Chad Davis v. Fairfield Development, Inc. Jollyville Associates Fairfield Jollyville Limited Partnership Palomar Properties D/B/A Fairfield Properties And CWS Jollyville Associates, Ltd.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-00-00223-CV Chad Davis, Appellant v. Fairfield Development, Inc.; Jollyville Associates; Fairfield Jollyville Limited Partnership; Palomar Properties d/b/a Fairfield Properties; and CWS Jollyville Associates, Ltd., Appellees FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. 97-12134, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING Appellant Chad Davis appeals the district court's summary judgment in favor of appellees Fairfield Development, Inc. ("Fairfield"), Jollyville Associates, Fairfield Jollyville Limited Partnership, Palomar Properties doing business as Fairfield Properties, and CWS Jollyville Associates, Ltd. Davis complains on appeal that although Fairfield was a general contractor, because Fairfield retained the right of control over the work of Albritton Masonry ("Albritton"), a subcontractor, Fairfield can be held liable for Albritton's negligence that resulted in an injury to Davis, an Albritton employee. We will affirm the district court's judgment. FACTUAL AND PROCEDURAL BACKGROUND Jollyville Associates hired Fairfield in February 1995 to serve as the general contractor on a construction project to build an apartment complex in Austin. In July 1995 Fairfield subcontracted with Albritton to perform masonry and stucco work. The contract between Fairfield and Albritton established a safety program to prevent injuries on the job site, with Fairfield retaining "full responsibility and authority on the job site for enforcement" of the program. In addition to requiring that Albritton comply with all federal safety regulations, the contract set out additional safety restrictions regarding how and where scaffolding could be built. (1) Albritton hired Davis to perform stucco work on the project. While on the job, Davis was disassembling a metal-frame scaffold that supported wooden platforms where laborers worked. He had climbed to the fourth level of the scaffold and was preparing to hand down the wooden platform above him when the platform he was standing on collapsed, causing him to fall thirty to forty feet and severely injure his leg. Davis brought this suit for personal injuries arising from the scaffold accident. (2) Appellees filed a motion for summary judgment, arguing that they did not have a duty to Davis to ensure that Albritton performed its work safely. The district court granted the motion, and Davis appeals by two issues. (3) DISCUSSION By his first issue, Davis argues that summary judgment in favor of Fairfield was improper. Davis contends that the contract between Fairfield and Albritton gave Fairfield sufficient control over Albritton to create a duty in Fairfield to ensure that Albritton performed its work in a safe manner. (4) In reviewing a motion for summary judgment the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant is entitled to summary judgment on the plaintiff's cause of action if the evidence disproves as a matter of law at least one element of the plaintiff's claim. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). When interpreting a contract, if the language of the contract is not ambiguous and can be given a definite legal meaning, then it should be construed as a matter of law. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). An ambiguity does not arise simply because the parties advance different interpretations of the contract's language. Weslaco Fed'n of Teachers v. Texas Educ. Agency, 27 S.W.3d 258, 264 (Tex. App.--Austin 2000, no pet.). Fairfield moved for summary judgment on the basis that it owed no duty to Davis to ensure that Albritton performed its work in a safe manner. (5) A general contractor usually does not have a duty to its subcontractor's employees to ensure that the subcontractor performs all work safely. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999) (citing Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998)). However, when the general contractor retains control over the manner in which the subcontractor's work is performed, a duty may arise. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). Control sufficient to create a duty may be imposed upon a general contractor by contract. Elliott-Williams, 9 S.W.3d at 804 (Tex. 1999). If the contract so provides, the general contractor cannot be relieved from liability by arguing that it exercised no actual control. Pollard v. Missouri Pac. R.R. Co., 759 S.W.2d 670, 670 (Tex. 1988). It is the right of control, and not the actual exercise of control, which gives rise to a duty to see that a subcontractor performs work in a safe manner. Elliott-Williams, 9 S.W.3d at 804. But, for the general contractor to be liable for its subcontractor's acts, the general contractor must have "the right to control the means, methods, or details of the subcontractor's work." Id. at 804. The degree of control must be such "that the contractor is not entirely free to do the work in his own way." Id. at 804 (quoting Restatement (Second) of Torts § 414 cmt. c (1965)). Davis argues that the specific language in the contract between Fairfield and Albritton creates such a duty. (6) Davis directs this Court to a portion of the contract titled "Standard Accident Prevention Program for Subcontractors," which outlines Fairfield's safety requirements for subcontractors on the job site. The contract states that "full responsibility and authority on the job site for enforcement of this Standard Accident Prevention Program belongs to the Fairfield Development, Inc., Superintendent." Davis argues that by this provision Fairfield retained complete control over the safety of the scaffolding. Although the contract between these parties places some responsibility on Fairfield, the language in the contract and the facts involved in this case are similar to those of Hoechst-Celanese. See Hoechst-Celanese, 967 S.W.2d at 354-55. In each case, the general contractor required its subcontractor to observe federal safety regulations as well as additional regulations promulgated by the general contractor. See Id. at 355. Furthermore, both contracts allowed the general contractor to inspect the subcontractor's facilities and operations at any time to ensure compliance with safety regulations. See Id. at 356. In Hoechst-Celanese, the supreme court held that the general contractor's insistence that the subcontractor observe and promote compliance with federal laws, general safety guidelines, and other safety precautions did not impose an unqualified duty of care on the general contractor to ensure that the subcontractor's employees did nothing unsafe. See Id. at 357-58; see also Koch Ref. Co. v. Chapa, 11 S.W.3d 153,156 (Tex. 1999). We see no significant difference between the language of the contract in Hoechst-Celanese and the contract now before this Court. We hold the contract did no more than subject Albritton to general safety requirements promulgated by Fairfield. It did not give Fairfield the right to specifically control how Albritton performed its obligations under the contract, and therefore did not impose a duty upon Fairfield to ensure that Albritton performed its work in a safe manner. Because duty is an essential element of negligence, the district court was proper in granting summary judgment in favor of Fairfield. See Kehler v. Eudaly, 933 S.W.2d 321, 325 (Tex. App.--Fort Worth 1996, writ denied). By his second issue, Davis requests that the Court address whether a general contractor can ever retain enough control over its subcontractors to defeat an independent-contractor defense. By asking the Court to render a judgment that would not constitute specific relief to a litigant, Davis is requesting an advisory opinion. The separation-of-powers doctrine prohibits the courts from rendering advisory opinions. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (citing Tex. Const. art. II, § 1). Therefore, we will not address Davis's second issue. CONCLUSION We affirm the judgment of the district court. Lee Yeakel, Justice Before Chief Justice Aboussie, Justices Yeakel and Patterson Affirmed Filed: June 14, 2001 Do Not Publish 1. Davis also points out in his brief that the contract established other restrictions. The contract authorized Fairfield to schedule the start date, alter Albritton's schedule if necessary, restrict the kind of clothing Albritton employees wore, and discharge Albritton employees for rule violations. However, these provisions are not relevant to the issue before this Court because to be liable, the general contractor's control must relate to the injury that results from the negligence. Elliot-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999). 2. In addition to appellees, Davis sued CWS Partners 94, L.P. and Clayton, Williams & Sherwood Financial Group 94, Inc., but non-suited his action against them in the district court. They are not parties to this appeal. 3. Davis's notice of appeal is a general notice that by implication includes as appellees Fairfield, Jollyville Associates, Fairfield Jollyville Limited Partnership, Palomar Properties Inc., and CWS Jollyville Associates, Ltd. Davis has waived his claims against all parties other than Fairfield by not arguing them in his brief, instead presenting to this Court only his claim against Fairfield. See Tex. R. App. P. 38.1(h); cf. Sipriano v. Great Spring Waters of Am., Inc., 1 S.W.3d 75,76 (Tex. 1999). Therefore we affirm the district court's judgment as to the non-Fairfield appellees. 4. Davis also argues that the contract between Jollyville Associates and Fairfield, which required Fairfield to "take all necessary precautions for the safety of employees," makes Fairfield liable for Davis's injuries. However, because Albritton is not a party to this contract, the contract has no bearing on Fairfield's liability to Davis. See Davis v. R. Sanders & Assocs. Custom Builders, Inc., 891 S.W.2d 779, 782 (Tex. App.--Texarkana 1995, no writ). 5. Fairfield also filed a "no-evidence" motion for summary judgment. See Tex. R. Civ. P. 166a(i). The district court's summary judgment order does not specify on which grounds it was granted. When a trial court grants summary judgment without stating the grounds, the summary judgment will be affirmed on any meritorious theory set out in the motion. Maginn v. Norwest Mortgage, Inc., 919 S.W.2d 164, 166 (Tex. App.--Austin 1996, no writ). Therefore, because we hold that Fairfield is entitled to summary judgment on its traditional motion, we will not address its no-evidence motion. 6. Davis, for the first time on appeal, also seeks to impose vicarious liability upon Fairfield, arguing that Fairfield's right of control over Albritton was extensive enough to make Fairfield liable for Albritton's negligence under an agency theory. However, Davis did not raise this issue in the district court, and therefore it cannot be raised for the first time on appeal. See Tex. R. Civ. P. 166a(c); see also Fun Time Ctrs., Inc. v. Continental Nat'l Bank, 517 S.W.2d 877, 882-83 (Tex. Civ. App.--Tyler 1974, writ ref'd n.r.e.). his Court. We hold the contract did no more than subject Albritton to general safety requirements promulgated by Fairfield. It did not give Fairfield the right to specifically control how Albritton performed its obligations under the contract, and therefore did not impose a duty upon Fairfield to ensure that Albritton performed its work in a safe manner. Because duty is an essential element of negligence, the district court was proper in granting summary judgment in favor of Fairfield. See Kehler v. Eudaly, 933 S.W.2d 321, 325 (Tex. App.--Fort Worth 1996, writ denied). By his second issue, Davis requests that the Court address whether a general contractor can ever retain enough control over its subcontractors to defeat an independent-contractor defense. By asking the Court to render a judgment that would not constitute speci