Marcus Padron v. L&M Properties and L&M Properties, Inc., Individually and D/B/A L&M Properties

11th Court of Appeals Eastland, Texas Memorandum Opinion Marcus Padron Appellant Vs. No. 11-02-00151-CV B Appeal from Howard County L&M Properties and L&M Properties, Inc., Individually and d/b/a L&M Properties Appellees This is a suit involving personal injuries received as a result of an electrical shock. The trial court entered a summary judgment in favor of L&M Properties and L&M Properties, Inc., individually and d/b/a L&M Properties (collectively referred to as L&M). Because we find that summary judgment was proper, we affirm. Appellant presents two points of error. He asserts that the trial court erred in granting L&M=s motion for summary judgment on (1) traditional grounds and (2) no-evidence grounds. Appellant then presents seven subparts of his two main points. Our holding regarding the applicability of TEX. CIV. PRAC. & REM. CODE ANN. ch. 95 (Vernon 1997) is dispositive of all issues. L&M is a property management company. L&M manages many single family residential structures. L&M Properties managed the property where appellant was injured. The owner of the property was Leslie Taylor. The tenant at the time appellant was injured was Christopher Lee Hogg. Hogg purchased a satellite dish from Hughes, Golden Sky Systems. Hogg installed the satellite himself. Included in the package was a monthly maintenance agreement that would ensure that Golden Sky would repair any problem with the satellite system. Appellant was employed by Golden Sky. In early August 1999, Golden Sky sent appellant to repair the system. The receiver on the system had already been replaced four times. Appellant discovered that the receiver on the satellite had burned out a fifth time. Once appellant replaced it, the receiver immediately Ashorted out.@ He went outside to check the cable and found that part of the cable was burned. He replaced the portion of cable that was burned and was able to receive a signal. Appellant again replaced the receiver inside, but it was not receiving a signal. Appellant found another portion of the cable which was burned. While attempting to repair the cable, appellant was shocked. Appellant attempted to solve the problem by driving a grounding rod into the ground, but he was shocked again. After appellant was injured, Hogg notified L&M. L&M sent Alex Valencia to the property to determine the cause of the electrical problem. Valencia had previously worked on the electricity at the property. Valencia testified as follows: A: The insulation was off the wire, and it was touching the box. Q: Okay. So the insulation was off? A: The hot wire and the neutral. Q: The hot wire plus neutral? A: That=s what created that hot wire, to go back through the neutral to make the panel hot. * * * A: And somebody had pulled [the wires] out and put the new receptacle in. But at the same time, since the wire was B I guess squeezed or touched or something B I don=t know what happened. The insulation fell off both sides. Q: Okay. A: So they pushed it back down in there and B Q: Well, let me just ask you B A: That gave the contact right there with the box. * * * A: I know an electrician didn=t do that. Q: And why is that? A: Because the way they did it is they changed out the wires, and the wires are exposed. They=re just bare wires, and pushing them back in a metal box B Q: Okay. A: B you can tell right away something is going to go wrong. L&M filed a traditional summary judgment motion as well as a no-evidence motion for summary judgment. The trial court granted L&M=s motion for summary judgment but did not state the grounds upon which it granted the summary judgment. Summary judgment will be affirmed on any meritorious claims alleged when the trial court=s order granting summary judgment does not specify the ground or grounds relied upon for its ruling. Carr v. Brasher, 776 S.W.2d 567 (Tex.1989). A trial court must grant a traditional motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). Once the movant establishes a right to a summary judgment, the non-movant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). When reviewing a summary judgment, the appellate court takes as true evidence favorable to the non-movant. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985). The trial court must grant a no-evidence motion for summary judgment unless the non-movant produces evidence that raises a genuine issue of material fact on the challenged element of his claim or defense. TEX.R.CIV.P. 166a(i). The appellate court reviews evidence presented in response to a motion for a no-evidence summary judgment in the same way it reviews evidence presented in support of, or in response to, a motion for traditional summary judgment: it accepts as true evidence favorable to the non-movant and indulges every reasonable inference and resolves all doubts in favor of the non-movant. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex.App. - Eastland 2000, pet=n den'd); see American Tobacco Company, Inc. v. Grinnell, supra at 425; Nixon v. Mr. Property Management Company, Inc., supra at 548-49. The appellate court reviews, however, only evidence presented by the non-movant. Rule 166a(i); Hight v. Dublin Veterinary Clinic, supra at 618-19. If the non-movant presents more than a scintilla of evidence on the disputed element, a no-evidence summary judgment is improper. Hight v. Dublin Veterinary Clinic, supra; Denton v. Big Spring Hospital Corporation, 998 S.W.2d 294, 298 (Tex.App. - Eastland 1999, no pet=n); cf. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.1997), cert. den=d, 523 U.S. 1119 (1998). Chapter 95 applies to negligence claims against property owners for injury to independent contractors that arise Afrom the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.@ Section 95.002(2). A property management company acts as an agent of the property owner and is entitled to the protection from liability provided for in Chapter 95. Fisher v. Lee and Chang Partnership, 16 S.W.3d 198 (Tex.App. B Houston [1st Dist.] 2000, pet=n den=d). Whether any item is an improvement is broadly construed, and it includes any addition or betterment to the property. Reames v. Hawthorne-Seving, Inc., 949 S.W.2d 758 (Tex.App. B Dallas 1997, writ den=d). An improvement must be attached to the property. There are three factors to consider in determining whether an item is an attachment: (1) the mode and sufficiency of annexation; (2) the adaptation of the item to the use or purpose of the property; and (3) the intention of the party who annexed the item. Karisch v. Allied-Signal, Inc., 837 S.W.2d 679 (Tex.App. B Corpus Christi 1992, no writ). In his complaint, appellant alleged negligence in failing to inspect the premises for dangerous conditions, in failing to correct a dangerous condition, in failing to warn invitees of a dangerous condition, in crossing the outlet wires creating the dangerous condition, all of which appellant alleges was the proximate cause of his injuries. Appellant=s claims are covered under Chapter 95. L&M had a real estate management agreement with the owners of the property which gave them the right to institute repairs; to purchase materials; to engage, supervise, and discharge independent contractors; and to maintain, repair, and Aredecorate@ the property. L&M also had the exclusive right to execute lease renewals, to screen residents, and to terminate tenancies. L&M was compensated for managing the property with a percentage of the rentals. In all respects, L&M was the agent of the owner and is entitled to the protection of Chapter 95. The satellite system was an improvement to the property. Appellant was repairing the improvement when he was shocked. Chapter 95 controls in this case. Having determined that Chapter 95 controls in this case, we must now consider whether L&M asserted control over appellant and whether L&M had knowledge of the dangerous condition. Section 95.003 provides: A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless: (1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and (2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn. Here, the summary judgment evidence conclusively established that L&M did not exercise control over appellant. Appellant was an employee of a contractor hired by the tenant, Hogg, to repair the satellite system. L&M did not have any knowledge that Hogg had hired a contractor to repair the satellite. Neither Hogg nor L&M provided the tools for appellant. Appellant did not receive payment from Hogg or from L&M. L&M did not order the work to start; Hogg was the person who contacted Golden Sky. L&M did not inspect progress of the work. We find that this evidence supports the traditional summary judgment that L&M exercised no control over appellant sufficient to avoid the protection afforded under Chapter 95. Further, appellant offered no evidence to show that L&M had control over appellant=s work. Therefore, the trial court did not err in entering a Ano-evidence@ summary judgment. Because we hold that Chapter 95 is dispositive of this appeal, appellant=s points of error are overruled. We affirm the judgment of the trial court. February 6, 2003 JIM R. WRIGHT Panel consists of: Arnot, C.J., and JUSTICE Wright, J., and McCall, J.