Demetrius Grant v. Wind Turbine and Energy Cables Corp. and Arrow Personnel, LLC ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00036-CV
___________________________
DEMETRIUS GRANT, Appellant
V.
WIND TURBINE AND ENERGY CABLES CORP. AND ARROW PERSONNEL,
LLC, Appellees
On Appeal from the 67th District Court
Tarrant County, Texas
Trial Court No. 067-312472-19
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Demetrius Grant was hired by a staffing company, Appellee Arrow
Personnel, LLC, to work at Appellee Wind Turbine & Energy Cables Corp’s (WTEC’s)
warehouse. After Grant sustained injuries from a forklift accident while working at
WTEC, he sued WTEC, Arrow, and other defendants under several theories of
negligence. Both WTEC and Arrow moved for summary judgment, and the trial
court—after striking portions of Grant’s responsive summary judgment evidence—
granted the two summary judgment motions. The trial court then severed the WTEC
and Arrow actions from Grant’s actions against the remaining defendants, making the
summary judgments final.
In four issues, Grant challenges the order striking his evidence, the two summary
judgments, and the severance. Because the evidence in question was conclusory,
because WTEC conclusively established that workers’ compensation was Grant’s
exclusive remedy, and because Grant produced no more than a scintilla of evidence
supporting Arrow’s alleged employer-based duties, we conclude that the severance was
proper to make the summary judgments final. We will affirm.
2
I. Background1
Most of the relevant facts are undisputed. It is undisputed that Arrow
interviewed and hired Grant and that it assigned him to work at WTEC’s warehouse as
a temporary worker. WTEC, in turn, provided Grant with warehouse-specific training, 2
instructed Grant on his job duties, 3 supervised Grant’s activities through an on-site
foreman at the warehouse, and provided the machinery and equipment used for the
tasks that it assigned.4
About 17 days into Grant’s time at the warehouse, one of the WTEC foremen
instructed Grant to “go to the back” of the warehouse to help another WTEC worker,
Randy. 5 At the back of the warehouse, a forklift was loading steel beams onto a “saw
line”—a platform used while the workers cut the beams—while another forklift was
1
Because Grant is appealing summary judgments, we recite the facts in the light
most favorable to Grant, the nonmovant. See Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
2
The parties dispute the degree and adequacy of the training.
3
According to Grant, WTEC told him “what to do as far as a job.”
4
The parties dispute who provided personal protective equipment; WTEC claims
that it issued Grant personal protective equipment, but Grant testified that he had his
own and that WTEC did not provide him with any. Viewing the evidence in the light
most favorable to Grant, we take his version of events as true. See Fielding, 289 S.W.3d
at 848.
5
Prior to working at WTEC, Grant had multiple years of experience working as
a forklift operator.
3
bracing the saw line from the side. Randy told Grant to stand near the saw line to “help
and look out.” According to Grant, he was “standing near the saw line, observing as
other workers loaded steel beams into the saw line,” when there was a mishap with one
of the forklifts (allegedly due to driver error, faulty machinery, or improper use of the
equipment6), and the forklift jerked unexpectedly. The jerking motion caused a large
steel beam to shift or fall toward Grant, trapping his hand and cutting his arm. Grant
alleges that the forklift incident “nearly sever[ed]” his hand.
He sued WTEC, Arrow, and an ambiguous number of other entities 7 for
negligence, negligence per se, and gross negligence. Grant’s petition did not distinguish
6
In his deposition, Grant confirmed that there was “[n]o problem with the
forklift as far as [he] knew,” and that there was “[n]o problem with the operation of the
forklift as far as [he] knew.” But later in the same deposition, Grant confirmed that it
was his “understanding that the gentleman operating the forklift on this day had not
been trained.” And Grant’s pleadings repeatedly reference WTEC’s internal
investigation, which concluded that the forklift incident was the result of a “[h]yster
forklift being used [that] was not meant for production use,” the forklift operator “not
[being] properly trained,” and “[m]iscommunication between [the] spotter . . . and [the]
forklift operator.”
7
Grant’s live petition names four defendants in the style, but later in the petition,
Grant lists the same entity—“Wind Turbine and Energy Cables Corp.”—twice, first
alleging that it is a foreign corporation with a registered agent in Dallas and then alleging
that it is a Texas corporation with a registered agent in Houston. The parties thus count
different numbers of defendants. The WTEC on appeal appears to be the foreign
corporation with a registered agent in Dallas.
4
between the various defendants’ actions in causing his injury, 8 and he alleged that none
of the defendants subscribed to workers’ compensation.
But WTEC was a subscriber—a fact Grant no longer denies. And WTEC filed
a combination traditional and no-evidence summary judgment motion based on the
workers’ compensation exclusive remedy defense, 9 arguing that Grant was a borrowed
servant covered by WTEC’s workers’ compensation policy. See Tex. Lab. Code Ann.
§ 408.001(a). Grant responded that he was not covered by WTEC’s policy because
Arrow—not WTEC—was his employer and because WTEC did not extend benefits to
8
Grant’s negligence allegations asserted that all of the defendants were directly
negligent and that they were vicariously liable for their employees’ negligence. He
alleged that the defendants had (1) failed to provide a safe work environment; (2) hired,
retained, or trained an incompetent forklift driver; (3) failed to warn him of hazards;
(4) failed to operate their equipment safely; (5) failed to exercise caution; (6) failed to
train their employees, (7) failed to supervise their employees; (8) violated local, state,
and federal laws and regulations including Occupational Safety and Health
Administration (OSHA) regulations; and (9) were vicariously liable for the conduct of
their employees.
9
Although WTEC framed its motion for summary judgment as a combination
traditional and no-evidence motion, the substance of the motion was only the former.
The “no-evidence” portion of WTEC’s motion alleged that Grant “[wa]s still unable to
offer any evidence to disprove a single element of WTEC’s exclusive remedy affirmative
defense.” But WTEC bore the burden on its affirmative defense, and a party may file
a no-evidence motion to challenge only a claim or defense on which it does not bear
the burden of proof. See Tex. R. Civ. P. 166a(i) (providing for no-evidence summary
judgment motion challenging element of claim or defense “on which an adverse party
would have the burden of proof at trial”).
5
Grant. 10 To support his position, Grant executed a declaration,11 and WTEC moved
to strike portions of the declaration as conclusory. After striking three statements from
the declaration, the trial court granted WTEC’s motion for summary judgment.
Meanwhile, Arrow filed a combination summary judgment motion of its own.
Although Arrow was not a subscriber to workers’ compensation, it argued that Grant
had no evidence of negligence because, among other things, Arrow did not control the
details of Grant’s work at the time of the forklift incident; thus, it was not Grant’s
common law employer. Consequently, Arrow did not owe him the employer-based
duties that he alleged.12 The trial court again granted summary judgment.
10
Grant also argued in his response to WTEC’s summary judgment motion that
WTEC was required to notify the Texas Workers’ Compensation Commission of its
subscription status and that the failure to do so was “a fatal administrative violation”
that subjected both companies to common law litigation. Grant does not reassert this
argument on appeal.
11
Generally, with exceptions not applicable here, “an unsworn declaration may
be used in lieu of a written sworn declaration, verification, certification, oath, or
affidavit required by statute or required by a rule, order, or requirement adopted as
provided by law.” Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a).
12
Arrow also contended that (1) it did not hire or train the forklift driver, (2) it
owed no duty to warn of unknown hazards, and (3) Grant’s own conduct was the sole
proximate cause of his injuries. Furthermore, Arrow contended that Grant could not
rely on an OSHA violation for his negligence per se claim. In the alternative, Arrow
argued that under the one-satisfaction rule, it was entitled to an offset for the amount
of WTEC’s workers’ compensation. Arrow raises these arguments to support its
summary judgment on appeal as well, but because we resolve the issue based on the
duty element of Grant’s claims, we need not address Arrow’s other challenges. See Tex.
R. App. P. 47.1.
6
After entering the summary judgments, the trial court severed the claims against
WTEC and Arrow into a single cause of action separate from the claims against the
remaining defendants.
II. Discussion
Grant raises four issues on appeal; he challenges the trial court’s orders
(1) striking portions of Grant’s summary judgment evidence, (2) granting WTEC’s
motion for summary judgment, (3) granting Arrow’s motion for summary judgment on
Grant’s negligence and negligence per se claims, 13 and (4) severing the claims against
WTEC and Arrow.14
A. Motion to Strike
In his third issue, Grant challenges the trial court’s order striking three statements
from his summary judgment declaration.
We review a trial court’s ruling on a motion to strike for an abuse of discretion.
See Starwood Mgmt., LLC ex rel. Gonzalez v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017);
Hobson v. Francis, No. 02-18-00180-CV, 2019 WL 2635562, at *6 (Tex. App.—Fort
Worth June 27, 2019, no pet.) (mem. op.). A trial court does not abuse its discretion
by striking conclusory statements from an affidavit or declaration. See Trinity River Ests.,
Grant does not challenge the gross negligence portion of Arrow’s summary
13
judgment.
We have reordered Grant’s issues for organizational purposes.
14
7
L.P. v. DiFonzo, No. 2-08-393-CV, 2009 WL 1506928, at *4 (Tex. App.—Fort Worth
May 28, 2009, no pet.) (mem. op.) (holding that trial court did not abuse its discretion
by granting motion to strike conclusory affidavit); cf. A.J. Morris, M.D., P.A. v. De Lage
Landen Fin. Servs., Inc., No. 2-06-430-CV, 2009 WL 161065, at *4 (Tex. App.—Fort
Worth Jan. 22, 2009, no pet.) (mem. op.) (noting that “[a]n objection that a statement
is conclusory is an objection to substance”); Residential Dynamics, LLC v. Loveless, 186
S.W.3d 192, 198 (Tex. App.—Fort Worth 2006, no pet.) (noting that conclusory
statements are not credible). “A statement is conclusory when it does not provide the
underlying facts to support it.” A.J. Morris, 2009 WL 161065, at *4; see Residential
Dynamics, 186 S.W.3d at 198 (similar); cf. Tex. R. Civ. P. 166a(f) (requiring that summary
judgment affidavits “shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein”).
Here, the trial court struck as conclusory the following three statements from
Grant’s declaration:
[1] Due to an untrained forklift operator, poor communication, and a
forklift that was not properly maintained, the steel beam fell from the
assembly line onto my arm and wrist, nearly severing my hand off.
[2] WTEC did not control the details of the job task I was performing at
the time I sustained injuries.
[3] I was not covered under any workers compensation insurance policy
at the time of my injuries.
8
[Indentation altered.] Grant argues that these statements were not conclusory because
they were based on facts “known to [Grant] when he made the[ declaration],” including
“WTEC and Arrow’s own admissions during the litigation process.”
But the question is not whether the three statements were based on unspoken
facts “known to [Grant]”—the question is whether the declaration articulated the
underlying facts to support the challenged statements. See A.J. Morris, 2009 WL 161065,
at *4; see also Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (holding that affidavit
stating that contractual obligation had been modified “asserted nothing more than a
legal conclusion” and “should have gone further and specified factual matters such as
the time, place, and exact nature of the alleged modification”).
Grant’s declaration did not do so. Even assuming that he was aware of facts to
support the three statements, he did not enunciate those facts in his declaration. For
example, he did not support his first statement by explaining how he knew that the
forklift driver was “untrained,” what training the driver lacked, who said or did what in
the exchange of “poor communication,” how he knew that an unspecified component
of the forklift had been improperly maintained, or why he believed that any of these
events caused the steel beam to fall. Nor was his second statement (regarding WTEC’s
alleged lack of control) supported with any explanation of the “job task” that he was
completing when he was injured, what “details of th[at] job task” WTEC allegedly
lacked control over, or who—other than WTEC—he looked to for instruction for the
“details of th[at] task.” And his third statement was similarly lacking. By simply stating
9
that he was “not covered under any workers compensation insurance,” Grant left
unaddressed the facts underlying this conclusion, i.e., what company he considered his
“employer” for purposes of workers’ compensation, how he gained firsthand
knowledge of the company’s workers’ compensation coverage, why he believed himself
to be outside of that company’s coverage, or why he believed that the company was a
nonsubscriber.
These three statements thus asserted bare opinions and conclusions without
supporting facts, and the trial court did not abuse its discretion by striking the
statements as conclusory. See Brownlee, 665 S.W.2d at 112 (recognizing that “[a]ffidavits
consisting only of conclusions are insufficient to raise an issue of fact”). We overrule
Grant’s third issue.
B. Summary Judgment for WTEC
Grant argues in his first issue that, even without the three statements, the trial
court erred by granting WTEC’s motion for summary judgment because he raised
genuine issues of material fact as to (1) whether he qualified as WTEC’s “employee”
within the meaning of the Workers’ Compensation Act (the Act) and (2) whether
WTEC’s workers’ compensation policy extended to temporary workers.
1. Standard of Review
We review a summary judgment de novo. Tex. Workforce Comm’n v. Wichita Cnty.,
548 S.W.3d 489, 492 (Tex. 2018). We consider the evidence presented in the light most
favorable to the nonmovant, crediting evidence favorable to the nonmovant if
10
reasonable jurors could, and disregarding evidence contrary to the nonmovant unless
reasonable jurors could not. Boerjan v. Rodriguez, 436 S.W.3d 307, 311–12 (Tex. 2014);
Fielding, 289 S.W.3d at 848. We indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
A defendant is entitled to summary judgment on an affirmative defense if the defendant
conclusively proves all elements of that defense. Frost Nat’l Bank v. Fernandez, 315
S.W.3d 494, 508–09 (Tex. 2010); Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008); see
Tex. R. Civ. P. 166a(b), (c). If a defendant meets this burden, the burden shifts to the
plaintiff to avoid summary judgment by raising a genuine issue of material fact on the
affirmative defense. Draughon v. Johnson, 631 S.W.3d 81, 87–90 (Tex. 2021); Robinson v.
Cox, No. 02-19-00370-CV, 2020 WL 7063289, at *1 (Tex. App.—Fort Worth Dec. 3,
2020, no pet.) (mem. op.).
WTEC was granted summary judgment on its exclusive remedy affirmative
defense under the Act. 15 See Tex. Lab. Code Ann. § 408.001(a). “Recovery of workers’
compensation benefits is the exclusive remedy of an employee covered by workers’
compensation insurance coverage . . . against the employer or an agent or employee of
the employer for the death of or a work-related injury sustained by the employee.” Id.;
Waste Mgmt. of Tex., Inc. v. Stevenson, 622 S.W.3d 273, 277 (Tex. 2021) (quoting Section
Although the trial court did not specify the basis for its order granting WTEC
15
summary judgment, WTEC’s summary judgment motion relied solely on the exclusive
remedy defense.
11
408.001); see Port Elevator-Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 243 (Tex. 2012)
(stating that “a client company is entitled to the exclusive remedy defense upon showing
that it was the plaintiff’s employer and that it was covered by a workers’ compensation
policy”). On appeal, Grant challenges two elements of this defense: (1) whether he
was an “employee” within the meaning of the Act, and (2) whether he was “covered by
[WTEC’s] workers’ compensation insurance coverage.” Tex. Lab. Code Ann.
§ 408.001(a).
2. The Meaning of “Employee” Under the Workers’ Compensation Act
To establish its exclusive remedy defense, WTEC was required to conclusively
prove that Grant qualified as WTEC’s “employee” under the Act. See Tex. Lab. Code
Ann. § 401.012; Waste Mgmt. of Tex., 622 S.W.3d at 277. In doing so, WTEC relied on
the borrowed servant doctrine.
a. The Law on Employment Status and the Right to Control
The Act defines an “employee” as “each person in the service of another under
a contract of hire, whether express or implied, or oral or written.” 16 Tex. Lab. Code
Ann. § 401.012(a). Under Texas Supreme Court precedent, an individual qualifies as a
company’s “employee” within the meaning of the Act if the company “has the right to
control the progress, details, and methods of operations of the [employee’s] work.”
The Act defines an “employer” as “a person who makes a contract of hire,
16
employs one or more employees, and has workers’ compensation insurance coverage.”
Tex. Lab. Code Ann. § 401.011(18).
12
Waste Mgmt. of Tex., 622 S.W.3d at 277 (quoting Limestone Prods. Distrib., Inc. v. McNamara,
71 S.W.3d 308, 312 (Tex. 2002)).
This focus on control is not unique to the Act; it aligns with “traditional
[common law] notions of what it means to be ‘in the service of another.’” Garza v. Exel
Logistics, Inc., 161 S.W.3d 473, 476 (Tex. 2005). And given the importance of control, it
logically follows that, when control shifts, “a general or regular employee of one
employer may become the borrowed employee of another with respect to some
activities.”17 St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex. 2002) (plurality op.)
(applying doctrine in vicarious liability case); Sparger v. Worley Hosp., Inc., 547 S.W.2d 582,
584 (Tex. 1977) (similar, noting that the borrowed servant doctrine “cuts across the
entire law of principal and agent and employer and employee”). “Accordingly, in
determining if a general employee of a temporary employment agency is also an
employee of a client company for purposes of the Act, we consider traditional indicia,
such as the exercise of actual control over the details of the work that gave rise to the
injury.” Garza, 161 S.W.3d at 477; see St. Joseph Hosp., 94 S.W.3d at 537–38.
Thus, to prevail on its motion for summary judgment, WTEC was required to
conclusively establish that it had the right to control the relevant details of Grant’s work
when the forklift incident occurred.
This “borrowed servant” doctrine is more than a century old. See Standard Oil
17
Co. v. Anderson, 212 U.S. 215, 220–27, 29 S. Ct. 252, 253–56 (1909).
13
b. Conclusive Evidence of WTEC’s Control
The determinative facts are undisputed. It is undisputed that WTEC leased the
warehouse where the injury occurred. See Garza, 161 S.W.3d at 477 (noting that
temporary worker “was working on [client’s] premises when he was injured” and
holding that client company was “employer” under the Act). It is undisputed that
WTEC provided the on-site machinery—including the forklift—and that it offered the
only task-specific training that Grant received. Cf. Waste Mgmt. of Tex., 622 S.W.3d at
279 (holding that temporary worker’s client company was “employer” under the Act
when the client company “provided helpers with instructions and training”). And it is
undisputed that, in Grant’s words, WTEC “told [him] what to do as far as a job.” 18 Cf.
id. (holding that temporary worker’s client company was “employer” under the Act in
part because worker “agreed that [the client company] managers had ‘the ability to tell
[him] what to do and how to do [his] job’”). By Grant’s own account, in the 17 days
that he spent working at WTEC’s facility prior to his injury, no “member of Arrow ever
c[a]me on[to] WTEC’s property and instruct[ed] [him] on how to do [his] job.” Cf. City
of Bellaire v. Johnson, 400 S.W.3d 922, 923 (Tex. 2013) (holding that temporary worker
18
In his deposition, Grant was asked whether “WTEC ha[d] control over the
details of [his] work” and he responded “[y]es.” But just moments later, when he was
asked whether “WTEC or Arrow [was] in charge of the details of [his] work,” he
responded, “Arrow,” and he subsequently added that “WTEC didn’t control the details
of [his] work.” The deposition testimony did not identify the relevant “details” that
Arrow allegedly controlled.
14
was “employee” of client company under the Act and noting that the client company
“gave him his assignments, and supervised his work” while staffing agency “had no role
in overseeing [the plaintiff’s] work”).
Grant contends, though, that there was evidence that he was not under WTEC’s
control because he testified that his “supervisor” was an Arrow employee named
Veronica. But the test does not hinge upon labels. Regardless of what title Veronica
may have held, there is no evidence that she or any other Arrow employee determined
the type or method of Grant’s day-to-day activities within the warehouse. Rather,
WTEC workers instructed Grant on what training to take, what task to perform, how
to do the assigned task, what equipment to use, and even—as Grant alleges happened
on the day of his injury—where to stand.
Grant testified that, at the time of his accident, he was in “the back” of the
warehouse facility because, according to him, “Ruben [one of the WTEC foremen] told
[him] to go to the back to help out.” See Garza, 161 S.W.3d at 477 (holding that
temporary worker’s client company was “employer” under the Act in part because
worker “was injured when he responded to direct instructions from [the client
company] supervisor”). Grant explained that he had listened to what Ruben told him
to do because Ruben was “one of the head guys” at the warehouse, and Grant admitted
to performing other tasks—such as participating in safety training—at Ruben’s
direction as well. Whether Ruben or Veronica held the title of “supervisor,” the
15
evidence identified only on-site WTEC workers as those persons who directed the
warehouse tasks that Grant performed and the manner in which he performed them.
WTEC’s control is consistent with the role that it agreed to assume in its contract
with Arrow as well.19 The WTEC–Arrow contract stated that WTEC would
“supervise” workers assigned to its facility, provide them “with a safe work site,” and
provide “appropriate information, training, and safety equipment,” among other things.
Though not determinative, the contractual language is “a factor to be considered” in
the right-to-control analysis, and it reaffirms what was demonstrated by the facts on the
19
WTEC attached a copy of this agreement to its summary judgment motion
along with a copy of its workers’ compensation policy, and WTEC authenticated the
two documents with a business records affidavit from its in-house counsel. Grant
argues that the business records affidavit is conclusory and that WTEC’s counsel could
not attest to the relevant facts because he “was not present at the time of the incident.”
Grant does not identify what statement in the affidavit is allegedly conclusory. And
regardless, his challenge is off base.
The sponsoring witness for a business records affidavit is not required to be
“present at the time of the incident.” See Tex. R. Evid. 803(6) (providing exception to
hearsay rule for business records), 902(10) (providing form for business records
affidavit based on records custodian’s affirmation of predicate). Nor did WTEC’s
counsel claim to have been. Instead, he attested to basic corporate information about
WTEC (such as its corporate headquarters and its lease of the warehouse location), he
authenticated the accompanying documents, and he quoted from and highlighted
portions of the WTEC–Arrow agreement. Even in highlighting portions of the
agreement, the affiant merely described what WTEC and Arrow had agreed to do; he
did not purport to conclude that this was what had actually occurred on the ground.
See Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex. 1992) (op. on reh’g) (noting that two
companies’ agreement regarding control is a “factor to be considered” in the control
analysis). All of these statements were within the affiant’s personal knowledge based
on his stated role at WTEC and the accompanying documents that he quoted and
provided.
16
ground—that WTEC controlled Grant’s task-specific training, direction, and
supervision.20 Exxon Corp., 842 S.W.2d at 630 (addressing right-to-control test in
workers’ compensation context); see Waste Mgmt. of Tex., 622 S.W.3d at 283 (quoting
Exxon and addressing right-to-control test in workers’ compensation context).
Grant emphasizes that Arrow—not WTEC—interviewed, screened, hired, and
paid him. But as our sister court has explained, a staffing company’s provision of
payroll checks and benefits does not establish a right of control over the work
performed at a client company’s facility. See Phillips v. Am. Elastomer Prods., L.L.C., 316
S.W.3d 181, 188 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (noting in
workers’ compensation case that the fact that the staffing company “issued payroll
checks and paid workers’ compensation to [the plaintiff] does not necessarily establish
that [the staffing company] had the right of control over [the plaintiff’s] work at [the
client company’s] rubber manufacturing plant”). “[T]he fact that the [client company]
did not directly employ the worker provided by the staffing agency d[oes] not factor
prominently in the [workers’ compensation] analysis.” Waste Mgmt. of Tex., 622 S.W.3d
20Grant argues that “[e]ven considering the [WTEC–Arrow] services agreement,
the record does not show that Arrow and WTEC followed and adhered to the
agreement’s terms” because “under its express terms, Arrow—not WTEC—was
required to provide workers’[ ]compensation benefits to Grant.” While this may be
true, the manner in which the parties deviated from the contract—by providing
workers’ compensation through WTEC rather than Arrow—only further supports
WTEC’s position that it exercised control over Grant. Although Grant implicitly
invites us to throw out the baby with the bathwater, we decline to do so. One deviation
from the contract does not render the agreement wholly lacking in probative value.
17
at 279 (summarizing analyses in prior case law and holding that client company was
“employer” under the Act).
More problematic, however, is that Grant’s argument assumes that he can have
only one “employer” under the Act, a notion that the Texas Supreme Court has
rejected. See Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 142–43 (Tex. 2003) (holding
that “the express definitions of ‘employer’ and ‘employee’ [in the Act] and the exclusive
remedy provision may apply to more than one employer”). In so holding, the court
addressed Grant’s precise situation: if an employee is “working for h[is] general
employer (i.e., the temporary staffing provider), but will also be subjected to laboring
in the workplace and under the direction of the general employer’s client company,”
then “[a]n employee injured while working under the direct supervision of a client
company . . . . should be able to pursue workers’ compensation benefits from either.”
Id.Moreover, Grant’s own pleadings demonstrate that he looked to WTEC for his
training and supervision at the warehouse on the day in question. For example, in his
response to WTEC’s motion for summary judgment, Grant faulted WTEC for failing
to provide him with sufficient task-specific “instructions while he observed at the saw
station when the incident occurred.”
All of the summary judgment evidence, including Grant’s testimony that WTEC
“told [him] what to do as far as a job,” led to the conclusion that Grant was WTEC’s
“employee” within the meaning of the Act. Cf. Waste Mgmt. of Tex., 622 S.W.3d at 277;
18
see also Tex. Lab. Code Ann. § 401.012. Having conclusively established that WTEC
controlled the “progress, details, and methods of operations of the work” and
“exercised ‘actual control over the details of the work that gave rise to [Grant’s] injury,’”
see Waste Mgmt. of Tex., 622 S.W.3d at 280 (first quoting Limestone Prods., 71 S.W.3d at
312; then quoting Garza, 161 S.W.3d at 477), the burden then shifted to Grant to offer
evidence raising a genuine issue of fact on that point. See Robinson, 2020 WL 7063289,
at *1. But he failed to do so.
3. Workers’ Compensation Policy Coverage
Grant claims that he presented a fact question as to whether WTEC’s workers’
compensation policy extended to temporary workers. He argues that “WTEC’s own
paperwork provides that ‘temp’ workers do not get employment benefits” and that
“[t]he record otherwise is silent about temporary workers (including so-called
‘borrowed servants’) being covered under WTEC’s workers’[ ]compensation policy.”
But this argument does not raise a fact issue that would preclude summary judgment.
The Texas Supreme Court has held that “an employer may not (intentionally or
unintentionally) split its workforce . . . . [and] choose to exclude certain employees from
coverage unless a statutory or common[ ]law exception to the rule against split
workforces applies.” Port Elevator-Brownsville, 358 S.W.3d at 243.
In Port Elevator-Brownsville, the court applied this “long-standing rule” to a
temporary worker—Rafael Casados—who was assigned by a staffing agency to work at
Port Elevator’s grain storage facility. Id. at 240–44. While there, Casados suffered a
19
fatal work-related injury. Id. at 240. When Casados’s parents sued Port Elevator for
common law claims, Port Elevator raised the exclusive remedy affirmative defense,
arguing that the company’s workers’ compensation policy extended to temporary
workers like Casados.21 Id. The Texas Supreme Court agreed with Port Elevator:
“[B]ecause the [Act] and [Texas Supreme Court] decisions are intended to prevent an
employer from splitting its workforce by choosing coverage for some employees but
not coverage for all” and because there was no evidence that any of the “limited
statutory or common[ ]law exceptions” to the rule against splitting workforces applied,
Port Elevator was “entitled to the exclusive remedy defense upon showing that it was
the plaintiff’s employer and that it was covered by a workers’ compensation policy.” Id.
at 242–43.
The same is true here. WTEC was prohibited from splitting its workforce absent
a statutory or common law exception. Grant does not allege that any exception applies;
he does not allege that WTEC “makes different elections for separate and distinct
businesses”; he does not allege that he is “a sole proprietor, partner, or corporate
executive officer” that WTEC was statutorily permitted to exclude from coverage, see
Tex. Lab. Code Ann. § 406.097; and he does not allege that WTEC leased his services
under the Staff Leasing Services Act, see id. § 91.042. See also City of Bellaire, 400 S.W.3d
Before filing suit, Port Elevator’s insurance carrier concluded that the workers’
21
compensation policy did not extend to temporary employees and denied coverage of
the Casadoses’ claim. Port Elevator-Brownsville, 358 S.W.3d at 240.
20
at 922 n.2 (listing exceptions). And to the extent that Grant relies on his temporary-
worker status as an exception to the rule against splitting workforces, no such exception
exists.
Thus, whether or not WTEC’s paperwork indicated that it provided temporary
workers with employment benefits, WTEC could not “choose to exclude [temporary]
employees from [workers’ compensation] coverage,” Port Elevator-Brownsville, 358
S.W.3d at 243, and Grant cannot avoid the exclusive remedy defense by “argu[ing] that
his subscriber–employer has done what the law prohibits,” City of Bellaire, 400 S.W.3d
at 923.
4. Conclusion
Because the evidence conclusively establishes that Grant was WTEC’s
“employee” within the meaning of the Act and that WTEC had workers’ compensation
coverage, and because there is no evidence or allegation to support an exception to the
rule against splitting workforces, the trial court properly granted summary judgment for
WTEC. See Tex. R. Civ. P. 166a(c). We overrule Grant’s first issue.
C. Summary Judgment for Arrow
In his second issue, Grant claims that he raised a genuine fact question on each
element of his negligence and negligence per se claims, thus precluding summary
judgment for Arrow. But the duty element of these claims relies on Grant’s
21
characterization of Arrow as his common law employer.22 Arrow challenged this
characterization in both its traditional and no-evidence motions for summary judgment,
and there is no evidence to support the characterization.
22
Even Grant’s negligence per se argument relies on his characterization of
Arrow as his common law employer. He argues that because Arrow was his employer,
it had a duty to comply with 29 U.S.C.A. § 654—one of the many federal statutes on
“Occupational Safety and Health.” See 29 U.S.C.A. §§ 651–78. Because Grant premises
his negligence per se claim on Arrow’s alleged status as Grant’s common law employer,
the duty element of Grant’s negligence per se claim falls with the duty element of his
common law negligence claim. To the extent that the statutory definition of the term
“employer” in 29 U.S.C.A. § 654 differs from the common law definition of an
employer, Grant has waived the issue by failing to raise or brief it. See Tex. R. App. P.
38.1(i).
Plus, the Occupational Safety and Health Chapter of the United States Code
provides that “[n]othing in this chapter shall be construed . . . to enlarge or diminish or
affect in any other manner the common law or statutory rights, duties, or liabilities of
employers and employees under any law with respect to injuries, diseases, or death of
employees arising out of, or in the course of, employment.” 29 U.S.C.A. § 653(b)(4).
Consequently, “Texas courts have held that the common law duties imposed by state
law are not expanded by OSHA regulations”—“either a [defendant] owes a duty based
upon our common law principles, or it does not.” Hill v. Consol. Concepts, Inc., No. 14-
05-00345-CV, 2006 WL 2506403, at *4 (Tex. App.—Houston [14th Dist.] Aug. 31,
2006, pet. denied) (mem. op.); McClure v. Denham, 162 S.W.3d 346, 353 (Tex. App.—
Fort Worth 2005, no pet.) (affirming summary judgment on negligence per se claim
based in part on Fifth Circuit’s rejection of OSHA regulations as basis for negligence
per se); cf. Perez v. Smart Corp., No. 04-12-00712-CV, 2013 WL 6203358, at *3 (Tex.
App.—San Antonio Nov. 27, 2013, pet. denied) (mem. op.) (quoting Hill and
concluding that “[j]ust as evidence of OSHA citations and fines may not be used to
establish negligence per se, we conclude that a finding of no violation of OSHA
regulations is similarly inadmissible to exculpate a defendant”).
22
1. Standard of Review
As with WTEC’s summary judgment, we review Arrow’s summary judgment de
novo, Tex. Workforce Comm’n, 548 S.W.3d at 492, viewing the evidence in the light most
favorable to Grant. Boerjan, 436 S.W.3d at 311–12; Fielding, 289 S.W.3d at 848. Because
the trial court did not specify the basis for its judgment, we will affirm if any of the
theories that Arrow advanced are meritorious. Cmty. Health Sys. Pro. Servs. Corp. v.
Hansen, 525 S.W.3d 671, 680 (Tex. 2017); Ally Fin., Inc. v. Gutierrez, No. 02-13-00108-
CV, 2014 WL 261038, at *5 (Tex. App.—Fort Worth Jan. 23, 2014, no pet.) (mem. op.).
Because Arrow prevailed on a combination traditional and no-evidence motion
for summary judgment, “the differing burdens of the two forms of summary judgment
motion are of no import here.” Buck v. Palmer, 381 S.W.3d 525, 527 n.2 (Tex. 2012).
Under either standard, the ultimate question is whether there is “more than a scintilla
of probative evidence raising genuine issues of material fact” on each essential element
challenged by Arrow. Id. at 527 & n.2; see Tex. R. Civ. P. 166a(c), (i).
One of the challenged essential elements is the duty requirement.
2. Common Law Duty
“A prerequisite to tort liability is the existence of a legally cognizable duty.”
Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 613 (Tex. 1996); Kirk v. Precis, Inc.,
No. 2-05-297-CV, 2006 WL 3627119, at *3 (Tex. App.—Fort Worth Dec. 14, 2006,
23
pet. denied) (mem. op.). 23 All of the duties that Grant contends Arrow owed him stem
from Arrow’s alleged status as Grant’s common law employer. Grant argues that
Arrow, as his employer, owed him a duty to provide a reasonably safe workplace,
including a duty to adequately train and supervise him. Grant concedes that there is no
evidence that Arrow controlled the safety procedures, activities, or task assignments
within WTEC’s facility, but he argues that because Arrow provided him with the
administrative indicia of employment—an interview, a salary, benefits, and the like—
Arrow took on a slew of “nondelegable duties,” regardless of its lack of control over
the liability-producing circumstances of Grant’s work. We disagree. Because “[t]he
right of control is the ‘supreme test’ for determining whether a master–servant
relationship exists,” and because there is no evidence that Arrow had any control over
the liability-producing aspects of Grant’s work, Arrow was not Grant’s common law
employer with respect to the activities at issue. See Farlow v. Harris Methodist Fort Worth
Hosp., 284 S.W.3d 903, 911 (Tex. App.—Fort Worth 2009, pet. denied) (applying
control test in vicarious liability case).
The existence of a duty is a question of law for the court to decide based on
23
“the facts surrounding the occurrence in question.” Elephant Ins. Co. v. Kenyon, 644
S.W.3d 137, 145 (Tex. 2022) (quoting Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d
523, 525 (Tex. 1990)).
24
a. The Law on Duty and the Right to Control
Just as determining employment status under the Act turns on the question of
control, so too does determining employment status for common law negligence
purposes. See Waste Mgmt. of Tex., 622 S.W.3d at 281 n.4 (noting that “determining
employment status under the common law and doing so under the Workers’
Compensation Act . . . [will] in many cases . . . look identical”).24
Arrow argues that it was not Grant’s “immediate employer” because it did not
have the contractual or actual right to control Grant’s workplace or the liability-
producing aspects of Grant’s work, i.e., Grant’s safety protocols, equipment,
warehouse-specific training, or supervision. This argument rings of the borrowed
servant doctrine discussed above, although Arrow, unlike WTEC, does not use that
phrase. Instead, Arrow implicitly invokes the doctrine as an inferential rebuttal defense
that goes to the heart of the employment relationship and the duty element. 25 See
Despite the similarities between the common law and the Act, employment
24
status under the common law is distinct from that under the Act; the two inquiries
“serve different purposes,” so they “can diverge to some extent in the dual-employment
context.” Waste Mgmt. of Tex., 622 S.W.3d at 281 n.4.
25
Although this court has held that the borrowed servant doctrine is an inferential
rebuttal defense, other courts have construed it as an affirmative defense. Compare
Linden-Alimak, Inc. v. McDonald, 745 S.W.2d 82, 84 (Tex. App.—Fort Worth 1988, writ
denied) (characterizing the borrowed servant doctrine as “an inferential rebuttal
defense” because it “seeks to disprove the existence of an essential element submitted
in another issue”; namely, “control”), Everman Corp. v. Haws & Garrett Gen. Contractors,
Inc., 578 S.W.2d 539, 542 (Tex. App.—Fort Worth 1979, no writ) (concluding that
“[w]hether he was a borrowed servant in this context is merely inferential rebuttal and
25
Linden-Alimak, Inc., 745 S.W.2d at 84; cf. Comm. on Pattern Jury Charges, State Bar of
Tex., Texas Pattern Jury Charges: Malpractice, Premises & Products PJC 52.2 (2018) (noting
that doctrine applies when a general employer “seeks to rebut the employment
relationship with evidence that the employee was the borrowed employee of another”).
Under the borrowed servant doctrine, “a general or regular employee of one
employer may become the borrowed employee of another with respect to some
activities.” St. Joseph Hosp., 94 S.W.3d at 537; see Producers Chem. Co. v. McKay, 366 S.W.2d
220, 225 (Tex. 1963). “Since the question of liability is always raised because of some
specific act done [or not done], the important question is not whether . . . [the
employee] remains the servant of the general employer as to matters generally,” but
“whether the other employer or its agents have the right to direct and control the
employee with respect to the details of the particular work at issue.” 26 St. Joseph Hosp.,
94 S.W.3d at 537; Hilgenberg v. Elam, 198 S.W.2d 94, 96 (Tex. 1946) (quoting
should not have been separately, or disjunctively submitted”), and Comm. on Pattern
Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice, Premises & Products
PJC 52.2 (2018) (noting that doctrine is “an inferential rebuttal” defense to the general
employer’s liability), with Coco v. Port of Corpus Christi Auth., 132 S.W.3d 689, 691 (Tex.
App.—Corpus Christi–Edinburg 2004, no pet.) (“The borrowed servant doctrine is an
affirmative defense to tort liability based on respondeat superior.”), and Faust v. Pumpco,
Inc., 57 S.W.3d 620, 622 (Tex. App.—Texarkana 2001, pet. denied) (analyzing traditional
summary judgment on “the affirmative defense of borrowed servant”).
An employee may also “be the servant of two masters, not joint employers, at
26
one time as to one act, if the service to one does not involve abandonment of the service
to the other.” Restatement (Second) of Agency § 226 (Am. Law Inst. 1958). Grant
does not argue that this principle applies here.
26
Restatement (First) of Agency § 227 cmt. a (Am. Law Inst. 1933), in vicarious liability
case).
Here, there is no evidence that Arrow was Grant’s common law employer “with
respect to the . . . particular work at issue.” See St. Joseph Hosp., 94 S.W.3d at 537.
b. No Evidence of Arrow’s Alleged Control 27
Grant conceded at oral argument that he did not “have any evidence . . . that
Arrow specifically was able to control what was going on within WTEC’s facility.”
Indeed, the undisputed facts demonstrate that Arrow lacked such control:
• Arrow did not decide what tasks Grant would perform within the warehouse—
WTEC did. Cf. Sparger, 547 S.W.2d at 585–86 (holding—in vicarious liability
case when a sponge was left in a patient—that nurses were hospital’s general
employees rather than surgeon’s special employees in part because the hospital
selected the nurses, assigned them “specific duties,” and provided procedures for
counting sponges that were “intended for use regardless of the surgeon”).
Because Grant’s live petition did not distinguish between the defendants in
27
alleging negligence, his pleadings are ambiguous regarding whether his “safe workplace”
argument asserts a negligent activity or a premises liability theory. Even on appeal,
Grant hints at both, alleging that Arrow “sent him into a dangerous workplace” at
WTEC. But because Grant concedes that Arrow did not own, lease, or control
WTEC’s facility, and because he repeatedly refers to the duty to train and supervise
employees, we construe his theory as one of negligent activity. Cf. Exxon Corp. v. Tidwell,
867 S.W.2d 19, 23 (Tex. 1993) (stating in lessee–lessor context that “in a case alleging
negligence in maintaining a safe workplace, the court’s inquiry must focus on who had
specific control over the safety and security of the premises, rather than the more
general right of control over operations”).
27
• Arrow did not control the method by which Grant performed his assigned tasks
at the warehouse—WTEC did. Cf. Thompson v. Travelers Indem. Co. of R.I., 789
S.W.2d 277, 278–79 (Tex. 1990) (noting in workers’ compensation case that an
“[e]xample[] of the type of control normally exercised by an employer
include[s] . . . the physical method or manner of accomplishing the end result”);
Hilgenberg, 198 S.W.2d at 96 (holding in respondeat superior case that tractor
driver was not under general employer’s direction when he ran over decedent,
noting that there was no evidence that general employer had “any control over
the driver in the performance of the work either as to the result to be reached or
as to the method of reaching the result”).
• Arrow did not tell Grant where to go within the warehouse—WTEC did. See
Thompson, 789 S.W.2d at 278–79 (noting in workers’ compensation case that an
“[e]xample[] of the type of control normally exercised by an employer include[s]
when and where to begin and stop work”); Hilgenberg, 198 S.W.2d at 96 (holding
in respondeat superior case that tractor driver was under the special employer’s
direction when special employer “possessed the authority to direct the driver to
go backward as well as forward” and that there was no evidence that general
employer “possessed the authority to direct the movements of the tractor in any
direction”).
28
• Arrow did not provide any task-specific training or determine the extent of such
training—WTEC did. Cf. Phillips, 316 S.W.3d at 188 (holding in workers’
compensation case that temporary worker was borrowed servant of client
company in part because the client company’s “employees trained [the plaintiff]
on the work to be performed”).
• Arrow did not select or provide any of the task-specific on-site equipment—
WTEC did. Cf. Thompson, 789 S.W.2d at 278–79 (noting in workers’
compensation case that an “[e]xample[] of the type of control normally exercised
by an employer include[s] . . . the tools and appliances used to perform the
work”); Producers Chem. Co., 366 S.W.2d at 226 (holding that general employer
retained control in part because general employer provided the worker and the
equipment for a specific “relatively brief” task and that the worker “was
accountable only to [the general employer]” in his operation of the relevant
equipment); Martinez v. Boone, 624 S.W.3d 241, 249 (Tex. App.—El Paso 2021,
pet. filed) (noting in vicarious liability case that the “attributes of an employer”
include “the furnishing of tools”); Phillips, 316 S.W.3d at 188 (holding in workers’
compensation case that temporary worker was borrowed servant of client
company in part because the client company “provided the machines, tools, and
raw materials for [the plaintiff’s] work”).
29
• On the day of Grant’s injury, Arrow did not instruct Grant to help on the saw
line or to stand where he stood—WTEC did. Cf. Garza, 161 S.W.3d at 477
(concluding in workers’ compensation case that client company controlled
details of the work that gave rise to the injury where temporary worker “was
injured when he responded to direct instructions from [the client company]
supervisor”).
Although Grant emphasizes—as he did with WTEC—that he had “applied for
a job with Arrow, [had] interviewed with Arrow, and [had been] hired by Arrow,” these
administrative functions do not speak to actual control of the liability-producing aspects
or circumstances of Grant’s work. Cf. St. Joseph Hosp., 94 S.W.3d at 543 (noting that
although the teaching hospital controlled the residents’ training and set the parameters
for their schedules and patients, it did not control the residents’ medical tasks while the
residents were on rotation at the specific location at issue); In re Peterson Constr., Inc., No.
13-15-00535-CV, 2016 WL 3548643, at *9 (Tex. App.—Corpus Christi–Edinburg June
17, 2016, orig. proceeding) (mem. op.) (recognizing that “[t]he fact that an employer
issued payroll checks” or maintained the ability to hire and fire “d[id] not necessarily
establish that the employer had the right of control over the employee’s work”);
Restatement (Second) of Agency § 227 ill. 3 (Am. Law Inst.1958)28 (illustrating doctrine
See also Sparger, 547 S.W.2d at 583 (citing Restatement (Second) of Agency § 227
28
(Am. Law Inst. 1958), for borrowed servant doctrine).
30
by explaining that if “P, a master carpenter, by agreement with B, sends A, a skilled
cabinetmaker, to work with B’s servants for a week, under the direction of B’s foreman,
in the reconstruction of a stairway,” and “[f]or this B is to pay P an agreed amount,”
then “A acts as the servant of B in building the stairway”); cf. also Morris v. Scotsman Indus.,
Inc., 106 S.W.3d 751, 754 (Tex. App.—Fort Worth 2003, no pet.) (“A court cannot infer
duty from evidence showing . . . control over the general operation of the workplace.”).
Grant also argues that his coworker’s belief that he was an Arrow employee
created a fact issue, but this argument is problematic for several reasons. First, Grant’s
coworker premised his characterization of the employment relationship on the
administrative indicia discussed above and on his belief that “WTEC doesn’t hire
employees until after a year of being with their temp service.” Grant’s coworker did
not support his employment characterization with any facts regarding Arrow’s control
over the details of Grant’s work. And testimony “that merely asserts the existence of
an employment relationship without providing specific[, relevant] supporting facts is
not competent evidence of the alleged employment relationship.” Goldren Agri-Res. Ltd.
v. Fulcrum Energy LLC, No. 01-11-00922-CV, 2012 WL 3776974, at *11 (Tex. App.—
Houston [1st Dist.] Aug. 30, 2012, pet. denied) (mem. op.); cf. Waste Mgmt. of Tex., 622
S.W.3d at 283–84 (addressing right-to-control test in workers’ compensation context
and holding that “no fact issue is raised when the only evidence cutting against [the
entity’s] right to control [the plaintiff] . . . is a bare contractual label”). This is
particularly true in the borrowed servant context because multiple entities are involved.
31
Second, the mere fact that Arrow might have been Grant’s general employer for some
purposes and activities would not mean that it was his common law employer for all
purposes and all activities. See St. Joseph Hosp., 94 S.W.3d at 537–38 (quoting summary
of borrowed servant doctrine in Comm. on Pattern Jury Charges, State Bar of Tex.,
Texas Pattern Jury Charges: Malpractice, Premises & Products PJC 52.2 (1997)).
Again, Grant has conceded that he presented no evidence that Arrow controlled
WTEC’s workplace, and Grant’s negligence claims are based on alleged deficiencies in
that workplace—primarily his lack of training, faulty equipment, and inadequate
supervision. Thus, there is no evidence that Arrow was Grant’s common law employer
with respect to the claims at issue.
3. Conclusion
Because Grant failed to present more than a scintilla of evidence that Arrow was
his common law employer with respect to the claims at issue, and because Arrow’s
status as Grant’s alleged employer was the basis for the duty element of Grant’s
negligence and negligence per se claims, Grant has failed to raise a genuine issue of
material fact on these claims sufficient to defeat Arrow’s no-evidence motion for
summary judgment. “[T]he ‘nonexistence of a duty ends the inquiry into whether
negligence liability may be imposed.’” Little v. Delta Steel, Inc., 409 S.W.3d 704, 717 (Tex.
App.—Fort Worth 2013, no pet.) (quoting Morris, 106 S.W.3d at 754). We hold that
the trial court properly granted summary judgment in Arrow’s favor. See Tex. R. Civ.
P. 166a. We overrule Grant’s second issue.
32
D. Severance
Finally, in his fourth issue, Grant contends that the trial court erred by severing
WTEC’s and Arrow’s summary judgments.
Rule 41 of the Rules of Civil Procedure provides that “[a]ny claim against a party
may be severed and proceeded with separately.” Tex. R. Civ. P. 41. The trial court has
broad discretion in granting a severance, and the trial court’s decision will not be
reversed absent an abuse of discretion. Guar. Fed. Sav. Bank v. Horseshoe Operating Co.,
793 S.W.2d 652, 658 (Tex. 1990) (op. on reh’g).
“A severance after an interlocutory summary[ ]judgment order to expedite
appellate review is proper and not an abuse of discretion.” Nicholson v. Stockman, No.
02-19-00103-CV, 2020 WL 241420, at *2 (Tex. App.—Fort Worth Jan. 16, 2020, pet.
denied) (mem. op.); see Arredondo v. City of Dall., 79 S.W.3d 657, 665 (Tex. App.—Dallas
2002, pet. denied) (“If summary judgment in favor of one defendant is proper in a case
with multiple defendants, severance of that claim is proper so it can be appealed.”).
Here, Grant’s case involved multiple defendants, and the trial court granted
interlocutory summary judgments in favor of two of those defendants: WTEC and
Arrow. The trial court did not abuse its discretion by severing the interlocutory
summary judgments to make them final and expedite appellate review. See Cherokee
Water Co. v. Forderhause, 641 S.W.2d 522, 525–26 (Tex. 1982) (holding that severance of
summary judgment “in an effort to expedite appellate review” was not an abuse of
discretion); Nicholson, 2020 WL 241420, at *2 (holding no abuse of discretion occurred
33
when trial court severed interlocutory summary judgments that disposed of some but
not all defendants); Smith v. Tex. Farmers Ins. Co., 82 S.W.3d 580, 587–88 (Tex. App.—
San Antonio 2002, pet. denied) (similar). We overrule Grant’s fourth issue.
III. Conclusion
Having overruled Grant’s four issues, we affirm the trial court’s summary
judgments. See Tex. R. App. P. 43.2(a).
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: July 21, 2022
34