dissenting.
As I understand the general rule, a contract between parties which establishes an independent contractor relationship is determinative of the parties’ relationship in the absence of extrinsic evidence indicating that the contract was a subterfuge or that the hiring party exercised control in a manner inconsistent with the contractual provisions. See Newspapers, Inc. v. Love, 380 S.W.2d 582, 590, 592 (Tex.1964). Indeed, a contract that is a mere sham designed to conceal the true legal relationship between the parties will not control employment status. See Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex.1992). As the majority recognizes, the Texas Supreme Court appears to have charted a new course in Perez, however oblivious to such charting the Supreme Court may be.4 Under the Perez case, examination of extrinsic evidence is always proper in determining “right of control.”
In the instant case, uncontroverted evidence supplied by both parties indicated that Trinity exercised almost complete right of control over Hoffman’s work. TRI was apparently a mere conduit for Trinity to obtain workers. With such extrinsic evidence present, the trial court was certainly presented with summary judgment evidence indicating the contract was a “mere sham” used to conceal the true relationship between Trinity and TRI. With all of the summary judgment evidence indicating that Trinity had the real “right of control” over Hoffman and his work at the Trinity work site, I find that the summary judgment in favor of Trinity was proper and should be affirmed as there was no fact issue raised.5 Because the majority decides otherwise, I must humbly dissent.
. In Perez, 842 S.W.2d at 630, the following statement appears: "A contract between two employers providing that one shall have the right of control over certain employees is a factor to be considered, but it is not controlling.” Immediately following this statement is a citation to Producer's Chem. Co. v. McKay, 366 S.W.2d 220, 226 (Tex.1963). An examination of McKay reveals no such statement or anything that could be remotely construed to stand for such proposition. Indeed, McKay sets out a completely contrary proposition, namely: "When a contract, written or oral, between two employers expressly provides that one or the other shall have right of control, solution of the question [of right of control] is relatively simple.” McKay, 366 S.W.2d at 226. The Court in McKay goes on to hold that it is only when the contract between the employers is implied or contains no provision for right of control that extrinsic evidence of workplace facts and circumstances is considered so as to determine "right of control.” Id. In the instant case, the contract between Trinity and TRI is explicit and unambiguous. It places right of control squarely with TRI, and explicitly provides that "neither [TRI] nor any of those employed in furnishing such services shall be deemed the agents, representatives, employees or servants of [Trinity].” As I read McKay, the contract language controls our inquiry into "right of control” as it explicitly places it with TRI. Under McKay, Trinity is not Hoffman's employer and summary judgment was improper. Nevertheless, Perez exists along with authoritative progeny. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 n. 4 (Tex.1993). Since the Supreme Court, for whatever reason, fails to candidly and expressly overrule prior holdings when they become unworkable, we Courts of Appeals are left to our own humble devices. As such, I find Perez impliedly overrules McKay, and the law now is that, regardless of how explicit a contract is as to which employer has "right of control," said contract is merely a factor to be considered along with whatever extrinsic evidence is relevant to determining the issue.
. I recognize that neither party raises the point that the contract was a sham or a subterfuge, but as I read Perez, this would not prevent the trial court from making this determination sua sponte in the presence of unrefuted summary judgment evidence to the contrary.