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Elvir v. Brazos Paving, Inc.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 31, 2017

NICOLETTE ELVIR, Appellant,
v.
BRAZOS PAVING, INC., Appellee.

         On appeal from the 85th District Court of Brazos County, Texas.

          Before Chief Justice Valdez and Justices Longoria and Hinojosa

          MEMORANDUM OPINION [1]

          LETICIA HINOJOSA JUSTICE.

         In the underlying lawsuit, appellant Nicolette Elvir sought recovery for personal injuries sustained in a motor vehicle collision with Domingo Galvan, a commercial truck driver, from, among others, appellee Brazos Paving, Inc. In six issues, which we reorder and classify as four, Elvir challenges a take nothing summary judgment and severance granted in favor of Brazos Paving on the grounds that the trial court erred by: (1) concluding that Elvir failed to produce legally sufficient evidence to defeat Brazos Paving's no evidence summary judgment ground regarding control of Galvan; (2) concluding that Brazos Paving conclusively established that it did not control Galvan; (3) granting Brazos Paving more relief than it asked for; and (4) severing Elvir's claims against Brazos Paving from those against the remaining co-defendants. We affirm.

         I. Background[2]

         Brazos Paving is a Texas business entity with offices in Bryan, Texas. It is a subcontractor that provides general contractors with earth moving, building site clearing, and paving services. Brazos Paving entered into a contract with Construction Enterprises, Inc. (CEI), a general contractor, to provide services for the construction of Northpoint Crossing Student Housing, a building project near the campus of Texas A&M University in College Station, Texas.

         Although Brazos Paving is a licensed motor carrier under Texas regulations and has its own commercial drivers and trucks, it routinely contracts with commercial trucking companies to haul building-site material. One of those companies is Henry Jones d/b/a HJ & DJ Trucking (HJ & DJ Trucking), a motor carrier that owns one dump truck and hauls gravel, dirt, sand, and rock. Brazos Paving and HJ & DJ Trucking had a pre-existing contract that continued to govern its relationship with HJ & DJ Trucking on the Northpoint Crossing project. In order for HJ & DJ Trucking to fulfill its obligations to Brazos Paving, HJ & DJ Trucking retained the trucks and driving services of other trucking companies. One of those trucking companies was Jose B. Pachuca d/b/a J.B.P. Trucking (JBP Trucking), and it employed Galvan.

         On May 6, 2013, Elvir, a twenty-year old student at Texas A&M University, drove southbound in a Ford Escape on state highway 47 in Bryan, Texas. At the same time, a dump truck, operated by Galvan and owned by JBP Trucking, entered the highway. Galvan's and Elvir's vehicles collided, and both flipped over. Passersby rescued Elvir from her burning vehicle before it was engulfed in flames.

         Initially, Elvir sued JBP Trucking and Galvan. Thereafter, Elvir settled with both. Later, Elvir sued HJ & DJ Trucking and then added Brazos Paving. Against Brazos Paving, Elvir asserted eight theories of vicarious liability for the alleged negligence of HJ & DJ Trucking, JBP Trucking, and Galvan: (1) non-employee mission liability, (2) borrowed employee, (3) respondeat superior, (4) agency, [3] (5) statutory employee, (6) partnership, (7) joint venture, and (8) joint enterprise. Elvir also asserted that Brazos Paving was directly negligent on the ground that it negligently hired, selected, and entrusted: (a) HJ & DJ Trucking "to select other trucks and truck drivers for its use when the company had no freight broker's license and/or had a poor maintenance record" and (b) JBP Trucking "and/or" Galvan.

         Brazos Paving filed a motion for summary judgment on both no evidence and traditional grounds. Generally, Brazos Paving asserted that it owed no duty to Elvir because it did not control Galvan, an employee of JBP Trucking, a subcontractor twice removed from Brazos Paving. Elvir responded by arguing that Brazos Paving owed her a duty because Galvan was its statutory employee under federal and Texas regulations. The matter was submitted at an oral hearing. The trial court granted summary judgment in favor of Brazos Paving without specifying any grounds. Over Elvir's objection, the trial court granted Brazos Paving's motion to sever the claims disposed of by summary judgment against Brazos Paving from the claims asserted against the remaining co-defendants. This appeal followed.

         II. No Evidence Summary Judgment

         In Elvir's first issue, she challenges the trial court's granting of a no evidence summary judgment in favor of Brazos Paving.[4] Elvir contends that she presented some evidence that Brazos Paving controlled HJ & DJ Trucking, JBP Trucking, and Galvan.

         A. No Evidence Summary Judgment Standard of Review

         A no evidence motion for summary judgment is essentially a pretrial motion for directed verdict, and we apply the same legal sufficiency standard of review. Moreno v. Quintana, 324 S.W.3d 124, 129 (Tex. App.-El Paso 2010, pet. denied). In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005). A no evidence summary judgment is improperly granted if the non-movant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 50 (Tex. App.-Houston [14th Dist.] 2007, no pet.). When an order granting summary judgment does not specify the grounds on which summary judgment was granted, we may uphold the summary judgment on any ground presented in the motion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

         B. Control

         Brazos Paving's primary no evidence summary judgment ground argued that Elvir had no evidence that Brazos Paving controlled JBP Trucking and Galvan, and therefore, all of Elvir's vicarious liability theories failed.[5] Elvir's response generally contended that the contract between Brazos Paving and CEI "required [Brazos Paving] to assume a level of control over the" location where the dump truck driven by Galvan was coming from when the collision with Elvir occurred. On appeal, Elvir flushes out specific provisions from Brazos Paving's contract with CEI to support her contractual control argument. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001) (providing that a general contractor can retain the right to control an aspect of an independent contractor's work or project so as to give rise to a duty of care to that independent contractor's employees in two ways: by contract or by actual exercise of control). We address Elvir's contractual control contentions before turning to the issue of actual control.

         1. Contractual Control

         A general contractor normally does not have a duty to see that an independent contractor performs work safely. Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999). But a duty may arise when a general contractor retains "some control over the manner in which the independent contractor's work is performed." Id. (quoting Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998) (per curiam)). For a general contractor to be liable for its independent contractor's acts, it must have the right to control the means, methods, or details of the independent contractor's work. Id. Further, the control must relate to the injury the negligence causes, and the contract must grant the contractor at least the power to direct the order in which work is to be done. Id. These rules have been equally applied to subcontractors. See Gonzalez v. VATR Const. LLC, 418 S.W.3d 777, 786 (Tex. App.-Dallas 2013, no pet.) (holding that the evidence conclusively disproved a contractual right of control for a roofing subcontractor who was three tiers of subcontractors removed from a fatally injured worker); see also Motloch v. Albuquerque Tortilla Co., Inc., 454 S.W.3d 30, 34 (Tex. App.-Eastland 2014, no pet.) (concluding that a plaintiff's argument that a tortilla maker should have required a delivery company to adopt and enforce policies with respect to its drivers' qualifications was an indication that the tortilla maker did not exercise control of the delivery company's hiring or its distribution operations).

         As for the contract between Brazos Paving and CEI, Elvir points to three articles in the contract, a work ticket, and the testimony of William J. Prewitt, a vice president of Brazos Paving and its designated corporate representative, as evidence of contractual control. Article 1 of the contract provides in relevant part:

Work. Subcontractor shall perform and furnish all labor, supervision, services, materials, equipment, tools, scaffold, transportation, storage and all other things necessary to prosecute and complete the work identified and described in Schedule A, attached hereto and incorporated herein by reference including all subsequently and duly issued modifications thereto (hereinafter the "Work"), being a portion of the work required of Contractor under the contract between Owner and Contractor for the Project. . . .

         Article 13 of the contract provides in relevant part:

Compliance. . . Subcontractor shall promptly correct any violations of such laws, statutes, ordinances, rules, regulations and orders committed by Subcontractor, its agents, servants, employees and assigns. . .

         Article 23 of the contract provides in relevant part:

Labor. Subcontractor agrees that where its work is stopped, delayed or interfered with by strikers, slow downs or similar interruptions or disturbances (including cases wherein the Subcontractor's employees are engaged in a work stoppage solely as a result of a labor dispute involving Contractor or others and not in any manner involving Subcontractor), Contractor shall have the rights and remedies provided for in Article 25 hereof. Subcontractor shall maintain and exercise control over all employees engaged in the performance of the Work, and Subcontractor shall, to the extent permitted by law, remove or cause to be removed from the Project any employee whose presence is detrimental to the orderly prosecution of the construction of the Project. . . .

         The work ticket Elvir references has Galvan's name and "JBP 21" at the top. "BPI" appears in the "name" section. Elvir also argues that "Prewitt conceded that during the month before the accident someone knew Galvan was driving a JBP truck to the Project job site 'to do this job for' Brazos Paving." The specific exchange was:

Q. . . . Well, someone knew about a month before this crash happened-as I counted, 16 days-that Domingo Galvan and JB- was driving a JBP truck to BPI [Brazos Paving] to do this job for BPI?
A. U-huh.

         We fail to see how any of this evidence supports the level of contractual control necessary to impose liability on Brazos Paving, a subcontractor that is two tiers removed from Galvan's employer. See Mendez, 967 S.W.2d at 356. Article 1 generally refers to the work that was to be performed. Article 13 relates to a contractual promise by Brazos Paving to CEI ensuring that Brazos Paving would correct any violations for work that it was responsible for providing. Article 23 deals with conflict among laborers. Lending every reasonable inference to the work ticket, all it indicates is that Galvan was driving a dump truck that relates in some way to "JBP 21" and "BPI." Elvir fails to refer us to any authority that supports her contention that Prewitt's acknowledgement that Galvan "was driving a JBP truck to [] do this job for BPI" establishes the type of contractual control necessary to establish liability on Brazos Paving's part. There is no indication from Prewitt's acknowledgement that Brazos Paving contractually retained the right to control the means, methods, or details of how JBP Trucking-and by extension Galvan- performed the work that HJ & DJ Trucking retained JBP Trucking to perform. Id.

         Next, Elvir contends that the pre-existing contract between Brazos Paving and HJ & DJ Trucking is sufficient to hold Brazos Paving liable for the alleged ...


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