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Omega Contracting9/29/2005
trained the driver, and only the dealership had the opportunity to daily monitor his activities. Id. at 780. The court concluded that this evidence conclusively negated the issue of equal right to control the driver. Id.
We have already analyzed the summary judgment evidence and concluded that Torres failed to raise a fact issue on Dowdy-Ferry's right to control Cardenas in connection with Torres's other vicarious liability allegations. The same evidence fails to raise a fact issue on the equal right to control element. In particular, the summary judgment evidence conclusively negates Dowdy-Ferry's right to control Cardenas at the time of his pretrip inspection--the allegedly tortious act from which all of Torres's other allegations flow. As in Ely, Omega hired Cardenas, Omega trained Cardenas, and only Omega had the opportunity to daily monitor his activities. We hold that Dowdy-Ferry conclusively negated the equal right of control element of joint enterprise.
Having concluded that Dowdy-Ferry conclusively negated the community of pecuniary interest and equal right of control elements of joint venture, we hold that the trial court did not err by granting summary judgment on Torres's joint enterprise claim. We overrule Torres's fourth issue.
IV. Conclusion
We sustain Omega and Cardenas's second and fourth issues and their third issue in part, overrule their first and fifth issues, reverse the judgment of the trial court as it pertains to Torres's cross-claims against Omega and Cardenas, and remand that part of the case for a new trial on Torres's cross-claims. We overrule all of Torres's issues and affirm the trial court's summary judgments in favor of Dowdy-Ferry.
PANEL A: CAYCE, C.J.; GARDNER and WALKER, JJ.
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