Maxine Wilson, Guardian of the Person and Estate of Anthony Paul O'Rourke, an Incapacitated Person v. Andrew J. Metz and Wife, Lana Metz

Opinion issued on April 4, 2002 In The Court of Appeals For The First District of Texas NO. 01-00-01193-CV MAXINE WILSON, GUARDIAN OF THE PERSON AND ESTATE OF ANTHONY PAUL O'ROURKE, AN INCAPACITATED PERSON, Appellant V. ANDREW J. METZ AND LANA METZ, Appellee On Appeal from the 333rd District Court of Harris County, Texas Trial Court Cause No. 99-45767A O P I N I O N This is a premises liability case. Appellant, Maxine Wilson, guardian of the person and estate of Anthony Paul O'Rourke, an incapacitated person, is appealing a summary judgment rendered in favor of appellees, Andrew J. Metz and Lana Metz. We affirm. Factual Background and Procedural History The undisputed evidence shows that on or about September 11, 1997, appellees hired Quality Clearing Company (Quality) to cut down and remove pine trees from their homestead located in Tomball, Texas. According to the parties' written agreement, Quality would cut down the trees and haul them to a sawmill and pay appellees $10.00 per ton for the timber hauled. Quality agreed to provide the labor and materials for the job, but did not agree to be responsible for removing tree stumps or any "hand labor." Tree cutting operations began on September 11, 1997 and continued for two days. As Anthony Paul O'Rourke, a member of Quality's logging crew, was cutting down a large pine tree on appellees' property, the tree struck Mr. O'Rourke, causing him serious injuries. On the day of the accident, Nick Godkin, Jr., an employee of Quality, was in charge of the tree cutting operations. Mr. O'Rourke's guardian, Maxine Wilson, then sued appellees and Mr. Godkin, seeking damages for O'Rourke's personal injuries. Appellees filed a motion for summary judgment. The trial court granted the motion and signed an interlocutory summary judgment in favor of appellees. The judgment became final after the trial court severed appellant's claims against appellees from the claims against Mr. Godkin and appellant filed this appeal. Summary Judgment In issues three through eight, (1) appellant claims that, because the motion for summary judgment "did not address all the issues [theories of recovery] raised" in appellant's live pleadings, the trial court erred in granting more relief than requested via a "Mother Hubbard Clause." Appellant further claims the summary judgment evidence does not support a summary judgment as to all of appellant's theories of recovery. We first address whether the judgment is final and appealable. In determining the finality of a judgment for appellate purposes, the dispositive question is what the order, taken as a whole, purports to do. Lehmann, 39 S.W.3d 191, 192 (Tex. 2001); see also Hervey v. Flores, 975 S.W.2d 21, 25 (Tex. App.--El Paso 1998, pet. denied). The intent contained in the order, as manifested in its language, must embrace all claims and all parties. Hervey, 975 S.W.2d at 25. In Lehmann, the Texas Supreme Court held that a judgment is final for purposes of appeal "if and only if either it actually disposes of all claims and parties then before the court, or it states with unmistakable clarity that it is a final judgment." 39 S.W.3d at 192. The Court further held that the "language that the plaintiff take nothing by [her] claims in the case . . . shows finality if there are no other claims by other parties." Jacobs v. Satterwhite, 45 Tex. Sup. Ct. J. 217, 218 (December 13, 2001) (per curiam) (citing Lehmann, 39 S.W.3d at 205). In this premises liability case, appellant asserted the injury was caused by negligent activity combined with joint enterprise, agency, and inherently dangerous non-delegable duty. Appellees asserted as grounds for summary judgment that no joint enterprise existed, and that appellees did not have, or exercise, control over appellant. Appellees sought dismissal of all causes of action asserted by appellant. The trial court's interlocutory summary judgment stated, in pertinent part: It is further ORDERED that this Court finds that there was no Joint Enterprise by and between Nick Godkin, Jr. and/or Quality Clearing and Defendants, ANDREW J. METZ AND LANA METZ. It is further ORDERED that there was neither any right to control nor actual exercise of control by ANDREW J. METZ and LANA METZ over the specific activity resulting in the injury alleged to Plaintiff, ANTHONY PAUL O'ROURKE; Having ruled on all of the above as indicated, it is this Court's opinion that the Interlocutory Summary Judgment is hereby GRANTED for ANDREW J. METZ AND LANA METZ, that Plaintiff MAXINE WILSON, GUARDIAN OF THE PERSON AND ESTATE OF ANTHONY PAUL O'ROURKE, AN INCAPACITATED PERSON, take nothing of and against ANDREW J. METZ and LANA METZ, and that ANDREW J. METZ and LANA METZ go forth, without day. (Emphasis added.) In light of the language contained in the trial court's judgment as well as the live pleadings, we hold that, once the severance order was signed, the judgment became final and appealable. We now address whether the trial court erred in granting summary judgment on the whole case. Standard of Review The standard of review for traditional summary judgments is well established. (2) Summary judgment is proper only when the movant proves there is no genuine issue as to any material fact, and it is entitled to judgment as a matter of law. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex. App.--Houston [1st Dist.] 1993, writ denied). When evaluating a summary judgment, we assume all the non-movant's evidence is true. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). We indulge every reasonable inference in favor of the non-movant. Id. We resolve all doubts about the existence of a genuine issue of any material fact against the movant. Johnson Cty. Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996). If the movant shows it is entitled to judgment as a matter of law, the non-movant must present evidence raising a fact issue to defeat a motion for summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex. App.--Houston [1st Dist.] 1991, writ denied). Premises Liability In Texas, there are two types of premises liability for which appellees may be responsible: (1) premises defect and (2) negligent activity. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997). Appellant alleged liability under the negligent activity type. Negligent activity is asserted when the injuries are sustained by, or as a contemporaneous result of, the activity itself. See generally Koch Refining Co. v. Chapa, 11 S.W.3d 153, 156 n. 3 (Tex. 1999) (holding breach of duty by safety employee constituted negligent activity cause of action); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985) (stating when plaintiff's finger was crushed while moving dirt, it was negligent activity case, not premises defect case); Laurel v. Herschap, 5 S.W.3d 799, 802 (Tex. App.--San Antonio 1999, no pet.) (holding that injuries sustained by pipe which fell due to interruption in pulling of pipe out of well is negligent activity case, not premises defect case). An owner or occupier of land does not have a duty to see that an independent contractor performs work in a safe manner, unless the owner retains control over the contractor's work. Coastal Marine Serv. v. Lawerence, 988 S.W.2d 223, 225 (Tex. 1999); Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998); Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex. 1990); Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex. 1987); Redinger, 689 S.W.2d at 417-418; Bright v. Dow Chemical Co., 1 S.W.3d 787, 789-790 (Tex. App.--Houston [1st Dist.] 1999, no pet.). Where the work is conducted by, and under the control of, the independent contractor and the dangerous activity arises out of the activity of the independent contractor's staff, the duty to protect from hazards is not that of the owner of the premises but that of the independent contractor. Lawerence, 988 S.W.2d at 225; Hammack v. Conoco, Inc., 902 S.W.2d 127, 130 (Tex. App.--Houston [1st Dist.] 1995, writ denied) (citing Abalos v. Oil Development Co., 544 S.W.2d 627, 631 (Tex. 1967)). For example, in Abalos, the Texas Supreme Court held that the premises owner had no duty to warn an independent contractor's employee of a dangerous situation created by the employee while using machinery under the contractor's control. 544 S.W.2d at 631-32; see also Pence Construction Corp. v. Watson, 470 S.W.2d 637, 640-43 (Tex. 1971) (holding premises owner not liable to employee of independent contractor injured after he fell through vent in roof because it was condition created by work of independent contractor). In Jenkins v. Fritzler Development Corp., this Court held that the premises owner had no duty to warn an employee of a roofing sub-contractor of the danger of falling from the roof because it was a condition created by and inherent to the employee's roofing work. 580 S.W.2d 63, 64-65 (Tex. App.--Houston [1st Dist.] 1979, writ ref'd. n.r.e.); see also Richard v. Cornerstone Constructors, Inc., 921 S.W.2d 465 (Tex. App.--Houston [1st Dist.] 1996, writ denied) (holding premises owner not liable to employee of independent contractor injured when he fell from scaffold not meeting OSHA standards, when board was chosen, installed, and used by independent crew). Appellant contends that appellees were liable for the negligent activity type of premises liability under the theories of joint enterprise, agency, and non-delegable duty. 1. Joint Enterprise Under Texas law, a joint enterprise signifies a legal relationship between two or more parties that imposes the responsibility upon each joint adventurer for the negligent acts of the other while acting in furtherance of their common undertaking. See Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995); Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 14 (Tex. 1974). There are four basic elements required to establish a joint enterprise: (1) an agreement among the members of the group; (2) a common purpose; (3) a community of pecuniary interest; and (4) an equal right to control the enterprise. Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995); see also Shoemaker, 513 S.W.2d at 16-17; Triplex, 900 S.W.2d at 718. Because we find it dispositive, we focus our analysis on whether the parties in this case had an equal right to control the enterprise. In deciding whether the parties had an "equal right to control," we are guided by the Texas Supreme Court's decision in Triplex, 900 S.W.2d at 717-19. In that case, a radio station collaborated with a local night club to sponsor ladies night each Thursday. Id. The station assigned a disc jockey to the night club for live-remote broadcasts during the event and the disc jockey was responsible for making announcements over the public-address system informing patrons at the club of drink and other promotions that encouraged patrons to go to the bar. Id. During one such event, the club served two patrons, one underage, 16 to 17 mixed drinks. Id. Both patrons were later involved in automobile accidents caused by their intoxication. Id. Two police officers investigating the first accident were struck by the car of the second patron and brought suit against the club and radio station in part under a joint enterprise theory. Id. In considering the joint enterprise question, the supreme court held that, even assuming the above evidence was sufficient to satisfy the first three prongs of the test, "there [was] no evidence of an equal right to direct and control the enterprise to justify the imposition of joint enterprise liability." Id. at 719. The court held that, while the radio station might make suggestions that the club could accept or reject, it had no contractual right to control the distribution of alcohol. Id. According to the Triplex court, it was the injury causing event-the service of alcohol-that was the crucial matter over which the radio station needed to have a right of control in order to be subject to joint enterprise liability. Id. Because there "was no evidence that (the radio station) had a contractual right of control, or exercised any right of control over who was served, admitted, or ejected" at the club, the court held that there was no joint enterprise liability. Id. Similarly, in this case, the undisputed summary judgment evidence establishes that appellees did not exercise, or have the right to exercise, control over the conduct that caused Mr. O'Rourke's injuries, i.e., cutting down the trees. According to the parties' written agreement, Quality, not appellees, was responsible for providing the "labor and materials" necessary for cutting down the pine trees and for hauling them away. Appellees specifically stated in their affidavits that they did not have "any right to exercise . . . control," nor did they "attempt to exercise control" over any of the activities involved with the tree-cutting process. In fact, appellees were not present while the trees were being cut down. They simply told Quality which trees to cut down and left the means used to accomplish that result up to Quality's discretion. This evidence is undisputed. 2. Agency Under the agency theory, the "right to control" test is typically applied. Farrell v. Greater Houston Transp. Co., 908 S.W.2d 1, 3 (Tex. App.--Houston [1st Dist.] 1995, writ denied); Smith v. Foodmaker, Inc., 928 S.W.2d 683, 687 (Tex. App.--Fort Worth 1996, no writ) (citing Newspapers, Inc. v. Love, 380 S.W.2d 582, 590-91 (Tex. 1964)). Under this test, the court examines whether the alleged principal has the right to determine the details of the work. See Smith, 928 S.W.2d at 687. It is the extent of the principal's control over the details of accomplishing the assigned task that primarily distinguishes the status of independent contractor from that of agent. Pitchfork Land and Cattle Co. v. King, 346 S.W.2d 598, 602-03 (Tex. 1961); Lyons v. Lindsay Morden Claims Management, Inc., 985 S.W.2d 86, 90 (Tex. App.--El Paso 1998, no pet.); McDuff v. Chambers, 895 S.W.2d 492, 497 (Tex. App.--Waco 1995, writ denied); Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 220 (Tex. App.--Houston [14th Dist.] 1994, writ denied). When no contract establishes the worker's status or the alleged employer's right to control the work, the right to control is measured by: (1) the independent nature of the worker's business; (2) the worker's obligation to furnish necessary tools, supplies, and materials to perform the job; (3) the worker's right to control the progress of the work except as to final results; (4) the time for which the worker is employed; and (5) the method of payment, whether by unit of time or by the job Pitchfork, 346 S.W.2d at 603; Hoechst, 899 S.W.2d at 220. The most fundamental of these factors, however, is the right of control. See Ross v. Texas One Partnership, 796 S.W.2d 206, 210-11 (Tex. App.--Dallas 1990), writ denied per curiam, 806 S.W.2d 222 (Tex. 1991) (citing Pitchfork, 346 S.W.2d at 603 and Love, 380 S.W.2d 582, 590-91). The summary judgment evidence establishes that Quality and its employees were independent contractors rather than agents. Appellees did not have the right to control Quality and its employees, they were not responsible for furnishing any tools, supplies, or materials, and Quality was only hired to perform this particular task. 3. Inherently Dangerous Non-Delegable Duty As a general rule, a party employing an independent contractor to do inherently dangerous work may be liable to third parties for injuries arising out of the performance of such work. Hammack, 902 S.W.2d at 131 (citing Gray v. Baker & Taylor Drilling Co., 602 S.W.2d 64, 67 (Tex. App.--Amarillo 1980, writ ref'd n.r.e.). However, an employee of an independent contractor, such as Mr. O'Rourke, is not a third party for the purposes of this rule as a matter of law. See id. Therefore, this theory has no applicability to this case. Conclusion Here, the summary judgment evidence shows that Mr. O'Rourke's injuries arose out of an activity conducted in the course and scope of his employment with Quality, i.e., cutting down pine trees. The trees were to be cut down and removed without damaging the nearby house, garage, swimming pool, propane tank, and out building. No contractual agreement assigning control rights existed between appellees and Quality, and at no time were appellees directing work on the job site when the accident occurred. Appellees did nothing more than promulgate general directions regarding what work they wanted Quality to accomplish and left the details of that process entirely up to Quality. Appellant's whole case depended on whether appellees had control over the contractor's work. The summary judgment evidence establishes that there was neither any right to control nor actual exercise of control by appellees over the specific activity resulting in the involved injury. Accordingly, the trial court did not err in granting summary judgment. We overrule appellant's issues three through eight. All pending motions are overruled. We affirm the trial court's judgment. Margaret Garner Mirabal Justice Panel consists of Justices Mirabal, Hedges, and Jennings. Do not publish. Tex. R. App. P. 47.4. 1. Appellant's first two issues are moot. They address appellees' motion to dismiss the appeal, which has been withdrawn. 2. When evidence supporting a motion for summary judgment is filed by the movant, we may review a purported "no evidence" motion for summary judgment under the standard of review for traditional summary judgments. Torres v. City of Waco, 51 S.W.3d 814, 822 (Tex. App.--Waco 2001, pet. denied).