Tonya Bauer, Individually and as Guardian of the Person and Estate of Emily Bauer, an Incapacitated Person, and William Bryant v. Gulshan Enterprises, Inc., Bin Enterprises, Inc., Khalid Khan and Phillips 66 Company

Opinion issued February 27, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-18-00136-CV
———————————
TONYA BAUER, AS GUARDIAN OF THE PERSON AND ESTATE OF
EMILY BAUER, AN INCAPACITATED PERSON, Appellant

V.

GULSHAN ENTERPRISES, INC, Appellee

On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2014-71024-B

MEMORANDUM OPINION

The term “synthetic cannabinoid,” commonly called “synthetic marihuana,”

refers to a class of chemical compounds created to mimic the effects of
tetrahydrocannabinol (THC), the psychoactive constituent of the marihuana plant.1

Synthetic cannabinoids are man-made, unregulated chemicals produced in

underground labs, often overseas, and then shipped to the United States in powdered

or crystal form.2 The chemicals are then mixed with acetone and manually sprayed

onto plant material before packaging. As laws are enacted making it illegal to sell,

buy, or possess certain chemicals, manufacturers simply alter their formulas.3 As a

result, the composition of many of these products, some of which contain lethal

contaminants, is largely unknown, making it difficult for healthcare professionals to

diagnose and treat patients in emergency cases.4

For several years, synthetic cannabinoids have been sold in convenience

stores, novelty stores, and over the internet.5 They are marketed in colorful packages

1
NAT’L INST. ON DRUG ABUSE, DRUG FACTS: WHAT ARE SYNTHETIC
CANNABINOIDS? (Feb. 2018), https://www.drugabuse.gov/publications/drugfacts/
synthetic-cannabinoids-k2spice.
2
OFFICE OF THE ATTORNEY GEN. OF TEX., AGENCY INITIATIVES, SYNTHETIC DRUGS,
https://www2.texasattorneygeneral.gov/initiatives/synthetics/.
3
NAT’L INST. ON DRUG ABUSE, DRUG FACTS: WHAT ARE SYNTHETIC
CANNABINOIDS? (Feb. 2018), https://www.drugabuse.gov/publications/drugfacts/
synthetic-cannabinoids-k2spice.
4
Id.; OFFICE OF THE ATTORNEY GEN. OF TEX., AGENCY INITIATIVES, SYNTHETIC
DRUGS, https://www2.texasattorneygeneral.gov/initiatives/synthetics/.
5
U.S. DEP’T OF JUSTICE, DRUG ENF’T AGENCY, DRUGS OF ABUSE, at 88–89 (2017
ed.), https://www.dea.gov/documents/2017/06/15/drugs-abuse.

2
to attract young consumers.6 Currently, sixty percent of individuals admitted to

Texas emergency rooms for treatment related to synthetic-cannabinoid use are

between the ages of 12 and 20.7 This is such a case.

Here, a teenage girl suffered debilitating, permanent injuries after using

synthetic marihuana that a friend obtained from a convenience store. Appellant,

Tonya Bauer, as guardian of the person and the estate of Emily Bauer, an

incapacitated person (“Bauer”), brought negligence claims against the convenience-

store owner, the lessee, and the entities that supplied the convenience store gas

pumps with gasoline. In this appeal, Bauer challenges the trial court’s summary

judgment in favor of the gasoline distributor, appellee, Gulshan Enterprises, Inc.

(“Gulshan”). In her sole issue, Bauer contends that the trial court erred in granting

summary judgment for Gulshan, and denying her motion for reconsideration,

because she presented evidence raising genuine issues of material fact. Because we

conclude that there is simply no evidence to support the duty element of Bauer’s

negligence claim against the gasoline distributor, we affirm the trial court’s

judgment.

6
NAT’L INST. ON DRUG ABUSE, DRUG FACTS: WHAT ARE SYNTHETIC
CANNABINOIDS? (Feb. 2018), https://www.drugabuse.gov/publications/drugfacts/
synthetic-cannabinoids-k2spice.
7
OFFICE OF THE ATTORNEY GEN. OF TEX., AGENCY INITIATIVES, SYNTHETIC DRUGS,
https://www2.texasattorneygeneral.gov/initiatives/synthetics/.

3
 Background

ConocoPhillips Company (“ConocoPhillips”)8 is engaged in the production,

refining, and marketing of petroleum products under various brands. Gulshan is a

wholesale distributor of motor vehicle fuels to independent dealers (“dealers”) and

to retail outlets, i.e., gas stations. On March 1, 2010, ConocoPhillips and Gulshan

entered into a supply agreement, the “Branded Marketer Agreement” (“BMA”).

Under its terms, ConocoPhillips agreed to sell gasoline to Gulshan, as “Marketer,”

for resale to Gulshan’s customers. The BMA authorized Gulshan to sell

ConocoPhillips-branded gasoline through stations it owns or operates and to sell

gasoline to independent dealers who own or operate such stations.

In the BMA, ConocoPhillips also granted Gulshan a license to use certain

ConocoPhillips brand names in the advertising, distribution, and sale of gasoline and

to display ConocoPhillips brand identification and signage at the stations Gulshan

supplied. Noting that ConocoPhillips had a protectable business interest in ensuring

that Gulshan’s sales and distributions would be accomplished in a manner respecting

the standards, reputation, and integrity of the ConocoPhillips brands, the BMA set

out certain “Brand and Image Standards,” discussed below, with which Gulshan was

required to comply. Gulshan was also required to ensure to ConocoPhillips that each

of the dealers and gas stations that it supplied also complied. The parties agreed that

8
ConocoPhillips is not a party to this appeal.
4
the BMA was “personal to [Gulshan]” and for the sole use and benefit of Gulshan

and ConocoPhillips. The parties agreed that, in the event that Gulshan failed to

comply, or to ensure compliance, with the Brand and Image Standards,

ConocoPhillips could assess fees against Gulshan, “debrand” the gas station, or

terminate the BMA.

On January 31, 2012, Gulshan executed a Marketing Contract with an

independent dealer, Bin Enterprises Inc. (“Bin”).9 Also on that day, Bin purchased

from Global New Millennium Partners, Ltd.10 a convenience store and gas station

located at 11150 Huffmeister Road in Houston, known as Handi-Stop #79 (“Handi-

Stop”). Under the terms of the Marketing Contract, Gulshan agreed to supply Bin

with ConocoPhillips gasoline, branded as “Phillips 66,” at Bin’s locations, including

Handi-Stop. And, Bin agreed to operate in accordance with the standards of Gulshan

and its supplier. In the Marketing Contract, the parties expressly agreed that Gulshan

was to have no right of control over Bin’s operation of its businesses, including

Handi-Stop. In October 2012, Bin leased Handi-Stop to Khalid Khan.

During the fall of 2012, Shawn Kettlewell and Emily Bauer were sophomores

in high school. According to Shawn, he and Emily frequently smoked marihuana

together and, on occasion, they used cocaine, Xanax, and ecstasy. On December 7,

9
Bin is not a party to this appeal.
10
Global New Millenium Partners, Ltd. is not a party to this appeal.
5
2012, they skipped school and smoked marihuana periodically throughout the day.

Late that afternoon, a friend, Anserra Dupree, Jr., went to Handi-Stop and purchased

synthetic marihuana, specifically, one bag of “Kush”11 and one bag of “Klimax.”

Shawn, Emily, and Anserra then gathered with friends and smoked approximately

half of the contents of each bag. According to Anserra, Emily generally “added

other things when she smoked.”

After smoking synthetic marihuana at around 7:00 p.m., Emily began feeling

dizzy and had a headache. She took prescribed medication and went to sleep. When

she awoke 15 minutes later, she began mumbling, screaming, and throwing things.

After she bit Shawn, he called for emergency assistance. Emily was taken by

ambulance to North Cypress Medical Center. Shawn discarded the remaining

portions of the synthetic marihuana that he and Emily had smoked.

At the hospital, Emily was disoriented, screamed for people who were not

there, thrashed violently, and bit the siderails of her bed. According to the medical

evidence, Emily exhibited clinical signs and symptoms consistent with synthetic

cannabinoid toxicity. She was placed in a medically-induced coma and on a

11
See TEX. HEALTH & SAFETY CODE § 481.1031 (designating certain synthetic
chemical cannabinoids as controlled substances); see also In re T.B.V.J., No. 01-17-
00892-CV, 2018 WL 1747264, at *1 (Tex. App.—Houston [1st Dist.] Apr. 12,
2018, pet. denied) (mem. op.); A.R. v. Tex. Dep’t of Family & Protective Servs., No.
03-15-00185-CV, 2015 WL 4909908, at *1 n.4 (Tex. App.—Austin 2015, no pet.)
(mem. op.) (noting that kush is a mixture of herbs and spices “sprayed with synthetic
compounds that mimic the effects of controlled substances like ecstasy and meth”).
6
ventilator. She suffered multiple ischemic strokes and was diagnosed with primary

central nervous system vasculitis. She developed quadriparesis, cortical visual

impairment, and a seizure disorder. Emily spent months in the hospital and

underwent therapy before returning home. Emily’s medical issues are ongoing. She

requires near constant supervision and requires assistance to perform basic tasks.

The cost of caring for Emily for the rest of her life is estimated to be between

$10,822.665.99 and $12,262,949.30.

Bauer, Emily’s mother, brought claims against “Phillips 66 Company,”12

Gulshan, Bin, and Khan for products liability, negligence, fraud, breach of implied

warranty of merchantability, and intentional infliction of emotional distress. The

trial court granted summary judgment in favor of Phillips 66 Company, dismissing

Bauer’s claims against it. The trial court also granted summary judgment in favor

of Gulshan on Bauer’s products-liability claims. Bauer non-suited all of her other

claims, except her negligence claim. The trial court severed Bauer’s negligence

claim against Gulshan from her claims against Bin and Khan. This appeal concerns

only Bauer’s negligence claim against Gulshan.

In her negligence claim against Gulshan, Bauer alleged that Gulshan owed

Emily a duty of reasonable care not to create an unreasonable risk of harm. She

asserted that the BMA assigned contractual duties to Gulshan to monitor and inspect

12
In 2012, Phillips 66 Company became an independent company.

7
the activities at Handi-Stop to ensure that the “sale or use of illegal drugs or drug

paraphernalia [did] not occur.” And, Gulshan breached these duties by failing to

perform its duties of monitoring and inspecting the store. She asserted that, although

Gulshan apparently conducted some type of inspections of Handi-Stop, Gulshan did

not perform inspections inside the retail store after January 31, 2012, and such failure

to exercise reasonable care proximately caused Emily’s harm. Bauer further asserted

that Gulshan’s conduct constituted a “negligent undertaking” giving rise to a duty to

Emily because it performed services that it knew, or should have known, were

necessary for her protection. Bauer asserted that Gulshan failed to exercise

reasonable care in performing those services, that Emily suffered harm based on her

reliance on Gulshan’s performance, and that Gulshan’s performance increased

Emily’s risk of harm.

Bauer also alleged that Gulshan was vicariously liable for the negligence of

Bin and Khan. She asserted that “Gulshan was the owner/operator of Handi-Stop,”

that Bin and Khan acted as Gulshan’s agents, and that Bin and Khan negligently

performed their duties to monitor and inspect the store. Bauer further alleged that

Gulshan was grossly negligent.

Gulshan filed a combined motion for traditional and no-evidence summary

judgment on Bauer’s negligence claim. Gulshan argued that it was entitled to

judgment as a matter of law because the trial court had previously granted summary

8
judgment in favor of Gulshan on Bauer’s products-liability claims, and Bauer had

simply recast her products-liability claims as an artfully plead negligence claim.

Gulshan further argued, as pertinent here, that there was no evidence that it

“breached any duty allegedly owed to Emily or that its conduct caused [her] harm.”

Gulshan did not own or operate Handi-Stop, had no contractual right to control

Handi-Stop, and did not exercise any control over it. In addition, there was no

evidence that it undertook to perform any services, failed to exercise reasonable care

in performing any services, that Emily suffered harm based on her reliance on

Gulshan, or that Gulshan’s performance increased Emily’s risk of harm.

In her summary-judgment response, Bauer argued that Gulshan owed Emily

a duty of reasonable care based on its contractual duties under the BMA. She

asserted that, “[u]nder the BMA, Gulshan held the right to (1) control activities

taking place on the premises where Emily’s injuries arose, (2) inspect the premises

for offensive and illegal activities, and (3) direct the conduct of those working on or

around the premises.” Bauer asserted that the BMA “alerted Gulshan and put them

on notice to criminal risks that were attendant to this type of business.” And, “[t]o

that end, the BMA assigned Gulshan a duty—and Gulshan undertook that duty—to

prevent the ‘sale or use of illegal drugs or drug paraphernalia’ at any of the Phillips

66-branded fuel stations it serviced including Handi-Stop.” Bauer asserted that there

was substantial evidence that Gulshan “controlled the activities on the premises,

9
failed to exercise reasonable care in the exercise of that control, and, as a direct

result,” Emily was injured.

As her summary-judgment evidence, discussed below, Bauer presented the

BMA, the Marketing Contract, a photograph of packages of synthetic marihuana,

and various letters. She also attached excerpts of her deposition, the transcript of a

recorded statement of Anserra, and the depositions of Shawn, Shoukat Dhanani

(president of Gulshan), and Salman Bin Hameed (president of Bin). Bauer also

attached medical records, medical expert reports, and excerpts of the depositions of

Drs. Greg Andres and Jeff Lapoint.

After a hearing, trial court granted summary judgment in favor of Gulshan

without specifying the grounds and dismissed Bauer’s claim against it. Bauer filed

a motion for reconsideration, again arguing that the summary-judgment evidence

presented issues of fact. The trial court denied Bauer’s motion for reconsideration.

Summary Judgment

In her sole issue, Bauer argues that the trial court erred in granting Gulshan’s

motion for no-evidence summary judgment on her negligence claim because she

presented more than a scintilla of evidence on each of the challenged elements of

her claim. See TEX. R. CIV. P. 166a(i). Bauer argues that the trial court erred in

granting Gulshan’s motion for traditional summary judgment on her negligence

claim because Gulshan did not conclusively establish that she simply recast her

10
products-liability claim as a negligence claim. See TEX. R. APP. P. 166a(c). She

further asserts that the trial court erred in denying her motion for reconsideration on

the same grounds.

A. Standard of Review

We review a trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, we take as

true all evidence favorable to the non-movant, and we indulge every reasonable

inference and resolve any doubts in the non-movant’s favor. Id. If a trial court

grants summary judgment without specifying the grounds for granting the motion,

we must uphold the trial court’s judgment if any of the asserted grounds are

meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied).

A party seeking summary judgment may combine in a single motion a request

for summary judgment under both the traditional and no-evidence standards. Binur

v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). When a party seeks summary

judgment on both grounds in the trial court and the trial court’s order does not specify

its reasons for granting summary judgment, we first review the propriety of the

summary judgment under the no-evidence standard. See Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see also TEX. R. CIV. P. 166a(i). If we

conclude that the trial court did not err in granting summary judgment under the no-

11
evidence standard, we need not reach the issue of whether the trial court erred in

granting summary judgment under the traditional standard. See Ford Motor Co.,

135 S.W.3d at 600; see also TEX. R. CIV. P. 166a(c).

To prevail on a no-evidence summary-judgment motion, the movant must

establish that there is no evidence to support an essential element of the non-

movant’s claim on which the non-movant would have the burden of proof at trial.

See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—

Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non-movant to

present evidence raising a genuine issue of material fact as to each of the elements

challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006). A no-evidence summary judgment may not be granted if the non-movant

brings forth more than a scintilla of evidence to raise a genuine issue of material fact

on the challenged elements. See Ridgway, 135 S.W.3d at 600. More than a scintilla

of evidence exists when the evidence “rises to a level that would enable reasonable

and fair-minded people to differ in their conclusions.” Merrell Dow Pharms., Inc.

v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

In a traditional motion for summary judgment, the movant has the burden to

establish that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.

Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a

12
defendant moves for a traditional summary judgment, it must either: (1) disprove at

least one essential element of the plaintiff’s cause of action or (2) plead and

conclusively establish each essential element of an affirmative defense, thereby

defeating the plaintiff’s cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341

(Tex. 1995). Once the movant meets its burden, the burden shifts to the non-movant

to raise a genuine issue of material fact precluding summary judgment. Centeq

Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a

genuine issue of fact if reasonable and fair-minded jurors could differ in their

conclusions in light of all of the summary-judgment evidence. Goodyear Tire &

Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

Generally, we restrict the scope of our review of a trial court’s ruling on a

motion for summary judgment to that evidence that was before the trial court at the

time that it ruled on the motion. Neely v. Comm’n for Lawyer Discipline, 302

S.W.3d 331, 347 n.16 (Tex. App.—Houston [14th Dist.] 2009, pet. denied); see also

TEX. R. CIV. P. 166a(d). “When a motion [to reconsider] is filed after the rendition

of summary judgment, a trial court has the discretion to consider the grounds in [the]

post-judgment motion and supporting proof[,] and reaffirm its summary judgment

based on the entire record.” Charbonnet v. Shami, No. 04-12-00711-CV, 2013 WL

2645720, at *5 (Tex. App.—San Antonio June 12, 2013, pet. denied) (mem. op.)

(internal quotations omitted). “The trial court also has the discretion to simply deny

13
a motion filed after the entry of summary judgment without considering its

substance.” Id. “In the latter situation, an appellate court need only consider

arguments and evidence presented prior to the summary-judgment hearing.” Id.

When, as here, however, the trial court’s order affirmatively states that it

considered the evidence attached to a motion to reconsider, we review the summary

judgment based on the grounds and proof in both the prejudgment and post-judgment

filings. Timothy Patton, Summary Judgments in Texas § 7.06[1] (3d ed. 2013); see

also Circle X Land & Cattle Co., Ltd. v. Mumford Ind. Sch. Dist., 325 S.W.3d 859,

863 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (reviewing evidence

attached to motion to reconsider because order reflected that trial court considered

such evidence); Stephens v. Dolcefino, 126 S.W.3d 120, 134 (Tex. App.—Houston

[1st Dist.] 2003, no pet.) (considering evidence offered at hearing on motion to

reconsider because trial court ruled that it would consider such evidence); cf.

McMahan v. Greenwood, 108 S.W.3d 467, 500 (Tex. App.—Houston [14th Dist.]

2003, pet. denied) (declining to consider evidence attached to motion for new trial

because trial court’s order did not state that it considered such evidence).

B. Legal Principles

The common-law doctrine of negligence consists of: (1) a legal duty owed by

one person to another, (2) a breach of that duty, and (3) damages proximately

resulting from the breach. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998).

14
The threshold inquiry is the existence of a duty. Id. A duty is a “legally enforceable

obligation to comply with a certain standard of conduct.” Hand v. Dean Witter

Reynolds, Inc., 889 S.W.2d 483, 491 (Tex. App.—Houston [14th Dist.] 1994, writ

denied). “Texas law generally imposes no duty to take action to prevent harm to

others absent certain special relationships or circumstances.” Torrington Co. v.

Stutzman, 46 S.W.3d 829, 837 (Tex. 2000) (citing Restatement (Second) of Torts

§ 314 (1965) (“The fact that [an] actor realizes or should realize that action on his

part is necessary for another’s aid or protection does not of itself impose upon him

a duty to take such action.”)). If the defendant has no duty, then he cannot be held

liable for negligence. J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc.,

302 S.W.3d 515, 529 (Tex. App.—Austin 2009, no pet.).

Special relationships include those existing between employer and employee,

parent and child, and independent contractor and contractee. Greater Hous. Transp.

Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); see also Golden Spread Council,

Inc. v. Akins, 926 S.W.2d 287, 289–90, 292 (Tex. 1996) (“There are some cases in

which a duty exists as a matter of law because a special relationship exists between

the parties. In such cases, the duty analysis ends there.”).

Whether to impose a duty under certain circumstances is a question of law.

Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In deciding whether to impose

a duty, the court must balance the risk, foreseeability, and likelihood of injury against

15
the social utility of the actor’s conduct, the magnitude of the burden of guarding

against the injury, and the consequences of placing the burden on the defendant.

Golden Spread Council, Inc., 926 S.W.2d at 289–90. Courts have also emphasized

other factors, such as whether one party had superior knowledge of the risk or the

right and ability to control the actor whose conduct precipitated the harm. Id. at 290.

Further, courts have recognized that one who voluntarily, whether

gratuitously or for compensation, undertakes an affirmative course of action for the

benefit of another has a duty to exercise reasonable care that the other’s person or

property will not be injured by the undertaking. Colonial Sav. Ass’n v. Taylor, 544

S.W.2d 116, 119–20 (Tex. 1976). To establish a “negligent undertaking,” the

plaintiff must show that: (1) the defendant undertook to perform services that it knew

or should have known were necessary for the plaintiff’s protection; (2) the defendant

failed to exercise reasonable care in performing those services; and either (a) the

plaintiff suffered harm because of her reliance on the defendant’s performance or (b)

the defendant’s failure to exercise such care increased the plaintiff’s risk of harm.

Nall v. Plunkett, 404 S.W.3d 552, 555–56 (Tex. 2013) (citing Restatement (Second)

of Torts § 324A (providing rule for liability to third person for negligent

performance of undertaking)).

A negligent undertaking differs from simple negligence in that the duty

allegedly breached derives from the services undertaken. Torrington Co., 46 S.W.3d

16
at 838–39. The critical inquiry concerning the duty element in a negligent

undertaking is whether the defendant acted in a way that requires the imposition of

a duty where one otherwise would not exist. Nall, 404 S.W.3d at 555. Such a duty

may arise if a person affirmatively undertakes to provide services to another upon

which reliance can be based. See Osuna v. S. Pac. R.R., 641 S.W.2d 229, 230 (Tex.

1982) (“Having undertaken to place a flashing light at the crossing for the purpose

of warning travelers, the railroad was under a duty to keep the signal in good repair,

even though the signal was not legally required.”). A duty is not created by a failure

to act. Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 397 (Tex. 1991).

C. Analysis

Here, Gulshan, in its summary-judgment motion, argued that there is no

evidence that it “breached any duty allegedly owed to Emily or that its conduct

caused [her] harm.” See TEX. R. APP. P. 166a(i). Thus, Gulshan challenged each of

the elements of Bauer’s negligence claim. See Lampasas v. Spring Ctr., Inc., 988

S.W.2d 428, 436 (Tex. App.—Houston [14th Dist.] 1999, no pet.); see also TEX. R.

CIV. P. 71 (providing that courts are to give effect to substance of motion rather than

title or form); In re J.Z.P., 484 S.W.3d 924, 925 (Tex. 2016).

Gulshan further argued that there is no evidence that it undertook any action

that caused Emily’s harm. Specifically, there is no evidence that Gulshan performed

services that it knew or should have known were necessary for Emily’s protection;

17
that it failed to exercise reasonable care in performing any such services; or either

that Emily’s reliance upon Gulshan’s performance caused her injury or that

Gulshan’s alleged performance increased Emily’s harm. See TEX. R. APP. P. 166a(i);

Nall, 404 S.W.3d at 555–56.

Bauer, in her summary-judgment response, with respect to the duty element

of her claim, argued that Gulshan owed Emily a duty of reasonable care based on

(1) Gulshan’s contractual duties under the BMA and control over Handi-Stop

(simple negligence theory) and (2) having affirmatively undertaken to inspect and

monitor Handi-Stop (negligent-undertaking theory).

1. Simple Negligence

Bauer first argued that the BMA assigned a contractual duty to Gulshan to

“prevent the ‘sale or use of illegal drugs or drug paraphernalia’ at any of the Phillips

66-branded outlets it serviced including Handi-Stop.” And, Gulshan agreed to

maintain “extensive control” over Handi-Stop. Thus, Gulshan assumed a duty to

Emily, arising in tort, to exercise reasonable care in inspecting and monitoring the

store.

The BMA provides that ConocoPhillips had a protectable business interest in

ensuring that Gulshan’s distribution of branded products was accomplished in a

manner consistent with ConocoPhillips’ standards, reputation, and integrity. Thus,

section 5 of the BMA, “Brand and Image Standards,” requires that Marketers, i.e.,

18
Gulshan, and its Marketer Supplied Outlets, i.e., Handi-Stop, uphold certain

standards reflecting on the reputation of ConocoPhillips. These include treating all

persons fairly, honestly, and courteously; providing efficient service to consumers;

properly addressing consumer complaints; keeping the building and grounds clean;

operating with well-groomed personnel; and operating during certain business

hours. In addition, section 5(D), on which Bauer relies, provides:

Consistent with the principles herein set forth, . . . Marketer [Gulshan]
shall conduct its independent business operations in compliance with
the standards set forth below, which will promote the continuing good
reputation of ConocoPhillips and all other branded ConocoPhillips
marketers. [Gulshan] shall ensure to ConocoPhillips that all Marketer
Supplied Outlets [such as Handi-Stop] and the Marketer Supplied
Dealers [Bin] shall also comply with these standards.
....
(D) Each Marketer Supplied Outlet [Handi-Stop] must complement
the community and the environment. Furthermore, [Handi-Stop]
must not engage, permit, or cooperate in any conduct that reflects
unfavorably on the reputation of ConocoPhillips in the
community served by [Gulshan], or in ConocoPhillips’ opinion
impairs the goodwill associated with the ConocoPhillips . . . .
[Gulshan] shall cooperate, and shall take reasonable steps to
ensure that the operators of [Handi-Stop] . . . its employees,
vendors, contractors, and agents cooperate fully with the
performance of [Gulshan’s] obligations under this [BMA] . . . .
[Gulshan] shall not permit on, in[,] or from [Handi-Stop]:
i. price gouging . . . ;
ii. any illegal consumption of intoxicating beverages;
iii. the sale or use of illegal drugs or drug paraphernalia;
iv. the sale of tobacco . . . or alcoholic beverages to
minors . . . ;
v. any offensive merchandise . . . .

19
(Emphasis added.) Thus, under the BMA, in order to protect the reputation and

goodwill of ConocoPhillips, Gulshan had a duty to ensure ConocoPhillips that the

gas stations it serviced, such as Handi-Stop, cooperated and complied with

ConocoPhillips’s standards, such as prohibiting the sale of illegal drugs or drug

paraphernalia.

Bauer argued that Gulshan owed these duties to Emily based on the following

language in section 5: “Marketer specifically understands and agrees that the Brand

and Image Standards are reasonable and of material significance to this Agreement

and to the consumers who patronize Marketer Supplied Outlets. . . .” (Emphasis

added.) The BMA reflects, however, that it constitutes an agreement between

ConocoPhillips and Gulshan, and section 36 expressly provides: “This agreement

is personal to [Gulshan] and is intended for the sole use and benefit of [Gulshan] and

ConocoPhillips. No Marketer Supplied Dealer or any other third party is a third

party beneficiary under this Agreement.”

To ensure compliance with the “Brand and Image Standards,” section 5

requires that Handi-Stop participate, at Gulshan’s expense, in the ConocoPhillips

“Brand and Image Standards Program.” The program terms, as applied, provide that

evaluations of Handi-Stop’s compliance with the Brand and Image Standards “shall

be communicated through an evaluation form completed by ConocoPhillips or its

designee.” (Emphasis added.) Section 5 provides that, in the event that Handi-Stop

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failed an evaluation, ConocoPhillips was to give written notice to Gulshan. Then,

Gulshan was required to contact the gas station and ensure that the deficiency was

corrected. The remedy for any failure to uphold the Brand and Image Standards was

for ConocoPhillips to assess fees against Gulshan, to “debrand” Handi-Stop of its

Phillips 66 affiliation, or to terminate the BMA.

Thus, the BMA assigns the duty to inspect Handi-Stop for compliance with

the Brand and Image Standards to ConocoPhillips, not to Gulshan. Importantly,

Bauer concedes in her appellate brief that “Gulshan was not obligated to inspect

stores under the BMA.”

Bauer further asserted that Gulshan assumed a duty to Emily, arising in tort,

to exercise reasonable care in inspecting and monitoring Handi-Stop because

Gulshan agreed to maintain “extensive control” over the store. See Golden Spread

Council, Inc., 926 S.W.2d at 289–90.

It is undisputed, however, that Gulshan did not own or operate Handi-Stop.

Rather, as Bauer states in her brief, “[a]t the time of Emily’s injury, Bin was the

owner and dealer of the [Handi-Stop].” And, the undisputed summary-judgment

evidence shows that, at such time, Handi-Stop was leased to and operated by Khan.

Importantly, under the terms of the Marketing Contract between Gulshan and

Bin, the parties expressly agreed that Gulshan would have no right of control over

Bin’s operation of Handi-Stop:

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 Nothing in this Agreement is intended to make [Bin] and [Gulshan]
joint venturers or partners, or otherwise to create a master-servant or
principal-agent relationship between [Bin] and [Gulshan]. Neither
party shall have the authority to make any commitments whatsoever in
the name or on the behalf of the other. . . .
In the performance of this Agreement, Dealer [sic] acknowledges that
[Bin] is engaged as an independent business entity and is familiar with
the operation and management of the convenience store and service
station business, and nothing herein shall be construed as granting
[Gulshan] any right to control or direct [Bin] with respect to [Bin’s]
conduct of such business(es). . . .

(Emphasis added.) We further note that Bauer expressly states in her brief that her

claim is “not based on theories of agency.”

We conclude that Bauer did not present evidence to raise a genuine issue of

material fact regarding the duty element of her negligence claim, based on a simple

negligence theory. See Ridgway, 135 S.W.3d at 600; Havner, 953 S.W.2d at 711.

2. Negligent Undertaking

Bauer next argued that “Gulshan undertook, through its conduct and contract

with ConocoPhillips, to safeguard the [Handi-Stop].” And, “Gulshan was

responsible for ‘taking action to correct or improve any deficiencies’ identified

during an evaluation.” In doing so, Gulshan entered into a contractual agreement to

render services at Handi-Stop. Thus, she asserts, Gulshan had a common-law duty

in tort to exercise reasonable care in undertaking its contractual obligations.

Again, with respect to the duty element of a negligent undertaking, Bauer was

first required to present evidence that Gulshan undertook to perform services. See

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Nall, 404 S.W.3d at 555–56. A contractual obligation may constitute an undertaking

“so long as it is accompanied by a least partial performance or reliance.” Guillory

v. Seaton, LLC, 470 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2015, pet.

denied); see also Chapman Custom Homes, Inc. v. Dall. Plumbing Co., 445 S.W.3d

716, 717 (Tex. 2014) (“[T]he negligent performance of a contract that proximately

injures a non-contracting party’s property or person states a negligence claim[.]”

(emphasis added)). However, a duty is not created by a failure to act. Fort Bend

Cty. Drainage Dist., 818 S.W.2d at 397.

In Fort Bend County Drainage District, the supreme court held that a mere

promise to render a service coupled with neither performance nor reliance imposes

no tort duty upon the promisor. Id. at 396. There, the District constructed a wooden

bridge over a drainage channel on private land and promised the landowner that it

would repair any damage caused by the District’s use of the bridge. Id. at 393–94.

Later, an easement-holder notified the District that the bridge had become unsafe.

Id. at 394. A District foreman inspected the bridge and determined that the wooden

piers were simply rotting, but told the easement holder, “We will take care of it.” Id.

A District superintendent also said that he would “see what [the District] could do

about it and [would] talk to the bosses about it.” Id. After months went by without

repairs, the plaintiff crossed the bridge in a truck, the bridge collapsed, and the truck

fell into the drainage channel. Id. The plaintiff sued the District, alleging negligence

23
in failing to repair the bridge. Id. The plaintiff argued that the District, its employees

having promised repairs, had undertaken a duty to repair the bridge. Id. at 395.

The supreme court disagreed, concluding that the District’s employees’

promises alone did not constitute an undertaking of an affirmative course of action

and that there was no evidence that the District had taken any affirmative action

thereafter. Id. at 396–97. Further, because the District’s promises were not

communicated to the injured plaintiff, he could not have relied upon them. Id. at

397. Thus, without some affirmative course of action beyond the making of a mere

promise, and without reliance on that promise, the District did not have a duty to the

plaintiff to repair the bridge. Id. at 397–98. The court further noted that, although

the District had repaired other area bridges in the past, such conduct did not give rise

to a duty to act on the occasion at hand. Id. at 397.

Similarly, this Court, in Knife River Corporation v. Hinojosa, held that the

plaintiff presented no evidence to support her negligence claim based on a negligent-

undertaking theory. 438 S.W.3d 625, 637 (Tex. App.—Houston [1st Dist.] 2014,

pet. denied.). There, the Texas Department of Transportation (“Department”)

contracted with the defendant to resurface a section of highway. Id. at 628. The

construction contract incorporated the Department’s standards and required that the

defendant-contractor give written notice of any latent conditions. Id. Upon receipt

of such notice, the Department engineer was to investigate and determine whether

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cost adjustments should be made for the project. Id. at 629. During the project, the

defendant’s employees noted safety issues in a section of road involving a box

culvert and a steep shoulder drop-off. Id. Employees verbally informed the on-site

Department inspector but did not send written notice. Id. Once the project was

complete, a Department engineer inspected the work by driving the 4.5-mile stretch

that had been resurfaced and approved the work. Id. The drop-off remained. Id.

Five years later, a tractor-trailer driver was killed after he swerved to avoid a

head-on collision with another vehicle, the right front tire of his rig fell into the drop-

off near the box culvert, and he lost control of the truck. Id. at 627. The plaintiff,

the driver’s spouse, sued the defendant for negligence. Id. at 629. Based on a theory

of negligent-undertaking, she asserted that the defendant had undertaken certain

duties under the construction contract for the benefit of third parties, such as the

driver. Id. (noting that plaintiff alleged, “On entering a contract which it should have

recognized as necessary to the protection of the public, Knife River [] had a duty to

exercise reasonable care in the performance of that contract.”). Specifically, she

alleged, the defendant undertook duties not to leave drop-offs that exceeded certain

standards and to send notice to the Department of such issues. Id. at 629–30. And,

the defendant did not use reasonable care in performing these duties. Id. at 630.

This Court, in reviewing the terms of the construction contract, noted that

rectifying the drop-off at the box culvert was outside the scope of the work. Id. We

25
concluded that there was no affirmative undertaking. Id. at 637. We held that,

because the law imposes a duty to perform without negligence only those tasks that

the actor has undertaken to accomplish, the defendant owed no duty—as a matter of

law—to rectify the drop off or to provide written notice regarding the defect. Id.

Similarly, here, as discussed above, there is no evidence that Gulshan had a

duty under the BMA to inspect Handi-Stop. See id. (holding that rectifying drop-off

at box culvert was outside scope of work under construction contract).

In her summary-judgment response, Bauer asserted that Gulshan nevertheless

undertook the duties to “prevent the sale of drugs and drug paraphernalia at Handi-

Stop[] which Gulshan did not do.” Citing a Brand and Image inspection report,

Bauer asserted that, “[t]hrough Phillips 66 [ConocoPhillips] inspection reports

which Gulshan received, it is more likely than not that Gulshan learned [that] pipes

were being sold at the counter and [that] synthetic marihuana packaging was strewn

about the parking lot.” And, “Gulshan admits ‘no inspections were conducted as to

inside sales inside the retail store from the applicable time period of January 31,

2012 to December 31, 2012.’”

As Bauer notes, under the BMA, “Gulshan was responsible for ‘taking action

to correct or improve any deficiencies’ identified during an evaluation.” (Emphasis

added.) The Brand and Image Inspection report Bauer cites reflects that, on February

12, 2012, a representative of Market Force Information, Inc., on behalf of

26
ConocoPhillips/Phillips 66, inspected the Handi-Stop. The store received a passing

score. The only deductions noted are based on the store not displaying current credit

card decals in the store or on the fuel dispensers, the brand logo not being visible on

the cashier’s clothing, and certain issues with signage. There are no remarks about

synthetic marihuana.

Bauer also points to a photograph of trash outside the Handi-Stop store and a

photograph attached to an inspection report dated March 21, 2014, some 15 months

after Emily’s injury. The report and photographs do not constitute evidence that

Gulshan knew, or reasonably should have known, at the time of Emily’s injury, that

Handi-Stop was selling synthetic marihuana. More importantly, this evidence does

not constitute evidence that Gulshan failed to exercise reasonable care in performing

services that it affirmatively undertook. See Osuna, 641 S.W.2d at 230; Knife River,

438 S.W.3d at 637. Again, a duty is not created by a failure to act. Fort Bend Cty.

Drainage Dist., 818 S.W.2d at 397.

Bauer also points to deposition testimony and statements that synthetic

marihuana was in fact purchased at Handi-Stop in the months leading up to, and on

the day of, Emily’s injury. Even taking this evidence as true, however, Bauer does

not direct us to any evidence that Gulshan, at the time that Emily was injured, knew

or should have known this to be true. See Reyna v. Acad. Ltd., No. 01-15-00988-

CV, 2017 WL 3483217, at *8 (Tex. App.—Houston [1st Dist.] Aug. 15, 2017, no

27
pet.) (mem. op.). Again, this testimony does not constitute evidence that Gulshan

failed to exercise reasonable care in performing services that it affirmatively

undertook.

Bauer further argued that Dhanani’s deposition testimony reflects that

Gulshan undertook to inspect and “safeguard” the Handi-Stop. The record shows

that Dhanani testified that Zafar Tahir inspected stores that Gulshan and its

subsidiary “operated,” not stores that were leased out. Dhanani testified that,

hypothetically, if he were to become aware that any of Gulshan’s stores were selling

synthetic marihuana, he would have “immediately stopped it.” It is undisputed that

Gulshan did not own or operate Handi-Stop. Rather, Bin owned the Handi-Stop and

leased it to Khan. Dhanani testified that Gulshan generally did inspect stores for

which it was “just a supplier of fuel,” and he discussed how he “assum[ed]” such

inspection might work in “a hypothetical case.” With respect to whether Gulshan

ever inspected Handi-Stop, however, Dhanani testified:

Q. Do you know specifically if Gulshan ever inspected [Handi-
Stop]?
A. Specifically, I don’t know.

Like in Fort Bend County Drainage District, however, evidence that Gulshan had

performed other inspections of other stores in the past does not constitute evidence

of an affirmative undertaking at Handi-Stop. 818 S.W.2d at 397 (holding evidence

that District had repaired other area bridges in past did not alone give rise to duty to

28
repair on occasion at issue). The summary-judgment record further shows that

Hameed testified that ConocoPhillips performed inspections of the store and sent the

reports to Gulshan and to him. Hameed then met with the tenant, Khan, as necessary.

In support of her argument, Bauer relies on EnGlobal U.S., Inc. v. Gatlin, 449

S.W.3d 269 (Tex. App.—Beaumont 2014, no pet.). There, Phillips 66 contracted

with Clean Harbors, an industrial service contractor, to clean oil storage tanks at a

refinery. Id. at 272. Gatlin, an employee of Clean Harbors, was injured while

working at the refinery. Id. At the time of the accident, ENGlobal was a contractor

performing engineering and construction management services for Phillips 66 at the

refinery. Id. at 272–73. The relationship between ENGlobal and Phillips 66 was

governed by a master service agreement (“MSA”). Id. at 273. Gatlin sued ENGlobal

for negligence, asserting a negligent-undertaking theory. Id. The court concluded

that, to the extent that the MSA required ENGlobal to provide “safety over the work

site,” then ENGlobal had a contractual duty under the MSA to make the work site

safe in the manner, if any, specified by the MSA. Id. at 282. And, to the extent

ENGlobal undertook to perform its contractual promise to provide safety, and to the

extent it should have recognized that its actions were necessary for the protection of

Gatlin, then ENGlobal also had a duty in tort to exercise reasonable care in

performing its undertaking so as not to injure Gatlin. Id.

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 Here, unlike in ENGlobal, however, there is no evidence that Gulshan had a

duty under the BMA to inspect Handi-Stop. Further, there is no evidence that

Gulshan affirmatively undertook to inspect Handi-Stop.

Having viewed all the evidence in the light most favorable to Bauer, we

conclude that she did not present more than a scintilla of probative evidence to raise

a genuine issue of material fact regarding the element of breach of duty in support

of her negligence claim against Gulshan. See Ridgway, 135 S.W.3d at 600; Havner,

953 S.W.2d at 711. Accordingly, we hold that the trial court did not err in granting

summary judgment in favor of Gulshan on Bauer’s negligence claim. See TEX. R.

CIV. P. 166a(i); KPMG Peat Marwick, 988 S.W.2d at 748.

Because Bauer did not establish the breach of a legal duty, we do not reach

her assertions that the summary-judgment evidence established the existence of

genuine issues of material fact regarding proximate cause. See Van Horn v.

Chambers, 970 S.W.2d 542, 544 (Tex. 1998) (“The nonexistence of a duty ends the

inquiry into whether negligence liability may be imposed.”).

We overrule Bauer’s sole issue.

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 Conclusion

We affirm the trial court’s judgment.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Countiss.

Keyes, J., dissenting.

31