Francisco Garcia v. Texas All Around Drywall, Inc.

• Court: Court of Appeals of Texas
• Decided: October 31, 2023
• Docket: 07-23-00057-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00057-CV

FRANCISCO GARCIA, APPELLANT

V.

TEXAS ALL AROUND DRYWALL, INC., APPELLEE

On Appeal from the 153rd District Court Tarrant County, Texas Trial Court No. 153-320842-20, Honorable Susan H. McCoy, Presiding

October 31, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Before us is Francisco Garcia’s appeal of the trial court’s order granting summary

judgment in favor of appellee, Texas All Around Drywall, Inc. (TAAD), and its order that

Garcia take nothing on all his claims against TAAD. Garcia questions those decisions

through three issues. We will affirm. 1

1 Because this matter was transferred from the Second Court of Appeals, we apply its precedent

when it conflicts with that of the Seventh Court of Appeals. TEX. R. APP. P. 41.3. Background

In February 2018, TAAD signed an agreement with Lennar Homes of Texas Land

and Construction, LTD as a subcontractor to install drywall/sheetrock in certain homes.

In September 2019, TAAD contracted with Juan Rodriguez Arriaga to do the actual

installation. Garcia worked for Arriaga as an installer.

While Garcia was performing his duties on the first floor of a home, sheets of

drywall fell from the second floor and struck him. Someone had rested the material

against a temporary railing, which railing gave way.

Garcia sued TAAD, arguing it was responsible for his injuries. TAAD moved for

both a traditional and no-evidence summary judgment, asserting it owed no duty to

Garcia. After consideration of the motion, responses, and summary judgment evidence,

the trial court granted it.

Applicable Law

The summary judgment standard and scope of review for both a traditional and

no-evidence motion are well-established and described in McNally v. McNally, No. 02-18-

00142-CV, 2020 Tex. App. LEXIS 7211, at *8-9 (Tex. App.—Fort Worth Sept. 3, 2020,

pet. denied) (mem. op.). We apply them here. The same is true regarding the elements

of claims sounding in negligence and premises liability. See Little v. Delta Steel, Inc., 409

S.W.3d 704, 717 (Tex. App.—Fort Worth July 11, 2013, no pet.) (specifying the elements

of negligence); Hill v. Fitness Int’l, LLC, No. 02-22-00142-CV, 2023 Tex. App. LEXIS

1906, at *17 (Tex. App.—Fort Worth Mar. 23, 2023, no pet.) (mem. op.) (specifying the

elements of premises liability).

2 Issue One—Negligence

Garcia alleged TAAD was liable for his injuries under several theories, including

common-law negligence and premises liability. 2 Central to each claim was the allegation

that TAAD owed a duty to him and the summary judgment evidence established that.

TAAD disagreed, contending 1) Garcia worked for Arriaga, 2) Arriaga controlled his crew

including Garcia, 3) Arriaga employees alone stacked the drywall against the railing, and

4) no one from TAAD controlled the manner or details of the work being performed by

Arriaga and his crew. We overrule the issue.

The summary judgment record, when construed in a light favoring Garcia,

illustrated Arriaga, not TAAD, employed and supervised Garcia. Solely Arriaga provided

instructions to Garcia regarding the job. Furthermore, Garcia admitted that he did not

know of TAAD and had never spoken with anyone from TAAD. So too did the evidence

illustrate that the drywall in question was moved from the middle of the room elsewhere

by someone working for Arriaga. The day before, a drywall supervisor from TAAD was

at the site, counting stacks of drywall. At that time, the drywall was in stacks on the floor.

No other people aside from Arriaga’s crew were on site at the time of Garcia’s injury,

including representatives of TAAD. Thus, no one from TAAD directed the placement of

the drywall against the railing or knew it was so placed.

2 Garcia also alleged TAAD was liable for his injuries under vicarious liability and respondeat superior. We agree with TAAD that the evidence shows Garcia was not an employee of TAAD. Consequently, his claims under vicarious liability and respondeat superior do not apply here. See Grove v. USI Indus. Servs., No. 13-20-00004-CV, 2021 Tex. App. LEXIS 9360, at *6 (Tex. App.—Corpus Christi Nov. 18, 2021, no pet.) (mem. op.) (explaining claims and necessary relationship). We address Garcia’s premises liability contention in our discussion of his second appellate issue.

3 For a general contractor to be liable to an independent contractor’s employees, the

former must have the right to control the means, methods, or details of the independent

contractor’s work. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999); see Dow.

Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Lee Lewis Construction, Inc. v.

Harrison, 70 S.W.3d 778, 783 (Tex. 2001) (the “general contractor’s duty of care is

commensurate with the control it retains over the independent contractor’s work”). A

general contractor may have such a right so as to create a duty of care in two ways, those

being by contract or the actual exercise of control. Lee Lewis Construction, Inc., 70

S.W.3d at 783.

The contract between TAAD and Arriaga specifically delegated “everything

necessary” to complete the sheet rock installation, including labor, to Arriaga. And, to the

extent that the Master Trade Partner Agreement executed between Lennar and TAAD

included an addendum stating that the drywall was to be stacked in a manner that resisted

falling, that did not create the requisite duty of control. This is so because a duty does

not arise when the contractor simply directs that the work be done in a safe manner.

Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985); see Bright, 89 S.W.3d at 606

(recognizing that the “general rule is that an owner or occupier does not have a duty to

see that an independent contractor performs work in a safe manner”). And, though one

may arise when the independent contractor is directed to comply with specified safety

guidelines, it encompasses only the duty to see that the promulgated safety requirements

and procedures did not reasonably increase, rather than decrease, the probability and

severity of injury. See Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex.

1998). No evidence of record suggests that directives concerning the manner of storing

4 or stacking drywall increased the probability of injury. Nor is there any directive permitting

the drywall to be leaned against a railing, temporary or otherwise.

Similarly missing is evidence creating an issue of fact on the existence of actual

control being exercised by TAAD over Arriaga and the safety procedures he and his crew

followed. Again, it is undisputed that no one from TAAD 1) was present on the site, 2)

mandated the placement of the drywall against the railing, 3) knew of the drywall being

against the railing, or 4) approved of the drywall being so placed. Arriaga controlled the

handling of the drywall when the incident occurred. Again, a general contractor must

have control over the injury-causing activity to be subject to liability. There was simply no

evidence TAAD retained or exercised such control over the mode of handling the drywall

other than the aforementioned directive, and that directive alone was not enough to create

a duty for the reasons mentioned earlier. See Lee Lewis Construction, Inc., 70 S.W.3d

at 783-84 (independent contractor observed and expressly approved of subcontractor’s

use of faulty fall-protection equipment, i.e., a bosun’s chair without an independent

lifeline).

Finally, we address Garcia’s argument that a duty was imposed on TAAD through

an addendum to the Master Partnership Agreement requiring TAAD to have an OSHA-

approved person to be on the premises supervising safety. It is certain that no such

person was on scene when the accident occurred. Yet, assuming arguendo this

obligation evinced sufficient control over safety to create a duty, another problem

remained.

Through its motion for summary judgment, TAAD also contended that Garcia had

no evidence of proximate cause. Thus, the obligation fell to him to present some evidence

5 sufficient to create a material issue of fact regarding that element. We encountered

nothing of record illustrating that the presence of an OSHA-approved person would have

prevented the incident from occurring. Whether the individual, if present, would have

spied the drywall being placed against the railing pending installation is conjecture, as is

whether he would have noticed it in time to prevent harm. And, one must engage in that

conjecture before it can be said, logically, that the individual would have stopped or

otherwise prevented the conduct from occurring. Conjecture is not evidence, though.

See Sisters of St. Joseph of Tex., Inc. v. Cheek, 61 S.W.3d 32, 37 (Tex. App.—Amarillo

2001, pet. denied) (stating that “[c]ausation may not be established by guess, conjecture

or speculation; it must be proved by competent evidence”). So, it cannot reasonably be

inferred from the evidence supplied by Garcia (or TAAD) that the absence of such a

person proximately caused the injury suffered by Garcia.

Issue Two—Premises Liability

Allegedly, the trial court also erred in granting summary judgment on Garcia’s claim

of premises liability. This cause of action was also the subject of TAAD’s no evidence

motion. Thus, Garcia again had the burden to create a material issue of fact on the

elements being contested, one of which was duty. And, viewing the issue at bar within

that framework, we overrule it.

Generally, a landowner or one controlling property is liable to employees of an

independent contractor only for claims arising from a pre-existing defect rather than from

the contractor’s work. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008); Lopez

v. Crest Gateway, LP, No. 02-17-00429-CV, 2018 Tex. App. LEXIS 9182, at *10 (Tex.

App.—Fort Worth Nov. 8, 2018, no pet.) (mem. op.). The summary judgment record

6 contained nothing from which one could reasonably infer that anyone other than Arriaga

or his employees placed the drywall against the second-floor railing. They were the only

people on premises prior to the incident. When they arrived, the drywall was stacked on

the floor, as it had been the day before when a TAAD drywall supervisor counted the

stacks. Sometime thereafter, Arriaga or his crew carried it to the railing, though Arriaga

indicated it was placed against a wall at the time. Yet, no evidence indicates that the

material was capable of moving itself. So, from the evidence that no others were present,

the material was initially on the floor, and either Arriaga or his employees moved it, the

only rational inference that can be drawn was that Arriaga or his employees placed the

drywall against the railing and created the alleged unsafe condition.

Assuming an unsafe condition was present, nothing illustrates how long that period

was. It could have been mere seconds or longer. This too is problematic since some

proof must indicate how long the hazard was present before liability can be imposed for

failing to discover it. Walmart Stores v. Reece, 81 S.W.3d 812, 815-16 (Tex. 2002). That

period must be long enough for a factfinder to reasonably conclude that the one

controlling the premises had a reasonable time to act. Id. at 16; see Hill, 2023 Tex. App.

LEXIS 1906, at *35 (to prove constructive knowledge, there must be evidence that it is

more likely than not that the condition existed long enough to give the premises owner a

reasonable opportunity to discover it); Koko Motel v. Mayo, 91 S.W.3d 41, 48 (Tex. App.—

Amarillo 2002, pet. denied) (motel had constructive knowledge because it knew of the

condition that caused plaintiff to slip and fall long enough to direct maintenance to clean

it).

7 In short, we cannot fault the trial court for granting summary judgment on the

premises claim due to the lack of any duty imposed on TAAD. Even when construed in

a light most favorable to Garcia, the record lacks evidence upon which such a duty could

be based.

Issue Three—Objections to Affidavit in Support of Motion

Lastly, Garcia questioned the admissibility of various portions of the affidavit

executed by Damond Reed. He then conceded that “Appellee never cites to any portion

of that alleged affidavit in its summary judgment motion to prove any of its allegations.”

Thereafter, we were told that “Appellant hopes that this Court of Appeals will not find that

merely attaching that alleged affidavit to its motion will result in anything stated in it being

proved by anything contained in that alleged affidavit.” Simply put, we are not sure how

to interpret this “issue.” Is he asking us to strike aspects of the affidavit as inadmissible

or to just forego concluding that supplying it somehow proved allegations in the motion

itself?

To the extent that Garcia has questions regarding the admissibility of the affidavit,

he provided us with neither citation to controlling authority nor substantive analysis

explaining why the affidavit was defective. That inadequate briefing resulted in the waiver

of his complaint. See TEX. R. APP. P. 38.1(i) (obligating an appellant to support issue

asserted with “clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record”); Approximately $23,606.00 U.S. Currency v.

State, No. 07-19-00297-CV, 2020 Tex. App. LEXIS 2602, at *8 (Tex. App.—Amarillo Mar.

27, 2020, no pet.) (mem. op.) (stating that one must provide the court with citation to the

record and substantive analysis of his issue or risk waiver of the complaint).

8 Nevertheless, we do accept Garcia’s invitation to eschew the opportunity to “find that

merely attaching that alleged affidavit to its motion will result in anything stated in it being

proved by anything contained in that alleged affidavit.” The issue is overruled.

Having overruled Garcia’s issues, we affirm the judgment of the trial court.

Brian Quinn Chief Justice