Ross v. Texas One Partnership

• Court: Texas Court of Appeals
• Writing for the Court: ROWE
• Citation: Ross v. Texas One Partnership, 796 S.W.2d 206 (Tex. App. 1990)
• Decision Date: 06 July 1990
• Docket Number: No. 05-89-01133-CV,05-89-01133-CV
• Parties: Leroy ROSS, Appellant, v. TEXAS ONE PARTNERSHIP d/b/a Ewing Estates Apartments, Appellee.

Page 206

796 S.W.2d 206

Leroy ROSS, Appellant, v. TEXAS ONE PARTNERSHIP d/b/a Ewing Estates Apartments, Appellee.

No. 05-89-01133-CV.

Court of Appeals of Texas Dallas.

July 6, 1990.

Rehearing Denied Sept. 5, 1990.

Brien S. Riepen, Dallas, for appellant.

M. Steve Nagle, A.W. Arnold, III, Dallas, for appellee.

Before WHITHAM, ROWE and BAKER, JJ.

OPINION

ROWE, Justice.

Leroy Ross appeals from rendition of a summary judgment in favor of Texas One Partnership, doing business as Ewing Estates Apartments. Ross suffered injuries incurred when a security guard patrolling the Ewing Estates Apartments shot Ross with a shotgun. Ross sued James Neal, individually and doing business as Neal Security Company; Johnny Thompson, the security guard; and Texas One Partnership, the owner of the apartments. Texas One moved for summary judgment, contending that it could not be held liable as a matter of law because the security company was an independent contractor. The trial court granted summary judgment in favor of Texas One and severed that action from the rest of the case. In eight points of error, Ross asserts that the trial court erred in granting the summary judgment. We affirm the trial court's judgment.

Summary judgment is proper if the summary judgment record shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See TEX.R.CIV.P. 166a(c). The purpose of summary judgment is the elimination of patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). In reviewing the propriety of a summary judgment, we are bound by these standards: (1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

In the seventh point of error, Ross contends that the summary judgment was erroneously granted because a material fact issue existed as to whether the security company acted as an agent of Texas One. In its motion for summary judgment, Texas One asserted, among other things, that the security company was an independent contractor. The general rule is that an owner of premises is not liable for harm arising out of activity conducted by, and under the control of, an independent contractor. See Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987); Abalos v. Oil Dev. Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976). The doctrine of respondeat superior is not applicable in such a situation. Phillips Pipe Line Co. v. McKown, 580 S.W.2d 435, 438 (Tex.Civ.App.--Tyler 1979, writ ref'd n.r.e.).

An agency relationship cannot be presumed to exist. Johnson v. Owens, 629 S.W.2d 873, 875 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.). Although the question of agency is generally one of fact, Horne v. Charter Nat'l Ins. Co., 614 S.W.2d 182, 184 (Tex.Civ.App.--Fort Worth 1981, writ ref'd n.r.e.), the question of whether a principal-agent relationship exists under established facts is a question of law for the court. Norton v. Martin, 703 S.W.2d 267, 272 (Tex.App.--San Antonio 1985, writ ref'd n.r.e.). Thus, the existence of an agency relationship can be a question of law to be determined by the agreement between, and the words and conduct of, the parties. See Mercedes-Benz of North America, Inc. v. Dickenson, 720 S.W.2d 844, 858 (Tex.App.--Fort Worth 1986, no writ). In other words, if the facts are uncontroverted or otherwise established, the existence of an agency relationship is a pure question of law. See American Int'l Trading Corp. v. Petroleos Mexicanos, 835 F.2d 536, 539 (5th Cir.1987) (applying Texas law). Proof of agency requires a showing that the alleged principal has the right to assign the agent's task and the right to control the means and details of the process to be used to accomplish the task. Johnson v. Owens, 629 S.W.2d at 875.

On the other hand, an independent contractor is one who, in the pursuit of an independent business, undertakes a specific job for another person, using his own means and methods, without submitting himself to the other's control regarding details of the job. Pitchfork Land and Cattle Co. v. King, 162 Tex. 331, 338, 346 S.W.2d 598, 602-03 (1961). Thus, the primary test used to decide whether a party is an independent contractor involves determination as to which of the parties to the relationship possesses the "right of control" over the details of the work. See Newspapers, Inc. v. Love, 380 S.W.2d 582, 590 (Tex.1964). Factors used to determine whether one is an independent contractor include: (1) the independent nature of the contractor's business; (2) his obligation to supply necessary tools, supplies, and materials; (3) his right to control the progress of the work except as to final results; (4) the time for which he is employed; and (5) the method by which he is paid, whether by the time or by the job. Pitchfork, 346 S.W.2d at 603. When the controlling facts are undisputed and only one reasonable conclusion can be inferred from those facts, the question of whether a party is an independent contractor is a question of law. Id.

A contract between the parties which establishes an independent contractor relationship is determinative of the parties' relationship in the absence of extrinsic evidence indicating that the contract was a subterfuge or that the hiring party exercised control in a manner inconsistent with the contractual provisions. See Newspapers, Inc., 380 S.W.2d at 590, 592. The contract between Texas One and the security company specified certain tasks to be undertaken by the security company, but it did not grant to Texas One the right to control the methods and details involved in accomplishing those tasks. The contract provided that the security company would be self-employed and responsible for all insurance.

Ross emphasizes the fact that the contract specified several tasks to be accomplished, as opposed to the one "specific piece of work" referred to in the Pitchfork case. See Pitchfork, 346 S.W.2d at 602. This distinction has little or no bearing on the question of whether the security company was an independent contractor. We find no authority suggesting that an independent contractor relationship is confined only to cases in which the contractor undertakes only one task. Ross notes that the contract contemplated that the security company would provide services for an indefinite period of time. Although the period of employment is a factor to be considered, Pitchfork, 346 S.W.2d at 603, it is certainly not determinative, since the primary test involves the right of control. We note that the contract granted to both Texas One and the security company the right to terminate the contract upon thirty days' written notice. Ross relies on the fact that the security company was to be paid at regular intervals rather than for any discrete job. The method of payment may be considered, id., but it is not a controlling factor in relation to the ultimate "right of control" test.

We conclude that the contract, viewed alone, established an independent contractor relationship between Texas One and the security company. The contract did not provide that Texas One would possess the right to control the manner and means to be used in accomplishing the tasks assigned to the security company. The contract merely specified some of the tasks to be undertaken. It expressly provided that the security company would be self-employed.

The question remains as to whether the contract was a sham designed to conceal the true relationship between the parties. Establishing that the contract was such a subterfuge requires evidence that Texas One actually exercised control over the details of the work performed by the security company. See Newspapers, Inc., 380 S.W.2d at 590, 592. The summary judgment proof included excerpts from the deposition of James Neal, the owner of the security company. Neal testified that he and another man that he hired as a supervisor were responsible for supervising the security guards employed by the security company. He stated that he had established certain rules and regulations governing the conduct of his security guards. Neal said that he was not an employee of the Ewing Estates Apartments (Texas One), and he stated that his security company provided services to Texas One as an independent contractor. He testified that his company was hired to provide security services using his expertise as he saw fit. Neal said that he used his own means and methods in performing the security services for the Ewing Estates Apartments. This deposition testimony was uncontroverted.

Ross suggests that this testimony was not competent summary judgment evidence because it came from an interested witness. According to the applicable rule, uncontroverted testimonial evidence of an interested witness can provide a basis for summary judgment if the evidence is clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and it could have been readily controverted. See TEX.R.CIV.P. 166a(c). We note that, although Neal was an interested witness, we do not see that it was necessarily in his interest to testify to facts that would support the elimination of a fellow defendant. In any event, Ross does not explain how the requirements of rule 166a(c) were not satisfied. In our view, Neal's testimony was clear, positive, direct, otherwise credible, and free from contradictions and inconsistencies. His testimony was consistent...