Trustees of Sabine Area Carpenter's Health & Welfare Fund v. Don Lightfoot Home Builder, Inc., 82-2344

• Decision Date: 12 May 1983
• Docket Number: No. 82-2344,82-2344
• Citation: 704 F.2d 822
• Parties: 97 Lab.Cas. P 10,123 TRUSTEES OF SABINE AREA CARPENTERS' HEALTH & WELFARE FUND, Trustees of Sabine Area Carpenters' Pension Trust Fund, and Trustees of Sabine Area Carpenters' Apprenticeship and Training Trust Fund, Plaintiffs-Appellants, v. DON LIGHTFOOT HOME BUILDER, INC., Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 822

704 F.2d 822

97 Lab.Cas. P 10,123

TRUSTEES OF SABINE AREA CARPENTERS' HEALTH & WELFARE FUND, Trustees of Sabine Area Carpenters' Pension Trust Fund, and Trustees of Sabine Area Carpenters' Apprenticeship and Training Trust Fund, Plaintiffs-Appellants, v. DON LIGHTFOOT HOME BUILDER, INC., Defendant-Appellee.

No. 82-2344

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 12, 1983.

Provost, Umphrey, Doyle & McPherson, Robert E. Barron, John B. Stevens, Port Arthur, Tex., for plaintiffs-appellants.

Mehaffy, Weber, Keith & Gonsoulin, Dewey J. Gonsoulin, John Durkay, Beaumont, Tex., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before ALVIN B. RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Summary judgment is forbidden when there are genuine disputes concerning material facts. When, however, all of the facts are uncontroverted, and the issue is only the legal conclusion to be drawn from them, summary judgment fulfills its role: to provide quick legal decision without the delay and expense of trial.

The trustees of three carpenters' union funds who sought to compel employer contributions to the funds from a home building company assert that the trial court overlooked controverting evidence in the record and denied them procedural due process when it granted the company's orally renewed motion for summary judgment on the day scheduled for trial. Concluding that there were no outstanding issues of material fact, that the trustees were afforded procedural due process, and that they waived the right to appeal noncompliance with Fed.R.Civ.P. 56 by failing to make timely objection, we affirm the judgment of the district court.

As part of a labor agreement with the District Council of Sabine Area and Vicinity of the United Brotherhood of Carpenters and Joiners of America (the Union), Don Lightfoot Home Builder, Inc. (Home Builder) agreed to pay contributions to the Sabine Area Carpenters' Pension Trust Fund, Health and Welfare Fund, and Apprenticeship and Training Trust Fund (which, jointly, we refer to as the Funds) for hours worked by Home Builder carpenter-employees within the territorial jurisdiction of the Union. The trustees of the Funds sued Home Builder in 1981 to recover $100,587, representing contributions allegedly due for work performed by 19 carpenters between 1978 and 1981, and penalties and attorneys' fees for late payment.

Nine months after the trustees filed suit, on March 29, 1982, Home Builder moved for summary judgment. Home Builder took the position that the carpenters for whom the trustees sought contributions were independent contractors, not Home Builder employees, and that Home Builder, therefore, owed no contributions for them. The trustees had taken depositions of Home Builder's president, Don Lightfoot; a Home Builder superintendent, Ray Williams; and three carpenters who worked for Home Builder, Vernon LeBlanc, Ray Ingram, and Bill Bryant. Home Builder's summary judgment motion referred to testimony from these depositions. The trustees responded to the motion on May 13, but offered no additional evidentiary material. After considering the written submissions of both parties, the district court denied summary judgment on May 26 and set a trial date of July 6. On the day scheduled for trial, Home Builder orally renewed its motion for summary judgment, urging again that the carpenters were independent contractors, and offering an affidavit executed by Don Lightfoot. The district court agreed to hear immediate oral argument on the motion. The trustees did not object to this procedure. They did not seek postponement of the hearing, nor did they ask leave to file controverting evidentiary material later. They elected to argue the merits of the motion. At the conclusion of the hearing, the court granted Home Builder's motion and entered summary judgment that same day. Ten days later, the trustees filed a motion for rehearing of Home Builder's summary judgment motion and submitted two controverting affidavits. The district court declined to reconsider its judgment, and the trustees appealed.

They argue that the district court erred in granting summary judgment because the deposition evidence in the record showing an unresolved issue of material fact, viz., whether the carpenters for whom the trustees sought contributions were independent contractors or employees. They point to several allegations in the record that would support a finding of an employer-employee relationship. In particular, they assert that the carpenters worked exclusively for Home Builder pursuant to form agreements, of no specific duration, that were prepared by Home Builder; Home Builder fixed the price of the work the carpenters performed, giving the carpenters themselves no opportunity to negotiate price; and they looked to Home Builder for payment, rather than to the eventual owners of the homes on which the work was performed. They further alleged that Home Builder employed at least one carpenter, Bill Bryant, on an hourly basis and reported his wages on a W-2 form. Home Builder also paid workmen's compensation insurance for some carpenters. The carpenters' work was directed and controlled by two Home Builder supervisors. Home Builder furnished the construction materials. The carpenters themselves had no employees. They did no independent advertising.

Alternatively, the trustees urge that summary judgment was improperly granted because the procedural requisites of Fed.R.Civ.P. 56(c) were not met, and they were thereby denied procedural due process. Rule 56(c) provides that a motion for summary judgment "shall be served at least 10 days before the time fixed for hearing. The adverse party prior to the day of hearing may serve opposing affidavits." The trustees contend that, by hearing immediate argument on Home Builder's renewed motion for summary judgment and ruling on the motion that same day, the trial court deprived them of adequate notice and an opportunity to prepare a proper response and controverting affidavits. We consider each of the trustee's arguments in turn.

I.

The trustees concede that whether or not Home Builder's carpenters were employees is dispositive of this case. ¹ Because we agree with the district court that there was no genuine dispute concerning the facts on which the carpenters' status as independent businessmen would be adjudicated, we conclude that summary judgment was not precluded.

Whether the carpenters were "independent contractors" or "employees" for whom fund contributions were due turns on the degree of their economic dependence on Home Builder. ² Five standards are applied to gauge the extent of workers' dependence: (1) the control exerted by the alleged employer over the workers; (2) the workers' opportunity for profit or loss; (3) the workers' investment in the enterprise; (4) the permanence of the relation between the alleged employer and the workers; and (5) the skill required for the performance of the work. ³ These tests are only aids, however, for determining the workers' status; the ultimate question is whether they reveal that the workers "[are] economically dependent for [their] livelihood on the business to which [they] render[] service." ⁴

On the record in this case, by each of these five tests, the carpenters were autonomous businessmen, and collectively the tests here provide an accurate appraisal of Home Builder's relationship with its carpenters. The evidence showed that, when Home Builder began constructing homes in 1973, it hired carpenters as employees. In 1974, Home Builder changed its method of business. All carpentry work thereafter was subcontracted pursuant to standing written agreements, executed the first time Home Builder did business with its subcontractors, to govern all subsequent jobs. The form agreements stipulated that the carpenters were to have full control over their work:

It is mutually agreed and understood by and between the parties hereto that [Home Builder] shall have no right of direction or control over the performance of this contract by CONTRACTOR save and except as to the results to be accomplished, and that CONTRACTOR enters into this contract with the definite and affirmative understanding and agreement that he is entering into same as an INDEPENDENT CONTRACTOR, controlling all his movements and operations and those of his employees, if any, and reserving unto the said CONTRACTOR all right to so control same, and [Home Builder] hereby surrenders all rights or claim of right to control CONTRACTOR or CONTRACTOR's employees in the performance of this Contract.

Home Builder's relationship with its carpenters, in fact, conformed to these agreements. In their depositions and affidavits, the carpenters referred to themselves as "subcontractors" or "self-employed businessmen." They were hired on a "piecemeal" basis, i.e., to do the framing, roofing, or finishing on a particular home. They performed the work for a set price per linear or square foot. Home Builder supplied the building materials, but the carpenters supplied their own tools, trucks, and equipment. Two Home Builder superintendents checked on the construction periodically to be sure that the work was done correctly and to report to a Home Builder bookkeeper that the carpenters could be paid, but the superintendents did not supervise construction. The carpenters decided their own work schedules, techniques, and procedures. They placed their own orders with Home Builder for building materials. They were free to subcontract or to hire their own employees.

Home Builder paid only occasional, mostly unskilled, laborers on an hourly basis. ⁵ One Home Builder superintendent, Ray Williams, was paid on an hourly basis for minor carpentry repairs to homes that had already been completed. This work consumed only a couple of hours each week. Home Builder made no fund...