Opinion issued April 14, 2011
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00811-CV
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Ricardo Gutierrez, Appellant
V.
Transtar Builders, Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Case No. 2007-68076‑A
MEMORANDUM OPINION
This is a personal‑injury case in which the trial court rendered summary judgment that appellant Ricardo Gutierrez take nothing for his claims against appellee TranStar Builders. Gutierrez brings five issues on appeal, and we affirm.
Background
TranStar was the general contractor for the construction of the Fairdale Lane Townhomes. The roofing subcontractor on the project was Admiral Roofing & Sheet Metal Co. In August 2007, Stratford Roofing & Construction, Inc. was hired for a short-term project to repair holes left by Admiral in the roof. Stratford was owned by Patrick Delaney. Delaney hired Miguel Hernandez to do the roofing work and had Hernandez sign a form indicating he was an independent contractor.
While Hernandez and his assistant Gutierrez were working on the roof, Gutierrez slipped and fell forty feet to the ground. Neither Hernandez nor Gutierrez was wearing any fall‑prevention harness. Gutierrez sued both Stratford and TranStar for his injuries, and TranStar filed both a traditional and no‑evidence motion for summary judgment. The trial court granted TranStar’s motion on July 21, 2009. Gutierrez filed an amended original petition on August 17, 2009. The trial court severed Gutierrez’s claims against TranStar and rendered a final take‑nothing summary judgment on August 24, 2009.
Discussion
Standard of Review
We review the district court’s summary judgment de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a no-evidence summary judgment, we “review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)). The standard of review for a traditional summary judgment is well established: (1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is therefore entitled to summary judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in the nonmovant’s favor. See, e.g., Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).
We cannot consider issues that were not presented to the trial court by written motion, answer, or other response. Tex. R. Civ. P. 166a(c). “[A] motion for summary judgment must itself expressly present the grounds upon which it is made. A motion must stand or fall on the grounds expressly presented in the motion.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). It is well-settled summary judgment law that if a nonmovant for summary judgment (1) files an amended pleading after the summary judgment hearing and (2) the amended pleading raises an additional claim not mentioned in the summary‑judgment motion, then the trial court does not err in granting the summary‑judgment motion because “the pleadings . . . on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show . . . there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Tex. R. Civ. P. 166a(c); Automaker, Inc. v. C.C.R.T. Co., 976 S.W.2d 744, 745 (Tex. App.—Houston [1st Dist.] 1998, no pet.).
Federal Preemption
In issue 1, Gutierrez contends the trial court erred in rendering summary judgment based on a lack of duty because the Occupational Safety and Health Act and the regulations adopted pursuant to the Act impose a duty of care on general contractors to nonemployee workers and, thus, preempt Texas law. See 29 U.S.C. §§ 651–678 (2009). Gutierrez claims this is an issue of first impression in Texas.
In his live pleading at the time the trial court rendered summary judgment, his fifth amended original petition, Gutierrez made no claim against TranStar of a statutory cause of action based on the Occupational Safety and Health Act. Gutierrez’s claims were instead based on common‑law negligence and gross negligence, with references to the Act and to regulations of the Occupational Safety and Health Administration to demonstrate TranStar’s alleged negligence.
On appeal, Gutierrez acknowledges that section 653(b)(4) of the Act provides that “[n]othing in this chapter shall be construed . . . to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” Gutierrez nonetheless argues that, even though he was not an employee of TranStar, the Act preempts Texas common‑law negligence through the Occupational Safety and Health Administration’s “multi‑employer work site doctrine.”[1]
We hold that Gutierrez’s preemption claim was not part of his live pleadings at the time the trial court rendered summary judgment. We also note that this Court has rejected a similar argument in Abarca v. Scott Morgan Residential, Inc., holding that the Occupational Safety and Health Act does not create an implied cause of action and that regulations of the Occupational Safety and Health Administration do not expand Texas common‑law duties regarding independent contractors. Abarca, 305 S.W.3d 110, 128–29 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). We overrule issue 1.
In issue 2, Gutierrez contends the trial court erred in rendering summary judgment based on a lack of duty because The Contract Work Hours and Safety Standards Act and the regulations adopted pursuant to that Act impose a duty of care on general contractors to nonemployee workers and, thus, preempt Texas law. See 40 U.S.C. §§ 3701–3708 (2009). As with his first issue, we hold that Gutierrez’s preemption claim was not part of his live pleadings at the time the trial court rendered summary judgment. We also note that Gutierrez has neither adequately briefed on appeal whether the Act applies by explaining why the contract in this case, facilitated by a loan guaranteed by the Federal Deposit Insurance Corporation, qualifies as a contract “for work financed at least in part by loans or grants from, or loans insured or guaranteed by, the Government or an agency or instrumentality under any federal law providing wage standards for the work,” nor has he argued that the contract is not subject to an exception in the Act. See id. § 3701(b)(1)(B)(iii), (3)(A); Tex. R. App. P. 38.1(i) (requiring appellant’s brief to contain clear and concise argument for the contentions made, with appropriate citations to authority and record). We overrule issue 2.
Contractual duty
In issue 3, Gutierrez contends the trial court erred in rendering summary judgment because TranStar was contractually obligated to comply with all governmental regulations and codes. In the trial court and on appeal, Gutierrez relies on sections 10.2.1 and 10.2.2 of the contract[2]:
§ 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to
.1 employees on the Work and other persons who may be affected thereby;
. . . .
§ 10.2.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities bearing on safety or persons or property or their protection from damage, injury or loss.
In addition, the contract specifically disclaims creating a contractual relationship between the contractor and any subcontractors.[3]
Gutierrez’s accident occurred on August 25, 2007. The contract, however, was dated February 10, 2008. On appeal, Gutierrez makes two arguments why the 2008 contract applied retroactively to his 2007 accident.
First, Gutierrez suggests in his appellate brief, without substantive analysis, that the date of the 2008 contract related back to 2007. This argument is not supported by the contract language.
§ 4.1 The Date of Commencement of the Work shall be the date of this Agreement, unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner. . . . The work on the Project began in 2007, and this Contract is to cover the work that will be done on the Project from the date of this Contract and forward. The Date of Commencement shall be the date of this Contract.
(italicized portion is handwritten.) The handwritten portion of section 4.1 uses the future tense, stating that “this Contract is to cover the work that will be done on the Project from the date of this Contract and forward.” The reference to the previous work begun in 2007 served to separate that portion of the Project from the work performed under the 2008 contract.
Second, Gutierrez argues that the language of the 2008 contract, which provides that it supersedes any prior agreement, controls prior dealings under the old contract.[4] Gutierrez acknowledges that the “old contract” is not part of the record, but he nonetheless argues that the prior contract merged into the 2008 contract and thus contractually obligated TranStar to comply with all governmental regulations and codes. Gutierrez cites one case, Texas A & M University–Kingsville v. Lawson, for the general proposition that merger occurs when the same parties to an earlier agreement later enter into a written integrated agreement covering the same subject matter. Lawson, 127 S.W.3d 866, 872 (Tex App.—Austin 2004, pet. denied). Nothing in the Lawson case, however, holds that the merger doctrine requires retroactive application of the later integrated agreement to the earlier agreement.
We overrule issue 3.[5]
Actual Control
In issue 4, Gutierrez contends the trial court erred in rendering summary judgment because the summary‑judgment evidence raised a material fact question concerning whether TranStar exercised actual control over Gutierrez’s work.[6] Generally, a general contractor does not have a duty to see that a subcontractor performs work in a safe manner. Abarca, 305 S.W.3d at 126 (citing Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)). However, a limited duty arises if a 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. Abarca, 305 S.W.3d at 126 (citing Koch Refining Co. v. Chapa, 11 S.W.3d 153, 154 (Tex. 1999)). The 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). 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. However, “an employer who gives on-site orders or provides detailed instructions on the means or methods to carry out a work order owes the independent contractor employee a duty of reasonable care to protect him from work-related hazards.” Hoescht-Celanese, 967 S.W.2d at 357.
To be liable because it exercised actual control, TranStar must have had the right to control the means, methods, or details of the independent contractor’s work to the extent that the independent contractor was not entirely free to do the work his own way. See Abarca, 305 S.W.3d at 124 (citing Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)). The control must relate to the injury the negligence causes. Abarca, 305 S.W.3d at 124. It is not enough that the general contractor has the right to order the work to stop and start or to inspect progress or receive reports. Id. Nor is it enough to recommend a safe manner for the independent contractor’s employees to perform the work. Id.
On appeal, Gutierrez points to the following as evidence of TranStar’s actual control: (1) Josh Hinkle, TranStar’s job superintendent, was aware that Gutierrez was working on the roof without a safety harness and was present on the job site at the time of the injury; (2) Hinkle was aware, or should have been aware, that the Admiral roofing crew that had previously worked on the roof used safety harnesses; (3) Hinkle instructed Gutierrez to fix holes on the roof; (4) Hinkle had authority from TranStar to stop a subcontractor if he saw a safety problem; (5) on a separate occasion Hinkle stopped a framing subcontractor when he felt the work was not being done according to the construction drawings; (6) a different TranStar superintendent requested an electrical subcontractor to fix exposed electrical wires; and (7) Hinkle instructed Patrick Delaney, Gutierrez’s employer, “Hey, the second layer [of felt] is not on there. We have a storm coming in. Let’s get the second layer on here and close up these holes.”
Gutierrez contends that the conduct of the general contractor in Lee Lewis Construction, Inc. v. Harrison is exactly like TranStar’s conduct. 70 S.W.3d 778 (Tex. 2001). In Lew Lewis, there was testimony (1) that the general contractor assigned a job superintendent to routinely inspect the job site and see that the subcontractors and their employees utilized fall‑protection equipment, (2) that the job superintendent personally witnessed and approved the fall‑protection equipment, including the lanyard system, and (3) that the job superintendent knew and did not object to a subcontractor’s employee using a bosun’s chair without an independent lifeline. Id. at 784. The supreme court held that this evidence constituted more than a scintilla of evidence that the general contractor retained the right to control fall‑protection systems on the job. Id.
In General Electric Co. v. Moritz, the supreme court clarified that Lee Lewis held that a defendant’s duty is commensurate with the control the defendant retains over the independent contractor's work; thus, the retained control must relate directly to an activity from which the injury arose. Gen. Elec. Co., 257 S.W.3d 211, 214 (Tex. 2008). The supreme court further held that when a defendant hires an independent contractor to come on premises and perform work as it sees fit, the defendant may reasonably expect the contractor to instruct its own employees on the safe means and manner of doing so. Id. at 218. Regardless of whether an independent contractor acts prudently, the defendant has no general duty to warn. Id.
Reviewing the evidence presented by the motion and response in the light most favorable to Gutierrez, we conclude that he has shown no evidence that TranStar retained any control over Stratford Roofing or its employees that related directly to Gutierrez’s fall. While TranStar could have instructed Gutierrez to wear a safety harness, it had no duty to do so. We overrule issue 4.
Negligent Hiring
In issue 5, Gutierrez contends the trial court erred in rendering summary judgment because the summary‑judgment evidence raises a question of material fact concerning negligent hiring. Negligence in hiring or retention requires that the employer or independent contractor’s failure to investigate, screen, or supervise proximately caused the injuries the plaintiff alleges. See Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 796 (Tex. 2006).
TranStar moved for summary judgment on Gutierrez’s negligent‑hiring claim on the ground that Stratford was not Gutierrez’s employer. Instead, TranStar provided summary‑judgment evidence in the form of a Texas Department of Insurance “joint agreement to affirm independent relationship for certain building and construction workers” form that Stratford hired Miguel Hernandez as an independent contractor. TranStar also provided summary‑judgment evidence that Hernandez was Gutierrez’s employer. Gutierrez’s response to the motion for summary judgment did not address TranStar’s ground, but instead continued to argue that TranStar was negligent in hiring Stratford and was therefore “liable for any negligence attributable to Stratford.”
On appeal, Gutierrez does not address TranStar’s ground, but again argues generally that TranStar was negligent in hiring Stratford without any discussion of Hernandez’s status as an independent contractor. To the extent that Gutierrez has raised an issue on appeal regarding the trial court granting TranStar’s motion for summary judgment on negligent hiring, we hold that Gutierrez has not adequately briefed an argument. See Tex. R. App. P. 38.1(i). We therefore overrule issue 5.
Conclusion
We affirm the trial court’s summary judgment.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Massengale.
[1] See 29 C.F.R. § 1910.12(a) (2010) (“The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.”). Employers are required under the Act to comply with standards promulgated under the Act. 29 U.S.C. § 654(a)(2) (2009).
[2] The contract was the American Institute of Architects AIA Documents A103 –2007 (Standard Form of Agreement Between Owner and Contractor) and A201 – 2007 (General Conditions of the Contract for Construction).
[3] “The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Contractor and the Architect or the Architect’s consultants, (2) between the Owner and a Subcontractor or a Sub‑subcontractor, (3) between the Owner and the Architect or the Architect’s consultants or (4) between any persons other than the Owner and the Contractor.” Contract § 1.1.2.
[4] We assume Gutierrez is referring to the integration clause in article 1, which provides the “Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreement, either written or oral. If anything in the other Contract Documents, other than a Modification, is inconsistent with this Agreement, this Agreement shall govern.”
[5] Gutierrez does not cite to any cases interpreting the AIA form contract documents.
[6] Gutierrez lists five issues at the beginning of his brief, but only three in the argument portion of the brief. We will treat the argument portion of the brief as raising issues 4 and 5 as they are stated in the initial issues presented.