Barrett Horton v. MMM Ventures LLC, Individually and as General Partner of Crescent Estates Custom Homes LP, and Crescent Estates Custom Homes LP

Affirm and Opinion Filed May 15, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00006-CV
BARRETT HORTON, Appellant
V.
MMM VENTURES LLC, INDIVIDUALLY AND AS GENERAL PARTNER
OF CRESCENT ESTATES CUSTOM HOMES LP, AND CRESCENT
ESTATES CUSTOM HOMES LP, Appellees
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-22-07726
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Rosenberg1
Opinion by Justice Partida-Kipness
Appellant Barrett Horton appeals the granting of appellees MMM Ventures
LLC and Crescent Estate Custom Homes LP’s (collectively Crescent) traditional and
no-evidence motion for summary judgment. Horton argues the trial court erred by
granting summary judgment on all of the claims he brought against Crescent. We
affirm.
1
The Hon. Barbara Rosenberg, Justice, Assigned
BACKGROUND
Horton filed his underlying lawsuit seeking damages for injuries he sustained
on June 11, 2018 in a workplace accident. Crescent was the general contractor for a
construction project known as the Entrada Project. Crescent employed Henry Steel
Construction, LLC as a subcontractor to perform steel erection work on the Entrada
Project. Horton worked with Henry Steel, but under independent contractor status.
On the date of Horton’s injury, Henry Steel was moving a load of steel
weighing approximately 6,000 pounds into the basement of one of the townhouses
being constructed in the Entrada Project. Henry Steel’s owner, Bruce White, was
directing the project. White was standing on a retaining wall while Horton was in
the basement unloading the steel. A Henry Steel employee, Francisco Mungia,
operated the forklift, known as the Skytrak, to lower the steel into the basement.
While the steel was being moved, the load slipped off of the forks of the
Skytrak and fell approximately three feet into the basement onto wooden pallets.
Horton, trying to guide the steel down, ended up underneath part of the steel load,
causing injuries to his leg and foot and crushing his right arm. At the time of the
accident, the Skytrak used was either borrowed from another subcontractor, M & C
Roofing, or was one White had rented himself.
There were no Crescent employees present at the townhouse location at the
time of Horton’s accident, involved in the planning or execution of the steel
lowering, or directing Henry Steel on how to do its job. Although the two Crescent
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project managers were on the Entrada Project site at the time, they were at another
location on the property.
Horton filed suit against Henry Steel and Crescent alleging claims and
theories of negligence, respondeat superior, negligent undertaking, and negligence
per se. Crescent filed a traditional and no-evidence motion for summary judgment
and attached deposition testimony from Horton and representatives from Henry Steel
and Crescent Homes. Horton’s response included the same deposition testimony and
a declaration from his safety expert, John Hoffman, who found Mungia was at fault.
The trial court granted Crescent’s motion and dismissed Horton’s claims against
them with prejudice without specifying which grounds it relied upon from
Crescent’s motion. The trial court granted Crescent’s request to sever its claims and
this appeal followed.
STANDARD OF REVIEW
We review an order granting summary judgment de novo, taking as true all
evidence favorable to the nonmovant and indulging every reasonable inference in
the nonmovant’s favor. JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864
(Tex. 2021); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
If a trial court grants summary judgment without specifying the grounds for granting
the motion, we must uphold the trial court’s judgment if any of the asserted grounds
are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied).
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A party may combine in a single motion a request for summary judgment
under no-evidence and traditional standards. Binur v. Jacobo, 135 S.W.3d 646, 650–
51 (Tex. 2004); see also TEX. R. CIV. P. 166a(c), (i). When a party seeks summary
judgment on both grounds and the trial court’s order does not specify its reasons for
granting summary judgment, we first review the propriety of the summary judgment
under the no-evidence standard. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
600 (Tex. 2004); see also TEX. R. CIV. P. 166a(i). If we conclude the trial court did
not err in granting summary judgment under the no-evidence standard, we need not
reach the issue of whether the trial court erred in granting summary judgment under
the traditional standard. See Ridgway, 135 S.W.3d at 600; see also TEX. R. CIV. P.
166a(c).
To be entitled to traditional summary judgment, the movant has the burden to
prove that no genuine issue of material fact exists and that the movant is entitled to
judgment as a matter of law. JLB Builders, 622 S.W.3d at 864; Hillis v. McCall, 602
S.W.3d 436, 439–40 (Tex. 2020); TEX. R. CIV. P. 166(a)(c). By contrast, a party may
obtain a no-evidence summary judgment when “there is no evidence of one or more
essential elements of a claim or defense on which an adverse party would have the
burden of proof at trial.” TEX. R. CIV. P. 166(a)(i). A properly filed no-evidence
motion shifts the burden to the nonmovant to present evidence raising a genuine
issue of material fact supporting each element contested in the motion. Id; Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A “no-evidence summary
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judgment is improperly granted if the respondent brings forth more than a scintilla
of probative evidence to raise a genuine issue of material fact.” King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citing TEX. R. CIV. P. 166(a)(i)).
ANALYSIS
When analyzing a negligence claim, we must first ask whether the defendant
owed the plaintiff a duty. JLB Builders, 622 S.W.3d at 864. Whether Crescent owed
Horton a duty is governed by the law concerning a general contractor’s duties to a
subcontractor’s employee. Id. As a general rule, one who employs an independent
contractor has no duty to ensure that the contractor safely performs his work. AEP
Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 295 (Tex. 2020). There is an
exception to the rule when “the employer retains some control over the manner in
which the contractor performs the work that causes the damage.” Id. (quoting Fifth
Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006)). A plaintiff can prove the
requisite control by establishing that the general contractor either actually controlled
the manner in which the subcontractor performed its work or had a contractual right
to do so. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002) (citing Koch
Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999)). “Control must relate to the
condition or activity that caused the injury.” Clayton W. Williams, Jr., Inc. v. Olivio,
952 S.W.2d 523, 528 (Tex. 1997). Further, the control retained or exercised by the
general contractor must “extend [] to ‘the means, methods, or details of the
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independent contractor’s work.’” Arredondo, 612 S.W.3d at 295 (quoting Bright, 89
S.W.3d at 606).
A. Skytrak
Horton argues that Crescent owed him a duty because Crescent exercised
control of the Skytrak used. Horton states that he submitted testimony from Mickey
White, the owner of M&C Roofing, to support his contention that Crescent had
control of the Skytrak. Mickey White stated:
I agreed with Mr. Dees that M&C would leave the skytrack [sic] that it
rented at the Entrada site so that other subcontractors would have access
to it for their use in completing their work on the Project.
....
When M&C Roofing was not using the skytrack [sic], I considered it to
be under Crescent’s control in that Crescent, through Michael Dees, had
control over who could use the skytrack [sic] and who could not use it,
and how it was to be used.
However, Mickey White also stated that he was not present at the site on the day of
the accident and did not know what had occurred related to the Skytrak. The
testimony from witnesses present on the date of the accident did not establish that
Crescent exercised control over the Skytrak. Bruce White stated he thought the
Skytrak used was one he rented, but later said he could not remember. White also
stated the Crescent representative would normally ask the other subcontractors if
people needed to borrow equipment, but he could not remember if he spoke to a
Crescent representative about borrowing a Skytrak that day. Mungia testified that he
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could not remember if the Skytrak was White’s or not, but recalled it was already on
site the day of the accident. Modglin stated in his testimony that if a subcontractor
asked to borrow the Skytrak, he would have told them to ask the roofer.
The evidence Horton points us to from Mickey White does not raise a fact
issue regarding control of the Skytrak. Mickey White was not present at the Entrada
site on the date of the accident and did not know what occurred during the time in
question. His testimony was speculative at best. The witnesses who were present did
not believe that Crescent had control of the Skytrak and confirmed that permission
was needed from the subcontractor who had rented the Skytrak. Horton does not
establish Crescent owned him any duty related to the Skytrak.
B. Actual Control
Next we need to determine if Crescent exercised actual control over Horton’s
activities. In reviewing the summary judgment evidence, both parties included
deposition testimony from Horton, Bruce White, Mungia, Crescent’s project
manager Michael Dees, and Crescent’s construction manager Bob Modglin. White,
Dees, and Modglin testified regarding the procedures used between Crescent and the
subcontractors. Dees and Modglin stated they were on the Entrada site on the date
of Horton’s accident, but neither were in the area at the time it occurred. The
Crescent representatives explained they knew what the subcontractors were doing
on the project based on the plans submitted to Crescent. The Crescent representatives
would talk to the head subcontractor about the plans and where items being used and
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installed were placed, but both Crescent representatives said the subcontractors
decide how the job will be conducted. White was the head subcontractor on this
project for Henry Steel. Modglin explained he is aware of what work the
subcontractors are performing because of the plans submitted and uses the plans to
determine scheduling for the different subcontractors they hired. Modglin and Dees
both agreed they would walk the project and observe the work being conducted, but
said if they saw workers performing the job in an unsafe manner, they would talk to
the subcontractor, not his employees. However, neither observed Henry Steel’s work
that day, and there was no discussion of the condition of the job site, safe or unsafe.
It is a well-settled rule that an employer’s “general right to order work started
and stopped” and “to direct when and where the work [i]s done” does not give rise
to a duty of care. Arredondo, 612 S.W.3d at 295. The fact Crescent controlled the
overall timing and sequence of work being performed by their subcontractors
“merely indicates that [Crescent] was performing the duties of a general contractor.”
JLB Builders, 622 S.W.3d at 866. The Texas Supreme Court has stated, in order to
give rise to a duty, the control exercised must extend to the timing and sequence of
the particular independent contractor’s work, such as which of the subcontractor’s
employees “should perform what task and at what point in time.” Bright, 89 S.W.3d
at 609.
Here, there was no evidence that indicates Crescent exercised any control over
the timing and sequence of Henry Steel’s employees’ work or Horton’s work as an
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independent contractor. White testified that he controlled how the job would be
performed and told Horton what they were going to do to lower the steel into the
basement. Mungia agreed and stated that White decided how to move the steel and
perform the job. Because White admitted he was the person who determined and
controlled how the job would proceed, Horton presented no evidence to show that
Crescent exercised actual control of how Henry Steel or Horton preformed the job.
With no actual control, Crescent would not be liable. The trial court did not err by
granting summary judgment for Crescent. We overrule Horton’s issue.
CONCLUSION
Based on the record before us, the trial court did not err in granting summary
judgment in favor of Crescent. We affirm the trial court’s judgment.
220006f.p05 /Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BARRETT HORTON, Appellant On Appeal from the 160th Judicial
District Court, Dallas County, Texas
No. 05-22-00006-CV V. Trial Court Cause No. DC-22-07726.
Opinion delivered by Justice Partida-
MMM VENTURES LLC, Kipness. Justices Nowell and
INDIVIDUALLY AND AS Rosenberg participating.
GENERAL PARTNER OF
CRESCENT ESTATES CUSTOM
HOMES LP, AND CRESCENT
ESTATES CUSTOM HOMES LP,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees MMM VENTURES LLC, INDIVIDUALLY
AND AS GENERAL PARTNER OF CRESCENT ESTATES CUSTOM HOMES
LP, AND CRESCENT ESTATES CUSTOM HOMES LP recover its costs of this
appeal from appellant BARRETT HORTON.
Judgment entered this 15th day of May 2023.
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