In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-25-00287-CV
TRACY J. MASON, APPELLANT
V.
SOUTHWEST G.C., INC. A/K/A SOUTHWEST GENERAL CONTRACTORS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas Trial Court No. 112087-E-CV, Honorable Timothy G. Pirtle, Presiding
May 28, 2026 OPINION Before PARKER, C.J., and DOSS and YARBROUGH, JJ.
Appellant, Tracy J. Mason, appeals the trial court’s grant of summary judgment in
favor of Appellee, Southwest G.C., Inc., a/k/a Southwest General Contractors. We affirm
the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Southwest was the general contractor on a commercial building project in
Plainview. Southwest subcontracted the stonework on the project to an independent contractor, Ochoa Masonry, LLC. Mason was a member of the work crew under Ochoa’s
supervision. As Mason was walking across a 20-foot-tall scaffold, the walk boards slipped
through the sidearms causing him to fall. He sustained serious injuries. Under the
subcontract, Ochoa was responsible for providing the scaffolding equipment and ensuring
its safe use by its employees. Ochoa’s crew erected the scaffold about ten days before
Mason fell. At the time he fell, Mason was not utilizing any fall-protection equipment.
Mason sued Southwest and Ochoa for negligence and damages arising out of the
accident. Ochoa was served but never filed an answer. Subsequently, Southwest filed
its traditional and no-evidence motion for summary judgment contending, inter alia, that
there was no evidence of duty, breach, or proximate cause to support Mason’s negligence
claim. Mason filed a continuance and cited the need for taking “at least one” deposition
to properly respond to the traditional motion for summary judgment. The trial court
granted Mason’s motion for continuance and reset the hearing for thirty days. Mason
filed his opposition to the motion for summary judgment. Following the summary
judgment hearing, the trial court entered an order granting Southwest’s summary
judgment motion without specifying the grounds on which it granted the motion. Mason
nonsuited claims against Ochoa, and the trial court severed a crossclaim asserted by
Southwest against Ochoa, making the summary judgment a final judgment. Mason timely
filed this appeal.
By his appeal, Mason presents two issues. Mason contends, by his first issue,
that the trial court erred in setting and hearing the no-evidence motion for summary
judgment before the end of the discovery period. Mason’s second issue contends that
the trial court erred in rendering the summary judgment. 2 ISSUE ONE: ADEQUACY OF TIME FOR DISCOVERY
By his first issue, Mason contends that the trial court erred in setting and hearing
the no-evidence motion for summary judgment almost two-and-one-half months before
the end of the discovery period.
Texas Rule of Civil Procedure 166a(i) requires that an “adequate time for
discovery” pass before a no-evidence summary judgment may be granted. TEX. R. CIV.
P. 166a(i). A discovery period set by a pretrial order is presumed to be an adequate time
for discovery unless there is a showing to the contrary, and a motion for no-evidence
summary judgment will ordinarily only be permitted after the discovery period ends. TEX.
R. CIV. P. 166a cmt. In determining whether an adequate time for discovery has passed
before considering a no-evidence summary judgment motion, a trial court should consider
(1) the nature of the case, (2) the nature of the evidence necessary to controvert the
motion, (3) the length of time the case has been active, (4) the amount of time the no-
evidence motion has been on file, (5) whether the movant has requested stricter
guidelines for discovery, (6) the amount of discovery that has already taken place, and
(7) whether the discovery deadline is specific or vague. McInnis v. Mallia, 261 S.W.3d
197, 201 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
But “[w]hen a party contends that it has not had an adequate opportunity for
discovery before a summary judgment hearing, it must file either an affidavit explaining
the need for further discovery or a verified motion for continuance.” Tenneco Inc. v. Enter.
Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). A reviewing court will not consider any
reason for continuance that was not expressly presented to the trial court. See D.R.
3 Horton − Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 223 n.5 (Tex.
App.—Fort Worth 2013, no pet.) (citing TEX. R. CIV. P. 251 and 252; TEX. R. APP. P.
33.1(a)). When the basis for continuance is the need for additional discovery, the movant
must show how the evidence sought by discovery is material to its claims. Perrotta v.
Farmers Ins. Exch., 47 S.W.3d 569, 576 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
In the present case, the trial court granted Mason’s motion for continuance and
reset the summary judgment hearing to May 21, 2025, approximately two months before
the discovery deadline of August 1. In his summary judgment response, Mason
requested the trial court deny the motion for summary judgment because there had not
been adequate time for discovery. However, Mason did not seek a second continuance
or file an affidavit explaining the need for further discovery before the summary judgment
hearing. Tenneco Inc., 925 S.W.2d at 647. Moreover, he did not identify the evidence
sought or explain how the evidence is material to his claims. Perrotta, 47 S.W.3d at 576.
Consequently, Mason has waived any argument that the summary judgment was
premature. Tenneco Inc., 925 S.W.2d at 647; McClure v. Attebury, 20 S.W.3d 722, 729–
30 (Tex. App.—Amarillo 1999, no pet.). We overrule issue one.
ISSUE TWO: SUMMARY JUDGMENT By his second issue, Mason contends that the trial court erred in granting the
motion for summary judgment.
We review grants of summary judgment de novo. Cantey Hanger, LLP v. Byrd,
467 S.W.3d 477, 481 (Tex. 2015). In our review, we take as true all evidence favorable
to the non-movant, indulge every reasonable inference in favor of the non-movant, and
4 resolve any doubts in the non-movant’s favor. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). When, as here, a party moves for both traditional and no-
evidence summary judgments, we first consider the no-evidence motion. Ford Motor Co.
v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the non-movant fails to meet its burden
under the no-evidence standard, there is no need to consider the traditional motion.
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).
To defeat a no-evidence motion, the non-movant must produce evidence raising a
genuine issue of material fact as to the challenged elements. Ridgway, 135 S.W.3d at
600. A genuine issue of material fact exists if 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) (quoting Burroughs Wellcome
Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). Evidence does not create an issue of
material fact if it is “so weak as to do no more than create a mere surmise or suspicion”
as to the existence of the fact. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex.
2014) (quoting Ridgway, 135 S.W.3d at 601). Under the traditional summary judgment
standard, the movant meets its burden if it proves that there is no genuine issue of
material fact and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c).
To prevail on a negligence claim, a plaintiff must establish a duty owed to the
plaintiff by the defendant, a breach of that duty, and damages proximately caused by the
breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam). Whether
a duty exists is a threshold inquiry and a question of law for the court. Id. A general
contractor ordinarily owes no general duty to an independent contractor’s employee to
ensure that the employee safely performs his work. Dow Chem. Co. v. Bright, 89 S.W.3d 5 602, 606 (Tex. 2002); Koch Refin. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999) (per
curiam). However, a duty of care may arise if the general contractor retains some control
over the manner in which the independent contractor performs its work that causes the
damage. AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 295 (Tex. 2020); Bright, 89
S.W.3d at 606. Control can be established in two ways: by evidence establishing that the
general contractor had a contractual right to control the manner in which the subcontractor
performed its work or by evidence of actual control. JLB Builders, L.L.C. v. Hernandez,
622 S.W.3d 860, 865 (Tex. 2021); Bright, 89 S.W.3d at 606. In either case, the “control
must relate to the condition or activity that caused the injury.” Clayton W. Williams, Jr.,
Ins. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997). Further, the control retained or exercised
by the general contractor must “extend[] to ‘the means, methods, or details of the
independent contractor’s work.’” Arredondo, 612 S.W.3d at 295; see Chapa, 11 S.W.3d
at 156 (general contractor “must have some latitude to tell its independent contractors
what to do, in general terms, . . . without becoming subject to liability”).
In its motion for summary judgment, Southwest argued it did not owe a duty to
Mason because he was an employee of an independent contractor, and it did not exercise
control over Mason or have a contractual right to control Mason’s work. In support of its
motion, Southwest provided the subcontractor agreement and excerpts of Mason’s
deposition. Southwest points to Mason’s testimony that he had been working at the
construction site for three to four months laying stone and that Ochoa’s employees were
responsible for setting up the scaffolding. Southwest’s superintendent told the stone
layers where to start work and discussed the consistency of the mortar but did not
otherwise control their work.
6 In the subcontract, Ochoa was an independent contractor and required to furnish
all labor, supervision, and safety protection necessary to accomplish its work.
Additionally, the contract requires Ochoa to do the following:
(i) take all reasonable safety precautions with respect to the Work; (j) comply with (i) all safety measures initiated by [Southwest] and (ii) all applicable laws, ordinances, rules, regulations, and orders of any public authority for the safety of persons or property; (k) furnish safety tools and equipment to all employees of [Ochoa] and make certain that the employees properly use the safety tools and equipment; (l) comply with the Occupational Safety and Health Act; [and] (m) remain fully responsible for the health and safety of [Ochoa], all [Ochoa’s] employees, and all [Ochoa’s] sub-contractors . . . .
Mason filed a response to Southwest’s motion for summary judgment in which he
argued Southwest had a duty as the “controlling employer” under the Occupational Safety
and Health Administration’s (OSHA) multi-employer worksite laws to provide a safe work
environment. He further argued that the contract required Ochoa to comply with safety
and health requirements, Southwest had the right to take various actions against Ochoa
if it failed to comply, and Southwest retained the right to control the safety of the
scaffolding from which Mason fell. We address each argument in turn.
OSHA Regulations
We first address Mason’s contention that OSHA regulations impose a duty on
Southwest to provide for safety at the worksite including an overall supervisory
responsibility for fall protection and scaffold safety requirements, and the power to correct
safety and health violations or require others to correct them. Specifically, Mason argues
7 that Southwest, as a controlling employer, owed a duty to Mason to ensure that OSHA
scaffolding fall-protection regulations were followed by Ochoa employees. Mason relies
on Acosta v. Hensel Phelps Constr. Co., 909 F. 3d 723, 743 (5th Cir. 2018) (holding
Secretary of Labor has authority under OSHA to issue citations to controlling employers
at multi-employer worksites for violations of the Act’s standards). We disagree with
Mason’s contention. Texas courts have consistently held that OSHA regulations do not
expand common law duties imposed by state law and do not create an implied cause of
action. See Haggard v. Blattner Energy, Inc., No. 02-25-00056-CV, 2026 Tex. App.
LEXIS 1906, at *35 (Tex. App.—Fort Worth Feb. 26, 2026, no pet.) (mem. op.); McClure
v. Denham, 162 S.W.3d 346, 353 (Tex. App.—Fort Worth 2005, no pet.); Richard v.
Cornerstone Constrs., Inc., 921 S.W.2d 465, 468 (Tex. App.—Houston [1st Dist.] 1996,
writ denied) (op. on reh’g); see also 29 U.S.C.A. § 653(b)(4) (establishing that nothing in
the OSHA statute “shall be construed to enlarge or diminish or affect in any other manner
the common law or statutory rights, duties, or liabilities of employers and employees
under any law . . .”).
Contract Provisions
We next address Mason’s argument that the contract requires Ochoa to comply
with safety and health requirements and gives Southwest the right to take various actions
against Ochoa for failing to meet contract requirements, including the right to have non-
compliance corrected by using other workers and charging Ochoa for that work. Mason
points to the contract terms that require Ochoa to “take all reasonable safety precautions,”
“comply with . . . all applicable laws,” and “comply with the Occupational Safety and Health
Act.” If Ochoa failed to comply, it would be in “default,” and the remedy would be that 8 Southwest could “take over or cause others to take over the Work,” “hire other
subcontractors to complete the Work,” and “recover from [Ochoa] all costs, expenses,
losses, damages, reasonable attorney’s fees, and all costs of collection incurred by
[Southwest].” According to Mason, these contract terms demonstrate that Southwest had
contractual control over Ochoa for the safety of the work being done on the scaffolding.
“A contract may impose control upon a party thereby creating a duty of care.”
Bright, 89 S.W.3d at 606. To be liable for an independent contractor’s acts, a general
contractor “must have the right to control the means, methods, or details of the
independent contractor’s work[,] . . . the control must relate to the injury the negligence
causes, and the contract must grant the contractor at least the power to direct the order
in which work is to be done.” Id.
In this case, the contract does not give Southwest the right to control the means
and methods of Mason’s masonry work or his use of the scaffolding on the construction
site. Consequently, the contract does not impose on Southwest any duty of care to
Mason. The summary judgment evidence established that it was Ochoa, not Southwest,
that had the responsibility to ensure that Mason’s work was performed safely. The
contract delegated OSHA compliance to Ochoa, provided that Ochoa “furnish safety tools
and equipment” to all of its employees, and “make certain that the employees properly
use the safety tools and equipment.” Other provisions required that job safety is the
responsibility of Ochoa, including furnishing “Personal Protective Equipment” (PPE) [to]
be worn at all times while employees are on the job-site.” The contract places all
responsibility for Mason’s work on Ochoa. These provisions do not confer a right to
control on Southwest. See Hernandez, 622 S.W.3d at 869 (contract requiring 9 subcontractor furnish all supervision of its employees and designating subcontractor
solely responsible for acts and omissions of its employees did not confer right to control);
Chapa, 11 S.W.3d at 156 (no contractual right to control existed where contract provided
that subcontractor “would furnish any and all supervision over its employees and . . . ‘shall
perform as an independent contractor’”).
In his second amended petition, Mason alleges that a scaffold that “was not
properly constructed, secured, and planked” caused his fall. However, there is no
contractual provision giving Southwest control over the scaffolding that Mason alleges
was the cause of his fall. The testimony is undisputed that Ochoa’s crew was responsible
for, and did, in fact, set up the scaffolding. Consequently, Mason has not shown that
Southwest had contractual control over the activity that caused his injury. Olivo, 952
S.W.2d at 528.
Further, the contract does not provide Southwest with the right to control the
means, methods, or details of Ochoa’s work, nor does it grant Southwest the authority to
direct the order in which Ochoa’s work should be accomplished. “[M]erely exercising or
retaining a general right to recommend a safe manner for the independent contractor’s
employees to perform their work” is insufficient to impose a duty. Chapa, 11 S.W.3d at
155.
Mason’s argument that Southwest’s right to have Ochoa’s non-compliance
corrected is equally unavailing. An unexercised contractual right does not give rise to a
legal duty. While Southwest retained the right to stop performance of work it considered
unsafe, this does not mean it retained the right to control the means, methods, or details
10 of Mason’s or Ochoa’s work. In Koch Refining Co., the Texas Supreme Court held that
a duty of care does not arise from
a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to the methods of his work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. 11 S.W.3d at 155.
Having reviewed the evidence in the light most favorable to Mason, we conclude,
as a matter of law, that Southwest did not retain the degree of contractual control
necessary to create a duty.
Actual Control
In its summary judgment motion, Southwest cited Mason’s testimony that the
scaffolding was provided by Ochoa and Ochoa’s crew set up the scaffolding, including
the walk boards. Mason also testified that Southwest did not instruct him how to perform
his work, and he was not aware of any of Southwest’s employees giving instructions
regarding the scaffolding.
Mason responded with evidence that Southwest’s superintendent was on site
every day, coordinated the subcontractor’s work schedules, decided what time of day to
start and stop work, and held weekly safety meetings. Mason further argued that it would
have been obvious to the superintendent whether there were guardrails, whether the walk
boards were weathered and secure, and whether fall protection equipment was being
used. Specifically, Mason argues that Southwest’s awareness of Ochoa’s failure to use 11 fall protection created a duty to Mason. According to Mason, Southwest was aware that
Ochoa routinely ignored applicable federal regulations and standard company policies
related to safety and therefore had a duty to Mason to require corrective measures to be
taken or to cancel the contract. See Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d
354, 357 (Tex. 1998) (per curiam) (identifying “narrow duty of care” when general
contractor was aware of routine or specific safety violations). Mason points to evidence
that he had been trained to “tie off” when working at heights, but there was nothing to “tie
off“ to on the day of the accident. Ochoa had “tie off” equipment, but it was not used on
this job site. Southwest’s superintendent admitted that Southwest was responsible to
ensure that its subcontractors follow safe practices “to a certain extent,” and that
Southwest expects its subcontractors to follow OSHA safety regulations, which he
considered proper guidelines for safety on the job.
Southwest is not subject to liability merely because its superintendent was present
at the job site, exercised general supervisory authority over the scheduling and results of
the subcontractor’s work, or made an effort to ensure that the subcontractors performed
their work safely. Chapa, 11 S.W.3d at 156. There was no evidence that Southwest
instructed Ochoa’s employees on how to lay the stone or controlled the use of fall-
protection systems, including the use of guard rails or walk boards. See Lee Lewis
Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001) (holding general contractor
retained control when it directed employee to ensure subcontractor properly utilized fall-
protection equipment and expressly approved of fall-protection systems used by
subcontractor). Mason testified that he could not tell that there was a problem with the
scaffold’s walk board before he fell, and he presented no evidence that Southwest had
12 actual control of the defective scaffold that resulted in his injury. See Chapa, 11 S.W.3d
at 156 (independent contractor’s employee did not present any evidence that general
contractor instructed employee in how to lift pipe leading to employee’s injury). There
must be a nexus between a general contractor’s retained supervisory control and the
activity that caused the injury. See Lee Lewis Constr., 70 S.W.3d at 784; see also
Mendez, 967 S.W.2d at 357 (general contractor’s insistence that independent contractor’s
employees observe compliance with federal laws, general safety guidelines, and other
standard safety precautions did not impose unqualified duty of care on general contractor
to ensure independent contractor’s employees did nothing unsafe; rather, duty owed is
that any safety requirements it promulgated did not unreasonably increase the probability
and severity of injury).
As to Mason’s argument that Southwest held mandatory weekly safety meetings,
Mason offers no evidence of what was presented during those safety meetings that would
give rise to a duty.
Mason also argues that Southwest had a duty arising out of its awareness that
Ochoa failed to use fall protection. Mason relies on the following language of Mendez:
“[A]n employer who is aware that its contractor routinely ignores applicable federal
guidelines and standard company policies related to safety may owe a duty to require
corrective measures to be taken or to cancel the contract.” Mendez, 967 S.W.2d at 357.
Thus, according to Mason, Southwest’s knowledge that Ochoa routinely ignored OSHA
requirements for fall protection imposed a duty on Southwest to require corrective
measures to be taken or cancel the contract. However, there is no proof that this narrow
duty of care was breached. Southwest’s superintendent testified that Ochoa’s crew had 13 been using scaffolding at the job site for only a week and a half. There was no reason
for anyone on behalf of Southwest to inspect the scaffolding because Ochoa’s crew was
responsible for erecting it. Mason testified that he was not aware of any problems with
the walk boards before he fell. While the superintendent was on site when Mason fell, he
did not witness him falling. When the superintendent was asked if Mason was wearing
any kind of fall-protection equipment at the time of the accident, the superintendent
testified, “hardhats are mandatory on the site, work boots, jeans. So [Mason] was
compliant every day with those things.” There was no evidence demonstrating how many
times safety guidelines were ignored, when the violation occurred in reference to the date
of the accident, to whom the violation was reported, and what resulted from the observed
violations. This evidence is insufficient to raise a fact issue as to actual control. See
Hernandez, 622 S.W.3d at 868 (“[A]bsent a specific contractual requirement to do so, a
general contractor has no affirmative duty to take action upon learning of an independent
contractor’s employee’s unsafe conduct.”); see also Chapa, 11 S.W.3d at 157.
We conclude that Mason failed to produce summary judgment evidence sufficient
to raise a genuine issue of material fact that Southwest owed him a duty as Ochoa’s
employee through actual control.
Because Mason failed to meet his burden under the no-evidence standard, we
need not consider Southwest’s traditional motion. Merriman, 407 S.W.3d at 248. We
hold there is no evidence that Southwest owed Mason any duty and the trial court did not
err in granting the motion for summary judgment on Mason’s negligence claim. We
overrule Mason’s second issue.
14 CONCLUSION
Having considered both issues raised by Mason, we affirm the trial court’s
judgment.
Judy C. Parker Chief Justice