In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00133-CV
IRIS MENDOZA, AS REPRESENTATIVE OF THE ESTATE OF HUY PHAM,
DECEASED, AND AS NEXT FRIEND OF J. V. P., A MINOR AND HOUNG PHAM AND
VINH PHAM, APPELLANTS
V.
LOUISIANA STONE, LLC AND WAYNE HOPPER, APPELLEES
On Appeal from the 251st District Court
Potter County, Texas
Trial Court No. 103,962-C, Honorable Ana Estevez, Presiding
December 22, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
This is an appeal from a summary judgment denying Iris Mendoza (as
representative of the estate of Huy Pham and next friend of J.V.P., a minor), Houng
Pham, and Vinh Pham (collectively referred to as Mendoza) recovery against Louisiana
Stone, LLC and its employee Wayne Hopper.1 The lawsuit arose from the death of Huy
Pham, an employee of Panhandle Quartz Fabricators (Panhandle). He died while
employees of Panhandle prepared slabs of granite located in Panhandle’s sales lot for
1
Others were also sued by Mendoza. However, the claims asserted against Stone LLC and
Hopper were severed from the cause once they were granted summary judgment.
removal from the premises. The slabs in question were owned by Stone, originally
delivered to Panhandle on consignment for sale, and being returned to Stone. The
latter's vehicle, which was driven by Hopper at the time, awaited the delivery outside the
sales lot when a granite slab fell on Pham inside the lot.
According to Mendoza, the negligence of Stone and Hopper purportedly caused
Pham’s death. Alternatively, Mendoza asserted that Stone and Hopper were in a joint
enterprise or venture with Pham’s employer and, consequently, vicariously liable for his
death. Stone LLC and Hopper filed both a traditional and no evidence motion summary
judgment. The trial court granted same. Before us, Mendoza argues that evidence of
record created a material issue of fact on each element of her causes of action. So too
does she assert that there was sufficient evidence of record to pretermit summary
judgment on her claims of joint venture and enterprise. We affirm.
Standard of Review
As recently noted by our Supreme Court in Cantey Hanger, L.L.P. v. Byrd, 467
S.W.3d 477 (Tex. 2015), we review a grant of summary judgment de novo. Id. at 481.
When conducting that review, we accept as true all evidence favorable to the
nonmovant and indulge in every reasonable inference arising from and resolve all
doubts related to that evidence in favor of the nonmovant. Id. Additionally, when the
trial court does not specify the basis for its summary judgment, as here, the nonmovant
must show on appeal why none of the proffered grounds have merit. Burnett Ranches,
Ltd. v. Cano Petroleum, Inc., 289 S.W.3d 862, 870 (Tex. App.—Amarillo 2009, pet.
denied).
Finally, when the motion for summary judgment contains both traditional and no-
evidence grounds, then we first address the no-evidence grounds. Merriman v. XTO
2
Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). This is so because the non-movant has
the burden to present evidence establishing a material issue of fact concerning the
element under attack. Id. If he fails to produce legally sufficient evidence to meet his
burden, there is no need to analyze whether the movant satisfied its burden under the
traditional motion. Id. And, the no-evidence challenge will be sustained when 1) there
is a complete absence of evidence of a vital fact, 2) the court is barred by rules of law or
of evidence from giving weight to the only evidence offered to prove a vital fact, 3) the
evidence offered to prove a vital fact is no more than a mere scintilla, or 4) the evidence
conclusively establishes the opposite of the vital fact. Id.2
Negligence
We first address the claim of negligence. Stone and Hopper asserted, in their
motion for summary judgment, that they were entitled to a traditional summary judgment
because neither of them “owed to Pham a special duty of care, they did not breach that
duty, and no act or omission on the part of either [of them] . . . proximately caused the
damages . . .” Mendoza sought. They also alleged that they were entitled to a “no-
evidence summary judgment on [the] . . . negligence causes of action . . . because
[Mendoza] . . . brought forth no evidence on any of the required elements of those
theories of recovery or liability.” According to Mendoza, the record contained evidence
sufficient to create a material issue of fact on each element of the negligence claim. We
overrule the issue.
2
Throughout Mendoza's brief, she posits that her opponents failed to negate elements of the
claims as a matter of law. Because her opponents' motion for summary judgment contained both
traditional and no-evidence grounds challenging the same elements of her claims, she had the burden to
create the requisite material issues of fact. So, her proposition about Stone and Hopper having failed to
negate the elements in play is somewhat inaccurate; again, it fell upon her to prove they were not entitled
to summary judgment by presenting more than a scintilla of evidence illustrating the existence of those
elements.
3
The elements of negligence are a legal duty, its breach, and damages or injury
proximately caused by that breach. Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113
(Tex. 2013). Whether a duty exists is a question of law. Boerjan v. Rodriguez, 436
S.W.3d 307 (Tex. 2014); Nabors Drilling, Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex.
2009). We address the issue of duty at this point.
Here, the injury occurred on the premises of Panhandle. That is, Panhandle
employees were utilizing equipment other than that of Stone or Hopper to remove slabs
of granite from the A-frame upon which they rested within Panhandle’s sales lot. Pham
was one of the Panhandle employees involved in the effort. The slabs were strapped
together resting on the structure. Normally, three individuals are involved in the
process. One would hold the slabs together. One would unstrap the slabs, and one
would use a forklift to take the slabs to their destination. On the day of the accident,
Pham loosened the strap holding the slabs together without the other employee being
present to hold them together. One or more slabs then fell on him.
We were cited to no evidence of record indicating (nor did we find evidence of
record from which it could be reasonably inferred that) the procedures being utilized by
Panhandle’s employees to accomplish their assigned task were adopted, developed,
implemented or supervised by Stone and Hopper.3 According to Panhandle’s forklift
operator, neither Stone nor Hopper told them “how to pick up stone off an A-frame. . . .”
Instead, the employees acted pursuant to their own experience or the direction of their
3
We often state throughout this opinion that we were cited to no evidence on a particular matter.
We do this because the appellant (Mendoza) had the burden to direct our attention to those portions of
the record purportedly entitling her to reversal. Manautou v. Ebby Halliday Real Estate, Inc., No. 05-13-
01035-CV, 2015 Tex. App. LEXIS 1942 at *9 (Tex. App.—Dallas February 27, 2015, pet. denied) (mem.
op.) (stating that when a trial court grants a no-evidence motion for summary judgment, “in order to
adequately challenge on appeal each possible ground for summary judgment, an appellant must cite the
specific evidence in the record that it relied upon to defeat the motion and describe why that evidence
raised a fact issue”). We have no independent obligation to peruse the record for evidence supporting her
contention.
4
employer, Panhandle. Nor were we cited to evidence of record from which it could be
inferred that either Stone or Hopper selected the particular Panhandle employees to
perform the task. And, while the intent of those involved may have been to ultimately
load the slabs onto Stone's truck, the granite was not being loaded onto the vehicle
when it fell atop Pham. We make these preliminary observations because of the nature
of the duty Mendoza seeks to impose on Stone and Hopper.
She would have the court burden Stone, her opponents, with a duty of care
regarding the way in which third-parties (i.e. Panhandle and its employees) performed
their jobs. Such a proposition calls into play the well-settled rule that “in the absence of
a relationship between the parties giving rise to the right of control, one person is under
no legal duty to control the conduct of another, even if there exists the practical ability to
do so.” Loram Maintenance of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006).
Normally, the relationships which may impose such a duty are employer and employee,
parent and child, or, at times, independent contractor and contractee. Greater Houston
Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). That none of those exist here
is undisputed. Yet, the duty should be imposed, according to Mendoza, because the
danger of injury was foreseeable, and Stone and Hopper allegedly had some right of
control. See Nabors Drilling, Inc. v. Escoto, 288 S.W.3d at, 404-405 (stating that
“[l]iability is grounded in the public policy behind the law of negligence which dictates
every person is responsible for injuries which are the reasonably foreseeable
consequence of his act or omission” and that the “factors which should be considered in
determining whether the law should impose a duty are the risk, foreseeability, and
likelihood of injury weighed against the social utility of the actor's conduct, the
5
magnitude of the burden of guarding against the injury[,] and consequences of placing
that burden on the employer.”).
Regarding the foreseeability of danger, we take cue from Nabors. As mentioned
above, liability stems from the belief that people should be responsible for injury
reasonably foreseeable from their act or omission. Id. Evidence appears of record
indicating that moving slabs of granite was dangerous. Yet, the act or omission
undertaken by Stone and Hopper and from which the injury arose concerned their
allowing Panhandle and its employees to perform the process. Simply put, they did
nothing but await delivery of the product outside Panhandle’s lot. So, the inquiry is
whether it was reasonably foreseeable that their decision to simply await delivery of the
granite to the truck presented a foreseeable risk of injury.
Aside from this accident, we were cited to no evidence of other incidents
involving granite falling on someone when it was being loaded or unloaded in the
manner selected by Panhandle. Nor were we cited to evidence indicating that 1)
Panhandle and its employees were incapable of performing that process with care or 2)
that either Stone or Hopper knew or should have known that Panhandle and its
employees were incapable of performing the process safely. So, there is no evidence
supporting the notion that the decision of Stone and Hopper to allow Panhandle
employees to load and unload the granite presented a reasonably foreseeable risk of
injury.
Regarding the right to control the actions of Panhandle, it is true that such a right
may give rise to a duty of care. Id. at 526 (stating that “. . . to predicate liability on a
contractor/subcontractor relationship, it must be shown that the contractor controlled the
work of the subcontractor”); accord, Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778,
6
783 (Tex. 2001) (stating that “[o]ne 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.”). Yet, to the extent
that the right creates a duty, the duty “is commensurate with the control” retained. Lee
Lewis Constr., Inc. v. Harrison, 70 S.W.3d at 783. For instance, if the right to control
encompasses activity A but not activity B, then there is no duty related to activity B.
Additionally, while the requisite right may arise either contractually or through the
actual exertion of control, Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004), it
must consist of more than 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. . . .’”
Gonzalez v. Ramirez, 463 S.W.3d 499, 506 (Tex. 2015) quoting, Koch Ref. Co. v.
Chapa, 11 S.W.3d 153 (Tex. 1999). Other indicia are needed, and they consist of the
authority or ability to control the method and operative details of that work. As reiterated
in Gonzalez, “‘[t]here must be such a retention of a right of supervision that the [party
allegedly subject to control] is not entirely free to do the work in his own way.’” Id.
Finally, the right to control must encompass the particular activity “that causes the
damage.” Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006) (stating that an
employer can be liable for the actions of an independent contractor if the employer
“retains some control over the manner in which the contractor performs the work that
causes the damage”).
Again, Pham was injured while he and his co-employees began the process of
removing granite from Panhandle’s lot for loading onto the truck of Stone. So, “the work
7
that cause[d] the damage” encompassed the steps utilized by Panhandle and its
employees to complete that process.4 And, the evidence of a right to control relied
upon by Mendoza at bar consisted of various excerpts from the deposition of Hopper
and a Stone salesman.
Regarding the excerpts of Hopper, he stated 1) “yeah, I tell them to stop,” when
asked if he believed that “the clamp is not correctly secured to the piece of granite, you
tell them, right?”; 2) “Not necessarily. They - I could say stop, and they could still pick it
up,” when asked, “[b]ecause you have the authority to stop that piece of granite from
being unloaded off the back of the trailer; isn't that correct?”; 3) “right,” when asked “but
that piece of granite is - you're supposed to be taking care of it at least while it's on the
back of that trailer, right?”; 4) “yeah,” when asked “[a]nd so you could say, no, stop,
right?”; and 5) “[w]ell, I got the authority to say it,” when asked “[y]ou got the authority to
do that, don't you?” (Emphasis added). Hopper also acknowledged that unsafe loading
practices could put him and the Panhandle Quartz employees at risk. Of immediate
note though is that the excerpts address effort to “unload” granite from the truck of
Stone; yet, Pham and his co-workers were not doing that when the accident happened.
4
Incidentally, Mendoza refers to an OSHA report apparently finding fault with the manner in
which Panhandle stored the granite. We were not cited to the location of that report in the multi-page
record before us. Nor did our perusal of the record uncover it. Instead, the evidence about it consisted of
a Panhandle representative stating that OSHA cited the company for the “unsafe holding of material” and
“[t]he degree of the land that we . . . placed the A-frame on, the amount of slope.” Also mentioned by
Mendoza is the deposition testimony of a Stone employee acknowledging it was dangerous to store
granite on an incline. Such bits of information, according to Mendoza, constitute “some evidence . . . (at
least to raise a fact issue) that the location of the slabs on an incline contributed to Huy Pham's death.” If
the latter conclusion could logically be inferred from the evidence mentioned, then the “work that causes
the damage” also may encompass the selection of the site at which the product was stored. Yet, we are
cited to no evidence indicating that had the granite been placed at a location without a slope then Pham
would not have been injured by a falling slab when he prematurely disengaged the strap. Mendoza says
nothing of someone so testifying via affidavit, deposition or otherwise, and whether the OSHA
investigators so concluded in their report is unknown. Nor does Mendoza cite us to evidence revealing
the angle of the slope, whether it was forward, backward or sideways, or whether it was enough to cause
the slab to fall on its own. It would seem rather important to have such evidence before one could
logically infer that but for some unknown degree of slope in the land Pham would not have suffered injury.
And, without such evidence, we cannot say that the “work that cause[d] the damage” encompassed the
selection of a site on the lot at which the granite would be stored.
8
Moreover, Hopper’s concession that he could tell others to “stop” as they
unloaded product from the truck comes with the caveat that “they could still pick it up”
despite his directive. That signifies an ability to make suggestions that need not be
followed, not an obligation to obey. Again, according to Gonzalez, more is needed than
the ability or right “to make suggestions or recommendations which need not
necessarily be followed.” Gonzalez v. Ramirez, 463 S.W.3d at 506.
So too must there be more than the right “‘to order the work stopped or resumed
[or] to inspect its progress.’” Id. Yet, that is all the Hopper deposition excerpts revealed.
He may have been able to tell Panhandle’s employee when to start and stop when it
came to unloading product from the truck. It does not indicate that he had any right to
direct them on how to acquire granite from Panhandle's lot. So, in effect, the deposition
excerpts of Hopper to which Mendoza cited are not of the caliber from which one can
infer that Hopper had the right to control the details of the work causing Pham's injury.
As for the testimony of the salesman, it consisted of 1) his desire to have the
products he supplied placed “up front where it's visible and seen when the customer . . .
walks in the door” and 2) when asked if he had “ever gone to one of these clients and
said, hey, look, give me a break here, we need some of this stuff moved up so people
can see it,” he replied “[t]hat's exactly right. I'll make a noise.” Mendoza also states that
the salesman “had the ability to discuss unsafe practices with Panhandle . . . .” The
record reference accompanying the latter comment involved the manner in which the
granite was “stacked,” and the salesman stated that if he encountered something that
was a “bad deal” or “out of whack” and “blatant enough,” he “would have said
something.”
9
Assuming arguendo that the geographic location of the product was relevant to
whether Stone or Hopper had the right to control how granite was removed from
Panhandle’s lot, (see footnote two), the salesman's deposition excerpts are again
deficient for several reasons. First, common sense compels that one having the right to
designate a product’s location need not have to “make noise” to have it placed in a
particular locale. Second, the question being asked when the salesman said that he
would “make noise” referenced “clients” in general, not Panhandle. Unknown is
whether he ever made “noise” at Panhandle, whether Panhandle ever acceded to the
“noise,” and whether Panhandle was obligated to accede to that “noise.” Because other
clients may have to accede to the “noise” does not mean that Panhandle did or would.
Third, anyone can discuss security, including a transient who happens to stroll on to the
lot. Yet, the ability to discuss is no evidence of an obligation to abide. And, it is the
latter that Gonzalez deems pertinent.
As previously mentioned, whether a duty existed is a question of law. We
answer that question adversely to Mendoza. The circumstances encountered at bar
prevent us from concluding that the threshold of Nabors, Lee Lewis, Gonzalez or Fifth
Club was met. So, we cannot impose upon either Stone or Hopper the duty of care
sought by Mendoza.
Joint Venture and Enterprise
Mendoza also attempts to hold Stone and Hopper vicariously responsible
through the theories of joint enterprise and joint venture. Those allegations were also
encompassed within the motion for summary judgment. We address each in turn.
a. Venture
10
Regarding the matter of joint venture, the summary judgment movants averred
that “traditional and no evidence summary judgments are necessary on Claimants’ joint
venture theory because the summary judgment evidence conclusively establishes and/
or there is no evidence to support that [Panhandle] and [Stone] shared profits or losses
or that they had an equal right of control.” Mendoza argues on appeal that the evidence
created a fact issue on each element of a joint venture. We disagree.
A joint venture is similar to a partnership but is limited to a particular transaction
or enterprise. Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 319 (Tex. App.—
Houston [1st Dist.] 2011, no pet.). It exists when 1) there is a community of interest in a
venture, 2) an agreement to share profits, 3) an agreement to share losses, and 4) a
mutual right of control or management. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 535
(Tex. 2002). Without a specific agreement to share losses, no joint venture can be
implied. Coastal Plains Dev. Corp. v. Micrea, Inc., 572 S.W.2d 285, 288 (Tex. 1978).
The purported evidence of an agreement to share profits cited by Mendoza
consisted of deposition testimony from a Stone salesman that Stone was “in the
business of making a profit” while Panhandle most likely “share[d] that interest in
making a profit.” From that testimony, Mendoza hypothesizes that “[t]here is a fact
issue on whether there was an agreement to share profits.” Such a generic statement
as “being in the business of making a profit” says little, as does the suggestion that
some other entity may share a similar interest. Theoretically, all legitimate businesses
are in the business of making a profit, and simply because two independent entities (like
Stone and Panhandle) have such a common interest and transact business with each
other does mean that they agreed to share their profits with each other. To conclude
otherwise is illogical.
11
The profits contemplated in a joint venture are the profits earned by the venture
itself. For instance, if a slab of granite consigned by Stone were sold by Panhandle for
$100 and the expenses of selling that slab were $50, then the profit would be $50. See
Martin v. Davis, 552 S.W.2d 873, 878 (Tex. App.—San Antonio 1977, writ ref’d)
(defining “profit” as generally meaning that which remains of the gross receipts of the
business after all legitimate expenses have been deducted). So, for there to be a joint
venture regarding the sale of that granite, there must be evidence that the two
independent entities agreed, in some manner, to share that particular $50 profit.
Mendoza cites us to no evidence indicating (or from which one could reasonably infer)
that Stone and Panhandle agreed to share in any amount of money left from the sale of
consigned granite once the expenses of selling that granite were deducted. Nor did we
encounter such evidence. At best, the record indicates that Panhandle would send
money to Stone once the product was sold, but the money it sent was the price set by
Stone in the invoice that accompanied the delivery. In other words, Panhandle was
paying Stone for the consigned granite sold, it was not sharing profits.
Similarly absent is any evidence of an agreement to share losses. According to
the record, if the product consigned by Stone were damaged while in the possession of
Panhandle, the latter was liable for the loss. If the product was not sold, then Stone
bore the loss of the returned product. And, contrary to the suggestion of Mendoza, the
fact that Panhandle may have sought a “discount” on the product damaged when it fell
on Pham is inconsequential. Anyone can ask for a discount. It is the right to receive
one that may have some import, and Mendoza cites us to nothing indicating that
Panhandle was entitled to receive a discount from Stone when paying for the product it
12
(Panhandle) damaged. Indeed, according to the record before us, Panhandle paid for
the granite damaged in the incident.
Without evidence of an agreement to share profits and losses, there was no joint
venture. We neither found such evidence nor were we cited to any. Consequently, we
overrule the contention that the trial court erred in granting summary judgment
adversely to Mendoza upon the allegation of joint venture.
b. Enterprise
Regarding the matter of joint enterprise, Stone and Hopper averred that
Mendoza brought forth “no evidence on any of the required elements. . . .” Before us,
she contends that Stone “did not conclusively negate any element of [her] joint
enterprise theory.” We disagree with the proposition that the record contains evidence
sufficient to create a material issue of fact on the existence of a joint enterprise between
Stone, Panhandle and Hopper.
For there to be a joint enterprise all parties to it must: “(1) agree to a common
purpose; (2) have a community of pecuniary interest in that common purpose; and (3)
have an equal right of control over the enterprise or project formed to carry out that
purpose.” St. Joseph Hosp. v. Wolff, 94 S.W.3d at 528 (emphasis in original). It is not
enough to simply prove that the parties have a common business or pecuniary interest.
Id. at 527-28. Rather, the pecuniary interest must “be common among the members of
the group—it must be ‘shared without special or distinguishing characteristics.’” Id. at
531, quoting, Ely v. General Motors Corp., 927 S.W.2d 774 (Tex. App.—Texarkana
1996, writ denied); Kimbrell v. Memorial Hermann Hosp. Sys., 407 S.W.3d 871, 877-78
(Tex. App.—Houston [14th Dist.] 2013, no pet.); Toledo v. Silver Eagle Distr., L.P., No.
01-11-00488-CV, 2013 Tex. App. LEXIS 172, at *15-17 (Tex. App.—Houston [1st Dist.]
13
January 10, 2013, no pet.) (mem. op.). Examples of such “special or distinguishing
characteristics” that defeat the requisite community include 1) no sharing of income, e.g.
St. Joseph Hosp. v. Wolff, 94 S.W.3d at 531-32 (rejecting the contention that there
existed a community of pecuniary interest in the common purpose because there was
“no evidence in the record that St. Joseph agreed to share with the Foundation any
money it received from operating the general surgery residency program”), 2) receiving
a fixed payment for a product sold by another, Toledo v. Silver Eagle Distr. L.P., 2013
Tex. App. LEXIS 172, at *15-16 (wherein Silver Eagle was a distributor of beer and
received payment based on how much beer Aramark directed it to deliver); Ely v.
General Motors Corp, 927 S.W.2d at 977 (wherein a wholesaler sells to a retailer), and
3) arrangements where one member of the group receives the profit of a sale after
paying the other member a percentage of the sale irrespective of expense. Harris v.
Houston Livestok Show & Rodeo, Inc., 365 S.W.3d 28, 35 (Tex. App.—Houston [1st
Dist.] 2011, pet. denied).
Here, we have been cited to no authority holding a consignment relationship to
be a joint enterprise. Nor did we find any. Similarly missing is evidence of record that
Stone and Panhandle shared the income from the sale of granite as contemplated by a
joint enterprise. As previously described, some money from the sale of consigned
product would be sent to Stone by Panhandle once the product sold. Yet, the share
would be the invoice price established by Stone. Panhandle was free to set the price at
which the product was sold; it could sell it at a loss if it so chose. Yet, irrespective of the
price at which it was sold, Stone was entitled to the invoice price.5 So Stone and
5
Indeed, if the product was damaged, as it was here, Stone still received payment. In such
circumstances, Panhandle was left having to recoup its loss elsewhere. It did that here by submitting an
insurance claim.
14
Panhandle were not sharing income. Instead, their relationship had indicia akin to that
of a wholesaler or supplier delivering product to a retailer.
As said in St. Joseph, “a franchisor, wholesaler, or supplier usually does not have
a ‘community of pecuniary interest’ in the retail sales of its respective franchisees,
retailers, or customers.” St. Joseph Hosp. v. Wolff, 94 S.W.2d at 528. “Although the
former entities stand to benefit financially from the successful downstream marketing of
their goods or services, their interest in those activities are not held in ‘community’ with
the members of the latter group because they are not shared ‘without special or
distinguishing characteristics.’” Id. Stone being a supplier of granite and entitled to
payment at the price specified in its invoice even if the product were damaged or sold at
a loss, its arrangement with Panhandle was not free of special or distinguishing
characteristics. That made their consignor/consignee relationship something other than
a joint enterprise. And because no material issue of fact appears of record regarding
the existence of a community of pecuniary interest, we cannot say that the trial court
erred in granting Stone and Hopper a summary judgment on the claim.
The summary judgment is affirmed.
Brian Quinn
Chief Justice
15