United States District Court for the Western District of Texas, San Antonio Division

May 4, 2022, Decided; May 4, 2022, Filed

SA-20-CV-01102-XR

Reporter

2022 U.S. Dist. LEXIS 97413 *

THERESA ACUNA, ASHLEY ACUNA, Plaintiffs, vs. COVENANT TRANSPORT, INC., CTG LEASING COMPANY, CHARLES JAMES LEACH, Defendants.

Core Terms

summary judgment, recommendations, pleadings, genuine, report and recommendation, district court, non-movant, summary judgment motion, judicial admission, undersigned, invoices, Leasing, parties, entity

Counsel:  [*1] For Theresa Acuna, Ashley Acuna, Plaintiffs: Melissa Robbins, LEAD ATTORNEY, Villareal & Begum Law Firm, San Antonio, TX.

For Covenant Transport, Inc., CTG Leasing Company, Charles James Leach, Defendants: Jose J. Trevino, Jr., LEAD ATTORNEY, Valdez & Trevino, San Antonio, TX; Mathews Jon Metyko, Valdez and Trevino PLLC, San Antonio, TX.

Judges: ELIZABETH S. (“BETSY”) CHESTNEY, UNITED STATES MAGISTRATE JUDGE. Honorable United States District Judge Xavier Rodriguez.

Opinion by: ELIZABETH S. (“BETSY”) CHESTNEY

Opinion

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Xavier Rodriguez:

This Report and Recommendation concerns Defendants’ Motion for Summary Judgment on Improper Party [#165], which was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). In making this recommendation, the undersigned has also considered Plaintiffs’ response to the motion [#177] and the arguments of counsel at the live hearing before the undersigned on April 26, 2022. For the reasons set forth below, it is recommended that Defendants’ motion be denied.

I. Background

This is a personal-injury action arising out of a motor vehicle accident between a vehicle operated by [*2]  Plaintiff Theresa Acuna, in which Plaintiff Ashley Acuna was a passenger, and a tractor-trailer operated by Defendant Charles Leach that was allegedly owned or leased by Defendants Covenant Transport, Inc. (“Covenant”), and CTG Leasing Company (“CTG”). Plaintiffs allege they sustained serious injuries from the accident due to the negligence of Defendants. Both Plaintiffs have undergone spinal surgeries, which they claim were necessary treatment for their injuries. The live pleading, Plaintiffs’ Second Amended Complaint [#27], asserts causes of action for negligence against Leach and negligence based on a theory of respondeat superior liability against Covenant and CTG. The District Court previously dismissed all claims against Covenant and CTG based on their direct negligence in entrusting, hiring, training, and supervising Leach, among other theories.

Defendants have filed a motion for summary judgment, which seeks summary judgment on all claims against CTG on the basis that it is not a proper party to this suit. The motion is ripe for the Court’s review.

II. Summary Judgment

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only “if the pleadings, depositions, answers to interrogatories, and admissions [*3]  on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Fed. R. Civ. P. 56(c). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. Once the movant carries its burden, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court will view the summary judgment evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). “After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary [*4]  judgment will be granted.” Westphal, 230 F.3d at 174.

III. Analysis

Defendants’ motion for summary judgment argues that CTG is not a proper party to this suit because it was not an employer of Leach so cannot be vicariously liable for his negligence in the car accident underlying this action. In support of this argument, Defendants provide the Court with the following summary judgment evidence: a crash report following the accident referencing Covenant and not CTG as the owner/lessee of the truck at issue [#165-1]; employment records for Leach listing Covenant and not CTG as the company conducting pre-employment screening of Leach [#165-2]; and trip documents and invoices prepared by Covenant and not CTG [#165-3].

Plaintiffs respond that Defendants are judicially estopped from making the argument that CTG was not Leach’s employer because they have admitted in numerous pleadings, court filings, and discovery responses in this case that CTG is the same entity as Covenant and that Leach was an employee of both companies. In addition to providing the Court with the referenced pleadings and discovery responses [#177-1, #177-2, #177-3, #177-4, #177-9], Plaintiffs submitted the following additional summary judgment [*5]  evidence in opposition to Defendants’ motion: Tennessee Department of Revenue Official Vehicle Registration for the truck in the accident at issue listing CTG, not Covenant, as the lessee/registrant [#177-5] and various checkoff lists and repair invoices for the vehicle completed by or invoiced to CTG or reflecting both Covenant and CTG as the same entity, e.g., “Covenant Transport (CTG Leasing)” [#177-6, #177-7, #177-8].

On this record, Defendants have not established as a matter of law that CTG is not a proper party to this lawsuit. The parties agree that Texas law governs this diversity action. The doctrine of respondeat superior liability imposes liability on an employer for the tortious acts of its employees when the employee’s negligence, while acting with the course and scope of his employment, is the proximate cause of injury to another. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). To defeat a claim of vicarious liability, Defendants must establish as a matter of law either that: (1) Leach was not an employee; (2) no negligent act occurred; or (3) Leach was not acting within the course and scope of his employment at the time of the collision. See Drooker v. Saeilo Motors, 756 S.W.2d 394, 396 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (citing Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972)).

Defendants’ assertion that Leach was not an employee of CTG [*6]  is a fact issue that is not resolved by Defendants’ proffer of discrete summary judgment evidence. Defendants’ evidence, such as the crash report, employment records, and trip documents and invoices reflecting Covenant and not CTG merely establish that Covenant is Leach’s employer. These documents do not establish that CTG is not also Leach’s employer. Plaintiffs’ summary judgment evidence—the Tennessee Department of Revenue Vehicle Registration and trip checklists and repair invoices referencing CTG and Covenant/CTG collectively—raise a genuine issue of material fact as to the status of CTG as Leach’s employer precluding summary judgment.

Additionally, the undersigned agrees with Plaintiffs that Defendants are judicially estopped from taking the position at this stage in the proceedings that CTG is not an employer of Leach. In the Notice of Removal filed by Defendants, Defendants refer to Covenant and CTG collectively as “Covenant” and expressly state that “CTG Leasing Company is the same entity as Covenant” multiple times throughout the filing, including in the jurisdictional allegations regarding Covenant’s and CTG’s citizenship. (Notice of Removal [#177-1], at 1, 2.) Subsequently, [*7]  in an early motion to dismiss, Defendants reiterate that “CTG Leasing Company is Covenant, they are the same entity.” (Mtn. to Dismiss [#177-2], at 1.) Moreover, Defendants have collectively admitted in their discovery responses that Leach was their employee at the time of the accident and that they entrusted the vehicle driven by Leach for their benefit and the scope and purpose of employment with both companies. (Resps. to Requests for Admission [#177-3], at 3.) These representations to the Court are binding, and Defendants are judicially estopped from contradicting these admissions.

“Judicial estoppel is an equitable doctrine that prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.” Hopkins v. Cornerstone Am., 545 F.3d 338, 347 (5th Cir. 2008) (internal citation and quotation omitted). Moreover, “[a] judicial admission is a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party making them. Although a judicial admission is not itself evidence, it has the effect of withdrawing it from contention.” Martinez v. Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir. 2001) “[F]actual assertions in pleadings . . . are considered to be judicial admissions conclusively binding [*8]  on the party who made them.” White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir. 1983). A party therefore may not rebut a judicial admission made in its pleadings with new evidence or testimony. See Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987).

This is precisely what Defendants are attempting to do here after years of litigation representing to the Court and Plaintiffs that Covenant and CTG are one and the same entity. Accordingly, the motion for summary judgment should be denied not only due to the failure of Defendants to carry their summary judgment burden on the fact question of employer status but also because Defendants’ own judicial admissions throughout the pleadings and discovery in this case preclude them from taking a contrary position on the eve of trial.

IV. Conclusion and Recommendation

Having considered Defendants’ motion, Plaintiffs’ response, the summary judgment evidence, and the arguments of counsel at the live hearing, the undersigned recommends that Defendants’ Motion for Summary Judgment on Improper Party [#165] be DENIED.

V. Instructions for Service and Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered [*9]  as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file the objections with the Clerk of Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party’s failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal [*10]  conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED this 4th day of May, 2022.

/s/ Elizabeth S. (“Betsy”) Chestney

ELIZABETH S. (“BETSY”) CHESTNEY

UNITED STATES MAGISTRATE JUDGE

End of Document