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

Supreme Court of Texas
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No. 21-0197
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Weekley Homes, LLC,
Petitioner,
v.
John Paniagua; and Hermelinda Maravilla Corona, Jose
Camerino Maravilla, Sr., and Margarita Maravilla, Individually,
as Personal Representatives 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,
Respondents
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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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PER CURIAM
In this negligence and premises-liability case arising from a fatal
construction-site accident, the trial court granted summary judgment
for the defendant, but the court of appeals reversed in part, holding that
the defendant could not rely on allegations in the plaintiffs’ pleadings to
satisfy its summary-judgment burden because pleadings do not
constitute summary-judgment evidence. ___ S.W.3d ___, 2021 WL
118663, at *1, *8 (Tex. App.—Dallas Jan. 13, 2021). While it is true that
“pleadings generally do not qualify as summary-judgment ‘evidence’ . . .
courts may [nonetheless] grant summary judgment based on
deficiencies in an opposing party’s pleadings,” and summary-judgment
movants may rely on allegations in an opposing party’s pleadings that
constitute judicial admissions. Regency Field Servs., LLC v. Swift
Energy Operating, LLC, 622 S.W.3d 807, 818-20 (Tex. 2021) (emphasis
omitted); see Energen Res. Corp. v. Wallace, 642 S.W.3d 502, 508-09
(Tex. 2022). In applying the general rule and holding that the plaintiffs’
petition could not constitute competent summary-judgment evidence,
the lower court did not have the benefit of our recent opinions in Regency
and Energen. We therefore remand this case to the court of appeals for
further consideration in light of these decisions and, as appropriate,
other subsequently issued opinions providing guidance on the
substantive legal issues presented, including Los Compadres
Pescadores, LLC v. Valdez, 622 S.W.3d 771 (Tex. 2021).
Weekley Homes, LLC hired Leobardo Maravilla, an independent
contractor, to work on Weekley’s new townhome construction project.
Leobardo’s work crew—which included his brother, Jose Camerino
Maravilla, and John Paniagua 1—did the framing and installation of
siding, windows, and plywood decking for each townhome’s roof and
completed other tasks on an as-needed basis. Each townhome under
construction had an adjacent concrete driveway and a temporary
electricity pole (T-pole) that provided electricity for the work crew’s tools
and equipment.
On the day of the accident that claimed Jose’s life, rain had been
falling intermittently, making the concrete surface of the driveway wet.
1 Because Leobardo and Jose share a common surname, we refer to
them by their first names to avoid confusion.
2
Lightning events had also occurred in the area. While Jose, Leobardo,
and Paniagua were on the rain-soaked driveway moving a metal
scaffold—allegedly at the direction of and in the manner previously
demonstrated by Weekley’s agent—the scaffold came within six to ten
feet of the T-pole’s power line. Contemporaneously, Jose was
electrocuted, and Paniagua was reportedly injured by an electric shock.
The source of injury is alleged to be electricity that originated from
either the T-pole or lightning, which was conducted by water that had
accumulated on the driveway.
Paniagua and several of Jose’s relatives (collectively, the
plaintiffs) sued Weekley for negligence, gross negligence, and premises
liability. After discovery, Weekley filed combined traditional and
no-evidence summary-judgment motions, asserting that Chapter 95 of
the Texas Civil Practice and Remedies Code applies and precludes its
liability on the theories alleged. 2021 WL 118663, at *1.
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.
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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 the
danger or condition).
As evidence of the 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. After a hearing, the trial court granted
summary judgment in Weekley’s favor on all claims. 2
The court of appeals affirmed summary judgment on the
gross-negligence claims but reversed as to the negligence and
2 After granting summary judgment for Weekley, the trial court severed
and transferred the claims against Weekley to a court where a related case was
pending. 2021 WL 118663, at *4. Afterward, the plaintiffs moved for
reconsideration and a new trial before the transferee court. Id. As new
evidence, the plaintiffs sought to introduce expert reports regarding lightning
activity at the time of the accident and to designate two expert witnesses
regarding the same. Id. at *4-5. Weekley responded to the motions and moved
to strike the expert designations as untimely, prompting the plaintiffs to
request leave to late-designate the expert witnesses. Id. at *5-6. The
transferee court summarily denied the plaintiffs’ motions, but on appeal, the
court of appeals ruled favorably to the plaintiffs on these matters. Id. at *8-14.
Weekley has not challenged those holdings on appeal to this Court.
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premises-liability claims, holding that Weekley had not conclusively
established Chapter 95’s applicability. 3 2021 WL 118663, at *2, *6, *14.
The court first determined that the plaintiffs’ appellate brief challenging
Chapter 95’s applicability “fairly include[d] a legal sufficiency challenge
to both [of Section 95.002’s] prongs” even though “the bulk of” the brief’s
Section 95.002 argument “pertain[ed] to that section’s first prong—
Weekley’s burden to show ownership of the property where the accident
occurred.” Id. at *7; see Abutahoun, 463 S.W.3d at 48 (“Despite
identifying three potential defendants in the applicability provision of
section 95.002, the Legislature limited only a property owner’s liability
in section 95.003.”). Then, assuming without deciding that Weekley had
produced legally sufficient evidence to satisfy the first prong, the court
held that Weekley “cited no evidence” with respect to the second prong
and, accordingly, had not satisfied its burden to demonstrate
Chapter 95’s applicability. 2021 WL 118663, at *8. The court supported
that conclusion with a case citation and parenthetical to the effect that
“[p]leadings do not constitute summary judgment evidence.” Id.(quoting MGA Ins. Co. v. Charles R. Chesnutt, P.C., 358 S.W.3d 808, 815
(Tex. App.—Dallas 2012, no pet.)). The court did not decide the
substantive legal issue of whether the plaintiffs’ claims “arise[] from the
condition or use of an improvement to real property” that Paniagua and
Jose were “construct[ing], repair[ing], renovat[ing], or modif[ying,]” but
the court nevertheless stated that precedent had “specifically rejected”
any notion “that because the townhomes ‘included’ freehold additions,
3 The plaintiffs have not appealed the adverse ruling on their
gross-negligence claims. See TEX. R. APP. P. 53.1 (“A party who seeks to alter
the court of appeals’ judgment must file a petition for review.”).
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all such additions [including the driveway] constituted a single
improvement for subsection 95.002(2) purposes.” Id. (citing Ineos USA,
LLC v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016), and Hernandez v.
Brinker Int’l, Inc., 285 S.W.3d 152, 156-58 (Tex. App.—Houston [14th
Dist.] 2009, no pet.)).
In this Court, Weekley first argues that the plaintiffs did not
preserve the subsection 95.002(2) issue—whether Weekley conclusively
established that the claims here arise from the condition or use of the
relevant improvement to real property—because they “did not
substantively argue” that issue in the briefing below. Although the
plaintiffs admittedly did not challenge the second prong of
Section 95.002 in response to Weekley’s summary-judgment motion, “a
non-movant who fails to raise any issues in response to a summary
judgment motion may still challenge, on appeal, ‘the legal sufficiency of
the grounds presented by the movant.’” Amedisys, Inc. v. Kingwood
Home Health Care, LLC, 437 S.W.3d 507, 512 (Tex. 2014) (quoting
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.
1993)). “This is because ‘summary judgments must stand or fall on their
own merits, and the non-movant’s failure to answer or respond cannot
supply by default the summary judgment proof necessary to establish
the movant’s right’ to judgment.” Id. at 511-12 (quoting McConnell, 858
S.W.2d at 343). Accordingly, even though the plaintiffs did not argue
subsection 95.002(2) to the trial court, they could still challenge the
sufficiency of the evidence to support summary judgment on appeal. See
id. The question here is whether they did, and we agree with the court
of appeals that the legal-sufficiency issue was adequately presented.
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The issue statement in the plaintiffs’ appellate-court briefing
asserted error in the trial court’s conclusion that Weekley “conclusively
proved that Chapter 95 . . . applied.” As the court of appeals noted, we
treat issue statements in briefs as “covering every subsidiary question
that is fairly included.” TEX. R. APP. P. 38.1(f). We “generally hesitate
to turn away claims based on waiver or failure to preserve the issue[,
and] we . . . construe briefing ‘reasonably, yet liberally, so that the right
to appellate review is not lost by waiver.’” First United Pentecostal
Church v. Parker, 514 S.W.3d 214, 221-22 (Tex. 2017) (quoting Perry v.
Cohen, 272 S.W.3d 585, 587 (Tex. 2008)). “Simply stated, appellate
courts should reach the merits of an appeal whenever reasonably
possible.” Perry, 272 S.W.3d at 587. A brief’s issue statement “is
sufficient if it directs the attention of the appellate court to the error
about which [the] complaint is made.” Anderson v. Gilbert, 897 S.W.2d
783, 784 (Tex. 1995).
Chapter 95 cannot “apply” unless subsections 95.002(1) and
95.002(2) are satisfied. The contentions in Paniagua’s brief to the court
of appeals quote both prongs, describe Weekley’s burden to conclusively
establish both, and cite authority explaining that burden. See 2021 WL
118663, at *7. Although the brief substantively devotes argument to
subsection (1), Paniagua adequately presented a legal-sufficiency
challenge to subsection (2) because the issue statement in the appellate
brief “direct[ed] the attention of the appellate court to the error about
which [the] complaint is made”—that the trial court erroneously
concluded that Chapter 95 applies as a matter of law. See Anderson,
897 S.W.2d at 784. The question of whether Weekley had conclusively
established both prongs—as necessary to prevail on its
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summary-judgment motion—was “fairly included” in Paniagua’s issue
statement. See TEX. R. APP. P. 38.1(f); see also First United Pentecostal
Church, 514 S.W.3d at 221-22.
Weekley next argues that the court of appeals erred in concluding
that Weekley failed to produce any evidence to satisfy subsection (2)
because “[p]leadings do not constitute summary judgment evidence.”
2021 WL 118663, at *8 (quoting MGA Ins. Co., 358 S.W.3d at 815). As
the property owner, Weekley had the initial burden to conclusively
establish that Chapter 95 applies. See Cox v. Air Liquide Am., LP, 498
S.W.3d 686, 689 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see also
Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999) (“The
nonmovant [in a traditional summary-judgment motion] has no burden
to respond . . . unless the movant conclusively establishes its cause of
action or defense.”). 4 A critical disputed issue is whether the townhome
and driveway comprise the same “improvement” for Chapter 95
purposes. Weekley’s only evidence to that effect is the plaintiffs’ live
petition.
As a general proposition, pleadings are not competent
summary-judgment evidence, even if they are sworn or verified.
Regency, 622 S.W.3d at 818 (citing Laidlaw Waste Sys. (Dall.), Inc. v.
City of Wilmer, 904 S.W.2d 656, 660-61 (Tex. 1995)). “But even in the
summary-judgment context, pleadings ‘outline the issues,’ and courts
4 Although Weekley’s summary-judgment motion included traditional
and no-evidence grounds, “a party may not obtain a no-evidence summary
judgment on an issue for which it bears the burden of proof.” Cox, 498 S.W.3d
at 689; see TEX. R. CIV. P. 166a(i) (authorizing a no-evidence
summary-judgment motion only on a claim or defense “on which an adverse
party would have the burden of proof at trial”). Accordingly, we construe the
relevant portion of Weekley’s motion as one for traditional summary judgment.
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may grant summary judgment based on deficiencies in an opposing
party’s pleadings.” Id. (emphasis omitted) (quoting Hidalgo v. Surety
Sav. & Loan Ass’n, 462 S.W.2d 540, 543 (Tex. 1971)); see also Energen,
642 S.W.3d at 512 n.9. A summary-judgment movant may also rely on
allegations in a petition “as truthful judicial admissions.” Regency, 622
S.W.3d at 819.
In Regency, which we decided last term, Regency sought summary
judgment on an affirmative defense of limitations. Id. We explained
that Regency could establish that it was entitled to summary judgment
by treating the plaintiff’s pleaded allegations about the timeline of
certain events “as truthful judicial admissions and rely[ing] on them to
define the issues and determine whether [the plaintiff’s] claims
necessarily accrued beyond the limitations period.” Id. at 819-20; see
also Hous. 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.”). Even more on point
(and even more recently), we held in Energen that “[f]or summary
judgment purposes, [a defendant] can rely on [the] plaintiffs’ allegations
to demonstrate the applicability of Chapter 95.” 642 S.W.3d at 512 n.9
(citing Regency, 622 S.W.3d at 818-19). Contrary to the court of appeals’
categorical statement that “[p]leadings do not constitute summary
judgment evidence,” judicial admissions in an opposing party’s
pleadings may be used as evidence to support a summary-judgment
motion. 5 Regency, 622 S.W.3d at 819.
5 A party cannot, however, rely on its own pleaded allegations as
evidence to support or oppose a motion for summary judgment. Regency, 622
S.W.3d at 819.
9
The court of appeals issued its decision in this case without the
benefit of our Regency and Energen opinions, and it should have the
opportunity to determine, in light of this authority, whether allegations
in the plaintiffs’ pleadings constitute judicial admissions of material
facts. Depending on the court’s disposition of that issue, the court may
also find our opinions in Energen and Los Compadres instructive on the
substantive legal issues presented.
Accordingly, without hearing oral argument, we reverse the court
of appeals’ judgment in part and remand to the court of appeals for
further consideration consistent with this opinion. See TEX. R. APP.
P. 59.1.
OPINION DELIVERED: June 17, 2022
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