Appeal from the 261st District Court Travis County, Texas
Trial Court Cause No. D-1-GN-17-006778
consists of Justices Wise, Zimmerer, and Spain (Spain, J.,
Christopher Durham appeals the summary judgment granted in
favor of appellees, Barbara Accardi and Jules Accardi, on his
claims against them. Finding no error, we affirm the trial
court's summary judgment.
worked for Austin Budget Signs, Inc. ("ABS") as an
at-will employee. ABS did not subscribe to workers'
compensation insurance at the time of the events underlying
this appeal. Durham was not employed by either Barbara
Accardi or Jules Accardi in their individual capacities at
sent Durham to perform maintenance work on an elevated
lighted sign used by STN La Fuenta Restaurant, LLC (La
Fuenta). Durham was required to work from an elevated bucket
on a lift truck to perform the job. Durham was removing the
top 15-foot long angle iron frame from the sign when the
plastic sign face started to bend and twist away from the
sign frame. Worried that the sign face would fall to the
ground and break, Durham attempted to reinstall the top angle
iron frame onto the sign. While Durham was struggling to do
that, the angle iron frame came into contact with a nearby
power line. Durham felt a sharp pain and he caught on fire.
Unable to control his body movements, Durham spun out of the
elevated bucket and fell about 25 feet to the ground. Durham
suffered serious burns and other injuries as a result of the
filed suit against ABS, Barbara Accardi, and Jules Accardi
for negligence, negligence per se, and gross
negligence. Durham alleged that all three
defendants were liable for breaches of duties directly owed
to him. Durham also alleged that the Accardis were liable for
his injuries caused by ABS's negligence because they were
the alter ego of ABS and also because ABS was "a sham
entity used to perpetrate a fraud."
Accardis moved for traditional and no-evidence summary
judgment on Durham's claims against them. Among other
grounds, the Accardis asserted that Durham had no evidence
that either Accardi owed him a duty in their individual
capacities, that they breached a duty in their individual
capacities, or that any breach of a duty proximately caused
Durham damages. The trial court granted the Accardis'
motion without specifying the grounds. The trial court
subsequently granted Durham's unopposed motion to sever,
making the trial court's summary judgment order final and
appealable. See Lehmann v. Har-Con Corp., 39 S.W.3d
191, 205 (Tex. 2001). This appeal followed.
raises three issues on appeal challenging the trial
court's summary judgment. In his first issue, appellant
argues that the trial court erred when it granted the
Accardis summary judgment on his veil piercing claims. In his
second and third issues, appellant asserts that Jules Accardi
and Barbara Accardi each owed him individual duties of care.
We collectively address appellant's second and third
Standard of review
review the trial court's grant of summary judgment de
novo. See, e.g., Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We consider
all of the summary judgment evidence in the light most
favorable to the nonmovant, crediting evidence favorable to
the nonmovant if a reasonable factfinder could and
disregarding contrary evidence unless a reasonable factfinder
could not. See Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006). When a party moves for summary
judgment on both traditional and no-evidence grounds, we
ordinarily address the no-evidence grounds first. See
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004). If the trial court grants summary judgment without
specifying the grounds, we affirm the judgment if any of the
grounds presented are meritorious. Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam).
And, if an appellant does not challenge every possible ground
for summary judgment, we will uphold the summary judgment on
the unchallenged ground. Agarwal v. Villavaso, No.
03-16-00800-CV, 2017 WL 3044545, at *3 (Tex.
App.—Austin July 13, 2017, no pet.) (mem. op.).
no-evidence motion for summary judgment, the movant
represents that there is no evidence of one or more essential
elements of the claims for which the nonmovant bears the
burden of proof at trial. Tex.R.Civ.P. 166a(i). The burden
then shifts to the nonmovant to present evidence raising a
genuine issue of material fact as to the elements specified
in the motion. Tamez, 206 S.W.3d at 582. Evidence
raises a genuine issue of material fact if reasonable and
fair-minded jurors could differ in their conclusions in light
of all the summary judgment evidence. See Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.
2007) (per curiam).
The Accardis' motion for summary judgment on
Durham's claims against them in their
individual capacities must be affirmed because Durham did not
address all summary judgment grounds asserted by the Accardis
in their motion.
asserted claims for negligence, negligence per se, and gross
negligence against both Barbara Accardi and Jules Accardi in
their individual capacities. The elements of negligence are a
legal duty, breach of that duty, and damages proximately
caused by the breach. IHS Cedars Treatment Ctr. of
DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.
2004). Negligence per se is not an independent cause of
action. Weirich v. IESI Corp., No. 03-14-00819-CV,
2016 WL 4628066, at *2 (Tex. App.—Austin Aug. 31, 2016,
no pet.) (mem. op.). It is instead, a method of proving a
breach of duty, a requisite element of any negligence cause
of action. Id. Finally, a plaintiff must prove all
elements of negligence as a prerequisite to a gross
negligence claim. Godines v. Precision Drilling Co.,
L.P., No. 11-16-00110-CV, 2018 WL 2460302, at *6 (Tex.
App.— Eastland May 31, 2018, no pet.) (mem. op.)
(citing Gonzalez v. VATR Constr., LLC, 418 S.W.3d
777, 789 (Tex. App.—Dallas 2013, no pet.)).
Accardis argued in their no-evidence motion for summary
judgment that Durham had no evidence that they individually
owed him a duty, breached that duty, or that the breach
proximately caused him damages. All of Durham's claims
against the Accardis in their individual capacities include
each of these elements. On appeal, Durham argues only
"that there is a scintilla of evidence that [the
Accardis] owed a duty of reasonable care to Durham."
Durham did not address on appeal the separate grounds raised
by the Accardis that he had no evidence that they had
breached a duty, or that any breach had proximately caused
him damages. Because he did not, we must affirm the summary
judgment on his negligence, negligence per se, and gross
negligence claims against them. See Greb v.
Madole, No. 05-18-00467-CV, 2019 WL 2865269, at *9 (Tex.
App.—Dallas July 3, 2019) (mem. op.) ("Here, we
conclude that summary judgment on Greb's negligence claim
against Attorneys was proper. Therefore, Greb's gross
negligence claim also fails."); Haubold v. Medical
Carbon Research Institute, LLC, No. 03-11-00115- CV,
2014 WL 1018008, at *4 (Tex. App.—Austin March 14,
2014, no pet.) (mem. op.) ("Because Haubold has not
challenged all independent bases or grounds that could, if
meritorious, support the partial summary judgment dismissing
his claims, we must affirm the trial court's partial
summary judgment."). We overrule Durham's second and
The trial court did not err when it granted the Accardis'
motion for summary judgment on Durham's piercing the
corporate veil claims.
argues in his first issue that the trial court erred when it
granted the Accardis' motion for summary judgment on his
disregarding the corporate form claims. A corporation is
presumed to be a separate entity from its officers and
shareholders. Washington DC Party Shuttle, LLC v. IGuide
Tours, LLC, 406 S.W.3d 723, 738 (Tex. App.—Houston
[14th Dist.] 2013, pet. denied) (en banc) (citing Grain
Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458
(Tex. 1997)). As a result, the corporate form normally
insulates shareholders, officers, and directors from
liability for corporate obligations. Willis v.
Donnelly, 199 S.W.3d 262, 271 (Tex. 2006). Courts may
disregard the corporate form if (1) the corporation is the
alter ego of its owners or shareholders, (2) the corporation
is used for an illegal purpose, or (3) the corporation is
used as a sham to perpetrate a fraud. Lastor v.
Jackson, No. 09-18-00146-CV, 2019 WL 613618, at *3 (Tex.
App.—Beaumont Feb. 14, 2019, no pet.) (mem. op.). Only
the first and third methods are relevant here because they
were the only theories Durham specifically alleged in his
trial court pleadings. See Town Hall Estates-Whitney,
Inc. v. Winters, 220 S.W.3d 71, 86 (Tex. App.—Waco
2007, no pet.) (citing Mapco, Inc. v. Carter, 817
S.W.2d 686, 688 (Tex. 1991)).
The trial court did not err when it granted the
Accardis' no- evidence motion for
summary judgment on Durham's alter ego cause of
ego liability permits a plaintiff to pierce an entity's
"corporate veil" and hold the entity's
shareholders, directors, and officers individually liable for
the entity's obligations. Castleberry v.
Branscum, 721 S.W.2d 270, 271-72 (Tex. 1986); see
Dodd v. Savino, 426 S.W.3d 275, 291-92 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (examining
alter ego liability in appeal from no-answer default
judgment). Courts will disregard the corporate fiction
"when the corporate form has been used as part of a
basically unfair device to achieve an inequitable
result." Castleberry, 721 S.W.2d at 271.
"Courts have generally been less reluctant to disregard
the corporate entity in tort cases than in breach of contract
cases." Lucas v. Tex. Indus., Inc., 696 S.W.2d
372, 375 (Tex. 1984). Nonetheless, the corporate fiction
generally will not be disregarded absent exceptional
circumstances. Id. at 374.
ego veil piercing is appropriate (1) where a corporation is
organized and operated as a mere tool or business conduit of
another, (2) there is such "unity between corporation
and individual that the separateness of the corporation has
ceased," and (3) holding only the corporation or
individual liable would result in injustice. See
Castleberry, 721 S.W.2d at 271-72; see also SSP
Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d
444, 454-55 (Tex. 2008); Goldstein v. Mortenson, 113
S.W.3d 769, 781 (Tex. App.—Austin 2003, no pet.). Alter
ego is shown from the total dealings of the corporation and
the individual, including the degree to which corporate
formalities have been followed and corporate and individual
property have been kept separately; the amount of financial
interest, ownership, and control the individual maintains
over the corporation; and whether the corporation has been
used for personal purposes. Castleberry, 721 S.W.2d
at 272; Goldstein, 113 S.W.3d at 781.
that will support an alter ego finding includes (1) the
payment of alleged corporate debts with personal checks or
other commingling of funds, (2) representations that the
individual will financially back the corporation, (3) the
diversion of company profits to the individual for the
individual's personal use, (4) inadequate capitalization,
and (5) any other failure to keep corporate and personal
assets separate. Burchinal v. PJ Trailers-Seminole Mgmt.
Co., LLC, 372 S.W.3d 200, 218 (Tex. App.—Texarkana
2012, no pet.) (citing Mancorp, Inc. v. Culpepper,
802 S.W.2d 226, 229 (Tex. 1990)). An individual's role as
an officer, director, or majority shareholder of an entity
alone is not sufficient to support a finding of alter ego.
Cappuccitti v. Gulf Indus. Prods., Inc., 222 S.W.3d
468, 482 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
In addition, while a corporation's capitalization can be
a consideration in deciding whether to pierce the corporate
veil in a tort case, the corporation's financial strength
or weakness is generally only one factor to be considered.
See Castleberry, 721 S.W.2d at 272 (alter ego is
shown from the total dealings of the corporation and the
individual); Feigin v. Robinson, No. 05-97-01500-CV,
1998 WL 375458, at *6 (Tex. App.—Dallas July 8, 1998,
no pet.) (not designated for publication) ("[G]enerally,
the financial strength or weakness of the corporation is only
one factor to be considered."); Tigrett v.
Pointer, 580 S.W.2d 375, 382 (Tex. App.—Dallas
1978, writ ref'd n.r.e.) ("Grossly inadequate
capitalization, however, as measured by the nature and
magnitude of the ...