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Elvir v. Brazos Paving, Inc.

Court of Appeals of Texas, Thirteenth District, Corpus Christi - Edinburg August 31, 2017, Delivered; August 31, 2017, Filed NUMBER 13-16-00546-CV

Reporter 2017 Tex. App. LEXIS 8348 *; 2017 WL 3769015 NICOLETTE ELVIR, Appellant, v. BRAZOS PAVING, INC., Appellee. LexisNexis® Headnotes

Prior History: [*1] On appeal from the 85th District Court of Brazos County, Texas.

Core Terms Civil Procedure > Appeals > Summary Judgment Review > Standards of Review Paving, Trucking, summary judgment, no evidence, Subcontractor, driver, contractual, motor carriers, HN1[ ] Summary Judgment Review, Standards of contractor's, statutory employee, trial court, regulations, Review grounds, hired, independent contractor, pet, argues, vicarious liability theory, actual control, details, parties, When a party moves for summary judgment on both no granting summary judgment, issue of fact, dump truck, evidence grounds, Tex. R. Civ. P. 166a(i), and employees, federal regulation, premises owner, actual traditional grounds, rule 166a(c), an appellate court first agency, deposition, references reviews the ruling under the more stringent no evidence standard before analyzing proof under the traditional Case Summary standard, if necessary.

Overview Civil Procedure > ... > Summary HOLDINGS: [1]-A paving company contractor was not Judgment > Evidentiary Considerations > Absence liable for a driver's injuries suffered in a collision with a of Essential Element dump truck because its subcontractor had itself subcontracted a job to a sub-subcontractor, whose Civil Procedure > Appeals > Summary Judgment employee was driving the dump truck that injured the Review > Standards of Review driver; [2]-The evidence showed that the contractor owed no duty to the driver because it did not control the Civil Procedure > ... > Summary employee of the subcontractor twice removed, so that Judgment > Evidentiary Considerations > Scintilla all of the driver's vicarious liability theories (agency, Rule borrowed employee, nonemployee mission, and others) failed; [3]-There was no indication that the contractor HN2[ ] Evidentiary Considerations, Absence of contractually or actually retained the right to control the Essential Element means, methods, or details of how the subcontractor's A no evidence motion for summary judgment is sub and its driver performed the work; [4]-The federal essentially a pretrial motion for directed verdict, and an regulation governing statutory employees, 49 C.F.R. § appellate court applies the same legal sufficiency 390.5 (2017), did not apply in this intrastate case. standard of review. In its de novo review of a trial court's Outcome summary judgment, the appellate court considers all the Summary judgment affirmed. evidence in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if Page 2 of 13 2017 Tex. App. LEXIS 8348, *1 reasonable jurors could, and disregarding contrary Torts > Vicarious Liability > Employers evidence unless reasonable jurors could not. A no evidence summary judgment is improperly granted if the HN6[ ] Vicarious Liability, Agency Relationships non-movant brings forth more than a scintilla of probative evidence to raise a genuine issue of material The most frequently proffered justification for imposing fact. When an order granting summary judgment does respondeat superior liability is that the principal or not specify the grounds on which summary judgment employer has the right to control the means and was granted, the appellate court may uphold the methods of the agent or employee's work. summary judgment on any ground presented in the motion. Business & Corporate Law > Agency Relationships > Authority to Act > Actual Authority Torts > Negligence > Elements > Duty Torts > Vicarious Liability > Agency Relationships Torts > Vicarious Liability > Independent Contractors Business & Corporate Law > ... > Authority to Act > Apparent Authority > Proof HN3[ ] Elements, Duty HN7[ ] Authority to Act, Actual Authority A general contractor can retain the right to control an aspect of an independent contractor's work or project so Authorization to act and control of the action are the two as to give rise to a duty of care to that independent essential elements of agency. contractor's employees in two ways: by contract or by actual exercise of control. Business & Corporate Compliance > ... > Transportation Law > Carrier Torts > Vicarious Liability > Employers > Scope of Duties & Liabilities > State & Local Regulation Employment Transportation Law > Carrier Duties & HN4[ ] Employers, Scope of Employment Liabilities > Definitions

Non-employee mission liability is a form of respondeat HN8[ ] Common Carrier Duties & Liabilities, State superior liability outside the employment context under & Local Regulation which the key elements are (1) benefit to the defendant and (2) right of control. The threshold issue for Texas has not adopted Part 376 of the Federal Motor nonemployee mission liability is control. Carrier Safety Regulations, and as such, it has not adopted the definition of statutory employee. Under 49 C.F.R. § 390.5, "Employee" means any individual, other than an employer, who is employed by an employer and Torts > ... > Employers > Scope of who in the course of his or her employment directly Employment > Factors affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle HN5[ ] Scope of Employment, Factors (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, It is the shift of the right to direct and control the details and a freight handler. of the work that transforms a general employee of one employer into a borrowed employee of another, rendering the new employer vicariously liable for the borrowed employee's actions. Business & Corporate Law > General Partnerships > Formation > Elements

HN9[ ] Formation, Elements Torts > Vicarious Liability > Agency Relationships Page 3 of 13 2017 Tex. App. LEXIS 8348, *1

The common law test to determine the formation of a These rules have been equally applied to partnership includes: intent to form a partnership, a subcontractors. community of interest in the venture, an agreement to share profits, an agreement to share losses, and a mutual right of control or management of the enterprise. Labor & Employment Law > Employment Relationships > Independent Contractors

Business & Corporate Law > Joint Torts > Vicarious Liability > Independent Ventures > Formation Contractors

HN10[ ] Joint Ventures, Formation HN13[ ] Employment Relationships, Independent Contractors The elements of a joint venture are an express or implied agreement to engage in a joint venture, a A contract expressly providing that a person is an community of interest in the venture, an agreement to independent contractor is determinative of the parties' share profits and losses from the enterprise, and a relationship absent evidence that the contract is a mere mutual right of control or management of the enterprise. sham or subterfuge designed to conceal the true legal status of the parties or that the contract has been modified by a subsequent agreement between the parties. Business & Corporate Law > Joint Ventures > Formation

HN11[ ] Joint Ventures, Formation Torts > Vicarious Liability > Independent Contractors The elements of a joint enterprise are an agreement (express or implied) among the members of the group, a HN14[ ] Vicarious Liability, Independent common purpose to be carried out by the group, a Contractors community of pecuniary interest among the members in that common purpose, and an equal right to direct and The exercise of control is evidentiary only and must be control the enterprise. so persistent and the acquiescence therein so pronounced as to raise an inference that at the time of the act or omission giving rise to liability, the parties by implied consent and acquiescence had agreed that the Labor & Employment Law > Employment principal might have the right to control the details of the Relationships > Independent Contractors work. Torts > Vicarious Liability > Independent Contractors Evidence > ... > Testimony > Lay HN12[ ] Employment Relationships, Independent Witnesses > Opinion Testimony Contractors Evidence > Relevance > Relevant Evidence A general contractor normally does not have a duty to that an independent contractor performs work safely. HN15[ ] Lay Witnesses, Opinion Testimony But a duty may arise when a general contractor retains some control over the manner in which the independent Opinion testimony that is conclusory or speculative is contractor's work is performed. For a general contractor not relevant evidence, because it does not tend to make to be liable for its independent contractor's acts, it must the existence of a material fact more probable or less have the right to control the means, methods, or details probable. of the independent contractor's work. Further, the control must relate to the injury the negligence causes, and the contract must grant the contractor at least the Business & Corporate power to direct the order in which work is to be done. Page 4 of 13 2017 Tex. App. LEXIS 8348, *1

Compliance > ... > Transportation Law > Carrier Torts > Vicarious Liability > Independent Duties & Liabilities > State & Local Regulation Contractors

Torts > Vicarious Liability > Employers HN19[ ] Vicarious Liability, Independent Contractors Torts > Vicarious Liability > Independent Contractors Mere promulgation of safety policies does not establish an employer's actual control over an independent HN16[ ] Common Carrier Duties & Liabilities, State contractor. & Local Regulation

Federal regulations impose various duties on motor Torts > Negligence > Types of Negligence carriers who classify their drivers as independent Actions > Negligent Entrustment contractors in order to avoid liability for the drivers' negligence. The federal regulations apply only to HN20[ ] Types of Negligence Actions, Negligent transportation in interstate commerce. Texas has Entrustment adopted many—but not all—parts of the federal regulations, as well as their federal interpretations. The The elements of negligent entrustment are: (1) Texas regulations apply to commercial motor vehicles entrustment of a vehicle by the owner; (2) to an and hold motor carriers responsible for their employees. unlicensed, incompetent, or reckless driver; (3) that the Texas law defines "motor carrier" in pertinent part as an owner knew or should have known to be unlicensed, individual or other legal entity that controls, operates, or incompetent, or reckless; (4) that the driver was directs the operation of one or more vehicles that negligent on the occasion in question; and (5) that the transport persons or cargo. In a general sense, the driver's negligence proximately caused the accident. federal regulations vitiate the independent contractor doctrine, whereas the Texas regulations largely mirror employer liability. Civil Procedure > ... > Summary Judgment > Motions for Summary Judgment > Notice Requirement Torts > Vicarious Liability > Independent Contractors Civil Procedure > ... > Summary Judgment > Motions for Summary HN17[ ] Vicarious Liability, Independent Judgment > Written Motions Contractors Civil Procedure > Appeals > Summary Judgment An employer can be held vicariously liable for the Review > Standards of Review actions of an independent contractor if the employer retains some control over the manner in which the HN21[ ] Motions for Summary Judgment, Notice contractor performs the work that causes the damage. Requirement

Although a trial court errs in granting a summary Torts > Negligence > Elements > Duty judgment on a cause of action not expressly presented by written motion, the error is harmless when the Torts > ... > Proof > Evidence > Province of Court & omitted cause of action is precluded as a matter of law Jury by other grounds raised in the case.

HN18[ ] Elements, Duty Judges: Before Chief Justice Valdez and Justices Longoria and Hinojosa. Memorandum Opinion by In Texas, whether a duty exists is a question of law for Justice Hinojosa. the court. Opinion by: LETICIA HINOJOSA Page 5 of 13 2017 Tex. App. LEXIS 8348, *1

Opinion Although Brazos Paving is a licensed motor carrier under Texas regulations and has its own commercial drivers and trucks, it routinely contracts with commercial trucking companies to haul building-site material. One of MEMORANDUM OPINION1 those companies is Henry Jones d/b/a HJ & DJ Trucking (HJ & DJ Trucking), a motor carrier that owns Memorandum Opinion by Justice Hinojosa one dump truck and hauls gravel, dirt, sand, and rock. Brazos Paving and HJ & DJ Trucking had a pre-existing In the underlying lawsuit, appellant Nicolette Elvir contract that continued to govern its relationship with HJ sought recovery for personal injuries sustained in a & DJ Trucking on the Northpoint Crossing project. In motor vehicle collision with Domingo Galvan, a order for HJ & DJ Trucking to fulfill its obligations to commercial truck driver, from, among others, appellee Brazos Paving, HJ & DJ Trucking retained the trucks Brazos Paving, Inc. In six issues, which we re-order and and driving services of other trucking companies. One of classify as four, Elvir challenges a take nothing those trucking companies was Jose B. Pachuca d/b/a summary judgment and severance granted in favor of J.B.P. Trucking (JBP Trucking), and it employed Brazos Paving on the grounds that the trial court erred Galvan. by: (1) concluding that Elvir failed to produce legally sufficient evidence to defeat Brazos Paving's no On May 6, 2013, Elvir, [*3] a twenty-year old student at evidence summary judgment ground regarding control Texas A&M University, drove southbound in a Ford of Galvan; (2) concluding that Brazos Paving Escape on state highway 47 in Bryan, Texas. At the conclusively established that it did not control Galvan; same time, a dump truck, operated by Galvan and (3) granting Brazos Paving more relief than it asked for; owned by JBP Trucking, entered the highway. Galvan's and (4) severing Elvir's claims against Brazos Paving and Elvir's vehicles collided, and both flipped over. from those against the remaining co-defendants. We Passersby rescued Elvir from her burning vehicle before affirm. it was engulfed in flames.

Initially, Elvir sued JBP Trucking and Galvan. I. BACKGROUND2 Thereafter, Elvir settled with both. Later, Elvir sued HJ & DJ Trucking and then added Brazos Paving. Against Brazos Paving is a Texas business entity with offices in Brazos Paving, Elvir asserted eight theories of vicarious Bryan, Texas. It is a subcontractor [*2] that provides liability for the alleged negligence of HJ & DJ Trucking, general contractors with earth moving, building site JBP Trucking, and Galvan: (1) non-employee mission clearing, and paving services. Brazos Paving entered liability, (2) borrowed employee, (3) respondeat into a contract with Construction Enterprises, Inc. (CEI), superior, (4) agency,3 (5) statutory employee, (6) a general contractor, to provide services for the partnership, (7) joint venture, and (8) joint enterprise. construction of Northpoint Crossing Student Housing, a Elvir also asserted that Brazos Paving was directly building project near the campus of Texas A&M negligent on the ground that it negligently hired, University in College Station, Texas. selected, and entrusted: (a) HJ & DJ Trucking "to select other trucks and truck drivers for its use when the company had no freight broker's license and/or had a poor maintenance record" and (b) JBP Trucking "and/or" Galvan. 1 This appeal was transferred to this Court from the Tenth Court of Appeals by order of the Texas Supreme Court. See Brazos Paving filed a motion [*4] for summary judgment Tex. Gov't Code Ann. § 22.220(a) (West, Westlaw through on both no evidence and traditional grounds. Generally, 2017 R.S.) (delineating the jurisdiction of appellate courts); id. at §73.001 (West, Westlaw through 2017 R.S.) (granting the Brazos Paving asserted that it owed no duty to Elvir supreme court the authority to transfer cases from one court of because it did not control Galvan, an employee of JBP appeals to another at any time when there is "good cause" for Trucking, a subcontractor twice removed from Brazos the transfer). Paving. Elvir responded by arguing that Brazos Paving

2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as 3 As described in more detail below, Elvir initially pleaded necessary to advise the parties of the Court's decision and the apparent agency, and by an amended petition, she substituted basic reasons for it. See Tex. R. App. P. 47.4. agency for apparent agency. Page 6 of 13 2017 Tex. App. LEXIS 8348, *4 owed her a duty because Galvan was its statutory S.W.3d 150, 157 (Tex. 2004). employee under federal and Texas regulations. The matter was submitted at an oral hearing. The trial court granted summary judgment in favor of Brazos Paving B. Control without specifying any grounds. Over Elvir's objection, the trial court granted Brazos Paving's motion to sever Brazos Paving's primary no evidence summary the claims disposed of by summary judgment against judgment ground argued that Elvir had no evidence that Brazos Paving from the claims asserted against the Brazos Paving controlled JBP Trucking and Galvan, and 5 remaining co-defendants. This appeal followed. therefore, all of Elvir's vicarious liability theories failed.

II. NO EVIDENCE SUMMARY JUDGMENT 5 A common element running through all of Elvir's vicarious liability theories is control. All of Elvir's vicarious liability In Elvir's first issue, she challenges the trial court's theories required some evidence that Brazos Paving granting of a no evidence summary judgment in favor of controlled JBP Trucking and Galvan: Brazos Paving.4 Elvir contends that she presented some evidence that Brazos Paving controlled HJ & DJ (1) non-employee mission liability, see St. Joseph Hosp. v. Trucking, JBP Trucking, and Galvan. Wolff, 94 S.W.3d 513, 537 (Tex. 2002) (noting that HN4[ ] non-employee mission liability is a form of "respondeat superior liability outside the employment context" under which the key elements are "(1) benefit to the defendant and (2) right A. No Evidence Summary Judgment Standard of of control"); see also Omega Contracting, Inc. v. Torres, 191 Review S.W.3d 828, 848 (Tex. App.—Fort Worth 2006, no pet.) (en banc) (noting that the threshold issue for nonemployee HN2[ ] A no evidence motion for summary judgment is mission liability is control and holding that the alleged principal essentially a pretrial motion for directed verdict, and we "conclusively negated the essential element of its alleged right apply [*5] the same legal sufficiency standard of review. to control" the agent); Moreno v. Quintana, 324 S.W.3d 124, 129 (Tex. App.— El Paso 2010, pet. denied). In our de novo review of a (2) borrowed employee, see Wolff, 94 S.W.3d at 542 trial court's summary judgment, we consider all the (providing that HN5[ ] "it is the shift of the right to direct and control the details of the work that transforms a general evidence in the light most favorable to the non-movant, employee of one employer into a borrowed employee of crediting evidence favorable to the non-movant if another, rendering the new employer vicariously liable for the reasonable jurors could, and disregarding contrary borrowed employee's actions"); evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. (3)respondeat superior, see Baptist Mem'l Hosp. Sys. v. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 825 Sampson, 969 S.W.2d 945, 947 (Tex. 1998) HN6[ ] ("The (Tex. 2005). A no evidence summary judgment is most frequently proffered justification for imposing [respondeat improperly granted if the non-movant brings forth more superior] liability is that the principal or employer has the right than a scintilla of probative evidence to raise a genuine to control the means and methods of the agent or employee's issue of material fact. Mathis v. Restoration Builders, work."); Inc., 231 S.W.3d 47, 50 (Tex. App.—Houston [14th (4) agency, see Reliant Energy Services, Inc. v. Cotton Valley Dist.] 2007, no pet.). When an order granting summary Compression, L.L.C., 336 S.W.3d 764, 783 (Tex. App.— judgment does not specify the grounds on which Houston [1st Dist.] 2011, no pet.) HN7[ ] ("Authorization to summary judgment was granted, we may uphold the act and control of the action are the two essential elements of summary judgment on any ground presented in the agency."); Gonzales v. Am. Title Co., 104 S.W.3d 588, 593 motion. Joe v. Two Thirty Nine Joint Venture, 145 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (detailing the same elements as Reliant Energy);

(5) statutory employee, compare Gonzalez v. Ramirez, 463 4 HN1[ ] When a party moves for summary judgment on both S.W.3d 499, 503 (Tex. 2015) (noting that HN8[ ] Texas has no evidence grounds, Tex. R. Civ. P. 166a(i), and traditional not adopted Part 376 of the Federal Motor Carrier Safety grounds, id. R. 166a(c), we first review the ruling under the Regulations, and as such, it has not adopted the definition of more stringent no evidence standard before analyzing proof statutory employee), with 49 C.F.R. § 390.5 ("Employee under the traditional standard, if necessary. Ford Motor Co. v. means any individual, other than an employer, who is Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). employed by an employer and who in the course of his or her Page 7 of 13 2017 Tex. App. LEXIS 8348, *5

Elvir's response generally contended that the contract manner in which the independent contractor's work is between Brazos Paving and CEI "required [Brazos performed." Id. (quoting Hoechst—Celanese Corp. v. Paving] to assume a level of control over the" location Mendez, 967 S.W.2d 354, 356 (Tex. 1998) (per where the dump truck driven by Galvan was coming curiam)). For a general contractor to be liable for its from when the collision with Elvir occurred. On appeal, independent contractor's acts, it must have the right to Elvir flushes out [*6] specific provisions from Brazos control the means, methods, or details of the Paving's contract with CEI to support her contractual independent contractor's work. Id. Further, the control control argument. See Lee Lewis Constr., Inc. v. must relate to the injury the negligence causes, and the Harrison, 70 S.W.3d 778, 783 (Tex. 2001) (providing contract must grant the contractor at least the power to that HN3[ ] a general contractor can retain the right to direct the order in which work [*7] is to be done. Id. control an aspect of an independent contractor's work or These rules have been equally applied to project so as to give rise to a duty of care to that subcontractors. See Gonzalez v. VATR Constr. LLC, independent contractor's employees in two ways: by 418 S.W.3d 777, 786 (Tex. App.—Dallas 2013, no pet.) contract or by actual exercise of control). We address (holding that the evidence conclusively disproved a Elvir's contractual control contentions before turning to contractual right of control for a roofing subcontractor the issue of actual control. who was three tiers of subcontractors removed from a fatally injured worker); see also Motloch v. Albuquerque Tortilla Co., Inc., 454 S.W.3d 30, 34 (Tex. App.— 1. Contractual Control Eastland 2014, no pet.) (concluding that a plaintiff's argument that a tortilla maker should have required a HN12[ ] A general contractor normally does not have a delivery company to adopt and enforce policies with duty to see that an independent contractor performs respect to its drivers' qualifications was an indication work safely. Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d that the tortilla maker did not exercise control of the 801, 803 (Tex. 1999). But a duty may arise when a delivery company's hiring or its distribution operations). general contractor retains "some control over the As for the contract between Brazos Paving and CEI, Elvir points to three articles in the contract, a work ticket, employment directly affects commercial motor vehicle safety. and the testimony of William J. Prewitt, a vice president Such term includes a driver of a commercial motor vehicle of Brazos Paving and its designated corporate (including an independent contractor while in the course of representative, as evidence of contractual control. operating a commercial motor vehicle), a mechanic, and a Article 1 of the contract provides in relevant part: freight handler."); Work. Subcontractor shall perform and furnish all (6) partnership, see Ingram v. Deere, 288 S.W.3d 886, 894 labor, supervision, services, materials, equipment, (Tex. 2009) (providing that HN9[ ] the common law test to determine the formation of a partnership are intent to form a tools, scaffold, transportation, storage and all other partnership, a community of interest in the venture, an things necessary to prosecute and complete the agreement to share profits, an agreement to share losses, and work identified and described in Schedule A, a mutual right of control or management of the enterprise.); attached hereto and incorporated herein by reference [*8] including all subsequently and duly (7) joint venture, see First United Pentecostal Church of issued modifications thereto (hereinafter the Beaumont v. Parker, 514 S.W.3d 214, 225 (Tex. 2017) "Work"), being a portion of the work required of (providing that HN10[ ] the elements of a joint venture are an Contractor under the contract between Owner and express or implied agreement to engage in a joint venture, a Contractor for the Project. . . . community of interest in the venture, an agreement to share Article 13 of the contract provides in relevant part: profits and losses from the enterprise, and a mutual right of Compliance. . . Subcontractor shall promptly correct control or management of the enterprise); and any violations of such laws, statutes, ordinances, (8) joint enterprise, see Hicks v. Grp. & Pension Adm'rs, Inc., rules, regulations and orders committed by 473 S.W.3d 518, 533 (Tex. App.—Corpus Christi 2015, no Subcontractor, its agents, servants, employees and pet.) (providing that HN11[ ] the elements of a joint assigns. . . enterprise are an agreement (express or implied) among the Article 23 of the contract provides in relevant part: members of the group, a common purpose to be carried out by the group, a community of pecuniary interest among the Labor. Subcontractor agrees that where its work is members in that common purpose, and an equal right to direct stopped, delayed or interfered with by strikers, slow and control the enterprise.). Page 8 of 13 2017 Tex. App. LEXIS 8348, *8

downs or similar interruptions or disturbances sufficient to hold Brazos Paving liable for the alleged (including cases wherein the Subcontractor's negligence of Galvan. The relevant provisions provide: employees are engaged in a work stoppage solely as a result of a labor dispute involving Contractor or Leaser [HJ & DJ Trucking] represents that said others and not in any manner involving motor trucks are in first class condition and in every Subcontractor), Contractor shall have the rights and respect suitable for the transportation of materials. remedies provided for in Article 25 hereof. Each and all of said trucks have been duly licensed Subcontractor shall maintain and exercise control and are so constructed and equipped as to comply over all employees engaged in the performance of with all of the rules and regulations governing their the Work, and Subcontractor shall, to the extent operation over the highways of this State carrying permitted by law, remove or cause to be removed net loads of the respective amounts as represented from the Project any employee whose presence is on the back hereof. Any repairs necessary to detrimental to the orderly [*9] prosecution of the keep [*11] the said trucks in good running condition construction of the Project. . . . throughout the life of this lease shall be at the The work ticket Elvir references has Galvan's name and expense of the Leaser. . . . "JBP 21" at the top. "BPI" appears in the "name" . . . . section. Elvir also argues that "Prewitt conceded that Leaser understands and agrees that he and his during the month before the accident someone knew trucks are independent contractors as that term is Galvan was driving a JBP truck to the Project job site 'to known at law. Leaser is responsible for all wages, do this job for' Brazos Paving." The specific exchange payroll taxes, state or federal reports and filings, was: insurance and other benefits due to his drivers or Q. . . . Well, someone knew about a month before himself. Leaser shall be given instructions on where this crash happened—as I counted, 16 days—that to pick up materials, the place of delivery and the Domingo Galvan and JB—was driving a JBP truck time to deliver. It is Leaser's responsibility to to BPI [Brazos Paving] to do this job for BPI? determine his routes or travel, number of trucks, A. U-huh. methods of delivery, drivers to assign and all other activities necessary to complete this assignment. We fail to see how any of this evidence supports the When Leaser is not assigned to duties be [sic] level of contractual control necessary to impose liability Lessee [Brazos Paving] for a particular time, Leaser on Brazos Paving, a subcontractor that is two tiers is free to engage in work for any other person or removed from Galvan's employer. See Mendez, 967 organization. S.W.2d at 356. Article 1 generally refers to the work that Elvir also points to Prewitt's answer of "Yes, sir," to her was to be performed. Article 13 relates to a contractual question "So, it's your understanding, it's BPI's promise by Brazos Paving to CEI ensuring that Brazos understanding that this lease covers all of those trucks Paving would correct any violations for work that it was that Henry Jones would provide?" Armed with this responsible for providing. Article 23 deals with conflict evidence, Elvir argues: among laborers. Lending every reasonable inference to the work ticket, all it indicates is that Galvan was driving [T]he undisputed evidence establishes that Henry a dump truck that relates in some way to "JBP 21" and Jones Trucking expressly retained contractual "BPI." Elvir [*10] fails to refer us to any authority that control over the truck [*12] Galvan was driving. supports her contention that Prewitt's acknowledgement Accordingly, because Brazos Paving retained that Galvan "was driving a JBP truck to [] do this job for contractual control over Henry Jones Trucking, the BPI" establishes the type of contractual control trial court erred in granting traditional and no- necessary to establish liability on Brazos Paving's part. evidence summary judgment on plaintiff's claims of There is no indication from Prewitt's acknowledgement vicarious-and direct-liability against Brazos Paving that Brazos Paving contractually retained the right to on the ground that it did not exercise actual control control the means, methods, or details of how JBP over all the trucks Henry Jones Trucking provided. Trucking—and by extension Galvan—performed the work that HJ & DJ Trucking retained JBP Trucking to The evidence Elvir references fails to support her perform. Id. argument. There is no indication that Brazos Paving retained the contractual right to control the means, Next, Elvir contends that the pre-existing contract methods, or details of how HJ & DJ Trucking—and by between Brazos Paving and HJ & DJ Trucking is extension JBP Trucking and Galvan—performed the Page 9 of 13 2017 Tex. App. LEXIS 8348, *12 work that HJ & DJ Trucking retained JBP Trucking to might have the right to control the details of the work." perform. See id. To the contrary, the lease that Elvir Love, 380 S.W.2d at 592. references expressly disclaims control. See Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, In Elvir's only argument on actual control, Elvir argues 911 (Tex. App.—Fort Worth 2009, pet. denied) that Brazos Paving failed to conclusively negate that it 6 (providing that HN13[ ] contract expressly providing exercised actual control. Elvir argues that the affidavit that a person is an independent contractor "is of Prewitt, tendered by Brazos Paving in support of the determinative of the [parties'] relationship absent traditional summary judgment grounds, is conclusory evidence that the contract is a mere sham or subterfuge and conflicts with his deposition testimony and the designed to conceal the true legal status of the parties testimony of other witnesses. Therefore, according to or that the contract has been modified by a subsequent Elvir, the variances between Prewitt's affidavit and agreement between the parties.") (citing Newspapers, deposition testimony create a fact issue that precludes Inc. v. Love, 380 S.W.2d 582, 588-90, 592 (Tex. 1964)). the granting of summary judgment.

Elvir also directs us to Prewitt's answer of "Yes," over However, Brazos Paving moved for summary judgment the objection [*13] of Brazos Paving's attorney to the on both no evidence and traditional grounds. Under the question, "You hired all the subs underneath you that no evidence summary judgment [*15] ground, which we worked on that project; is that right?" As explained in our review first, Ford Motor Co. v. Ridgway, 135 S.W.3d discussion of Elvir's negligent entrustment claim below, 598, 600 (Tex. 2004), it was incumbent on Elvir to earlier in his deposition, Elvir's counsel asked, "Well, present some evidence raising a fact issue. See Tex. R. JBP Trucking. Is that an outfit that you [Brazos Paving] Civ. P. 166a(i) ("The court must grant the motion unless hired?" Prewitt answered, "No." Elvir fails to reference the respondent produces summary judgment evidence any authority for how we should utilize Prewitt's raising a genuine issue of material fact."); Ridgway, 135 testimony. She does not contend that Brazos Paving's S.W.3d at 600. If we find Elvir's characterization of contract with HJ & DJ Trucking is a sham or subterfuge Prewitt's affidavit testimony to be conclusory, then it designed to conceal the true legal status of the parties would constitute no evidence, not conflict with Prewitt's or that the contract has been modified by a subsequent deposition testimony, and not create the fact issue she agreement between the parties, see Farlow, 284 needs to overcome Brazos Paving's no evidence S.W.3d at 911, but instead references it in support of challenge. See Coastal Transp. Co. v. Crown Cent. her contractual control argument. Even if we (1) ignored Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) Brazos Paving's contract with HJ & DJ Trucking and (2) (explaining that HN15[ ] opinion testimony that is concluded that Brazos Paving contracted directly with conclusory or speculative is not relevant evidence, JBP Trucking, thereby pegging Galvan's employer as because it does not tend to make the existence of a being one subcontractor removed, instead of two, from material fact more probable or less probable). Brazos Paving, the testimony of Prewitt that Elvir As for Prewitt's deposition testimony, Elvir points to his references does not establish that Brazos Paving understanding that HJ & DJ Trucking provided other retained contractual control of HJ & DJ Trucking, JBP drivers because it had only one available truck. Elvir Trucking, and Galvan. also points to the job tickets, Prewitt's related testimony, We conclude that Elvir failed [*14] to present legally referenced in our discussion of contractual control sufficient evidence that Brazos Paving retained above, and Prewitt's acknowledgment that the truck contractual control of HJ & DJ Trucking, JBP Trucking, Galvan drove was on the road for Brazos Paving's and Galvan. See Mendez, 967 S.W.2d at 356. "benefit." But, this evidence does not show control that is so persistent, on the part of Brazos Paving, and [*16] acquiescence, on the part of HJ & DJ Trucking, JBP 2. Actual Control Trucking, and Galvan, that is so pronounced as to raise an inference that at the time of the act or omission The Texas Supreme Court has stated that HN14[ ] the giving rise to liability, the parties by implied consent and exercise of control is evidentiary only and "must be so acquiescence had agreed that the Brazos Paving might persistent and the acquiescence therein so pronounced have the right to control the details of the work. Love, as to raise an inference that at the time of the act or omission giving rise to liability, the parties by implied 6 Elvir's brief fails to specify who Brazos Paving allegedly consent and acquiescence had agreed that the principal actually controlled. Page 10 of 13 2017 Tex. App. LEXIS 8348, *16

380 S.W.2d at 592. actual transportation of the load. In this sense, Brazos Paving's no evidence summary judgment ground We conclude that Elvir failed to present legally sufficient regarding Elvir's statutory employee theory mirrored its evidence that Brazos Paving exercised actual control of summary judgment ground regarding Elvir's other HJ & DJ Trucking, JBP Trucking, and Galvan. See vicarious liability theories. On appeal, Elvir makes two Love, 380 S.W.2d at 592. arguments regarding her statutory employee theory.

First, Elvir argues that "Brazos Paving's discussion of C. Statutory Employee Gonzalez omits the critical distinction between that case and this case: here, Brazos Paving expressly retained In addition to common law vicarious liability theories, contractual control, which was not an issue in Elvir pleaded that Galvan was Brazos Paving's statutory Gonzalez." As we read Elvir's argument, it hinges employee. Under the federal regulations: entirely on our disposition of her contractual control Employee means any individual, other than an theory, which we have rejected. employer, who is employed by an employer and who in the course of his or her employment directly Second, Elvir contends that the testimony of Jose B. affects commercial motor vehicle safety. Such term Pachuca, the owner of JBP Trucking, is vague and does includes a driver of a commercial motor vehicle not establish that JBP Trucking was only an intrastate (including an independent contractor while in the motor carrier and the load of dirt Galvan was hauling did course of operating a commercial motor vehicle). not cross state lines. Elvir points to this exchange between her counsel and Pachuca: 49 C.F.R. § 390.5 (2017). Thus, HN16[ ] the federal regulations impose various duties on motor carriers who Q. Okay. So, you are a motor carrier under Texas classify their drivers as independent contractors in order law operating intrastate, within [*19] the State, to avoid liability for the drivers' negligence. Gonzalez v. right? Ramirez, 463 S.W.3d 499, 502 (Tex. 2015) A. What's "trust"? (citations [*17] omitted). The federal regulations apply Q. Well I said "intrastate," inside the State. You only to transportation in interstate commerce. Id. Texas don't cross the State lines with your business. has adopted many—but not all—parts of the federal A. Oh, yes, sir. regulations, as well as their federal interpretations. Id. at We do not see the exchange as vague. Pachuca clearly 503. The Texas regulations apply to "commercial motor answered, in response to a question by Elvir's counsel, vehicles" and hold "motor carriers" responsible for their that he did not cross state lines. "employees." Id. (citations omitted). Texas law defines "motor carrier" in pertinent part as "an individual . . . or We conclude that only the Texas regulations apply and other legal entity that controls, operates, or directs the that, as in Elvir's other vicarious liability theories, she operation of one or more vehicles that transport persons failed to present legally sufficient evidence that Galvan or cargo." Id. (citations omitted). In a general sense, the was Brazos Paving's statutory employee under the federal regulations vitiate the independent contractor Texas regulations. doctrine, whereas the Texas regulations largely mirror employer liability. See id. D. Negligent Hiring and Selection According to Elvir, because Brazos Paving was a licensed motor carrier, employees of all downstream HN17[ ] "[A]n employer can be held vicariously liable subcontractors must be classified as statutory for the actions of an independent contractor if the employees of Brazos Paving under the federal employer retains some control over the manner in which regulations. Brazos Paving posited that Elvir's "statutory the contractor performs the work that causes the employee" claim was governed under the Texas damage." Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, regulations because JBP Trucking was an intrastate 791 (Tex. 2006). motor carrier and the load of dirt that Galvan was Brazos Paving's no evidence summary judgment ground moving did not cross state lines. Brazos Paving further as to Elvir's negligent hiring and selection claims posited [*18] that Galvan could not be its statutory challenged the element of control. Specifically, Brazos employee under the Texas regulations' definition of a Paving asserted that Elvir had no evidence that it motor carrier because it did not exercise control over the controlled the dump truck, which was driven by Galvan Page 11 of 13 2017 Tex. App. LEXIS 8348, *19 and owned by JBP Trucking. Brazos Paving also The Texas Supreme Court characterized the injured asserted that Elvir had no evidence that it knew or employee's argument as relying "entirely on the mere should have known that Galvan was an incompetent or existence of the safety regulations to establish actual reckless driver. [*20] Before us, Elvir raises four control." Id. In upholding the granting of a summary arguments in defense of her claims for negligent hiring judgment on traditional grounds in favor of the premises and selection.7 owner, the Court held, "[b]ut as we have stated, HN19[ ] mere promulgation of safety policies does not First, Elvir directs us to Prewitt's acknowledgment that establish actual control." Id. (citing Mendez, 967 S.W.2d "it's important whenever you're hiring a motor carrier to at 357-58)). This case is further removed from Bright. In ensure that they're a safe motor carrier" and his this case, there is no evidence that Brazos Paving agreement that it is important that Brazos Paving promulgated its safety manual to HJ & DJ Trucking, JBP ensures that the motor carriers that are hired are safe Trucking, and Galvan. Even if Brazos Paving had drivers. Elvir contends that "Prewitt's testimony alone promulgated the safety manual to HJ & DJ Trucking, conclusively establishes duty." But HN18[ ] in Texas, JBP Trucking, and Galvan, Elvir would be in the same "[w]hether a duty exists is a question of law for the unavailing place as the injured employee in Bright. court." United Scaffolding, Inc. v. Levine, No. 15-0921, Accordingly, the general statements of safety in the 2017 Tex. LEXIS 652, 2017 WL 2839842, at *6 (Tex. safety manual fail to raise a fact issue as to whether Jun. 30, 2017). Elvir gives us no argument for how we Brazos Paving exercised a level of control necessary for may, as a matter of law, fashion Prewitt's assertions into Elvir to maintain claims [*22] for negligent hiring and any kind of duty on the part of Brazos Paving that would selection. See Bright, 89 S.W.3d at 611. benefit her. Third, Elvir argues that the opinions of Roger Allen, one Second, Elvir argues that "Prewitt's testimony of her experts, creates a fact issue. According to Elvir, concerning duty also is consistent with the duties Allen was of the opinion that Brazos Paving was provided for in Brazos Paving's Safety Manual." She responsible to ensure safe, competent, qualified drivers then references general statements regarding safety were operating on the roadway on the date of the contained in the safety manual. Elvir's reliance on the accident. But, as we have already explained, whether safety manual is misplaced. In Dow Chemical Co. v. Brazos Paving owed Elvir a duty is a question of law. Bright, 89 S.W.3d 602, 605 (Tex. 2002), an employee of Levine, 2017 Tex. LEXIS 652, 2017 WL 2839842, at *6. an independent contractor was injured when an And, like her argument regarding Prewitt's testimony, improperly secured pipe, installed by another employee Elvir fails to ague how we may, as a matter of law, of the same independent contractor, fell. The injured fashion Allen's opinions into any kind of duty on the part employee sued the premises owner and alleged of Brazos Paving that would benefit her. that [*21] it exercised actual control by, among other things, providing "safety procedure manuals for all its Fourth, Elvir argues that Brazos Paving had a statutory contractors and contractors' employees, [the premises duty to obtain driver qualification certificates certifying, owner] exercised control sufficient to give rise to the in part, that the driver is fully qualified to drive a duty of care owed to [the injured employee]." Id. at 611. commercial motor vehicle under the rules provided for in the federal regulations. This argument fails because we have rejected Elvir's reliance on the federal statutory employee rule and concluded that Galvan is not a 7 In Brazos Paving's summary judgment motion, it challenged Elvir's pleaded allegation that HJ & DJ Trucking was Brazos statutory employee of Brazos Paving. Paving's broker by arguing that a broker receives a commission and is regarded as an agent employed to make or We conclude that Elvir failed to present legally sufficient negotiate a bargain or contractor. As support for its argument, evidence that Brazos Paving retained control over the Brazos Paving referenced F.D.I.C. v. Golden Imports, 859 manner in which the JBP Trucking or [*23] Galvan S.W.2d 635, 643 (Tex. App—Houston [1st Dist.] 1993, no writ) performed the work that caused the collision. See and Williams v. Jennings, 755 S.W.2d 874, 883 (Tex. App.— Ramirez, 196 S.W.3d at 791. Houston [1st Dist.] 1988, writ denied). Brazos Paving asserted that Elvir had no evidence that HJ & DJ Trucking received a commission and was regarded as an agent. In the trial court, E. Negligent Entrustment Elvir did not respond to Brazos Paving's challenge. Furthermore, she makes no mention of broker liability before HN20[ ] The elements of negligent entrustment are: us. Page 12 of 13 2017 Tex. App. LEXIS 8348, *23

(1) entrustment of a vehicle by the owner; (2) to an removed, [*25] instead of two, from Brazos Paving, the unlicensed, incompetent, or reckless driver; (3) that the testimony of Prewitt that Elvir highlights does not create owner knew or should have known to be unlicensed, a fact issue as to whether Brazos Paving possessed or incompetent, or reckless; (4) that the driver was controlled the dump truck that he drove the day of the negligent on the occasion in question; and (5) that the incident. driver's negligence proximately caused the accident. Williams v. Parker, 472 S.W.3d 467, 472 (Tex. App.— We conclude that Elvir failed to present any evidence as Waco 2015, no pet.) (citing Williams v. Steves to the first element of a negligent entrustment claim. Industries, Inc., 699 S.W.2d 570, 571 (Tex. 1985)). See Parker, 472 S.W.3d at 472.

Brazos Paving's no evidence summary judgment ground argued that in order for Elvir to succeed on her negligent F. Summary entrustment claim, she would have to prove that Brazos Paving was the owner of the dump truck involved and Given our disposition of Elvir's vicarious liability theories, entrusted the truck to Galvan. Brazos Paving further including her statutory employee theory, and her claims argued that Elvir had no evidence that, among other for negligent hiring, selection, and entrustment, we things, it was the owner or possessor of the dump truck cannot say that the trial court erred in granting summary at issue. judgment in Brazos Paving's favor on its no evidence grounds. Elvir's first issue is overruled. Because of our Elvir does not directly address the ownership or right of disposition of Elvir's first issue, we need not address control assertion made by Brazos Paving. See Elvir's second issue, which assails the trial court's Rodriguez v. Sciano, 18 S.W.3d 725, 728 n.6 (Tex. granting of summary judgment in Brazos Paving's favor App.—San Antonio 2000, no pet.) (providing that an on its traditional grounds. Ridgway, 135 S.W.3d at 600; entrustor "need only have the right of control"). Instead, see also Tex. R. App. P. 47.1 she directs us to Prewitt's answer of "Yes," over the objection of Brazos Paving's attorney to the question, "You hired all the subs underneath you that worked on III.OTHER ISSUES that project; [*24] is that right?" But, earlier in his deposition, Elvir's counsel asked, "Well, JBP Trucking. Is that an outfit that you [Brazos Paving] hired?" Prewitt A. More Relief Granted answered, "No." In Elvir's reply brief, she argues that Brazos Paving "desperately seeks to avoid Prewitt's In Elvir's third issue, she complains that the trial court concession that" Brazos Paving hired all the erred by granting Brazos Paving more relief than it subcontractors underneath it. requested. Specifically, Elvir contends that Brazos Paving's summary judgment motion did not challenge Elvir's reliance on the snippet of Prewitt's testimony, her actual agency theory. Instead, Elvir contends that taken from one of his two depositions, to create a fact the motion [*26] challenged an apparent agency theory issue is misplaced. First, it would be an unreasonable that had been pleaded in an earlier petition and inference, see Nixon v. Mr. Property Management Co., swapped out for the actual agency theory. But, as Inc., 690 S.W.2d 546, 549 (Tex. 1985) (providing that a Brazos Paving points out, paragraph 16 of its summary court reviewing summary judgment evidence must draw judgment motion asserted: all reasonable inferences in favor of the non-movant), to To establish agency, a party must prove the alleged conclude from Prewitt's answer to a vague and principal has the rights (1) to assign the agent's ambiguous question that Brazos Paving hired all tasks and (2) to control the means and details of downstream subcontractors. The only reasonable the process by which the agent will accomplish that inference is that Brazos Paving hired all subcontractors task. It is primarily the extent of the principal's who directly contracted with Brazos Paving. Prewitt's control over the details of the agent's accomplishing testimony that Brazos Paving did not "hire" JBP the assigned task that distinguishes an agent from Trucking makes the inference that we have just an independent contractor. [citations omitted]. described reasonable rather than creates a fact issue. In paragraph 27 if its motion, Brazos Paving argued: Second, even if we concluded that Brazos Paving [b]ecause Brazos Paving did not have a contracted directly with JBP Trucking, thereby pegging relationship with and did not exercise any control Galvan's employer as being one subcontractor over JBP or Galvan with respect to how they Page 13 of 13 2017 Tex. App. LEXIS 8348, *26

fulfilled their obligations . . . there is no relationship Elvir's third issue is overruled. sufficient to impute vicarious liability upon Brazos Paving. Elvir dismisses paragraph 27 by arguing "nowhere in B. Severance that paragraph is the term 'agency' even mentioned." She further argues that "[i]nstead, 'control' is repeated In Elvir's fourth issue, she complains about the trial eight times, which reflects an emphasis on an issue court's order severing the summary judgment granted in entirely apart from an express attack on actual agency." favor of Brazos Paving from the claims Elvir asserted against the remaining defendants. Because we have In Nall v. Plunkett, 404 S.W.3d 552, 556 (Tex. 2013), concluded that the trial court did not err in granting [*29] premises owners [*27] moved for summary judgment a summary judgment in favor of Brazos Paving, a ruling against a plaintiff who had pleaded claims for social- on Elvir's fourth issue is not necessary for a final host liability and negligent-undertaking. The "issue disposition. See Tex. R. App. P. 47.1. addressed" part of the motion stated: "Whether [the premise owners/defendants] have any duty to [plaintiff] in the factual scenario plead by [plaintiff]." Id. The IV. CONCLUSION premise owners' "short answer" was that "Texas does not recognize social host liability, and [the premise The judgment of the trial court is affirmed. owners/defendants] do not have any duty to [plaintiff] in this case." Id. The plaintiff did not file special exceptions LETICIA HINOJOSA to the premises owners/defendants' motion. Id. The Justice court of appeals construed the premises owners/defendants' motion as addressing only the Delivered and filed the social-host liability claim and not the negligent- undertaking claim. Id. However, the Texas Supreme 31st day of August, 2017. Court construed the premises owners/defendants' motion as specifically moving for summary judgment on the duty element of the plaintiff's negligence claim, End of Document making a two-part argument that addressed the absence of a duty in both the social-host context and the undertaking context. Id.

The rule articulated in Nall is dispositive. In this case, Brazos Paving advised the trial court of the elements of an actual agency theory, which Elvir [*28] does not contest. The elements of actual agency articulated by Brazos Paving included control, an element that pierced through all of Elvir's vicarious liability theories. Like the broad challenge of duty in Nall, Brazos Paving challenged the control element. See id. And, also like in Nall, Elvir failed to specially except. Id. Elvir also failed to present any evidence of control that would have saved all her vicarious liability theories, including actual agency. Moreover, even if the trial court erred in construing Brazos Paving's motion as encompassing an actual agency theory, such error would be harmless. See G&H Towing Co. v. Magee, 347 S.W.3d 293, 297- 98 (Tex. 2011) HN21[ ] ("Although a trial court errs in granting a summary judgment on a cause of action not expressly presented by written motion, we agree that the error is harmless when the omitted cause of action is precluded as a matter of law by other grounds raised in the case.").