Denise Stroup, as Legal Guardian of D. L. S., an Incapacitated Person v. MRM Management, Inc.
Opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00534-CV
Denise Stroup, as Legal Guardian of D. L. S., an Incapacitated Person, Appellant v.
MRM Management, Inc., Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-17-003290, HONORABLE KARIN CRUMP, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from a take-nothing summary judgment rendered by the district court of Travis County in a personal injury suit. Appellant is Sandra Denise Stroup (Stroup), Guardian for her brother Douglas Lee Stroup, and appellee is MRM Management, Inc. (MRM).1 The issue concerns the vicarious liability vel non of MRM for the negligent acts of Penny Harrington Taylor.
Taylor and Douglas Lee Stroup were involved in an automobile-motorcycle crash on east Oltorf Street in Austin in August 2015. Immediately before the collision, Taylor drove her car from the driveway of La Quinta Inn onto eastbound Oltorf attempting to turn left onto westbound Oltorf. At that time, Douglas Stroup was operating his motorcycle east on the inside lane of Oltorf. The motorcycle struck the driver’s side of Taylor’s car. Stroup sued Taylor asserting that Taylor’s negligence proximately caused her brother to suffer severe personal injuries.
1 Keller Williams Realty is the trade name for MRM.
Stroup pleaded further that Taylor was a licensed real-estate salesperson associated with MRM and that at the time of the collision, Taylor was engaged in real-estate sales activities. Stroup claimed that MRM was vicariously liable for Taylor’s tortious conduct pursuant to principles of (1) respondeat superior; (2) principal-agent liability; (3) joint enterprise; and (4) by operation of law pursuant to the Texas Occupations Code.
Before the collision, Taylor had listed for sale a house located on Crest Avenue, which was owned by her husband. To make the house more attractive, she planned to do some landscaping. She engaged her friend Lynn Crossett, a landscape contractor, to do the work. At the time, she and Crossett were carrying on an affair. On the morning of the collision, she and Crossett breakfasted together and then went to Home Depot where she bought supplies for the job. They then took a room at La Quinta Inn on Oltorf. She paid for the room with her credit card. Taylor testified on deposition that Crossett needed to stay at the motel for several nights to do the Crest Avenue job and other work located nearby.
At some point, Taylor decided to move her car to a shaded area. At that time, she noticed that the car was dusty and decided to drive to a car wash. As she pulled onto Oltorf, the collision occurred.
After discovery, MRM filed a traditional and no-evidence motion for summary judgment, maintaining that it was not vicariously liable for Taylor’s conduct because at all times relevant, Taylor was acting as an independent contractor. After hearing, the district court rendered a take-nothing summary judgment.2
2 After the district court rendered summary judgment, Stroup settled with Taylor.
If there is no contract between the parties constituting one of them as an independent contractor, the courts recognize several factors to aid in making that determination, namely, (1) the independent nature of the business; (2) his obligation to furnish necessary tools, supplies and materials to perform the job; (3) his right to control the progress of the work except as to final results; (4) the time for which he is employed; and (5) the method of payment whether by the time or the job. Pitchfork Land & Cattle Co. v. King, 346 S.W.2d 598, 603 (Tex. 1961). Right of control is the most important of these factors in determining whether a master-servant relationship rather than an independent-contractor relationship exists. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542 (Tex. 2002).
A contract expressly providing that a person is an independent contractor is, however, determinative of the relationship absent evidence that the contract is a mere sham or subterfuge designed to conceal the true legal status of the parties or that the contract has been modified by a subsequent agreement between the parties. Newspapers, Inc. v. Love, 380 S.W.2d 582, 588–90, 592 (Tex. 1964); Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex. App.—Fort Worth 2009, pet. denied); Bell v. VPSI, Inc., 205 S.W.3d 706, 713 (Tex. App.—Fort Worth 2006, no pet.).
Stroup does not contend, nor does the summary-judgment record show, that the contract between the parties was modified or changed by a subsequent agreement between the parties. See Newspapers, 380 S.W.2d at 584.
Taylor’s status as an independent contractor is expressly established by the terms of the parties’ contract. The contract is entitled “Independent Contractor Agreement.” The first paragraph
provides that the “Licensee [sic]” MRM “engages Agent [Taylor] as an independent contractor to assist clients of the Market Center [MRM] with the purchase and sale of real estate.” Paragraph 2A allows that Agent (Taylor) understands that she is entering into the Agreement as an independent contractor and not as an employee. Paragraph 2A states further that “Agent’s [Taylor’s] independent contractor status will define the parties’ relationship despite any contrary designation that appears in Agent’s [Taylor’s] real estate license.”
Other summary-judgment proof confirms her status as an independent contractor.
She worked as much or as little as she wanted. In the eight years before the collision, she handled only a few completed sales. She received payment only when a sale of property closed. Taxes were not withheld from any commissions paid by MRM. Taylor provided her own “tools,” namely, her own car, business cards, yard signs, lock boxes, and marketing materials. She paid for some, if not all, of her associate training. The contract required agents to pay for access to the MRM Intranet and email system. She also paid for her licensing and association fees.
Stroup does not rely on extrinsic summary-judgment evidence to show that the parties’ contract was a sham or subterfuge. See id. Instead, she contends that other terms of the contract and MRM’s manual of Policies and Guidelines raise fact issues as to whether the “true” contract created a master-servant relationship. In that connection Stroup emphasizes Section 4.9.1.14 of the manual of Policies and Guidelines:
4.9.1.14 Dress Policy It is important that everyone who associates with and represents Keller Williams Realty do so in a professional manner. Associates should conduct themselves properly in public, keep their car clean, drive courteously and maintain a well-groomed appearance.
Appearance is the single most important impression factor you have.
It is important to be well-groomed from a well-kept hairstyle down to ones shoes. We are professionals; our manner and appearance should reflect this at all times. This dress code should include coming into a Market Center on an associate[’s] day off.
(Emphases supplied.)
Stroup regards this section as particularly relevant because Taylor’s deposition testimony was that she was looking for a car wash when the collision occurred. In the briefing, Stroup claims that this section “requires” Taylor to keep her car clean, and, as such, is an example of MRM’s right of control over her.
We do not agree. Jessica Tenant, an administrative employee of MRM, testified on deposition that MRM cannot tell its real estate agents how to act, what to do, and how to run their business, but MRM can “coach” them into being “more professional.” To her recollection, no agent has been terminated for violation of MRM’s policies and guidelines.
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Denise Stroup, as Legal Guardian of D. L. S., an Incapacitated Person v. MRM Management, Inc. (Denise Stroup, as Legal Guardian of D. L. S., an Incapacitated Person v. MRM Management, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.