE=20 #10,=20 Appellees

 

 

On Appeal from the = 190th District Court

Harris County, = Texas

Trial Court Cause = No. 2005-14913

 

 

O P I N I=20 O N

In four=20 issues, appellant Sam Zarzana appeals from the trial = court=3Ds grant of=20 summary judgment in favor of appellees Donald Ashley and Charles = Ashley=20 d/b/a Meineke Car Care #10 on his claims of negligence, fraud, = violation=20 of the Deceptive Trade Practices‑Consumer Protection Act, = and civil=20 conspiracy.  We affirm. 

I. =20 Factual and Procedural Background

On March=20 5, 2003, Sam Zarzana went to Meineke Car Care #10  = (AMeineke@) in=20 Houston, Texas, co-owned and operated by Donald Ashley, to replace = the=20 muffler and exhaust pipe on his truck.  Ashley typically = managed the=20 store, but he was not present on this day.  His longtime = employee,=20 Ken Samuel, was present and acted as manager in Ashley=3Ds=20 absence.  According to Zarzana, after an employee who = referred to=20 himself as AShorty@ = finished=20 replacing the parts on Zarzana=3Ds truck,=20 the employee informed Zarzana that his state safety inspection = sticker had=20 expired.  Shorty offered to perform an inspection and provide = a=20 current sticker if the truck passed, all for about forty dollars, = and=20 Zarzana agreed.  Meineke did not display any signs on its = premises=20 indicating it served as an official state safety inspection = facility and=20 had no equipment capable of producing official or other inspection = stickers.  Zarzana admits he never saw a state inspection = sign at=20 Meineke but maintains he did know that only state-designated = facilities=20 may perform safety inspections and issue inspection = stickers.

Shorty=20 then told Zarzana to continue waiting in the office while he = inspected the=20 truck, and Zarzana complied.  After completing the alleged=20 inspection, Shorty told him the truck passed and accordingly = applied a=20 purported state safety inspection sticker to the windshield.  = Although he admits he did not see all of the repair work or = witness Shorty=20 perform the inspection, Zarzana maintains that he saw Shorty place = the=20 sticker onto the windshield.  Zarzana then paid Samuel the = sum due in=20 cash, which Zarzana claims included an amount for the inspection, = and left=20 the store.  Zarzana=3Ds sales=20 receipt shows he paid for three exhaust system parts but does not = reveal=20 any charges for a state safety inspection or sticker.  He = does not=20 know whether Shorty was present in the office during payment. =

According=20 to Zarzana, some months after his trip to Meineke, a Houston = Police=20 officer arrested him for possessing a counterfeit safety = inspection=20 sticker.  He claims he was incarcerated for approximately = eighteen=20 hours and charged for the offense, which was dismissed several = months=20 later.   

Zarzana=20 filed suit against Meineke, seeking recovery for Aprofound=20 mental anguish@ = as well=20 as various expenses and lost wages arising from his incarceration = and=20 criminal prosecution.  In his original petition, Zarzana = first=20 alleged that Meineke, through its agent, Shorty, knowingly and=20 intentionally committed an unconscionable action under the = Deceptive Trade=20 Practices‑Consumer Protection Act (the ADTPA@). =20 He further contended Meineke committed negligence or gross = negligence=20 Ain=20 permitting a situation to exist in their place of business in = which a scam=20 such as is involved herein is possible@ = and that=20 such negligence proximately caused his damages.  Zarzana also = alleged=20 that Meineke was vicariously liable for Shorty=3Ds fraud,=20 as he was acting within the course and scope of his employment and = had=20 either actual or apparent authority to inspect Zarzana=3Ds truck=20 and issue a safety inspection sticker.

Meineke=20 moved for summary judgment, claiming Zarzana produced no evidence = that an=20 employee named Shorty worked at the store or that Shorty, or any = other=20 Meineke employee, had performed an inspection or sold Zarzana an=20 inspection sticker.  Meineke attached affidavits of Ashley = and Samuel=20 stating that neither knew or had ever employed someone named = AShorty@ = and=20 noting that Zarzana=3Ds service=20 receipt listed no charges for an inspection.  Therefore, = Meineke=20 contended, it was generally entitled to a no-evidence summary=20 judgment.  Meineke also sought a traditional summary = judgment, first=20 claiming that Zarzana provided no evidence of negligent = supervision=20 because it was unforeseeable that a Meineke employee could perform = a state=20 safety inspection and issue a counterfeit inspection sticker, = given that=20 the store does not operate as a state inspection facility, no = signs=20 indicated that it did, and the store had no equipment capable of = producing=20 an inspection sticker.  For similar reasons, Meineke further = argued=20 that, even had an alleged employee sold a counterfeit sticker, = Zarzana=20 produced no evidence that such action fell within the course and = scope of=20 employment because, according to Ashley=3Ds and=20 Samuel=3Ds=20 affidavits, Meineke employees had authority only to install tail = pipes,=20 brakes, and catalytic converters and perform light mechanical = work. =20 Therefore, Meineke reasoned, Zarzana could not impute = Shorty=3Ds alleged=20 conduct to Meineke under the doctrine of respondeat = superior. =20 Meineke finally contended it was also not vicariously liable under = respondeat superior for Shorty=3Ds alleged=20 actions because they constitute intentional, serious criminal = activities=20 unforeseeable to Meineke, again given its employees=3D = duties.  Meineke did not expressly address = Zarzana=3Ds DTPA=20 claim in its motion. 

Thereafter,=20 Zarzana filed a response to the motion for summary judgment along = with an=20 affidavit swearing:  (1) that a worker named AShorty@ = offered=20 to inspect his truck, (2) he waited in the Meineke office while = the=20 inspection occurred, (3) he watched AShorty@ = place the=20 sticker on his windshield after purportedly passing inspection, = and (4) he=20 paid for the amount requested which included the amount for the=20 inspection.  Zarzana further stated in his affidavit that=20 A[f]rom all=20 appearances, Shorty was an employee engaged in the furtherance of = the=20 shop=3Ds=20 business@ = and he=20 Arepresented=20 to [Zarzana] that he was qualified and authorized to [conduct the=20 inspection].@  In=20 his written response, Zarzana maintained that summary judgment for = negligent supervision was improper because Shorty=3Ds alleged=20 conduct was foreseeable because Ait is=20 certainly foreseeable that dishonest employees might defraud a = customer if=20 [an employer] is not present to prevent it@ = or=20 otherwise has no procedures to make such fraud impossible.  = Zarzana=20 further noted that Meineke=3Ds motion=20 failed to address his DTPA claim. 

On the=20 same day, Zarzana filed a second amended original petition in = which he=20 reasserted all his previous causes of action and added a new = allegation of=20 civil conspiracy to defraud.[1] =20 Meineke never amended its motion to expressly address the = later-pleaded=20 civil conspiracy claim or to address the DTPA claim.[2]

<= SPAN=20 style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 150%; FONT-FAMILY: = Shruti">

The trial=20 court granted Meineke=3Ds motion=20 for summary judgment without specifying the grounds.  Zarzana = now=20 appeals, claiming fact issues exist regarding negligent = supervision,=20 vicarious fraud, violation of the DTPA, and civil conspiracy to = defraud,=20 which preclude summary judgment.

II. =20 Standard of Review

The=20 standard of review for a traditional motion for summary judgment = is=20 whether the successful movant at the trial level carried its = burden of=20 showing that there is no genuine issue of material fact and that = judgment=20 should be granted as a matter of law.  See Tex. R. Civ. P. = 166a(c); KPMG=20 Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d = 746, 748=20 (Tex. 1999).  A defendant who either conclusively negates at = least=20 one of the essential elements of each of the plaintiff=3Ds causes=20 of action or conclusively establishes all elements of an = affirmative=20 defense is entitled to summary judgment.  Johnson v. = Felts,=20 140 S.W.3d 702, 706 (Tex. App.CHouston=20 [14th Dist.] 2004, pet. denied).  In order to conclusively = negate at=20 least one of the requisite elements, the motion must identify or = address=20 the cause of action or defense and its elements.  = Id. =20 Evidence is conclusive only if reasonable people could not differ = in their=20 conclusions.  City of Keller v. Wilson, 168 S.W.3d = 802, 816=20 (Tex. 2005).  Under this traditional standard, this court = must take=20 as true all evidence favorable to the nonmovant and must make all=20 reasonable inferences in the nonmovant=3Ds=20 favor.  See id. 

In=20 contrast, the party moving for no‑evidence summary judgment = must assert=20 only that there is no evidence of one or more essential elements = of a=20 claim or defense on which the non‑movant would have the = burden of proof at=20 trial.  See Tex. R.=20 Civ. P. 166a(i).  The burden then shifts to the = non‑movant to=20 produce evidence raising a fact issue on the challenged = elements. =20 See id.  A no‑evidence summary judgment is = improper if the=20 respondent brings forth more than a scintilla of probative = evidence to=20 raise a genuine issue of material fact.  Id.; see = Forbes=20 Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.=20 2003).  Less than a scintilla of evidence exists when the = evidence is=20 so weak as to do no more than create a mere surmise or suspicion = of a=20 fact.  Forbes, 124 S.W.3d at 172.  More than a = scintilla=20 of evidence exists if it would allow reasonable and = fair‑minded people to=20 differ in their conclusions.  Id.  As with a = traditional=20 summary judgment, we view the evidence in the light most favorable = to the=20 non‑movant, disregarding all contrary evidence and = inferences. =20 King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.=20 2003).

Moreover,=20 when the trial court does not specify the basis for its summary = judgment,=20 we will affirm the judgment if any one of the theories advanced in = the=20 motion is meritorious.  Joe v. Two Thirty Nine Joint = Venture,=20 145 S.W.3d 150, 157 (Tex. 2004).  In other words, the = appealing party=20 must show each independent ground alleged is insufficient to = support the=20 summary judgment granted.  See Star‑Telegram, Inc. = v. Doe, 915=20 S.W.2d 471, 473 (Tex. 1995).

III. =20 Analysis

A. =20 Negligent Supervision

In issue=20 two, Zarzana contends the trial court erred in granting summary = judgment=20 on his negligent supervision claim.[3] =20 Meineke counters that summary judgment was proper because Zarzana = provided=20 no evidence that the conduct of AShorty,@ = if it=20 occurred, was foreseeable to Meineke.[4] =20 A claim of negligent hiring and supervision is based on an=20 employer=3Ds direct=20 negligence instead of the employer=3Ds=20 vicarious liability for the torts of its employees. =20 Verinakis  v. Med. Profiles, Inc., 987 S.W.2d 90, 97 = (Tex.=20 App.CHouston=20 [14th Dist.] 1998, pet. denied).  To prevail in a negligence = action,=20 the plaintiff must prove:  (1) a legal duty owed to the = plaintiff,=20 (2) a breach of that duty by the defendant, and (3) damages = proximately=20 caused by the breach.  Greater Houston Transp. Co. v.=20 Phillips, 801 S.W.2d 523, 525 (Tex. 1990). 

Generally,=20 an employer has a duty to control its employees.  See Otis = Eng=3Dg Corp. v.=20 Clark, 668=20 S.W.2d 307, 309 (Tex. 1983).  Further, an employer may be = liable for=20 a plaintiff=3Ds injuries=20 that arise as a result of the employment, if the negligence in = supervising=20 the employee is the proximate cause of the injuries to the=20 plaintiff.  Dailey v. Albertson=3Ds,=20 Inc., 83=20 S.W.3d 222, 227 (Tex. App.CEl Paso=20 2002, no pet.).  The questions of duty and proximate cause = both hinge=20 on a determination of foreseeability of harm.  Mellon = Mortgage Co.=20 v. Holder, 5 S.W.3d 654, 659 (Tex. 1999).  Foreseeability = requires Athat the=20 injury be of such a general character as might reasonably have = been=20 anticipated.@ =20 Id. at 655.  To impose liability in negligent hiring = and=20 supervision cases, sufficient evidence must exist indicating that = the=20 defendant knew or should have known of the employee=3Ds=20 incompetence or potential for causing harm.  See = Phillips, 801=20 S.W.2d at 526; Ianni v. Loram Maint. of Way, Inc., 16 = S.W.3d 508,=20 514 (Tex. App.CEl Paso=20 2000, pet. denied) (citing Phillips); see also Wrenn v. = G.A.T.X.=20 Logistics, Inc., 73 S.W.3d 489, 496B97 (Tex.=20 App.CFort Worth=20 2002, no pet.).

Zarzana=20 contends that employers have Aan=20 absolute duty to see to it that his business is operated with = basic=20 honesty@ = and can=20 Aalways=20 foresee that employees . . . left unsupervised to operate a = business . . .=20 might operate that business in a dishonest fashion to the = detriment of the=20 consuming public.@ =20 However, this contention overstates the employer=3Ds duty to=20 control employees and disregards the very definitions of = negligence and=20 foreseeability.  Indeed, Zarzana has not produced or pointed = to any=20 evidence that Meineke knew or should have known of = Shorty=3Ds=20 propensity for criminality.  The record reveals no evidence = that any=20 prior similar incidents involving Shorty occurred or that anyone = at=20 Meineke otherwise knew of his criminal disposition.  See = Knight v.=20 City Streets, L.L.C., 167 S.W.3d 580, 584 (Tex. = App.CHouston=20 [14th Dist.] 2005, no pet.) (affirming summary judgment dismissing = negligent supervision claim against nightclub for failing to stop=20 employee=3Ds assault=20 on third party where evidence showed employer did not know of=20 employee=3Ds general=20 propensity for aggression but only that he may be aggressive); = Garrett=20 v. Great W. Distrib. Co. of Amarillo, 129 S.W.3d 797, 804 = (Tex.=20 App.CAmarillo=20 2004, pet. denied) (affirming summary judgment dismissing = negligent=20 supervision action against employer based on employees=3D = assault=20 of third party where no evidence showed that employees exhibited = violent=20 or aggressive tendencies or engaged in fights before incident and = no=20 evidence suggested employer knew employees had violent = propensities before=20 incident); Dailey, 83 S.W.3d at 227B28=20 (affirming summary judgment dismissing negligent supervision claim = against=20 supermarket based on employee=3Ds assault=20 against customer, where only evidence of foreseeability of harm = was that=20 employee made loud comments and had heated exchange with = customer). =20 Moreover, the record contains no evidence that Meineke could have = foreseen=20 even the general nature of the incident, given that the store did = not=20 operate or purport to operate as a state-licensed inspection = facility and=20 had no equipment or other means to produce inspection stickers on = its=20 premises.  Accordingly, we hold that Meineke conclusively = negated the=20 duty and proximate cause elements of Zarzana=3Ds=20 negligent supervision claim by demonstrating a lack of = foreseeability;=20 thus, the trial court properly granted summary judgment on this=20 claim. 

We=20 overrule Zarzana=3Ds second=20 issue.  

B. =20 Vicarious Fraud

In issue=20 three, Zarzana asserts that, because employers are vicariously = liable for=20 employees=3D = fraud=20 committed within the scope of the employees=3D = general=20 authority, fact issues remain as to whether Shorty acted within = the scope=20 of his authority as a Meineke employee by selling a counterfeit = inspection=20 sticker.  To hold an employer vicariously liable for the = misconduct=20 of its employee, a plaintiff must prove:  (1) an agency = relationship=20 existed between the employee and the employer, (2) the employee = committed=20 the act, and (3) the act was in the course and scope of the=20 employee=3Ds=20 authority.  See F.F.P. Operating Partners, L.P. v. = Duenez, No.=20 02‑0381, ___ S.W.3d ____, 2006 WL 3110426, at *5 (Tex. Nov. = 3, 2006);=20 Baptist Mem=3Dl Hosp.=20 Sys. v. Sampson, 969=20 S.W.2d 945, 947 (Tex. 1998).  To show an employee acted = within the=20 course and scope of his employment, the plaintiff must demonstrate = the=20 conduct occurred (1) within the general authority given the = employee, (2)=20 in furtherance of the employer=3Ds=20 business, and (3) for the accomplishment of the object for which = the=20 employee was employed.  Mata v. Andrews Transp., Inc., = 900=20 S.W.2d 363, 366 (Tex. App.CHouston=20 [14th Dist.] 1995, no writ); see also Leadon v. Kimbrough Bros. = Lumber=20 Co., 484 S.W.2d 567, 569 (Tex. 1972).  Actual authority = includes=20 both express and implied authority and usually denotes the = authority a=20 principal (1) intentionally confers upon an agent, (2) = intentionally=20 allows the agent to believe he possesses, or (3) by want of due = care=20 allows the agent to believe he possesses.  2616 South Loop = L.L.C.=20 v. Health Source Home Care, Inc., 201 S.W.3d 349, 356 (Tex.=20 App.CHouston=20 [14 Dist.] 2006, no pet.).  Apparent authority requires (1) a = reasonable belief in the agent=3Ds=20 authority, (2) generated by some holding out or neglect of the = principal,=20 and (3) justifiable reliance on the authority.  = Id. =20 ABoth=20 actual and apparent authority are created through conduct of the=20 principal communicated either to the agent (actual = authority) or to=20 a third party (apparent authority).@ =20 Huynh v. Nguyen, 180 S.W.3d 608, 622B23 = (Tex.=20 App.CHouston=20 [14th Dist.] 2005, no pet.).  To determine apparent = authority, only=20 the conduct of the principal may be considered; representations = made by=20 the agent of his authority have no effect.  Id. at = 623. =20

An=20 employee=3Ds=20 intentional, tortious conduct falls within the scope of employment = when=20 the conduct, even if contrary to express orders, is of the same = general=20 nature as that authorized or incidental to the conduct authorized. =  Durand v. Moore, 879 S.W.2d 196, 199 (Tex. = App.CHouston=20 [14th Dist.] 1994, no writ); see GTE Sw., Inc. v. Bruce, = 998 S.W.2d=20 605, 617B18 (Tex.=20 1999) (noting that employers are liable for intentional, = unauthorized=20 torts of employees Aclosely=20 connected with the [employee=3Ds]=20 authorized duties@). =20 However, employers are generally not liable for serious criminal = acts of=20 employees that are unforeseeable considering the = employee=3Ds=20 duties.  See Millan v. Dean Witter Reynolds, Inc., 90 = S.W.3d=20 760, 768 (Tex. App.CSan=20 Antonio 2002, pet. denied); Hooper v. Pitney Bowes, Inc., = 895=20 S.W.2d 773, 778 (Tex. App.CSan=20 Antonio 1995, writ denied); see also Ross v. Marshall, 426 = F.3d=20 745, 764B65 &=20 n.85 (5th Cir. 2005) (A[U]nder=20 Texas law, an agent=3Ds=20 >serious=20 criminal activity=3D = is almost=20 never taken within the scope of authority granted by the=20 principal[.]@).       =20

Assuming a=20 Meineke employee named Shorty in fact sold Zarzana a counterfeit=20 inspection sticker, Meineke nonetheless conclusively established = that=20 Shorty acted outside the scope of employment.  Through the = affidavits=20 of both Ashley and Samuel, Meineke provided evidence that its = services=20 include only installation of tail pipes, brakes, and catalytic = converters,=20 and performance of light mechanical work.  The affidavits = also=20 underscored Meineke=3Ds lack of=20 equipment capable of producing official or counterfeit state = inspection=20 stickers.  Zarzana did not directly challenge any of this=20 evidence.  Moreover, Zarzana does not contend, and we do not = find,=20 that the sale of counterfeit inspection stickers is closely = connected or=20 incidental to the authorized conduct of physically installing = parts and=20 performing mechanical work, nor can we say such activity = accomplished the=20 objects for which Meineke allegedly hired Shorty.  = Compare=20 Buck v. Blum, 130 S.W.3d 285, 289 (Tex. App.CHouston=20 [14th Dist.] 2004, no pet.) (affirming summary judgment for = hospital in=20 sexual assault claim where doctor allegedly made inappropriate = sexual=20 contact with patient during neurological examination, and, thus, = act was=20 not closely connected to employment tasks and did not further = object of=20 employment), Wrenn, 73 S.W.3d at 494B95=20 (affirming summary judgment for employer in assault claim where = employee=20 forklift operator had authority only to operate forklift and = assist and=20 direct temporary employees, and employer prohibited use of = physical force=20 or verbal threats), and Morrow v. Daniel, 367 S.W.2d 715,=20 718B19 (Tex.=20 Civ. AppCDallas=20 1963, no writ) (finding no evidence employee was acting as agent = of=20 employer company where employee purported to sell = company=3Ds stock=20 certificates but in fact, unbeknownst to company, substituted and = sold=20 phony company=3Ds=20 certificates to unknowing third party), with Durand, 879 = S.W.2d at=20 200 (affirming finding that doorman acted within scope of = employment at=20 nightclub in assaulting patron where evidence showed doorman had = authority=20 to control admittance of customers into club and assault = constituted=20 Aoverzealous=20 enforcement of the criteria and procedures used to select waiting=20 customers for admittance into the club@). =20 In addition, as Meineke notes, Shorty=3Ds alleged=20 counterfeiting activities could potentially constitute a felony = under=20 Texas law.  See, e.g., Tex. Penal Code Ann. = ' = 37.10(a),=20 (c)B(d) =20 (Vernon Supp. 2006) (tampering with governmental records).  = We find=20 such serious criminal conduct unforeseeable given a Meineke=20 employee=3Ds=20 authorized duties.  See Millan, 90 S.W.3d at 768 = (holding that=20 investment company was not vicariously liable for = broker=3Ds=20 embezzlement of thousands of dollars from client, which in no way = related=20 to his authorized brokerage duties and thus greatly exceeded scope = of his=20 authority). 

Zarzana=3Ds=20 contention that Shorty had actual or apparent authority to sell=20 counterfeit or even valid safety inspection stickers is=20 unpersuasive.  To demonstrate Shorty=3Ds=20 authority, Zarzana largely relied on the assertion in his = affidavit that=20 Shorty Arepresented=20 to me that he was qualified and authorized to do this = work.@ =20 Indeed, he contends that the trial court erred in determining = scope of=20 employment as a matter of law Aparticularly@ = because=20 Zarzana Awas told=20 by [Shorty] that [Shorty] was authorized to conduct safety=20 inspections.@ =20 Shorty=3Ds alleged=20 representations have no effect on our analysis because, as noted, = an=20 agent=3Ds actual=20 or apparent authority stems solely from the principal=3Ds conduct,=20 and any of the agent=3Ds=20 representations are wholly irrelevant in determining apparent=20 authority.  See Huynh, 180 S.W.3d at 623.  Moreover,=20 the conclusory statement in his affidavit that A[f]rom all=20 appearances Shorty was an employee engaged in the furtherance of=20 [Meineke=3Ds]=20 business@ = is=20 insufficient in itself to create a fact issue regarding apparent=20 authority.      

Therefore,=20 because Meineke conclusively established that Shorty acted outside = the=20 scope of employment, we hold that the trial court properly granted = summary=20 judgment in favor of Meineke on the claim for vicarious = fraud. =20

We=20 overrule Zarzana=3Ds third=20 issue. 

C. =20 Vicarious DTPA Violation and Civil Conspiracy

Finally,=20 in issue four, Zarzana contends the trial court erred in granting = summary=20 judgment on his vicarious DTPA and civil conspiracy claims because = Meineke=20 did not explicitly move for summary judgment these claims.  A = motion=20 for summary judgment must expressly present the grounds upon which = it is=20 made and must stand or fall on such grounds.  McConnell v. = Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. = 1993). =20 Thus, if = a motion=20 for summary judgment fails to address a pleaded cause of action, = the trial=20 court is generally precluded from granting summary judgment on = such action=20 as a matter of law.  Black v. Victoria Lloyds Ins. = Co., 797=20 S.W.2d 20, 27 (Tex. 1990); Chessher v. Sw. Bell Tel. Co., = 658=20 S.W.2d 563, 564 (Tex. 1983).  This holds true regardless of = the=20 unaddressed claim=3Ds validity.  = See Alder=20 v. Laurel, 82 S.W.3d 372, 375 (Tex. App.CAustin 2002, no pet.) = (A[E]ven though a cause = of action=20 may not be viable, a party may obtain summary judgment only on = those=20 causes of action expressly addressed in the summary judgment=20 motion.@).  However, = where a=20 defendant conclusively disproves an element common among pleaded = causes of=20 action, summary=20 judgment is proper.  See Dubose v. = Worker=3Ds Med.,=20 P.A., 117=20 S.W.3d 916, 922 (Tex. App.CHouston=20 [14th Dist.] 2003, no pet.); Lampasas v. Spring Ctr., Inc., = 988=20 S.W.2d 428, 435B36 (Tex.=20 App.CHouston=20 [14th Dist.] 1999, no pet.).  Similarly, = summary=20 judgment may be granted on later-pleaded causes of action if the = grounds=20 actually asserted show that the plaintiff could not recover on the = later-pleaded cause of action.  Ortiz v. Collins, 203 = S.W.3d=20 414, 423 (Tex. App.CHouston [14th Dist.] = 2006, no=20 pet.).     

While=20 Meineke never explicitly addressed the vicarious DTPA claim, it = thoroughly=20 addressed and negated the scope of employment element of=20 Zarzana=3Ds=20 vicarious fraud claim, which was an alternative action based on=20 Shorty=3Ds same=20 underlying conduct.  Accordingly, we find that by = conclusively=20 negating that Shorty=3Ds alleged=20 actions occurred within the scope of his employment under=20 Zarzana=3Ds=20 vicarious fraud claim, Meineke negated the same essential element = common=20 to his vicarious DTPA claim.  See Dubose, 117 S.W.3d = at=20 922; see, e.g., Atwood v. Kansas City Life Ins. Co., = No.=20 14‑96‑00048‑CV, 1997 WL 567941, at *9 (Tex. = App.CHouston=20 [14th Dist.] Sept. 11, 1997, no pet.) (not designated for = publication)=20 (affirming summary judgment dismissing vicarious DTPA violations = against=20 insurance company where company conclusively established that = insurance=20 agent acted outside scope of employment); River Mountain at=20 Breckenridge, Inc. v. Mut. of N.Y. Fin. Serv., No. = C14‑94‑00084‑CV,=20 1994 WL 652766, at *4 (Tex. App.CHouston=20 [14th Dist.] Nov. 17, 1994, writ denied) (not designated for = publication)=20 (affirming summary judgment dismissing Aall . . .=20 vicarious liability claims@ = against=20 financial corporation, which included DTPA claim based solely on=20 employee=3Ds actions,=20 where corporation conclusively established that employee had no = authority=20 to bind corporation).  See generally Qantel Bus. Sys., = Inc. v.=20 Custom Controls Co., 761 S.W.2d 302, 305 (Tex. 1988) = (recognizing=20 vicarious liability theory of respondeat superior as valid basis = for=20 creating liability under DTPA).   Therefore, we hold = that the=20 trial court properly granted summary judgment in favor of Meineke = on the=20 vicarious DTPA claim.

Meineke=20 similarly failed to explicitly address Zarzana=3Ds=20 later-pleaded civil conspiracy to defraud claim by not amending = its motion=20 for summary judgment.  However, conspiracy is not an = independent=20 cause of action but requires an underlying tort, which may include = fraud.  See, e.g., Ortiz, 203 S.W.3d = at 422;=20 Vinson & Elkins v. Moran, 946 S.W.2d 381, = 411B13 (Tex.=20 App.CHouston=20 [14th Dist.] 1997, writ dism=3Dd by=20 agr.).  If summary judgment is proper on a fraud claim, = summary=20 judgment is proper on a concomitant conspiracy to defraud = claim. =20 See Ortiz, 203 S.W.3d at 422B23=20 (holding that where summary judgment was proper on underlying = fraud claim=20 due to lack of justifiable reliance, summary judgment was also = proper on=20 conspiracy to defraud claim).  In his original petition, = Zarzana=20 pleaded only a vicarious theory of fraud against Meineke based on=20 Shorty=3Ds alleged=20 conduct.  As stated above, the trial court correctly granted = summary=20 judgment on the vicarious fraud claim.  As such, we hold that = Meineke=3Ds motion=20 was sufficiently broad to encompass the later-pleaded conspiracy = claim=20 because it addressed and negated the only underlying fraud claim = that=20 Zarzana pleaded, which in turn negated the later-pleaded = conspiracy to=20 defraud claim.  See id.  Accordingly, the trial = court=20 properly granted summary judgment in favor of Meineke on civil=20 conspiracy.

We=20 overrule Zarzana=3Ds fourth=20 issue.   

IV. =20 Conclusion

We affirm=20 the trial court=3Ds grant of=20 summary judgment on each of Zarzana=3Ds causes=20 of action.  First, we affirm summary judgment on the = negligent=20 supervision claim because Zarzana failed to raise a fact issue = regarding=20 whether the alleged Meineke employee=3Ds actions=20 were foreseeable to Meineke.  Second, we affirm summary = judgment on=20 the vicarious fraud and DTPA claims because Zarzana failed to = raise a fact=20 issue regarding whether the alleged Meineke employee=3Ds actions=20 fell within the scope of his employment.  Finally, we affirm = summary=20 judgment on Zarzana=3Ds civil=20 conspiracy to defraud claim because Meineke conclusively negated = the=20 underlying tort of fraud.

We affirm=20 the trial court=3Ds=20 judgment.   

 

 

/s/     =20 Leslie Brock Yates

Justice

 

 

Judgment=20 rendered and Opinion filed January 23, 2007.

Panel=20 consists of Chief Justice Hedges and Justices Yates and=20 Seymore.


[1]  The second amended = original=20 petition became the live pleading, as it was filed over seven days = before=20 the date set for the summary judgment hearing.  See = Tex. R. Civ. P. 63; = Sosa v.=20 Cent. Power & Light, 909 S.W.2d 893, 895 (Tex.=20 1995).

[2]  In the second amended original = petition,=20 Zarzana also added a vice principal theory of liability, claiming = that=20 Samuel constituted a vice principal of Meineke, and, as such, all = of his=20 conduct imputed to Meineke.  However, Zarzana does not = specifically=20 complain to this court that Ashley failed to address his vice = principal=20 pleading, nor does he otherwise mention the vice principal = pleading on=20 appeal.  Therefore, Zarzana has waived any error relating to = his vice=20 principal pleading. 

[3]  We acknowledge that the = intermediate courts=20 appear to disagree over whether parties may bring negligent = supervision=20 causes of action to recover for damages that do not constitute = physical,=20 personal injuries.  See Garcia v. Allen, 28 S.W.3d = 587, 592=20 (Tex. App.CCorpus Christi 2000, pet. denied) = (observing that=20 some Texas courts have typically applied negligent supervision in=20 situations that involve physical danger or where alleged negligent = supervision caused harm to third persons rather than = co‑workers, but other=20 Texas courts have declined to do so); see also Verinakis v. = Med.=20 Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.CHouston [14th Dist.] 1998, pet. denied) = (holding=20 that in negligent supervision action, duty of employer extends = only to=20 prevent employee from causing physical harm to third party).  = However, we need not address whether Zarzana properly pleaded = negligent=20 supervision because neither party presented this issue to the = trial court=20 or to this court.

[4]  In issue one, = Zarzana=20 contends the court improperly granted no-evidence summary judgment = in=20 favor of Meineke.  In the no-evidence portion of its motion, = Meineke=20 asserted that it was entitled to summary judgment because Zarzana = produced=20 no evidence he had his car inspected at the store or that an = employee sold=20 him an inspection sticker.  It is irrelevant whether Zarzana = created=20 a fact issue over whether such conduct occurred because such fact = issue=20 would not be dispositive of any issues on appeal.  Therefore, = we=20 overrule Zarzana=3Ds first = issue.  =20

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