Michael and Donna Mosley v. BTL & Associates, Inc. and Nicholas Varga D/B/A Woodcraft Builders ( 2002 )

11th Court of Appeals

11th Court of Appeals

Eastland, Texas

Opinion

Michael and Donna Mosley

Appellants

Vs.                   No. 11-00-00346-CV B Appeal from Dallas County                                       

BTL & Associates, Inc. and Nicholas Varga d/b/a Woodcraft Builders

Appellees

Appellant, Michael Mosley, sued appellees to recover for injuries suffered by him while employed by Nicholas Varga d/b/a Woodcraft Builders (Varga).  Michael=s wife, Donna Mosley, joined in the lawsuit.  The trial court granted summary judgment to Varga and to BTL & Associates, Inc., the general contractor on the project.  We affirm.

BTL was a general contractor and in that capacity contracted with Varga, as a subcontractor,  to perform certain work.  Varga employed Michael as his employee on  the project.  A part of Michael=s job was to install crown ceiling molding.  Varga furnished scaffolding to Michael, but the scaffolding was not high enough for him to do the molding work.  Michael placed a ladder on top of the scaffolding to work on the molding. The ladder and scaffolding collapsed, and Michael fell approximately 30 feet to the floor.  Michael and his wife brought this lawsuit to collect for damages suffered as a result of that fall.

The issues raised in this appeal are set out by appellants as follows:

(1) The trial court erred in granting summary judgment for defendant BTL because a genuine issue of material fact exists regarding BTL=s control of the work site and of the subcontractors work.

(2) The trial court erred in granting summary judgment because defendant Varga failed to establish all the elements of the affirmative defense of statute of limitations.

(3) The trial court erred in granting summary judgment for defendant Varga because plaintiffs were not granted a continuance.

(4) The trial court erred in granting Varga=s motion for summary judgment because plaintiffs were diligent in serving Varga with citation.

BTL filed its motion for summary judgment in the trial court both as a traditional summary judgment under TEX.R.CIV.P. 166a(c) and as a Ano-evidence@ motion for summary judgment under TEX.R.CIV.P. 166a(i).  We will first review the Ano-evidence@ motion for summary judgment. When reviewing a no-evidence motion for summary judgment, the trial court must grant the motion unless the non-movant brings forth evidence which  raises a genuine issue of material fact upon the challenged elements of the cause of action.  Rule 166a(i).  Further, we review the evidence in the light most favorable to the non-movant, accept as true all evidence favorable to the non-movant, and recognize every reasonable inference and resolve all doubts in favor of the non-movant.  American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex. App. B Eastland 2000, pet=n den=d). Moreover, we  review only evidence presented by the non-movant. Rule 166a(i); Hight v. Dublin Veterinary Clinic, supra.  A summary judgment is improper where the non-movant presents more than a mere scintilla of evidence on the disputed element.  Hight v. Dublin Veterinary Clinic, supra.

In their first issue on appeal, appellants challenge the summary judgment granted in favor of appellee BTL.  Appellants contend there is a genuine issue of material fact as to whether BTL was in control of the work site and of Varga=s work.

In this case, appellants had the burden to prove that BTL breached a legal duty owed to them. Praesel v. Johnson, 967 S.W.2d 391 (Tex.1998).  Ordinarily, a general contractor, such as BTL, has no duty to ensure that its independent contractors perform their work safely.  Lee Lewis Construction, Inc. v. Harrison, ____ S.W.3d ____,  No. 99-0793 (Tex. Dec. 20, 2001); Koch Refining Company v. Chapa, 11 S.W.3d 153 (Tex.1999).  However, if a Ageneral contractor exercises some control over a subcontractor=s work he may be liable unless he exercises reasonable care in supervising the subcontractor=s activity.@   Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985); see also Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801 (Tex.1999).  The duty of care owed by the general contractor is relative to the control which the general contractor retains over the work of the independent contractor.  Lee Lewis Construction, Inc.v. Harrison, supra.  Furthermore, the general contractor=s control must relate to the injury.  Our supreme court has stated:

In determining whether an owner has retained this right to control, the standard is narrow. The right to control must be more than a general right to order work to stop and start, or to inspect progress. The supervisory control must relate to the activity that actually caused the injury, and grant the owner at least the power to direct the order in which work is to be done or the power to forbid it being done in an unsafe manner. 

Coastal Marine Service of Texas, Incorporated v. Lawrence, 988 S.W.2d 223, 226 (Tex.1999).

The issue of Acontrol@ is addressed in the RESTATEMENT (SECOND) OF TORTS ' 414 (1965). Texas has adopted Section 414. See Redinger v. Living, Inc., supra. Section 414 states that:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Liability is anticipated only where there is more than a general right of control.  The comments to the Restatement provide:

It is not enough that [a general contractor] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.

Section 414 cmt. c.

In Lee Lewis Construction, Inc., the general contractor was sued after an employee of a subcontractor fell to his death while installing windows in the upper stories of a multi-story building project. The evidence presented to the jury in that case revealed that the general contractor was directly involved in the supervision of the safety aspects of the work.  Among other things, the general contractor had its own safety supervisor on the job.  Further, the general contractor knew of various unsafe practices relating to fall protection devices and did nothing to stop those practices.   At the same time, the general contractor forbade its employees from exercising those same unsafe practices.  The supreme court held that the evidence was legally sufficient to show that the general contractor retained the right of control over fall protection systems at the job site.  Therefore, the general contractor owed a duty of care to the injured employee.

The case before us is distinguishable. There is summary judgment evidence in the record to show that BTL exercised some general control over the subcontractor, Varga, and the work site. However, appellants, as non-movants responding to a no-evidence motion for summary judgment, have presented no summary judgment evidence that BTL retained the type of control required by Texas law as stated by the court in  Lee Lewis Construction, Inc.  Therefore, appellants have failed to raise a fact issue regarding any duty owed to them by BTL.  The trial court did not err when it granted BTL=s no-evidence motion for summary judgment.  We need not discuss BTL=s traditional motion for summary judgment.  Appellant=s first issue on appeal is overruled.

In their second issue on appeal, appellants assert that Varga did not establish all of the elements of its statute of limitations defense.  Essentially, appellants assert that Varga did not negate the possibility of the statute of limitations being tolled.   

Varga brought his motion for summary judgment in the trial court on traditional grounds under Rule 166a(c) and, in the alternative, on no-evidence grounds under Rule 166a(i).  When the movant establishes that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law, a trial court must grant a traditional motion for summary judgment.  Rule 166a(c).  After the movant demonstrates his right to summary judgment, the non-movant is required to come forward with evidence, or law, that precludes the summary judgment.  City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-679 (Tex.1979); In re Estate of Fawcett, 55 S.W.3d 214, 217 (Tex.App. B Eastland 2001, pet=n den=d). In our review of a traditional summary judgment, we accept as true all evidence favorable to the non-movant and recognize every reasonable inference and resolve all doubts in favor of the non-movant. American Tobacco Company, Inc. v. Grinnell, supra at 425; Hight v. Dublin Veterinary Clinic, supra at 619.

Appellants originally filed this lawsuit against BTL only.  Later, one day before the statute of limitations expired,^[1] appellants filed an amended petition and for the first time included Varga as a defendant.  Varga was not served with citation until May 23, 2000, approximately four and one-half months after the statute of limitations had expired.

After he had answered the lawsuit, Varga filed a motion for summary judgment in which he alleged that the statute of limitations had expired.   The trial court granted the motion, but did not state its reasons for granting the motion. Therefore, in order to prevail here, appellants must defeat each ground urged in the motion for summary judgment. State Farm Fire & Casualty Company v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex.1993).

When the non-movants (appellants in this case) assert that a statute tolls the applicable limitations period, the movant=s limitations defense is not established unless the movant  negates the applicability of the tolling statute.  Jennings v. Burgess, 917 S.W.2d 790, 792-93 (Tex.1996). Appellants state that Athere is a possibility of duress, temporary absence from [the] state@ making the tolling provision of TEX. CIV. PRAC. & REM. CODE ANN. ' 16.063 (Vernon 1997) applicable and that, because no continuance was granted, they had no opportunity to plead and prove the applicability of the tolling provision.  However, appellants failed to address the possibility of tolling before the trial court until their motion for new trial, which was filed after the summary judgment was granted in favor of Varga.  Because appellants did not timely raise the tolling argument, it has not been preserved for review.  TEX.R.APP.P. 33.1.  Appellants= second issue on appeal is overruled.

In appellants= third issue on appeal, they assert that the trial court erred in granting summary judgment in favor of appellee Varga because appellants= motion for continuance was denied. Appellants sought a continuance in order to obtain the deposition testimony of Varga.  Where a continuance is sought for Awant of testimony,@ the party seeking the continuance must state in a sworn affidavit that:

[S]uch testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known; that such testimony cannot be procured from any other source.

TEX.R.CIV.P. 252.  Appellants stated that Varga Ahas material knowledge@ that appellees Afailed to provide adequate scaffolding for [appellant] Michael Mosley to safely perform his job.@  This statement was conclusory and did not show the materiality of Varga=s testimony. Additionally, appellants failed to show due diligence in procuring the testimony of Varga.  In their first amended petition, filed January 11, 2000, appellants added Varga as a defendant.  However, Varga was not served with citation until May 23, 2000.  Summary judgment was granted in favor of Varga on July 19, 2000.  At no point after filing their amended petition did appellants seek to take Varga=s deposition.  The granting or denial of a motion for continuance is within the trial court's sound discretion.  Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1963).  The exercise of such discretion will not be disturbed on appeal unless the record discloses a clear abuse of discretion.  State v. Wood Oil Distributing, Inc., 751 S.W.2d 863, 865 (Tex.1988).  A trial court may be reversed for abusing its discretion only when the court of appeals finds that the court acted in an unreasonable or arbitrary manner.   Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241‑42 (Tex.1985), cert. den'd,  476 U.S. 1159 (1986).   Here, the trial court did not abuse its discretion when it denied the motion for continuance. Appellants= third issue on appeal is overruled.

In their fourth and final issue on appeal, appellants contend that the trial court erred in granting summary judgment in favor of appellee Varga because there was a fact issue as to whether they were diligent in obtaining service of citation. 

Again, Varga brought his motion for summary judgment on traditional grounds under Rule 166a(c) and, in the alternative, on no-evidence grounds under Rule 166a(i).  We first will address the motion on traditional grounds.

The statute applicable to limitations in this case is  TEX. CIV. PRAC. & REM. CODE ANN. ' 16.003(a) (Vernon Supp. 2002 ).   Section 16.003(a) requires that a person must bring suit not later than two years after the cause of action accrues.  To Abring suit@ means not only to file the lawsuit, but to use due diligence in obtaining service upon the defendants in the suit. Gant v. DeLeon, 786 S.W.2d 259 (Tex.1990).  The date of service will relate back to the date of the filing of the lawsuit unless the plaintiff failed to exercise due diligence in obtaining service.  Gant v. DeLeon, supra.  When a defendant seeks summary judgment for the reason that service of process was not perfected during the limitations period, he must show, as a matter of law, that the plaintiff did not obtain service of process during the limitations period.  He must also establish, as a matter of law, that the plaintiff did not use due diligence to obtain service before limitations expired.  Gant v. DeLeon, supra.

When claims are made in response to a motion for summary judgment based upon an affirmative defense, there is a distinction to be made between claims made by a non-movant which are in confession and avoidance of an affirmative defense and claims which challenge whether the affirmative defense has been shown to exist at all.   For example, in Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex.1975), the plaintiff filed suit before the expiration of the statute of limitations but did not request the issuance of citation until after the limitations period had expired.  The plaintiff argued that it had used diligence in procuring service of citation and that by statute the time that a person is absent from the state was not to be included in the limitations period.  The court of civil appeals held that the defendants had conclusively established the limitations defense by showing the date of the cause of action, the date suit was filed, and the date that citation was requested.  Zale Corporation v. Rosenbaum, 517 S.W.2d 440 (Tex.Civ.App. - El Paso 1974).  The court of civil appeals also held that the plaintiff had not shown that the defendants were absent from the state a sufficient amount of time.  The court of civil appeals placed the burden of proof on both issues upon the plaintiff.  

In reversing and remanding the case to the trial court, the Supreme Court in Zale stated:

When summary judgment is sought on the basis that limitations have expired, it is the movant=s burden to conclusively establish the bar of limitations.  Where the non-movant interposes a suspension statute, such as Article 5537 [absence from state], or pleads diligence in requesting issuance of citation, the limitation defense is not conclusively established until the movant meets his burden of negating the applicability of these issues. 

Zale Corporation v. Rosenbaum, 520 S.W.2d at 891.

The supreme court held that in the latter instance, those involving matters of confession and avoidance, the non-movant has a burden of coming forward with evidence which raises a fact issue with respect to the confession and avoidance issue.  By necessary inference, in the cases which fall within the former category, including those in which a plaintiff has interposed the due diligence theory, the burden would be upon the movant to negate due diligence before the defense is conclusively established. 

The supreme court in Zale referred to AMoore@ Burger v. Phillips Petroleum Company,  492 S.W.2d 934 (Tex.1972).  In Moore, the plaintiff (non-movant) had argued that the doctrine of promissory estoppel prevented the defendant from relying upon the statute of frauds as an affirmative defense and that the burden of proof to negate the estoppel issue was upon Phillips, the movant.  The supreme court disagreed and held that it was Moore=s burden to come forward with evidence raising a fact issue as to the promissory estoppel issue.  It was a matter of confession and avoidance.  See also Jennings v. Burgess, supra; Gant v. DeLeon, supra; Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex.1974); Nichols v. Smith, 507 S.W.2d 518 (Tex.1974).

We hold that it was Varga=s burden, upon his traditional motion for summary judgment,  to conclusively negate the existence of due diligence in obtaining service of process upon him.  In a case where the statute of limitations has been raised and the issue of tolling or due diligence of service of process is interposed, the non-movant has no burden to come forward with summary  judgment evidence unless the summary judgment evidence then before the court would otherwise conclusively establish the defense, including negating the tolling and service of process issues.  Oram v. General American Oil Company of Texas, supra.  The summary judgment evidence shows that suit was filed against Varga on January 11, 2000, one day before the limitations period expired.  The district clerk issued citation on January 11, 2000. This citation was issued for BTL, instead of Varga.  The citation was not re-served on BTL because the process server realized that BTL had already been served; the citation was not served on anyone.   According to the summary judgment evidence, nothing happened after that until May 12, when an employee of appellant=s attorney discovered that no answer had been filed by Varga and that he had not been served.  A new citation was served on Varga on May 23, 2000.  We hold that the date of the filing of the amended lawsuit to include Varga and the lack of action taken by appellants during that period of time before he was served negate the existence of due diligence.   Appellants= fourth issue on appeal is overruled.  In view of our ruling on the traditional motion for summary judgment, we need not discuss the Ano-evidence@ aspects of Varga=s motion.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

February 7, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Wright, J., and

McCall, J., and McCloud, S.J.^[2]

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^[1]The accident giving rise to this claim occurred on January 12, 1998.  The amended petition was filed on January 11, 2000.

^[2]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.