Alba v. CalAtlantic Homes of Tex., Inc.

• Decision Date: 05 May 2022
• Docket Number: 02-21-00345-CV
• Parties: Jose Alba, Candelaria Alba, Jose Alba, Jr., and Lizbeth Gurrusquieta, Appellants v. CalAtlantic Homes of Texas, Inc., Lennar Corporation, and Lennar Pacific Properties Management, Inc. d/b/a Village Builders, Appellees
• Court: Texas Court of Appeals

Jose Alba, Candelaria Alba, Jose Alba, Jr., and Lizbeth Gurrusquieta, Appellants v. CalAtlantic Homes of Texas, Inc., Lennar Corporation, and Lennar Pacific Properties Management, Inc. d/b/a Village Builders, Appellees

No. 02-21-00345-CV

Court of Appeals of Texas, Second District, Fort Worth

May 5, 2022

On Appeal from the 431st District Court Denton County, Texas Trial Court No. 19-9952-16

Before Kerr, Womack, and Wallach, JJ.

MEMORANDUM OPINION

Dana Womack Justice

I. Introduction

In this personal injury case, Appellants Jose Alba, Candelaria Alba Jose Alba, Jr., and Lizbeth Gurrusquieta (collectively, the Albas) sued Appellee CalAtlantic Homes of Texas, Inc. (CalAtlantic) and Lennar Corporation and Lennar Pacific Properties Management, Inc. d/b/a Village Builders (collectively, Lennar) for negligence as a result of Jose Alba's^[1] fall at a jobsite. Relying on Chapter 95 of the Texas Civil Practice and Remedies Code, CalAtlantic and Lennar moved for summary judgment. After the trial court granted the motion, the Albas filed this appeal. In what we construe as two issues, the Albas argue that CalAtlantic did not prove (1) that it was a "property owner" under Chapter 95 and (2) that Jose's injuries were the result of a condition or use of the same improvement on which he was working when injured. We will affirm the trial court's judgment.

II. Background

While working construction on a residential house in Frisco, Texas, on October 18, 2017, Jose went upstairs to the second floor to look at a balcony area with two sides that were open to the outside. As he looked at some strings that were hanging down from the top of a column, Jose's leg pressed against two 2 x 4 cross supports when the top 2 x 4 came loose at one end. Jose lost his balance, fell fifteen to twenty feet, and landed on part of the foundation and construction materials below. According to Jose, he was "seriously injured as a result of [the] fall, including suffering a major head/brain injury."

Two years later, the Albas sued CalAtlantic and Lennar, alleging negligence. In their pleadings, the Albas contended that CalAtlantic was the "owner of the jobsite premises" and Lennar was the "general contractor on the jobsite premises."

CalAtlantic and Lennar answered the lawsuit and asserted several affirmative defenses, including that the claims were barred by Chapter 95 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 95.001-.004. They also filed a third-party petition seeking contribution against the subcontractor on the project, Perez Masonry Construction, LLC, claiming that Jose was working for Perez Masonry at the time of his fall.

Almost seven months after the lawsuit was filed, CalAtlantic and Lennar moved for traditional and no-evidence summary judgment, with Lennar claiming it was "not involved in the construction project in any way" and CalAtlantic asserting that it was not liable pursuant to Chapter 95. See id. Specifically, CalAtlantic stated that summary judgment was proper as to it because:

• The evidence establishes CalAtlantic did not retain or exercise control over how Jose performed his work;

• There is no evidence CalAtlantic exercised or retained control over how Jose's work was performed; and • There is no evidence CalAtlantic specifically approved of or had actual knowledge of the allegedly dangerous condition Jose claims caused the accident in question.

The Albas responded to the motion, and CalAtlantic and Lennar filed a reply. The trial court granted the motion without specifying the grounds for its judgment. Subsequently, the Albas filed a motion for new trial-which was overruled by operation of law-and CalAtlantic and Lennar nonsuited their claims against third-party defendant Perez Masonry. This appeal followed.

III. Discussion

On appeal, the Albas complain only about the summary judgment in favor of CalAtlantic. Specifically, they assert that the trial court erred by granting CalAtlantic's motion for summary judgment because (1) CalAtlantic failed to prove that it was a property owner under Texas Civil Practice and Remedies Code Section 95.001(3) and a fact issue exists as to whether the property owned was primarily used for commercial or business purposes, and (2) CalAtlantic failed to prove as a matter of law under Texas Civil Practice and Remedies Code Section 95.002 that Jose's injuries were the result of a condition or use of the same improvement on which he was working when he was injured.

A. Summary Judgment Standard of Review

In their brief, the Albas argue that the only applicable standard of review is for a traditional motion for summary judgment. They state that because CalAtlantic "has the burden of establishing that Chapter 95 applies to the claims of [the Albas]," and "[b]ecause a party may not obtain a no-evidence summary judgment on an issue for which it bears the burden of proof," CalAtlantic's motion for summary judgment "should be construed as a motion for traditional summary judgment."

But in this case, both standards apply. Once Chapter 95's applicability was established by CalAtlantic, the burden was on the Albas to establish (1) that CalAtlantic exercised or retained control over how Jose's work was performed and (2) that CalAtlantic specifically approved or had actual knowledge of the allegedly dangerous condition Jose claims to have caused the accident. See Energen Res. Corp. v. Wallace, No. 20-0451, 2022 WL 726976, at *8 (Tex. Mar. 11, 2022) (stating that once a movant establishes the applicability of Chapter 95, the burden is on the plaintiffs to satisfy both prongs of section 95.003 if a no-evidence motion for summary judgment is involved); Cantu v. C & W Ranches, Ltd., 631 S.W.3d 434, 438-39 (Tex. App.-San Antonio 2021, pet. granted, judgm't vacated and remanded by agr.) (stating that "[t]he facts of the instant case are unusual in that to be entitled to summary judgment, [the movant] needed to succeed on both its traditional and no-evidence grounds").

We review a trial court's decision to grant summary judgment de novo. Hillis v. McCall, 602 S.W.3d 436, 439 (Tex. 2020); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubt in the nonmovant's favor. Barbara Techs. Corp. v. State Farm Lloyds, 589 S.W.3d 806, 811 (Tex. 2019).

In a traditional motion, the party moving for summary judgment has the burden to prove that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In contrast, once a no-evidence motion is filed, the burden shifts to the respondent to present evidence raising an issue of material fact to the elements specified in the motion upon which the respondent would have the burden of proof. Tex.R.Civ.P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

In reviewing both traditional and no-evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009). Where the trial court's order granting summary judgment does not specify the grounds relied on, we affirm if any of the summary judgment grounds are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

B. Application of Texas Civil Practice & Remedies Code Chapter 95

Chapter 95 of the Civil Practice and Remedies Code protects property owners against liability to contractors, subcontractors, and their employees under certain circumstances. Tex. Civ. Prac. & Rem. Code Ann. §§ 95.001-.004; Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 559 (Tex. 2016). Chapter 95 applies to a claim:

(1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and (2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.

Tex. Civ. Prac. & Rem. Code Ann. § 95.002.

Chapter 95 does not create a new cause of action; rather, it limits liability for common-law negligence claims when it applies. Energen, 2022 WL 726976, at *5 (referencing Tex. Civ. Prac. & Rem. Code Ann. § 95.003, which provides that a property owner "is not liable . . . unless" certain requirements are met). While a landowner generally owes a duty to warn business invitees of a dangerous condition on the premises when the owner knows or should know the condition exists, in Chapter 95 cases, a premises owner must "adequately warn" a contractor of a danger only when the landowner knows of the condition and exercises some control over the manner in which the work is performed. SandRidge Energy, Inc. v. Barfield, No. 20-0369, 2022 WL 815864, at *1 (Tex. Mar. 18, 2022). Section 95.001 defines a "property owner" as "a person or entity that owns real property primarily used for commercial or business purposes." Tex. Civ. Prac. & Rem. Code Ann. § 95.001. If Chapter 95 applies, it is the plaintiffs "sole means of recovery." Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 51 (Tex. 2015).

Here, the Albas contend that Chapter 95 does not apply because (1) CalAtlantic is not a "property owner," and (2) Jose's injuries were not the result of a condition or use of the same improvement on which he was working when injured. Because they raise no other complaints, if CalAtlantic proved the applicability of Chapter 95, we must affirm the summary judgment.

1. CalAtlantic was a "property owner."

The Albas...