Welch v. McDougal

• Citation: 876 S.W.2d 218
• Decision Date: 12 May 1994
• Docket Number: No. 07-93-0107-CV,07-93-0107-CV
• Parties: Wayne WELCH and Wanda Welch, Appellants, v. Delbert G. McDOUGAL, d/b/a Horizon Properties and Hunters Way, a Partnership, Appellees.
• Court: Texas Court of Appeals

Page 218

876 S.W.2d 218

Wayne WELCH and Wanda Welch, Appellants, v. Delbert G. McDOUGAL, d/b/a Horizon Properties and Hunters

Way, a Partnership, Appellees.

No. 07-93-0107-CV.

Court of Appeals of Texas,

Amarillo.

May 12, 1994.

Rehearing Denied June 13, 1994.

Holman Hogan, L.L.P. Kevin Dubose, Carl V. Crow, Houston, for appellant.

Crenshaw, Dupree & Milam, Cecil Kuhne and William J. Wade, Lubbock, for appellee.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

BOYD, Justice.

Appellants Wayne Welch and Wanda Welch bring this appeal from a take-nothing summary judgment in favor of Delbert McDougal (McDougal), d/b/a Horizon Properties (Horizon), ¹ and Hunters Way, a general partnership. The Welches brought suit against McDougal and the Hunters Way partnership, of which McDougal is a partner, for personal injuries sustained by Wayne Welch while working for a subcontractor hired by Horizon to make repairs on property owned by Hunters Way. The suit also included a cause of action for damages suffered by Wanda Welch as a consequence of Wayne Welch's injuries.

Hunters Way is the name of an apartment complex owned by the Hunters Way partnership. McDougal is the majority owner and managing partner of the Hunters Way partnership. ² He also owns and operates Horizon as a sole proprietorship. Horizon was created for the purpose of performing repair and construction work on property owned by the various partnerships in which McDougal had interests. David Miller is employed as the general manager of Horizon.

On November 9, 1990, the Hunters Way partnership, acting through McDougal, hired Horizon, as a general contractor, to perform repair work on the Hunters Way apartment complex. This agreement was embodied in a standard form contract. David Miller, as general manager for Horizon, orally subcontracted with David Welch, d/b/a Triple D Masonry, to repair the brickwork on several chimneys at the apartment complex. David Welch employed his father, appellant Wayne Welch, to work on the chimneys at the Hunters Way Apartments.

While Wayne Welch was working on the chimneys at the apartments, the scaffolding on which he was standing fell. Wayne was seriously injured as a result. Wayne and his wife originally brought suit only against Horizon for their injuries, however, they later amended their petition to include the Hunters Way partnership as a defendant. On February 27, 1992, Horizon brought a third-party action against David Welch for indemnification or contribution.

On October 28, 1992, Horizon filed a motion for summary judgment premised on the theory that, as the general contractor without control over the details of the subcontractor's work, it was not liable for injury to an employee of the subcontractor. On the same day, the Hunters Way partnership filed a summary judgment motion asserting (1) that a premise owner or occupier is not liable to employees of an independent contractor, (2) that although it was not negligent in hiring Horizon, even if it had been negligent, Wayne Welch was employed by David Welch, d/b/a Triple D Masonry, whose independent contractor status precluded liability on the part of Hunters Way, and (3) inasmuch as no joint venture existed between itself and Horizon, it could not be jointly and severally liable with Horizon. On January 27, 1993, the trial court granted both motions thus giving rise to this appeal. ³

Although the jurisdiction of this court to hear the appeal is not challenged by the parties, we are obligated to determine, sua sponte, our jurisdiction to hear the appeal. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex.1990); Bethurum v. Holland, 771 S.W.2d 719, 722 (Tex.App.--Amarillo 1989, no writ). In examining the record, we note that, although the caption on the trial court's judgment reflects the existence of the third-party action brought by McDougal against David Welch, it does not make any express disposition of that action. Additionally, we also note that appellants' appeal bond names only McDougal as appellee and contains no reference to the Hunters Way partnership. For this court to have jurisdiction of this appeal, the judgment giving rise to the appeal must be a final one and the appeal bond must comply with statutory requirements.

In order to be final and appealable, a summary judgment must dispose of all parties and issues before the court. Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993). Unlike an entry of judgment after a conventional trial on the merits, the entry of a summary judgment raises no presumption that the court disposed of all parties and issues. Chase Manhattan Bank, N.A. v. Lindsay, 787 S.W.2d 51, 53 (Tex.1990); Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984). Therefore, to dispose of all parties and issues, the trial court must either carefully draft its judgment to conform to the pleadings, or it must include a general statement in the judgment denying all relief not otherwise specifically granted, commonly known as a Mother Hubbard clause, or include a statement with language equivalent to such a clause. Mafrige v. Ross, 866 S.W.2d at 592; North East Independent School Dist. v. Aldridge, 400 S.W.2d 893, 898 (Tex.1966).

That being true, we must determine if the trial court's judgment in this case disposed of McDougal's third-party action against David Welch, thereby making the judgment final and appealable. McDougal's third-party petition against David Welch sought indemnification or, in the alternative, contribution "in the event that Plaintiffs should recover judgment" against McDougal. Inasmuch as McDougal's third-party action was entirely dependent on the recovery of a judgment against him, the trial court's summary judgment in favor of McDougal, of necessity, also disposed of his third-party action. Thus, the summary judgment is final and appealable.

We must next determine whether appellants have properly perfected this appeal as to each of the appellees. Appellants' appeal bond contains the correct trial court cause number, however, it recites the style of the case as "Wayne Welch and Wanda Welch (Plaintiff) v. Delbert G. McDougal (Defendant)," without reference to the Hunters Way partnership.

In several older cases, Texas courts have held that omission of a party as an obligee under an appeal bond fails to perfect the appeal as to the omitted party. Alamo Express, Inc. v. International Brotherhood of Teamsters, 215 S.W.2d 936, 937 (Tex.Civ.App.--San Antonio 1948, no writ); Miller v. Dunagan, 123 S.W.2d 363, 364 (Tex.Civ.App.--El Paso 1938, writ dism'd); Anderson v. Automobile Fin. Co., 260 S.W. 1092, 1093 (Tex.Civ.App.--Galveston 1924, no writ). However, the opinions in Miller and Anderson reveal that the bonds involved in those cases were payable to named appellees. ⁴

In the recent case of Vail v. First Gibraltar Bank, 859 S.W.2d 425 (Tex.App.--Dallas 1993, no writ), the court noted the earlier cases yet held that in an appeal involving a cash deposit filed with the district clerk, the omission of an appellee's name from the clerk's certificate does not fail to perfect appeal as to the omitted party. The court explained that this is so because the appeal was perfected by the deposit with the clerk and the depositing party does not designate to whom the money can be paid. Id. at 426. In Conann Constructors, Inc. v. Muller, 618 S.W.2d 564 (Tex.Civ.App.--Austin 1981, writ ref'd n.r.e.), the Austin Court of Appeals held that the inadvertent failure to name a party in an appeal bond made payable to the district clerk also did not fail to perfect the appeal as to that party. Id. at 569.

Parenthetically, although the Vail court commented that the Conann decision was in "irreconcilable conflict with the earlier authorities," we disagree. In a case involving an appeal bond, the identity of the obligee named in the bond provides the distinction. When an appeal bond made payable to named appellees inadvertently omits a certain appellee, that party will be unable to recover on the bond and, consequently, is unprotected by that bond. However, where a bond is payable to the district clerk, as is allowed by Rule 46(a) of the Texas Rules of Appellate Procedure, the rationale of the Conann court is applicable and, as a result, all appellees receive the protection of the appeal bond.

Here, as in Conann, the appeal bond is payable to the clerk of the district court. Finding that appellants have properly perfected this appeal, we will now consider appellants' points of error. In that consideration, we must bear in mind the standards for appellate review of summary judgment articulated in Nixon v. Mr. Property Management Company, 690 S.W.2d 546 (Tex.1985). Those standards are:

1. The movant has the burden of showing 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;

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Id. at 549.

In their first point, appellants assert that a material question of fact exists concerning whether Horizon retained a right of control over the work of its subcontractor, Triple D Masonry. ⁵ It is the rule that a general contractor who has control of a construction site is charged with the same responsibility as an owner or occupier. Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). The failure to fulfill this responsibility can result in the general contractor being found liable for premise defects or activities or instrumentalities on the premises. Id. While we find no evidence in the record that Horizon was in control of the premises, for the purposes of summary judgment review we will indulge in the presumption that it was. ⁶ As an exception to the general rule imposing a duty to exercise care, an owner or occupier, including a general contractor in control...