John Paniagua And Hermelinda Maravilla Corona and Jose Camerino Maravilla, Sr., Individually, as Personal Representatives of the Estate of Jose Camerino Maravilla v. Weekley Homes, LLC ( 2022 )

Reverse and Remand in part; Affirm in part and Opinion Filed November 29,
2022
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00439-CV
JOHN PANIAGUA AND HERMELINDA MARAVILLA CORONA, JOSE
CAMERINO MARAVILLA, SR., AND MARGARITA MARAVILLA,
INDIVIDUALLY, AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF JOSE CAMERINO MARAVILLA, DECEASED, AND AS NEXT
FRIEND OF S.L.M.S., E.H., L.A.S., AND J.J.M., MINORS, Appellants
V.
WEEKLEY HOMES, LLC, Appellee
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-02097
MEMORANDUM OPINION ON REMAND
Before Justices Molberg, Carlyle, and Smith
Opinion by Justice Carlyle
This case is before this Court on remand from the Supreme Court of Texas.
Construction worker John Paniagua and several others (collectively, appellants or
plaintiffs) filed negligence, gross negligence, and premises liability claims against
Weekley Homes, LLC and others arising from a fatal construction-site accident.
Weekley filed a motion for summary judgment, which the trial court granted.
Then, the trial court severed appellants’ claims against Weekley and denied
appellants’ motions for (1) leave to designate experts late and (2) reconsideration
and new trial on those claims. In two issues on appeal, appellants challenge the
summary judgment, several evidentiary rulings, and the denial of their motion for
reconsideration and new trial.
In our initial opinion, we reversed the trial court’s summary judgment as to
appellants’ negligence and premises liability claims.1 The reversal was based in part
on our determination that Weekley did not meet its burden to conclusively establish
applicability of Chapter 95 of the Texas Civil Practice and Remedies Code, which is
limited to claims arising “from the condition or use of an improvement to real
property where the contractor or subcontractor constructs, repairs, renovates, or
modifies the improvement.” See TEX. CIV. PRAC. & REM. CODE § 95.002(2).
Weekley appealed to the Supreme Court of Texas.
While Weekley’s appeal from our judgment was pending, our supreme court
issued opinions in several other cases explaining that though “pleadings generally
do not qualify as summary-judgment ‘evidence,’” a summary judgment movant may
“rely on allegations in a petition ‘as truthful judicial admissions’” and “[f]or
summary judgment purposes, [a defendant] can rely on [the] plaintiffs’ allegations
to demonstrate the applicability of Chapter 95.” Weekley Homes, LLC v. Paniagua,
646 S.W.3d 821, 827–28 (Tex. 2022) (per curiam) (citing Regency Field Servs., LLC
1
See Paniagua v. Weekley Homes, LLC, No. 05-19-00439-CV, 2021 WL 118663 (Tex. App.—Dallas
Jan. 13, 2021) (mem. op.), rev’d in part & remanded, 646 S.W.3d 821 (Tex. 2022).
–2–
v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818–19 (Tex. 2021)). The supreme
court also issued two Chapter 95 opinions specifically addressing the framework for
determining whether claims arise from the condition or use of an improvement the
claimant was constructing, repairing, renovating, or modifying. See Energen Res.
Corp. v. Wallace, 642 S.W.3d 502, 512–14 (Tex. 2022); Los Compadres Pescadores,
L.L.C. v. Valdez, 622 S.W.3d 771, 784–86 (Tex. 2021).
The supreme court reversed our judgment in part and remanded to give this
Court the opportunity to reconsider our initial opinion “to determine, in light of this
authority, whether allegations in the plaintiffs’ pleadings constitute judicial
admissions of material facts” that satisfied Weekley’s section 95.002(2) burden and,
if appropriate, further address the substantive issues presented.2 Weekley Homes, 646
S.W.3d at 824.
After applying Regency, Energen, and Los Compadres, we again conclude
Weekley did not meet its burden to conclusively establish Chapter 95 applies. As
before, we reverse the trial court’s summary judgment as to appellants’ negligence
and premises liability claims and remand this case to the trial court for further
proceedings consistent with this opinion.
Background
2
At this Court’s invitation, both sides filed supplemental appellate briefs in this Court following the
supreme court’s remand.
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Weekley hired Leobardo Maravilla, an independent contractor, to install
siding and perform “cornice work”3 on townhomes in a residential development
under construction at 5917 Evening Star Place in Dallas, Texas (the project).
Leobardo’s work crew included his brother Jose Camerino Maravilla and Mr.
Paniagua.4 The project worksite included several temporary electricity poles (“T-
Poles”) that provided electricity for workers’ tools and other equipment during the
construction process.
On the day of the accident, rain had been falling intermittently. Lightning
events had also occurred in the area. While Leobardo, Jose, and Mr. Paniagua were
outside on a rain-soaked driveway moving metal scaffolding, Jose was electrocuted
and Mr. Paniagua was reportedly injured by an electric shock. The source of injury
is alleged to be electricity that originated from either a T-pole or lightning, conducted
by water that had accumulated on the concrete.
Appellants’ live petition asserted, among other things:
13. Plaintiffs would respectfully show the Court that [Mr. Paniagua and
Jose] were employees, independent contractors, borrowed employees,
and/or business invitees of Defendant WEEKLEY HOMES, LLC
working at a job site located at or near 5917 Evening Star Place, Dallas
TX 75235 - new home construction project. While under the course and
scope of his employment with Defendant WEEKLEY HOMES, LLC,
[Jose] was storing scaffolds and during the process stepped on concrete
flooring or driveway that electrocuted him to death. In addition [Mr.
Paniagua] was assisting Decedent and was electrocuted in the process.
3
The record shows a Weekley representative testified, and the parties do not dispute, that cornice work
is “typically the exterior siding or trim components of the structure.”
Because Leobardo Maravilla and Jose Camerino Maravilla share the same last name, we use their first
4
names in this opinion.
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The cement floor or driveway where Plaintiffs were working was near
two electrical poles and the cement floor or driveway surrounding same
were wet from rainfall which occurred immediately prior to or during
the electrocution. There were not any warnings posted about the work-
site/premise including that the temporary power poles and lines could
cause the surface area to become energized. . . .
After discovery, Weekley filed combined traditional and no-evidence
summary-judgment motions, asserting Chapter 95 applies and precludes its liability
on the theories alleged. Weekley’s summary judgment motion asserted Leobardo
“was hired to install siding on” the townhomes. The motion stated:
At the time of the accident, Decedent and Paniagua were
apparently moving scaffolding at one of the townhouses at the Project.
The scaffolding was used by Maravilla and his crew to install siding on
the homes. In the context of Chapter 95, “improvement” is broadly
defined as “all additions to the freehold except for trade fixtures that
can be removed without injury to the property.” See [Ineos USA, LLC
v.] Elmgren, 505 S.W.3d at 568. The townhouse at which Decedent and
Paniagua were moving the scaffolding at the time of the accident was
one of seven townhouses under construction at the time of the accident.
These townhouses included cement driveways, including the cement
driveway which Plaintiffs allege was energized by the T-Poles.
Therefore, Plaintiffs’ claims are claims for the death or injury of an
employee of a subcontractor that arise from the condition of an
improvement to real property where the subcontractor was
constructing, repairing, renovating, or modifying the improvement.
(citations to record omitted).
Weekley contended plaintiffs could not meet their Chapter 95 burden to
“establish that Weekley exercised or retained control over the manner in which
Decedent and Paniagua performed their work and had actual knowledge of the
danger or condition resulting in Decedent’s death and Paniagua’s alleged injuries.”
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Alternatively, Weekley argued that even if Chapter 95 is inapplicable, “Plaintiffs
cannot produce any evidence, or, in the alternative, more than a scintilla of probative
evidence, to prove their negligence, premises liability and/or gross negligence
claims.”
The evidence attached to Weekley’s summary judgment motion included
(1) declarations of Weekley’s “builder for the project” John Holmes and Weekley’s
general counsel John Burchfield stating Weekley “owned the real property where the
[project] was located, including the particular tract of land where the house under
construction and involved in the incident at issue was located”; (2) excerpts from
depositions of Mr. Paniagua, Leobardo, Mr. Holmes, and Weekley’s operations and
compliance manager Felipe Devora; and (3) plaintiffs’ live petition.
Following a hearing,5 the trial court ruled in Weekley’s favor as described
above without stating the basis for its ruling.
Standard of review
We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313,
316 (Tex. 2019); Gore v. Smith, No. 05-19-00156-CV, 2020 WL 4435312, at *2 (Tex.
App.—Dallas Aug. 3, 2020, pet. denied) (mem. op.). A traditional motion for
summary judgment requires the moving party to show that no genuine issue of
material fact exists and it is entitled to judgment as a matter of law. TEX. R. CIV. P.
5
The appellate record does not include a reporter’s record.
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166a(c); Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). We take evidence
favorable to the nonmovant as true and we indulge every reasonable inference and
resolve every doubt in the nonmovant’s favor. Ortiz v. State Farm Lloyds, 589
S.W.3d 127, 131 (Tex. 2019).
Applicable law
When applicable, Chapter 95 “limits a real property owner’s liability for
common-law negligence claims that arise out of a contractor’s or subcontractor’s
work on an improvement to the property.” Energen, 642 S.W.3d at 509. But Chapter
95 applies only to a claim
(1) against a property owner, contractor, or subcontractor for
personal injury, death, or property damage to an owner, a contractor, or
a subcontractor or an employee of a contractor or subcontractor; and
(2) that arises from the condition or use of an improvement to
real property where the contractor or subcontractor constructs, repairs,
renovates, or modifies the improvement.
TEX. CIV. PRAC. & REM. CODE § 95.002. If the defendant meets its burden of
establishing both of these elements, Chapter 95 provides the plaintiff’s “sole means
of recovery” against the property owner, and the burden shifts to the plaintiff to
establish the property owner’s liability under the statute. Abutahoun v. Dow Chem.
Co., 463 S.W.3d 42, 51 (Tex. 2015); see TEX. CIV. PRAC. & REM. CODE § 95.003
(shielding property owners from negligence liability absent actual or retained control
or actual knowledge of and failure to adequately warn about danger or condition).
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“[J]udicial admissions in an opposing party’s pleadings may be used as
evidence to support a summary-judgment motion.” Weekley Homes, 646 S.W.3d at
828 (citing Regency, 622 S.W.3d at 819); see also Houston First Am. Sav. v. Musick,
650 S.W.2d 764, 767 (Tex. 1983) (“Assertions of fact, not pled in the alternative, in
the live pleadings of a party are regarded as formal judicial admissions.”). “[F]or
summary judgment purposes, [a defendant] can rely on [the] plaintiffs’ allegations
to demonstrate the applicability of Chapter 95.” Weekley Homes, 646 S.W.3d at 828.
Analysis
The supreme court’s opinion in this case stated, “A critical disputed issue is
whether the townhome and driveway comprise the same ‘improvement’ for Chapter
95 purposes.” Id. at 827. The supreme court also stated, “As evidence of [Chapter
95’s] second prong—that the claims here arise ‘from the condition or use of an
improvement to real property’ that the workers were ‘construct[ing], repair[ing],
renovat[ing], or modif[ying]’—Weekley’s summary-judgment motion relied only on
statements in the plaintiffs’ live petition to the effect that they ‘were working’ at the
driveway and ‘working at’ the townhome construction site when the accident
occurred.” Id. at 825.
On remand, Weekley contends the petition’s allegations constitute judicial
admissions that satisfy its section 95.002(2) burden. Additionally, Weekley asserts,
and we agree, that “in order for this Court to determine whether plaintiffs’ pleadings
judicially admit 95.002’s second prong, the current framework of analysis for
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95.002’s second prong, in light of Energen and Los Compadres, has to be
understood.”
Energen involved a contractor, Elite Drillers, hired to drill a water well that
would facilitate the operations of an oil well being drilled 500 feet away on the same
property by another contractor. Energen, 642 S.W.3d at 507. The water well caught
fire and exploded prior to its completion. Elite and others sued the property owner,
Energen, contending negligent drilling at the oil well caused their injuries. Elite
asserted, “Because it is undisputed that plaintiffs were hired to complete only the
water well, they contend that the improvement from which their claim arose is
different from the improvement they were hired to construct.” Id. at 508. Energen
argued Chapter 95 applied because plaintiffs’ injuries also arose from a condition of
the water well improvement. Id. Though the trial court granted summary judgment
in favor of Energen, the court of appeals reversed, concluding Chapter 95 would
apply only “if Energen conclusively established that the injuries arose from a
premises defect of the Water Well.” Id.
Our supreme court disagreed with the court of appeals. First, the supreme
court explained:
A “condition” is “an intentional or an inadvertent state of being.” And
something is a condition of an improvement if it “affect[s] the ‘state of
being’ of” that improvement. In sum, Chapter 95 applies where
negligence affecting the condition of an improvement on which
plaintiffs were working was a cause of their damages.
Id. at 512 (citations omitted). Then, the supreme court reasoned:
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Applying these principles, we conclude Energen has conclusively
established that Chapter 95 applies. The record includes undisputed
evidence that plaintiffs were hired to construct the water well, so it is
the relevant improvement. . . . They also alleged that a “high volum[e]
of natural gas” built up in the water well and ignited, resulting in an
explosion that injured [the supervisor] and damaged Elite’s equipment.
In other words, plaintiffs’ own petition alleges that their damages were
caused by negligence arising from a dangerous condition of the water
well on which they were working.
Id. The supreme court concluded, “Because plaintiffs alleged negligence regarding
a dangerous condition of the water well on which they were working, their
arguments for avoiding Chapter 95’s application fall short.” Id. at 514.
Energen cited and relied on Los Compadres, which involved a subcontractor
hired to construct concrete foundation pilings for a four-unit residential
condominium building. Los Compadres, 622 S.W.3d at 777. The construction
process involved digging some twenty holes, each twenty-five feet deep, filling the
holes with concrete, and inserting long metal reinforcement rods, commonly known
as rebar, into each hole before the concrete dried. Id. After the crew had lifted a
twenty-five-foot rebar segment and inserted the lower tip into the wet concrete in
one of the holes, the rebar’s upper tip contacted a high-voltage power line that hung
along the property’s border. Id. at 778. Several crew members were injured by
electricity conducted through the rebar and sued the property owner, Los
Compadres. Id. at 778. A jury found in favor of the plaintiffs and the court of appeals
affirmed.
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In the supreme court, Los Compadres argued that the jury’s finding that it
“knew or reasonably should have known” about an unreasonably dangerous
condition could not support liability because Chapter 95 applied. Id. at 782. The
supreme court began its analysis of Chapter 95’s applicability by rejecting Los
Compadres’ argument that “the facts here satisfy [section 95.002(2)] because the
power line was a dangerous condition of the ‘workplace’ on which [the crew
members] were working when they were injured.” Id. at 783. The supreme court
stated:
A workplace may include several different improvements, and
each improvement may possess numerous conditions. Here, the
energized power line hanging over the property was certainly a
condition of the premises that constituted the workplace where the
injuries occurred. . . . But by its express terms, chapter 95 applies only
when the workplace is made unsafe by the condition (or use) “of an
improvement to real property where the contractor or subcontractor
constructs, repairs, renovates, or modifies the improvement.” For
chapter 95 to apply, it is not enough that a dangerous condition existed
on the premises on which the claimant was working or created an
“unsafe workplace.” Instead, the danger must arise from the condition
(or use) of “an improvement” within the workplace on which the
claimant was working.
Id. (citing TEX. CIV. PRAC. & REM. CODE § 95.002(2)).
Next, the supreme court addressed the characterization of “the improvement”
for Chapter 95 purposes. The supreme court stated:
An improvement is any addition to real property, other than
fixtures, that can be removed without causing injury to the real property.
Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 49 (Tex. 2015) (quoting
Sonnier v. Chisholm–Ryder Co., 909 S.W.2d 475, 479 (Tex. 1995)). The
question is how broadly to define the “improvement” as chapter 95 uses
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that term. Ineos, 505 S.W.3d at 568. Each piling [the crew members]
installed on the premises could constitute an improvement to the real
property. To the extent the pilings were part of the building’s
foundation, the foundation itself, including the pilings, could be
considered a single improvement. And in the broadest sense, the entire
condominium building could be considered a single improvement of
which the foundation and its pilings were a part. See id. (holding
connected furnaces were part of a single improvement—the “single
processing system within a single plant on Ineos’ property”). Here, [the
crew] was hired to construct only the pilings, not the foundation or the
building. That fact would suggest that we define the improvement
narrowly, to include only the pilings, because the statute requires that
the injury arise from the condition or use of the improvement that the
contractor or subcontractor “constructs, repairs, renovates, or
modifies.”
Id. at 784.
The supreme court continued:
The question, then, is not whether the power line was a dangerous
condition of the premises or the workplace, but whether it was a
dangerous condition of the improvement on which [the crew members]
were working when they were injured.
We have defined “condition as “an intentional or inadvertent
state of being. We have also recognized that items laying on or handing
over real property can create or constitute a condition of the premises.
But to constitute a condition of the improvement on which [the
crew members] were working when they were injured, the power lines
had to affect the “state of being” of the pilings they were hired to
construct.
Id. at 784–85 (citations omitted).
The supreme court observed that though the power line originally “hung
twenty-two to twenty-four feet above the ground and ten to twelve feet away from
the piling hole,” Los Compadres “constructed a retaining wall and added fill dirt to
the property, significantly raising the ground level and decreasing that distance, at
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least enough that the rebar was able to contact the concrete and the power line
simultaneously.” Id. at 785. The supreme court stated, “If a dangerous condition, by
reason of its proximity to an improvement, creates a probability of harm to one who
‘constructs, repairs, renovates, or modifies’ the improvement in an ordinary manner,
it constitutes a condition of the improvement itself.” Id. at 785–86. The supreme
court concluded, “Under these facts—in which the plaintiffs were directly exposed
to the dangerous condition because of its close proximity to the improvement on
which they were working—we conclude that the energized power line created a
dangerous condition of the piling itself.” Id. at 786. Thus, Chapter 95 applied. Id.
Here, the record shows that the only portion of Weekley’s summary judgment
motion that addressed section 95.002(2)’s requirement is the paragraph set out
above. In support of that paragraph’s assertion that “[t]hese townhouses included
cement driveways, including the cement driveway which Plaintiffs allege was
energized by the T-Poles,” Weekley cited paragraph 13 of plaintiffs’ live petition.
In its supplemental appellate brief on remand, Weekley quotes portions of the
petition’s paragraph 13, grants itself the substantial liberty of adding the word
“townhome” to the plaintiffs’ petition, and adds underscoring, all of which we
reproduce as it appears in the brief, as follows:
[Jose] and [Mr. Paniagua] were . . . independent contractors . . . of
Defendant Weekley Homes, LLC working at a job site located at or near
5917 Evening Star Place, Dallas TX 75235⸺⸺new home construction
project. . . . Plaintiff Maravilla was storing scaffolding and during the
process stepped on the concrete flooring or driveway that electrocuted
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him to death. . . . The cement floor or driveway where Plaintiffs were
working . . . was wet from rainfall which occurred immediately prior to
or during the electrocution. There were not any warnings posted about
the [townhome] work-site/premise [sic] that the temporary power poles
and lines could cause the surface area to become energized.
Weekley’s supplemental appellate brief also (1) cites plaintiffs’ allegation in
paragraph 14 of their petition that Weekley was negligent in “failing to warn
Plaintiffs of a dangerous condition that existed” and (2) quotes an allegation from
paragraph 18 of plaintiffs’ petition with additional words added by Weekley within
the quote and after it, as shown here in added italics: that “Weekley . . . ‘fail[ed] to
correct the dangerous condition that existed on the [townhome] premises’ that
caused their damages.”
Weekley asserts that in Energen, the second prong of section 95.002 was
established by judicial admissions showing (1) the water well was the relevant
improvement and (2) gas from the gas well was the dangerous condition of the water
well at which plaintiffs were working. Weekley contends that here the petition’s
assertions constitute judicial admissions “that the townhomes and adjacent driveway
are the same improvement for section 95.002(2) purposes” and “that the alleged
negligence regarded the condition of an improvement at which plaintiffs were
working, and was a cause of their damages.” Specifically, Weekley argues (1) “the
record here includes undisputed evidence that Leobardo and his work crew were
hired by Weekley to help construct the townhome” and (2) appellants asserted in
their initial appellate brief “that ‘the dangerous condition’ is ‘the wet concrete
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surface of the driveway in stormy rainy weather outside the townhouse’ ‘becoming
energized.’” Thus, Weekley contends, “under Energen, the townhome is the relevant
improvement and the concrete driveway is the dangerous condition of the townhome
at which plaintiffs were working.”
Additionally, Weekley contends that in the above-described petition excerpts
set out in its supplemental appellate brief, plaintiffs “allege . . . that Jose and
Paniagua were ‘working at’ the townhome and ‘were working’ on the concrete
driveway with a scaffold when this accident occurred.” According to Weekley, based
on the above-described, Weekley-edited petition excerpts taken together, “plaintiffs’
own petition states that their damages were caused by negligence arising from a
dangerous condition of the townhome at which they were working,” and those
assertions “constitute judicial admissions that the alleged negligence regarded the
condition of an improvement at which plaintiffs were working, and was a cause of
their damages.” Weekley contends “these judicial admissions establish 95.002’s
second prong.”
We disagree with Weekley. The petition merely states Jose and Mr. Paniagua
were working at the project’s “job site” and, while “storing scaffolds,” stepped on a
driveway that “electrocuted” them. Though plaintiffs state on appeal that the project
included driveways “in front of” the townhomes, nothing in the petition shows
plaintiffs constructed, repaired, renovated, or modified any driveway. Additionally,
though the petition states the “driveway where Plaintiffs were working was near two
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electrical poles,” it does not (1) otherwise address or describe the driveway’s
location or (2) refer to the driveway as the “townhome work-site/premise,” as
Weekley does in its supplemental appellate brief.
To the extent Weekley’s insertion of additional words into the petition
excerpts and its rephrasing of the petition’s allegations are meant to suggest
inferences Weekley believes are proper, our summary judgment standard requires
that we indulge every reasonable inference in the nonmovant’s favor. See Ortiz, 589
S.W.3d at 131; see also Regency, 622 S.W.3d at 823–24 (noting that judicial
admission must be “clear and unequivocal” to have conclusive effect) (quoting Holy
Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001)). Thus, we
decline to conflate the driveway in question and Weekley’s term “the townhome
work-site/premise.”
Additionally, to the extent Weekley’s summary judgment motion relied on
Ineos USA, LLC v. Elmgren, 505 S.W.3d 555 (Tex. 2016), for the proposition that
“‘improvement’ is broadly defined as ‘all additions to the freehold except for trade
fixtures that can be removed without injury to the property,’” that case is
distinguishable. Ineos involved a contractor injured while replacing a pipe valve on
one of several furnaces connected to a processing system within a petrochemical
plant. Id. at 568. Though the dangerous condition that injured the contractor arose
from a different furnace on the system, the supreme court concluded the furnaces
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“were all part of a single processing system” and the entire system was a single
improvement for Chapter 95 purposes. Id.
By contrast, in Los Compadres—which, like the case before us, involved a
multi-unit residential construction project rather than a petrochemical processing
system—our supreme court noted the general definition described in Ineos but then
proceeded to narrow the characterization of “the improvement” at issue. Los
Compadres, 622 S.W.3d at 784. The supreme court reasoned that the Los Compadres
plaintiffs were “part of a crew that was hired to construct only the pilings, not the
foundation or the building,” and “[t]hat fact would suggest that we define the
improvement narrowly, to include only the pilings.” Id.
Here, Jose and Mr. Paniagua were part of a crew hired to construct, repair,
renovate, or modify only the townhomes’ structures, not any driveways or
surrounding concrete areas. Pursuant to Los Compadres, this “would suggest that we
define the improvement narrowly,” to include only the townhome structures. Id. We
reject Weekley’s contention that Ineos requires us to apply a different standard in
this residential construction project case. See id.
Next, Weekley argues that though appellants “contend that the townhome and
adjacent driveway are separate improvements for 95.002 purposes preventing the
application of Chapter 95,” “this contention is of no moment” because “a
negligence/premises claim under 95.002’s second prong can be based on negligence
regarding a ‘dangerous condition’ of the property; without also showing a ‘defect’
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thereof.” Weekley contends this case is “squarely in the framework of Energen and
Los Compadres” because “[t]he townhome is not alleged to be defective; rather, the
wet concrete surface of the driveway at the townhome becoming energized is the
‘dangerous condition’ that, according to plaintiffs, Weekley negligently failed to
discover and warn about.” In support of that contention, Weekley relies on the same
purported “judicial admissions” described above.
Though we agree with Weekley that Chapter 95 can apply even where the
improvement being worked on is not alleged to be defective, Weekley has not
satisfied the requirements described in Energen and Los Compadres. In both of those
cases, the supreme court (1) concluded Chapter 95 applied where negligence
affecting the condition of an improvement plaintiffs were constructing, repairing,
renovating, or modifying was a cause of their damages, and (2) stated “something is
a condition of an improvement if it ‘affect[s] the state of being of’ that
improvement.” See Energen, 642 S.W.3d at 512–13; Los Compadres, 622 S.W.3d at
784–85. In Energen, which involved a water-well explosion, negligent drilling of a
nearby oil well affected the state of being of the water well plaintiffs were working
on. Energen, 642 S.W.3d at 514. In Los Compadres, which involved rebar in a piling
becoming energized by contact with an overhead electrical wire, the state of being
of the piling plaintiffs were constructing was affected. Los Compadres, 622 S.W.3d
at 785–86.
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Here, the petition alleged the injuries occurred when a driveway the workers
stepped on while “storing scaffolds” became energized. Nothing in the record shows
any townhome structure became energized at any time. To the extent Weekley
contends the “wet concrete surface of the driveway at the townhome becoming
energized” was a “condition” of the improvement Jose and Mr. Paniagua were
constructing, repairing, renovating, or modifying, Weekley does not address or
explain how the energized driveway, described only as being “near two electrical
poles,” “affect[ed] the state of being” of the townhome structures, nor does the
record show that the evidence Weekley relies on conclusively established that
requirement on its face. See id. at 785 (“But to constitute a condition of the
improvement on which [the crew members] were working when they were injured,
the power lines had to affect the “state of being” of the pilings they were hired to
construct.”); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507,
511 (Tex. 2014) (explaining party moving for traditional summary judgment “had
the burden to submit sufficient evidence that established on its face that ‘there is no
genuine issue as to any material fact’ and that it is ‘entitled to judgment as a matter
of law’”); see also Los Compadres, 622 S.W.3d at 783 (“For chapter 95 to apply, it
is not enough that a dangerous condition existed on the premises on which the
claimant was working or created an ‘unsafe workplace.’”).
On this record, we conclude (1) plaintiffs’ petition did not constitute a judicial
admission that the energized concrete driveway was a dangerous condition of the
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improvement Jose and Mr. Paniagua were constructing, repairing, renovating, or
modifying, and (2) Weekley did not meet its burden to establish it was entitled to
judgment as a matter of law regarding that requirement. See Regency, 622 S.W.3d at
823–24 (rejecting judicial admission argument where petition’s allegations did not
clearly and unequivocally address facts necessary to establish claim’s elements); see
also Energen, 642 S.W.3d at 512–14; Los Compadres, 622 S.W.3d at 784–86.6 Thus,
the trial court erred to the extent it granted summary judgment in Weekley’s favor
regarding Chapter 95’s applicability. See TEX. R. CIV. P. 166a(c).
As described above, after the trial court granted summary judgment, it denied
appellants’ motions for (1) leave to late-designate experts regarding lightning
activity at the time of the accident and (2) reconsideration and new trial. Though our
original opinion ruled favorably to appellants on those matters, Weekley did not
challenge those holdings on appeal to the supreme court. See Weekley Homes, 646
6
In two recent opinions, other Texas courts of appeals acknowledged Los Compadres’s “narrow”
definition of improvement but nevertheless determined Chapter 95 conclusively applied. Those cases both
involved facts and evidentiary postures substantially different from this case. See Alba v. CalAtlantic Homes
of Tex., Inc., No. 02-21-00345-CV, 2022 WL 1420542, at *7–8 & n.4 (Tex. App.—Fort Worth May 5, 2022,
no pet.) (mem. op.) (concluding that where worker “hired to do masonry work on brick support columns at
the ends of a balcony” fell from unfinished balcony when wooden 2x4 railing attached to column broke
loose as he pressed against it while examining column, the “improvement” for purposes of Chapter 95
analysis was “the brick column itself,” and summary judgment evidence, which included plaintiff’s
testimony regarding how loose 2x4’s “close proximity” to brick column “created a dangerous condition of
the brick column itself,” showed condition affected column’s state of being); Martin v. WPP Props., LLC,
No. 12-20-00243-CV, 2021 WL 2816411, at *5–6 (Tex. App.—Tyler June 30, 2021, pet. filed) (mem. op.)
(concluding that where worker hired to perform “make-ready” work in several units of apartment building
was injured when he fell while carrying trash from an apartment “down the external staircase used to access
the upstairs apartment,” the improvement was “the building” housing the multiple apartments he was
renovating, to which the staircase was attached, and thus he was injured by a condition or use of “part of
the same improvement as the apartment”).
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S.W.3d at 825 n.2. Nor did appellants appeal this Court’s adverse ruling on their
gross negligence claims in the supreme court. See id. at 825 n.3.
For purposes of expediency, we adopt and incorporate the analyses and
conclusions regarding the issues other than Chapter 95’s applicability addressed on
pages *8 through *14 of our original opinion. See Paniagua, 2021 WL 118663, at
*8–14; see also TEX. R. APP. P. 47.1. Based on those conclusions and our conclusions
above, we again affirm the trial court’s summary judgment as to appellants’ gross
negligence claim, reverse the summary judgment as to appellants’ negligence and
premises liability claims, and remand this case to the trial court for further
proceedings consistent with this opinion.
/Cory L. Carlyle/
CORY L. CARLYLE
190439f.p05 JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN PANIAGUA AND On Appeal from the 298th Judicial
HERMELINDA MARAVILLA District Court, Dallas County, Texas
CORONA, JOSE CAMERINO Trial Court Cause No. DC-19-02097.
MARAVILLA, SR., AND Opinion delivered by Justice Carlyle.
MARGARITA MARAVILLA, Justices Molberg and Smith
INDIVIDUALLY, AS PERSONAL participating.
REPRESENTATIVE OF THE
ESTATE OF JOSE CAMERINO
MARAVILLA, DECEASED, AND
AS NEXT FRIEND OF S.L.M.S.,
E.H., L.A.S., AND J.J.M., MINORS,
Appellants
No. 05-19-00439-CV V.
WEEKLEY HOMES, LLC, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED in part and AFFIRMED in part. We REVERSE that portion
of the trial court’s judgment granting summary judgment as to appellants’
negligence and premises liability claims, AFFIRM the trial court’s judgment as to
appellants’ gross negligence claim, and REMAND this case to the trial court for
further proceedings consistent with this Court’s opinion.
It is ORDERED that appellants JOHN PANIAGUA AND HERMELINDA
MARAVILLA CORONA, JOSE CAMERINO MARAVILLA, SR., AND
MARGARITA MARAVILLA, INDIVIDUALLY, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF JOSE CAMERINO MARAVILLA,
DECEASED, AND AS NEXT FRIEND OF S.L.M.S., E.H., L.A.S., AND J.J.M.,
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MINORS, recover their costs of this appeal from appellee WEEKLEY HOMES,
LLC.
Judgment entered this 29th day of November, 2022.
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