Jennifer Logan v. Irving Club Acquistion Corporation

Opinion

AFFIRM and Opinion Issued January 31, 2013

In The

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JENNIFER LOGAN, INI)IVIJ)UALLY AND AS IEPRiSENTATIV1 OF THE ESTATE OF CHRISTOPHER LOGAN, DECFASED, ANI)

AS NEXT FRIENI) OF COLL1N LOGAN, A MINOR, Appellants

V.

IRVING CLUB ACQUISITION CORP., Appellee

On Appeal from thel 16th Judicial District Court Dallas County, Texas

Trial Court Cause No. I)C-11-11118

MEMORANDUM OPINION

Before Justices Moseley, Francis, and Lang Opinion By Justice Francis

Christopher Logan died while retrieving golf balls from a water hazard at Las Colinas Country Club which is owned and operated by Irving Club Acquisition Corporation. Christopher’s widow, Jennifer Logan, sued various defendants, including ICAC. for negligence and premises liability on behalf of herself, her husband’s estate, and her minor son, Collin. ICAC filed no evidence and traditional motions for summary judgment. After granting summary judgment in 1CACs favor, the trial court severed the claims against ECAC from the remaining claims against the remaining defendants. In a single issue, Jennifer challenges the trial court’s granting of summary judgment, claiming genuine issues of material fact exist regarding the existence of ajoint enterprise between IC\C and Logans employers at the time of his death, Dickie and Debbie Seeders cl/b/a A— tlus (lol [‘ Ball Retrieval We affirm.

A—Plus had a two—year contract with IC’AC to retrieve gol 1’ halls Irom water hazards on the golf course. After the contract expired, Dickie continued to contact ICAC about hail retrieval and was allowed on the course to do so. In addition to Dickie. Christopher was one of two men who retrieved balls lbr A-Plus.

Around tour o clock in the afternoon of June 24. 2009. Christopher arrived at Las Colinas Country Club to dive for golf balls. i-Ic borrowed a golf cart and went to the water hazard near the 18th green. Although he had previously used scuba gear to dive for golf balls, on this occasion, Christopher used a homemade air hookah system he borrowed from Dickie. At least one person saw the hookah system pumping air around 5:30 p.m. When the course closed at 9:00 p.m. and Christopher had not returned with the golf cart. employees became concerned and notified the director of the golfcourse. He. in turn, called the lrving Police Department. Christopher’s body was recovered from the lake, and an autopsy showed he suffered carbon monoxide poisoning which resulted in his death by drowning.

In her sole issue, Jennifer contends the trial court erred in granting ICAC’s motions for summary judgment because genuine issues of material facts exist regarding the existence ofa joint enterprise between ICAC and A-Plus.

Because ICAC presented both no evidence and traditional grounds, we first address the challenges to ICAC’s no evidence summarvjudgment motion. See Ford Motor Co. v. Ridg-iray. 135 S.W.3d 598, 600 (Tex. 2004). A party may move for summary judgment on the ground there is no

.Tennitër originalls challenged the trial courts orderse ering ICAC’s cause ftom the remaining las suit At oral argumenL howeer the parties infiirmed the Court that the underl\ ing lawsuit had been resolved, and the se’erance issue was moot. Iherefore.we do not address Jennifer’s second issue evidence of one or more essential elements ofa claim or defense on which the adverse parties would have the burden (l proof at trial. L;tJi?. lid. v. iioieno. 201 S.\V.$d 66. 688 (Tex. 2006) (per curiam). tnless the respondents produce summary judgment evidence raising a genuine issue of material fact. the court must grant the motion. ‘lix. R. Civ. P. 1 66a( i ): Johnson v Brewer &

Prjichurcl P.C.. 73 S.W.3d 193. 2Q7 (Tex. ())

To succeed in a traditional motion fir summary judgment, the movant must establish there are no genuine issues of material fact and it is entitled to judgment as a matter of law. W Jnvs,, Inc. v. Urena, 162 S.W.3d 547. 550 (Tex. 2005). In reviewing a summary judgment, we consider the evidence in the light most favorable to the nonmovants and resolve any doubt in their favor. Nixon v. Mr. Property Mgint (‘o., 690 S.W.2d 546, 548--49 (Tex. 1985). Where, as here, the trial court’s order granting summary judgment does not specify the basis for the ruling, we must affirm the trial court’s judgment ifany of the theories advanced are meritorious. 111 Invs.. Inc.. 162 S.W.3d at 550.

Joint enterprise is a theory involving derivative liability in which one enterprise participant may be held responsible for a cause of action proven against another enterprise participant. In re Tex. Dep 1 ofTraiisp..218 S.W.3d 74, 78 (Tex. 2007) (orig. proceeding) (per curiam). The elements ofa joint enterprise are: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group: (3) a “community of pecuniary interest” in that common purpose among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. Tex. Dept of Tranp. v. Able, 35 S.W.3d 608, 613 (Tex. 2000). The ordinary meaning of’pecuniary” is of or pertaining to money.” St. .Joseph Hosp. v. Wolff 94 S.W.3d 5 1 3. 531 (Tex. 2002). However, it is not sufficient that the parties have merely a common business interest or even a common pecuniary interest. Id. at 527—28. Nor is the existence of monetary benefits flowing from the arrangement sufficient to satisfy this element. Id.

at 532. Rather. to satisfy the third element. there must be evidence the interest is monetary in nature and the monetary interest is common among the members of the group-—it must be one shared without special or distinguishing characteristics” in the relevant common purpose. Id.

In its motion for summary judgment, ICAC claims there is no evidence it had a joint enterprise with A-Plus because. in part. there was no evidence of community of pecuniary interest In response. Jennifer alleges both parties had a ‘monetary interest in every single golfball retrieved” and that each “received an economic gain from every single ball.”

The summary judgment record shows ICAC and A-Plus had a written two-year agreement in which A-Plus agreed to retrieve and remove golf balls from the water hazards on the golf course and ICAC agreed to pay I 2 for each golf ball removed. Even though the agreement had expired, the parties continued to do business. Although Jennifer contends this alone is some evidence of a community of pecuniary interest, we cannot agree. Nothing in the agreement or the rest of the summaryjudgment record shows the parties contemplated anything more than a business contract. There is no evidence ofajoint project, nor is there evidence (1) the parties shared any resources in furthering a joint effort, (2) the parties pooled efforts or monetary resources to lbrther a common goal or purpose. or (3) any monetary benefits were to be shared between ICAC and A-Plus “without special or distinguishing characteristics.” See Seureau v. &xonkfobil Corp, 274 S.W.3d 206,223 (Tex. App.—Houston [14th Dist] 2008, no pet). Rather, the summary judgment evidence shows ICAC hired A-Plus to perform work as an independent contractor. See Blackburn v. Columbia Med dr., 58 S.W.3d 263,276-77 (TeL App.—Port Worth 2001, pet denied); Ta Dep’t of Transp. v. CUy ofFloresville Elec. Power & Light Sys., 53 S.W.3d 447,457 (Tex. App.—San Antonio 2001, no pet). The mere fact that both parties benefitted from the contract is not sufficient without more, to establish a community of pecuniary interest. See Blackburn, 58 S.W.3d at 276 (concluding no

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summaryjudgment evidence ofcommunity ofpecuniary interest where record contained no evidence to show sharing ofresources, pooling offimds. monetary investment, costs or benefits to either party and showed only limited evidence of mere convenience to parties arising from arrangement and shared general business interest). In light of the sununary judgment record before us. we cannot conclude the trial court erred in granting summary judgment in favor of1CAC on the theory ofjoint enterprise. See &. Joseph Hosp., 94 S.W.3d at 528 (while franchisors, wholesalers, and suppliers may benefit financially from downstream marketing oftheir goods or services, their interests in said activities are not held in ‘community” with franchisee, retailers. or customers because they are not shared “without special or distinguishing characteristics.”); City ofFloresville Eke. Power & Light Sys.. 53 S.W.3d at 457 (concluding no evidence ofcommunity of pecuniary interest where TxDOT hired company to perform maintenance on traffic signal poles, company was paid by the number of poles it completed, and there was no pooling ofresources or pooling ofefforts; TxDOT simply hired company “to perform work as an independent contractor.”). Cf Able, 35 S.W.3d at 614 (concluding evidence produced at trial that project contemplated joint effort utilizing frderal, state, and local fimds; shared resources in furtherance of the ultimate purposes of providing mass transit; and realized economic gain on the investment was some evidence ofcommunity ofpecuniary interest). We overrule Jennifer’s sole issue.

We affirm the trial court’s judgment.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

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JUDGMENT

JENNIFER LOGAN, INDIVIDUALLYAND Appeal from the 116th Judicial District Court AS RIPRLSLNIAHVI 01 1 IlL [S FAIL of Dallas County, Texas. (Tr.CLN0. DC.-l 1- OF CHRISTOPHER LOGAN, DECEASED. 11118). AND AS NINE I Rh ND 01 (011 IN opinion delivered by Justice Francis. Justices LOGAN. A MINOR. Appellants Moselev and Lang participating.

No. 05-11-01314-CV V

IRVING CLUB ACQUISITION CORPORATION, Appellee

In accordance with this Court’s opinion of this date. the judgment of the trial court is AFFIRNIE1). It is ORDERED that appeliee Irving Club Acquisition Corporation recover its costs of this appeal from appellants Jennifer Logan. Individually and as Representative of the Estate of Christopher Logan, Deceased, and as Next Friend of Collin Logan. a Minor.

Judgment entered January 3 1, 2013

/Molly Francis/

MOLLY FRANCIS

JUSTICE