Pedro Gonzalez & Maria Gomez v. Vatr Construction LLC & All American Roofing & Construction , 418 S.W.3d 777 ( 2013 )

Affirm and Opinion Filed December 12, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00277-CV
PEDRO GONZALEZ & MARIA GOMEZ, Appellants
V.
VATR CONSTRUCTION LLC & ALL AMERICAN ROOFING & CONSTRUCTION,
Appellees
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-09-09360-M
OPINION
Before Justices FitzGerald, Lang-Miers, and Myers
Opinion by Justice FitzGerald
This case arises from a construction accident in which a roofer suffered fatal injuries after
he failed to use safety equipment. Appellants Pedro Gonzalez and Maria Gomez (together, the
“Estate”) sued the general contractor, VATR Construction, LLC (“VC”) and one of the
subcontractors, All American Roofing & Construction (“All American”) for, inter alia,
negligence, gross negligence, and negligence per se. The trial court granted summary judgment
in favor of VC and All American. On appeal, the Estate contends the trial court erred in granting
summary judgment and in failing to sustain its objections to the summary judgment evidence.
Concluding appellants’ arguments are without merit, we affirm the trial court’s judgment.
I. BACKGROUND
The construction project at issue here involved work at an apartment complex, the
Villages at Turtle Rock (the “Villages”). VC was the general contractor on the project and
subcontracted the roofing work to All American. This relationship was memorialized in a
Subcontract Agreement.1 All American then entered into a Subcontract Agreement for the
roofing repair work with Patricio Ceniceros, who in turn subcontracted the work to Gustavio
Salazar. Salazar further subcontracted the work out to a group of men that included the deceased,
Roger Alexis Gonzalez (“Gonzalez”). Each of the men was required to sign an agreement with
Salazar in which he affirmed responsibility for his own safety. Gonzalez failed to utilize fall
protection equipment and sustained fatal injuries when he fell from the top of a building while
working on the roof.
The Estate initiated this lawsuit against VC and All American and asserted claims for
negligence, gross negligence, negligence per se, and negligent hiring. VC and All American filed
traditional and no-evidence motions for summary judgment, arguing inter alia, that they owed no
duty to Gonzalez. The Estate responded to the motions for summary judgment and filed a
document entitled “Objections and Special Exceptions to Defendant [VC’s] Motion for
Summary Judgment.” The day before the summary judgment hearing, the Estate filed a
document entitled “Plaintiffs’ Additional Objections and Special Exceptions.” There is no
indication that the trial court ever ruled on the any of the Estate’s objections or special
exceptions. The trial court granted summary judgment in favor of VC and All American and
ordered that the Estate take nothing, but did not specify the basis for its ruling. This appeal
followed.
1
As a result of weather-related damage to various roofs, VC and All American entered into a second subcontract agreement for storm
repair. At the time of the incident, work was being performed under both agreements. The subcontract agreements contain identical terms, and for
ease of reference are referred to as a single agreement.
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II. STANDARD OF REVIEW
Typically, when a party files a hybrid summary judgment motion on both no-evidence
and traditional grounds, we first review the trial court’s judgment under the no-evidence standard
of review. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the non-movant
failed to produce more than a scintilla of evidence under the no-evidence summary judgment
provisions of Rule 166a(i), then there is no need to analyze whether the movant’s summary
judgment proof satisfied the burden set forth for traditional summary judgment under Rule
166a(c). See TEX. R. CIV. P. 166a(c) & (d); E. Hill Marine, Inc. v. Rinker Boat Co., 229 S.W.3d
813, 816 (Tex. App.—Fort Worth 2007, pet. denied).
But here, there is no clear distinction in the summary judgment motions (and, to a certain
extent, on appeal) between which aspects of appellees’ motions were brought on traditional
summary judgment grounds and which were brought on no-evidence grounds. Both traditional
and no-evidence summary judgment claims can be raised in a single motion so long as the
motion sufficiently segregates the traditional claims from the no-evidence claims. Torres v. City
of Waco, 51 S.W.3d 814, 822 n.7 (Tex. App.—Waco 2001, no pet.). If a motion does not
sufficiently segregate the claims, we review the motion under a traditional standard of review.
Gross v. Methodist Hosps. of Dallas, No. 05-00-02124-CV, 2002 WL 1380399 at *2 (Tex.
App.—Dallas June 27, 2002, no pet.) (not designated for publication). Therefore, we review the
trial court’s grant of summary judgment under the standard of review for traditional motions.
The standard of review for traditional summary judgment under TEX. R. CIV. P. 166a(c)
is well established. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). The
moving party carries the burden of showing there is no genuine issue of material fact and it is
entitled to judgment as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d
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842, 846 (Tex. 2005); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). Evidence
favorable to the non-movant will be taken as true in deciding whether there is a disputed issue of
material fact. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). All
reasonable inferences, including any doubts, must be resolved in favor of the non-movant. Id. A
defendant is entitled to summary judgment if the evidence disproves as a matter of law at least
one element of each of the plaintiff’s causes of action or if it conclusively establishes all
elements of an affirmative defense. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).
Once the defendant establishes a right to summary judgment as a matter of law, the burden shifts
to the plaintiff to present evidence raising a genuine issue of material fact. City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). We review the grant or denial of
a traditional motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005); Tex. Integrated Conveyor Sys. Inc. v. Innovative Conveyor
Concepts, Inc., 300 S.W.3d 348, 365 (Tex. App.—Dallas 2009, pet. denied).
III. ANALYSIS
Objections to Summary Judgment Evidence
In its first issue, the Estate argues the trial court erred in failed to sustain its objections
and special exceptions to the summary judgment evidence.2 We cannot determine whether the
trial court properly granted summary judgment until we first determine what evidence was
before the court. Therefore, we begin with the Estate’s first issue.
After VC and All American filed their motions for summary judgment, appellants filed a
sixteen page document entitled “Objections and Special Exceptions to Defendant [VC’s] Motion
for Summary Judgment.” The Estate subsequently filed a document entitled “Plaintiffs’
2
When a court does not rule specifically on special exceptions to a motion for summary judgment but does grant the summary judgment
motion, the special exceptions are treated as having been effectively overruled. See Fieldtech Avionics & Instruments, Inc. v. Component Control.
Com, Inc., 262 S.W.3d 813, 824 (Tex. App.—Fort Worth 2008, no pet.).
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Additional Objections and Special Exceptions.” The court did not rule on either the objections or
the special exceptions.
It is well-established that “[t]he granting of a summary judgment motion does not
necessarily provide an implicit ruling that either sustains or overrules the objections to the
summary judgment evidence.” Allen v. Allen, 97 S.W.3d 655, 663 (Tex. App.—Waco 2002, no
pet.). Objections to the form of summary judgment evidence are preserved for appellate review
only if those objections are made and ruled on in the trial court. See Choctow Props., L.L.C. v.
Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.). Substantive objections do
not require a written ruling, and the objection may be raised for the first time on appeal.
Thompson v. Curtis, 127 S.W.3d 446, 450 (Tex. App.—Dallas 2004, no pet.). Therefore, we may
consider only those objections challenging the substance of the summary judgment evidence. See
Green v. Indust. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.]
1999, no pet.); see also Hydroscience Tech., Inc. v. Hydroscience, Inc., 401 S.W.3d 783, 793
(Tex. App.—Dallas 2013, pet denied) (stating substantive defects are never waived because the
evidence is incompetent and cannot be considered under any circumstances).
Appellants tacitly acknowledge the above principles in arguing “appellants request that
this Court of Appeals find that the following objections and special exceptions clearly address
defects of substance . . . .” What follows, however, are eight pages of vague assertions
concerning the allegedly substantive objections. Appellants do not clearly identify the specific
objections, the objectionable material, or why the objections are purportedly substantive.
Appellants also fail to distinguish between those items intended to be objections and those
intended to be special exceptions.
Rule 38.1 of the Texas Rules of Appellate Procedure sets forth what must be included in
an appellant's brief. See TEX. R. APP. P. 38.1. Rule 38.1(i) requires that a brief “contain a clear
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and concise argument for the contentions made, with appropriate citations to authorities and to
the record.” TEX. R. APP. P. 38.1(i). The appellate court has no duty to brief issues for an
appellant. Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). The failure to
provide appropriate record citations or a substantive analysis waives an appellate issue.
WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied) (holding that failure to offer argument, citations to record, or citations to
authority waives issue on appeal); Devine v. Dallas Cnty., 130 S.W.3d 512, 513–14 (Tex.
App.—Dallas 2004, no pet.) (holding that when a party fails to adequately brief a complaint, he
waives the issue on appeal); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d
279, 284–85 (Tex.1994) (holding appellate court has discretion to deem points of error waived
due to inadequate briefing).
Stated otherwise, an appellant must provide such a discussion of the facts and the
authorities relied upon as may be requisite to maintain the point at issue. Tesoro Petroleum Corp.
v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied). “This is not done by merely uttering brief conclusory statements, unsupported by legal
citations.” Id . Appellate courts must construe briefing requirements reasonably and liberally, but
a party asserting error on appeal still must put forth some specific argument and analysis
showing that the record and the law support his contention. San Saba Energy, L.P. v. Crawford,
171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
Because appellants fail to provide “a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record,” their first issue has not been
preserved for our review and is overruled. See TEX. R. APP. P. 38.1(i). We therefore consider all
of VC’s and All American’s summary judgment evidence in determining whether the trial court
erred in granting summary judgment.
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Did VC and All American Owe a Duty to Gonzalez?
In its First Amended Petition, the live pleading at the time the motions for summary
judgment were filed, the Estate asserted that VC and All American engaged in “general
negligence, negligence per se, gross negligence, and malice.”3 VC and All American argued that
they were entitled to summary judgment because they did not owe a duty to Gonzalez. With
regard to the Estate’s claims sounding in negligence, our threshold inquiry turns on the existence
of a duty. See Thapa v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). In the absence of a duty,
there can be no negligence liability. Id. Whether VC and All American owed a duty to Gonzalez
is a question of law. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex.
2009).
Whether VC and All American owed Gonzalez a duty of care is governed by the law
concerning a general contractor’s duties to a subcontractor’s employees. See Dow Chem. Co. v.
Bright, 89 S.W.3d 602, 605 (Tex. 2002). Generally, a premises owner or occupier of land does
not owe any duty to ensure that an independent contractor performs his work in a safe manner.
Koc Ref. Co v. Chapa, 11 S.W.3d 153,155 n.1 (Tex. 1999) (per curium); Abarca v. Scott Morgan
Residential, Inc., 305 S.W.3d 110, 126 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)
(citing Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985)). Further, a general contractor
owes the same duty as a premises owner to an independent contractor’s employee. Koch, 11
S.W.3d at 155 n.1; Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).
However, a limited duty arises if a premises owner or general contractor retains control over a
subcontractor’s methods of work or operative details to the point that the subcontractor is not
entirely free to do the work in his own way. Koch, 11 S.W.3d at 154. The premises owner or
3
VC and All American also construed the pleadings to include claims for negligent hiring and joint enterprise theories of liability, and
moved for summary judgment accordingly. Appellants do not challenge the trial court’s grant of summary judgment on any of these claims on
appeal.
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general contractor’s “duty of reasonable care is commensurate with the control it retains” over
the subcontractor. Hoechst–Celanese Corp. v. Mendez, 967 S.W.2d 354, 355 (Tex. 1998) (per
curiam). The more detailed the general contractor’s control over the independent contractor’s
work, the greater is the general contractor’s responsibility for any injuries that result. Hoechst–
Celanese, 967 S.W.2d at 356. General supervisory control that does not relate to the activity
causing the injury is not sufficient to create a duty. Abarca, 305 S.W.3d at 126. Thus, merely
exercising or retaining a general right to recommend a safe manner for the independent
contractor’s employees to perform their work is not enough to subject a premises owner to
liability. Koch, 11 S.W.3d at 155. Further, there must be a nexus between a general contractor’s
retained supervisory control and the condition or activity that caused the injury. Dow, 89 S.W.3d
at 606, 607; Hoechst–Celanese, 967 S.W.2d at 357.
“Control can be established in two ways: by (1) a contractual right of control or (2) an
exercise of actual control.” Abarca, 305 S.W.3d at 122 (citing Ellwood Tex. Forge Corp. v.
Jones, 214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)). If a written
contract assigns the right of control to the employer, then the plaintiff need not prove an actual
exercise of control to establish a duty. See Dow, 89 S.W.3d at 606. Conversely, if the contract
does not explicitly assign control over the manner of work to the employer, then the plaintiff
must present evidence of the actual exercise of control by the employer. Id.
First we consider whether All American owed a duty to Gonzalez. There was no contract
between All American and Gonzalez. VC, the general contractor, subcontracted the roofing work
to All American. All American then subcontracted the roofing repair work to Ceniceros, who in
turn subcontracted the work to Salazar. Salazar then subcontracted the work to a group of men
who included Gonzalez.
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Pursuant to the subcontract agreement with Ceniceros, All American expressly
disclaimed any responsibility for supervision and work performance. To this end, the subcontract
states:
Independent Subcontractor.
The subcontractor and the subcontractor’s employees are not employees of
the contractor and the contractor shall have no responsibility for
supervising the employees of the subcontractor. The subcontractor is an
independent contractor and assumes all responsibilities of an employer for
the performance of work.
(Emphasis added). Thus, the contract reflects that All American did not have the right to control
the means, methods, or details of any of the subcontractor’s work. See Dow, 89 S.W.3d at 606.
In addition, Ceniceros testified in his deposition that he was in charge of either
supervising and controlling the labor or passing that responsibility down to another
subcontractor. The summary judgment evidence also includes the affidavit of Thomas H. Scott,
an OSHA trained certified safety professional. Scott stated that All American passed the
responsibility of monitoring, controlling, directing, and supervising the daily work to Ceniceros.
The record reflects that Ceniceros subcontracted the work to Salazar. Salazar
subcontracted the work to a group of men that included Gonzalez and a man named Hernandez.
In his deposition, Salazar described his written subcontract with Hernandez. The contract stated
that the subcontractor was not Salazar’s employee and assumed all responsibility for his own
safety. The contract further stated that Salazar was not responsible for supervising Hernandez’s
work. Salazar testified that he had a similar contract with Gonzalez.
Nonetheless, the Estate argues that a duty arose by contract. According to the Estate, the
contract between All American and VC required All American to “retain control over safety
precautions” in connection with the roofing work. The Estate also appears to argue that the
“General Conditions” section of the contract imposed an obligation on All American to control
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the work. Nether argument is supported by a reference or citation to or a quotation of the
contractual language upon which this argument is premised.
The Estate’s reliance upon contractual provisions in contracts to which Gonzalez is not a
party or third-party beneficiary is misplaced. Gonzalez cannot rely on upstream contracts to
establish the existence of a duty. See, e.g., Wood v. Phonoscope, Ltd., No. 01-00-01054-CV,
2004 WL 1172900, at *10 (Tex. App.—Houston [1st Dist.] May 27, 2004, no pet.) (mem. op)
(rejecting injured worker’s attempt to rely on third-party contract between general contractor and
the party who hired general contractor to establish duty).
Andrews v. DT Construction, Inc., 205 S.W.3d 4, 10 (Tex. App.—Eastland 2006, no pet.)
further informs our analysis. In Andrews, the employee of a subcontractor brought an action
against the general contractor for injuries the employee sustained on a scaffold. The contract
between the general contractor and the party who hired the general contractor required the
general contractor to take reasonable precautions for the safety of workers. The subcontract also
required the subcontractor to take similar precautions. The employee argued that he was a
beneficiary of the general contract and the general contract required the general contractor to
make the workplace safe for him. In rejecting this argument, the court noted that the general
contractor contracted with the subcontractors to be responsible for the manner and means of
accomplishing the work. Id. at 13. The court also noted that requiring the subcontractor to
observe and promote compliance with general safety guidelines and other safety precautions “did
not impose an unqualified duty of care on [the general contractor] to insure that the independent
contractor’s employees did nothing unsafe.” Id. In conclusion, the court held that “the mere
contractual retention of control over safety on a construction site was not sufficient to impose
general liability on the general contractor when the independent contractor’s employee was
injured.” Id.
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This principle applies with equal, if not greater force here. All American is three tiers of
subcontractors removed from Gonzalez. All American contracted with Ceniceros to be
responsible for the work. This responsibility was then delegated further down the subcontractor
chain. Under these circumstances, the evidence conclusively disproved a contractual right of
control.
The Estate also relies on the affidavit of its safety expert, Tom Littrell. Litrell opined that
All American had the duty to have someone walking around the job site. Littrell further opined
that if “there is roofing activity being performed . . . [All American] need[s] to tour the site at
least twice a day to see that the necessary safety rules and regulations are complied with.” From
this testimony, the Estate urges that All American had a duty to supervise Gonzalez while he was
working. We disagree.
The expert’s opinion concerning what All American should have done presupposes that
there was a duty. It does not raise a fact issue as to what the contract actually required. The
question of duty is a matter of law. See Nabors Drilling, 288 S.W.3d at 404. “An expert witness
may not testify to his opinion on a pure question of law.” Ledbetter v. Missouri Pacific R. Co.,
12 S.W.3d 139, 144 (Tex. App. —Tyler 1999, pet. denied).
Having concluded that there was no contractual duty, we next consider whether All
American owed a duty to Gonzalez by virtue of having exercised an actual right of control. The
summary judgment evidence reflects that two employees, Tony Blex and Acasio Duran visited
the job site before the accident. Both were on the site the day the project started. Blex was there
before the work actually began, and Duran had no knowledge of whether work commenced
because he remained in his truck. Neither Blex nor Duran returned to the job site until after the
incident.
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There is no evidence that any All American employees were at the job site when any
work was performed, or that they were involved in any supervision or control of the work in any
way. Ceniceros’ deposition testimony establishes that the manner and means of how the roof was
installed and the safety of the workers were his responsibility. He further stated that when All
American hires him as an independent contractor, nobody from All American supervises or
controls the work.
Salazar, the individual who hired Gonzalez, testified similarly. Salazar stated that no one
from All American was controlling the work performance for roof repairs. Salazar also stated
that Ceniceros supplied the equipment and materials for the work, and then performance was left
to Salazar.
In response, the Estate offered no evidence to raise a fact issue as to whether All
American actually exercised control over the job site. In the absence of such evidence, the trial
court properly concluded that All American did not exercise actual control.
Next, we consider whether VC owed a duty to Gonzalez, again examining whether a duty
arose by contract or through the exercise of actual control. See Abarca, 305 S.W.3d at 122. There
was no contract between VC and Gonzalez. The Estate relies on the same third-party contracts
— the contract between VC and the Villages, and the contract between VC and All American —
to argue that VC owed a contractual duty to Gonzalez. We have already rejected the argument
that these upstream contracts created a duty owed by All American to Gonzalez, and for the
same reasons conclude that there was also no contractual duty owed by VC to Gonzalez.
Moreover, in addition to the absence of a third-party beneficiary relationship between VC
and Gonzalez, the subcontract agreement between VC and All American makes clear that VC
did not retain any responsibility for the subcontractors’ work. To the contrary, responsibility was
passed down the chain through each successive subcontract. All American was required to
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assume toward VC all the obligations and responsibilities VC assumed toward the Villages. The
subcontract further provides that All American’s subcontractors assume toward All American all
of the obligations and responsibilities that All American assumed toward VC.
The subcontract states that All American assumes full responsibility for “safety
precautions in connection with the means, methods, techniques, sequences, supervision and
procedures pertaining to the subcontractor’s work.” In addition, the subcontract provides that All
American is responsible for the enforcement of its fall protection plan. Consequently, the express
language of the contracts establishes that VC did not retain a contractual right of control over the
means, methods, or details of Gonzalez’s work. See Deleon v. DSD Dev., Inc., No. 01-03-00806-
CV, 2006 WL 2506743, at *7, 8 (Tex. App. — Houston [1st Dist.] Aug. 31, 2006, pet. denied)
(mem. op.).
We next examine whether VC actually exercised a right of control. The record reflects
that Salazar, Gonzalez’s employer, and Ceniceros, All American’s subcontractor, were the
parties in control of both the work and safety. Ceniceros provided the safety equipment and told
the workers to use fall protection and to tie off while working on the roof. Salazar also instructed
Gonzalez to wear his safety equipment and to tie off when he was on the roof. The summary
judgment evidence also demonstrates that VC did not direct or give instructions to Gonzalez or
any other workers. Salazar testified that he did not even know who VC was prior to the accident.
In analyzing whether VC exercised an actual right of control, we are mindful that it is not
enough that a contractor may have the right to order the work to stop or inspect progress or
receive reports. See Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). Rather, “the evidence must give rise to an inference that the
supervising entity specifically approved the dangerous act.” Abarca, 305 S.W.3d at 124. The
evidence does not support such an inference here. As the Dow court observed, “we have never
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concluded that a general contractor actually exercised control of a premises where . . . there was
no prior knowledge of a dangerous condition and no specific approval of a dangerous act.” Dow,
89 S.W.3d at 609.
The Estate also contends that VC had a duty to inspect the premises to discover
dangerous conditions. In support of this argument, the Estate cites Barham v. Turner Const. Co.,
803 S.W.2d 731, 735‒36 (Tex. App.—Dallas 1990, writ denied). Barham does not stand for the
proposition the Estate seeks to advance. Instead, Barham provides that a general contractor has a
duty of inspection to warn of dangerous conditions on the premises before the subcontractor
begins work. Id. Here, there are no allegations of a dangerous condition that existed on the job
site before the work began. Moreover, the Burham court specifically stated that “a general
contractor does not have a duty to see that an independent contractor performs his work in a safe
manner, and can assume that an independent contractor will take proper care and precautions to
assure the safety of his own employees.” Id.
The Estate also points to the fact that VC hired a safety consultant at the job site, and on
three occasions, the consultant observed some of the roofers not utilizing fall protection.4 Then,
the Estate cites to evidence that the officer investigating the incident observed the workers on the
roof wearing harnesses with no ropes or cable to attach the harnesses. Based on this evidence, the
Estate concludes that “[VC] and All American each breached its duty to inspect the premises
before and while . . . Gonzalez was working on the roof, and to maintain the use of safety
precautions on that roof, to provide ‘the proper safety equipment’ . . . and to enforce ‘its fall
protection plan’ on that roof.” These conclusions do not follow from the evidence cited or
adduced. First, hiring a safety consultant does not, in and of itself, equate to control. See Koch,
4
The record shows that each time the consultant made these observations, he contacted VC. VC then contacted All American and the issue
was resolved.
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11 S.W.3d at 157. Second, the fact that roofers were not properly utilizing fall protection on the
day of the incident has nothing to do with whether VC, the general contractor, was responsible
for controlling the means, manner, methods, or details of the work.5
On this record, the trial court properly concluded that VC did not exercise actual control.
The summary judgment evidence establishes as a matter of law that neither VC nor All
American owed a duty to Gonzalez. Therefore, the trial court did not err in granting summary
judgment on the Estate’s negligence claim.6
Gross Negligence.
Appellant also contends the trial court erred in granting summary judgment on its gross
negligence claim. We have already concluded the trial court did not err in granting summary
judgment on the Estate’s negligence claim. Negligence and gross negligence are not separable
causes of action but are inextricably intertwined. Ford Motor Co. v. Miles, 967 S.W.2d 377, 390
(Tex. 1998). A finding of negligence is a prerequisite to a finding of gross negligence. See Shell
Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex. App.—Houston [14th Dist.] 1994, writ
denied). Because summary judgment was proper on the negligence claim, the trial court did not
err in also granting summary judgment on the gross negligence claim.
Negligence Per Se.
Appellant also maintains the trial court erred in granting summary judgment on its
negligence per se claim.7 According to appellant, VC and All American are liable under a
negligence per se theory for general violations of the OSHA regulations. In particular, appellant
5
There is also no evidence that VC was aware that the roofers were not using fall protection on that day, or in any way approved of the
conduct.
6
Our resolution of this issue obviates the need to consider whether the trial court erred in concluding there was no proximate cause. See
TEX. R. APP. P. 47.1.
7
Negligence per se is a common law doctrine that imposes a duty based on a standard of conduct created by a penal statute. See Smith v.
Merritt, 940 S.W.2d 602, 607 (Tex. 1997).
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states that in response to the motions for summary judgment, it “cited and quoted from Federal
statutes and regulations and Texas appellate decisions, which prove that a genuine material fact
exists . . . [and] pointed out that the construction contract and its general conditions required
[VC] to comply with OSHA regulations.” In response, appellees assert that the issue is waived
because appellant fails to specify which OSHA regulations were allegedly breached. We agree
with appellees. See TEX. R. APP. P. 47.1.
Moreover, even if appellant had not waived the issue by inadequate briefing, it is well-
established that regulations promulgated under the OSHA statute neither create an implied cause
of action nor establish negligence per se. McClure v. Denham, 162 S.W.3d 346, 353 (Tex.
App.—Fort Worth 2005, no pet.). Because Texas law does not recognize OSHA regulations as a
basis for a negligence per se claim in this context, the trial court did not err in granting summary
judgment.
Breach of Contract.
The Estate also argues the trial court erred in granting summary judgment on its breach of
contract claim against VC. Specifically, the Estate contends that Gonzalez was a third party
beneficiary of VC’s contract with All American and VC’s contract with the Villages. The Estate
asserts “[s]ince [VC’s] contract with [the Villages] required [VC] to ensure that each
subcontractor maintained both general liability and worker’s compensation coverage for all
employees and subcontractors, [Gonzalez] is a third party beneficiary of those policies insuring
whoever contributed to his fatal injuries.” We are not persuaded by this argument.
Under the general law of contracts, a party must show either privity or third-party-
beneficiary status in order to have standing to sue. OAIC Commercial Assets, L.L.C. v. Stonegate
Vill., L.P., 234 S.W.3d 726, 728 (Tex. App.—Dallas 2007, pet. denied). To qualify as a third-
party beneficiary, a third party must show that it is either a donee or creditor beneficiary of the
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contract, and not one who is benefited only incidentally by its performance. MCI Telecomms.
Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999).
There is a presumption against conferring third-party beneficiary status on non-
contracting parties. S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306 (Tex. 2007). To
overcome this presumption, the contract must clearly set forth the intention to confer a direct
benefit to a third party. Id. The intention of the contracting parties is controlling. MCI
Telecomms. Corp., 995 S.W.2d at 651. If the intention to contract or confer a direct benefit to a
third party is not clearly and fully spelled out, enforcement by the third party must be denied.
Basic Capital Mgmt., Inc. v. Dynex Commercial Inc., 348 S.W.3d 894, 900 (Tex. 2011).
We glean the parties’ intention from the words of their contract. See Seagull Energy E &
P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006). “All doubts must be resolved
against conferring third-party beneficiary status.” Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex.
2011); see also First Union Nat’l Bank v. Richmont Capital Partners I, L.P., 168 S.W.3d 917,
929 (Tex. App.—Dallas 2005, no pet.) (stating third-party beneficiary claims must fail if there is
any reasonable doubt). Moreover, the fact that a person may have an interest in a contract’s
enforcement does not make him a third party beneficiary. Carr v. Main Carr Dev., LLC, 337
S.W.3d 489, 496 (Tex. App.—Dallas 2011, pet. denied).
VC’s contracts with the Villages and All American require that each subcontractor
maintain commercial general liability and worker’s compensation insurance. According to the
Estate, the existence of this clause, in and of itself, confers third-party beneficiary status on
Gonzalez. We disagree.
The express language of the contracts reflects that none of the contracting parties
intended to confer a benefit on Gonzalez. The subcontract agreement between VC and All
American provides:
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Nothing contained in the Subcontract Documents shall create any
contractual or third party beneficiary relationship between any parties
other than the contractor and the subcontractor.
Similarly, the contract between the Villages and VC provides:
Nothing contained in the Contract Documents shall create any contractual
relationship between the Owner and any subcontractor.
The Estate offers no explanation as to how these specific expressions of the intent to
exclude third-party beneficiaries fails to control the analysis. It is well established, however, that
a third-party beneficiary will not be recognized unless the intent to make him so is clearly
recognized in the contract. Maddox v. Vantage Energy, LLC, 361 S.W.3d 752, 757 (Tex. App.—
Fort Worth 2012, pet. denied). The contracts relied upon by the Estate do not reflect any intent to
benefit Gonzalez. Indeed, the contractual provisions referenced above show the signatories clear
intent that there be no third-party beneficiaries to the contracts.
Although the Estate insists there is a genuine issue of material fact concerning third-
party beneficiary status, the Estate fails to identify the evidence that allegedly raised such a fact.
Stating that “[t]he Texas Supreme Court has held that a party injured by the insured is a third-
party beneficiary of a liability insurance policy,” the Estate cites Broadnax v. Kroger Texas, LP,
No. 05-04-01306-CV, 2005 WL 2031783, at *14 (Tex. App.—Dallas Aug. 24, 2005, no pet.)
(mem. op.). Broadnax does not stand for this proposition. In Broadnax, the appellant argued that
the court should treat his situation like a liability insurance contract where a claimant against the
insured becomes an intended third-party beneficiary. Id. In making this argument, appellant cited
a case involving a third party’s claim under an automobile liability policy where the Texas
Supreme Court held that a party injured by an insured is a third party beneficiary of a liability
insurance policy. This Court rejected appellant’s argument, noting that the case relied upon
“merely recognized that an injured party is a third party beneficiary of statutorily required
coverage.” Id. The Court concluded “there is no such statutory mandate in this case.” Id. As a
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result, the Court held the trial court did not err in granting summary judgment on appellant’s
third-party beneficiary claim. Id.
Likewise, there is no automobile insurance policy or statutory mandate in the case at bar.
The summary judgment evidence here established that the parties to the contracts did not intend
to confer third-party beneficiary status on Gonzalez or anyone else. The Estate failed to raise a
genuine issue of material fact on this issue. Therefore, the trial court did not err in granting
summary judgment on the Estate’s third-party beneficiary claim.
IV. CONCLUSION
Having resolved all of the Estate’s issues against it, we conclude the trial court did not err
in granting summary judgment in favor of VC and All American. The judgment of the trial court
is affirmed.
120277F.P05 /Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
PEDRO GONZALEZ & MARIA GOMEZ, On Appeal from the 298th Judicial District
Appellants Court, Dallas County, Texas
Trial Court Cause No. DC-09-09360-M.
No. 05-12-00277-CV V. Opinion delivered by Justice FitzGerald.
Justices Lang-Miers and Myers
VATR CONSTRUCTION LLC & ALL participating.
AMERICAN ROOFING &
CONSTRUCTION, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee VATR CONSTRUCTION LLC & ALL AMERICAN
ROOFING & CONSTRUCTION recover its costs of this appeal from appellant PEDRO
GONZALEZ & MARIA GOMEZ.
Judgment entered December 12, 2013
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
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