In Re W. Murray Thompson Construction Co., Inc. v. the State of Texas
CourtTexas Court of Appeals, 13th District
Date FiledNovember 2, 2026
Docket13-26-00215-CV
StatusPublished
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Full Opinion
NUMBER 13-26-00215-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE W. MURRAY THOMPSON CONSTRUCTION CO., INC.
ON PETITION FOR WRIT OF MANDAMUS
MEMORANDUM OPINION
Before Justices Silva, West, and Cron
Memorandum Opinion by Justice Cron 1
By petition for writ of mandamus, relator W. Murray Thompson Construction Co.,
Inc. asserts that the trial court 2 abused its discretion by granting a motion for new trial
“after a second full jury trial on a matter that has been pending for over fifteen years.” We
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition of the appeal.”); id. R. 47.4 (explaining the
differences between opinions and memorandum opinions).
2 This original proceeding arises from trial court cause number C-2120-09-B in the 93rd District
Court of Hidalgo County, Texas, and the respondent is the Honorable Fernando G. Mancias. See id. R.
52.2.
agree and conditionally grant the petition for writ of mandamus.
I. BACKGROUND
This original proceeding arises from a fatal construction accident that occurred on
July 10, 2009, during renovations at Sullivan Elementary School in San Benito, Texas.
San Benito Consolidated Independent School District (SBCISD), as the owner of the
project, contracted with relator to serve as the general contractor for the renovations.
Relator retained E&J Masonry, Inc. (E&J) as one of the subcontractors for the project.
E&J’s employee, Ruben Villegas, was operating a telehandler on an inclined or sloped
surface on the east side of the job site when the telehandler rolled over, causing Villegas
to suffer severe crushing injuries that resulted in his death approximately a week later.
The area where the accident occurred was fenced; however, the fence panels had been
removed to allow the telehandler access to the area. Real parties in interest Priscilla
Aguilar-Villegas and Maria Irma Juarez, individually, as co-administrators of the estate of
Ruben Villegas and on behalf of the estate of Ruben Villegas, filed suit against relator
and others for Villegas’s death.
The case was first submitted to a jury in 2011. The jury found that relator was 10%
responsible for the incident, E&J was 60% responsible, and Villegas was 30%
responsible. The jury, by a vote of ten to two, awarded the real parties $400,000 for
physical pain and suffering, $0 for disfigurement sustained in the past, $600,000 for
mental anguish, $205,755.25 for medical expenses, and $6,660.76 for funeral and burial
expenses. The trial court reduced the medical expenses award to $48,476.35. See TEX.
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CIV. PRAC. & REM. CODE § 41.0105. On May 10, 2011, the trial court signed a final
judgment awarding the real parties $105,513.71.
The real parties thereafter filed a motion for new trial. On June 29, 2011, the trial
court signed an order granting a new trial on grounds that there was “objective evidence”
of Villegas’s disfigurement, and thus the jury’s verdict was “manifestly unjust and against
the great weight and preponderance of the evidence.”
The case thereafter languished; however, it was ultimately submitted to a jury for
the second time in 2025. Question One in the jury charge asked:
Did [relator] exercise or retain some control over the access of a telehandler
to operate on the east side of the cafeteria and jobsite safety as of the time
of the injury to [Villegas], other than the right to order the work to start or
stop or to inspect progress or receive reports?
The jury answered in the negative, so in accordance with their instructions, the jury did
not answer Question Two regarding whether relator’s negligence, if any, proximately
caused Villegas’s injuries. Question Three asked the jury:
Did the negligence, if any, of [relator] proximately cause the injury in
question?
With respect to the condition of the premises, [relator] was negligent if—
1. The condition of the premises posed an unreasonable
risk of harm, and
2. [Relator] knew or reasonably should have known of the
danger, and
3. [Villegas] did not have actual knowledge of the danger,
and the danger was not open and obvious, and
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4. [Relator] failed to exercise ordinary care to protect
[Villegas] from the danger, by both failing to adequately
warn [Villegas] of the condition of the premises and by
failing to make the condition reasonably safe.
“Ordinary care,” when used with respect to the conduct of [relator] as an
owner or occupier of a premises, means that degree of care that would be
used by an owner or occupier of ordinary prudence under the same or
similar circumstances.
The jury answered in the negative. Question Four asked the jury if the negligence of E&J
and Villegas proximately caused the injuries sustained by Villegas, and the jury answered
affirmatively to both. The instructions to Question Five informed the jury to answer it if
they answered “Yes” to Questions Two or Three and to any part of Question Four, but
otherwise not to answer it. Question Five asked the jury to:
Assign percentages of responsibility only to those you found caused or
contributed to cause the injuries to [Villegas]. The percentages you find
must total 100 percent. The percentages must be expressed in whole
numbers. The percentage of responsibility attributable to any one is not
necessarily measured by the number of acts or omissions found. The
percentage attributable to any one need not be the same percentage
attributed to that one in answering another question.
For each person you found caused or contributed to cause the injuries, find
the percentage of responsibility attributable to each:
The jury assessed 10% responsibility to relator, 70% responsibility to E&J, and 20% to
Villegas. In accordance with the jury’s instructions, it did not answer Questions Six and
Seven regarding damages.
On November 14, 2025, the trial court signed a final take-nothing judgment against
the real parties in accordance with the jury’s verdict. On December 15, 2025, the real
parties filed a motion for new trial on grounds that: (1) the verdict was not supported by
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legally sufficient evidence; (2) the verdict was against the great weight and
preponderance of the evidence; and (3) cumulative error warranted a new trial. Relator
filed a response in support of the jury’s verdict.
On January 28, 2026, the trial court granted the real parties’ motion for new trial
and signed the order that is at issue in this original proceeding. The trial court’s order
principally relies on the terms of the prime contract between SBCISD and relator, and
testimony from relator’s owner, Murray Thompson, and its superintendent, Doug Layton.
The order states, in relevant part:
I. As a matter of law, [relator] retained contractual control over the
work, and the jury should have been instructed that control was
retained.
There is no genuine issue of material fact that [relator], by and
through its contract with SBCISD retained contractual control over the
means, methods, or details of its subcontractors’ work at the project in which
Villegas sustained his fatal injuries. The issue presented a question of law to
be determined from the contract’s terms. . . .
II. The jury’s finding that [relator] did not contractually retain
control over the work was against the great weight and
preponderance of the evidence.
The jury’s findings on Question(s) No. 1 and 3 are not supported by
legally sufficient evidence and are against the great weight and
preponderance of the credible evidence.
The evidence overwhelmingly showed, as a matter of law, that
[relator] retained contractual control over the means, methods, or details of
its contractors’ work and safety on the Project where Villegas was fatally
injured. On February 11, 2009, [relator] entered into a contract with SBCISD
to construct the Sullivan[ ]Elementary School Project, using a Standard AJA
Form Agreement, the A101-1997. Section 10.1 in the prime contract explicitly
gave [relator] control over safety at the Project: “The Contractor shall be
responsible for initiating, maintaining, and supervising all safety precautions
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and programs in connection with the performance of the contract.”
Furthermore, pursuant to Section 3.3.1, [relator] retained contractual control
over the details of [E&J’s] work, and by extension Villegas:
§ 3.3.1 The Contractor shall supervise and direct the Work
using the Contractor’s best skill and attention. The
Contractor shall be solely responsible for and have
control over construction means, methods,
techniques, sequences and procedures and for
coordinating all portions of the Work under the
Contract, unless the Contract Documents give other
specific instructions concerning these matters. If the
Contract Documents give specific instructions
concerning construction means, methods, []techniques,
sequences or procedures, the Contractor shall evaluate
the jobsite safety thereof and, except as stated below,
shall be fully and solely responsible for the jobsite safety
of such means, methods, techniques, sequences or
procedures. If the Contractor determines that such
means, methods, techniques, sequences or procedures
may not be safe, the Contractor shall give timely written
notice to the Owner and Architect and shall not proceed
with that portion of the Work without further written
instructions from the Architect[.]
Thompson agreed that [relator] would be performing the
aforementioned section of the contract. Thompson testified that
superintendent Layton was designated to prevent accidents. The retained
contractual control is far more than just the power to stop work—the
superintendent can take corrective or disciplinary actions and assumes the
safety responsibility for the entire project. Thompson expected his
superintendent to take prompt corrective action regarding hazards and
dangerous conditions. Thompson made several admissions during trial
regarding contractual control.
Ill. The jury’s finding that [relator] did not actually exercise control
over the work was against the great weight and preponderance
of the evidence.
The evidence, specifically testimony from [Thompson] and [Layton],
showed [relator] exercised actual control of safety on the Project. [Relator]
retained the right to control safety on the jobsite and owed a duty of care
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commensurate with that right. Despite acknowledging the incline presented
a dangerous condition and armed with actual knowledge the forklift was
being operated inside the fence on the slope, neither Layton nor Thompson
took corrective action. Layton and Thompson controlled access to the sloped
area where Villegas was crushed. Thompson and Layton personally
observed Villegas operating the forklift moving materials on the slope for at
least two weeks prior to the incident. Layton observed Villegas operating the
forklift on the slope the morning of July 10, 2009, and failed to take corrective
action to abate and/or eliminate a dangerous condition. Layton as job
superintendent was the competent person onsite with the duty to identify
hazards and authority to correct hazardous or dangerous conditions.
Thompson was present on the jobsite every day and kept very detailed daily
logs describing the work being performed and subcontractor onsite. [Relator]
also had a third-party safety company, [Engineering Safety Consultants
(ESC)], performing inspections at the project site on a monthly basis for the
benefit of all workers. ESC’s findings were communicated directly to Layton
and/or Thompson. Layton and Thompson had the right to control and correct
any safety violations of its subcontractors. After Villegas’ incident, [relator]
formally hired ESC to provide safety training for subcontractors and forklift
certification. Despite acknowledging the incline presented a dangerous
condition and armed with actual knowledge the forklift was being operated
inside the fence on the slope, neither Layton nor Thompson told anyone to
stop.
Lastly, testimony elicited from defense expert Dean Bernal further
demonstrated [relator] exercised actual control of safety on the Project and
violated the standard of care by failure to eliminate and/or control a
hazardous condition onsite and failure to take corrective action. Bernal
testified that as general contractor of the project site, [relator] upon observing
something dangerous had the duty and responsibility to say something.
Bernal also testified that [relator] had the authority to stop operation upon
observation of an unsafe activity. Bernal acknowledged the combination of
the handrail, chain-linked fence and steep incline presented a dangerous
condition. [Relator] failed to eliminate and/or control a hazardous condition
onsite and failed to take corrective action. According to Bernal, [relator’s]
conduct, acts of commission and omission, fell below the standard of care
pursuant to his expertise in the area of general contractors, safety and OSHA
standards.
The Court has carefully weighed the evidence and concludes that a
new trial is necessary.
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(Internal citations omitted).
This original proceeding ensued. In one issue, relator asserts that the trial court
abused its discretion in granting the real parties’ motion for new trial on each of the
grounds stated therein. Relator also filed a motion to stay the trial court proceedings
pending the resolution of its petition for writ of mandamus. See TEX. R. APP. P. 52.10(a).
We granted relator’s motion to stay, see id. R. 52.10(b), and we ordered the real parties
to file a response to the petition for writ of mandamus. We received a response to the
petition from Juarez as co-administrator of Villegas’s estate. See id. R. 52.4, 52.8. Relator
further filed a reply in support of its request for mandamus relief. See id. R. 52.5.
II. MANDAMUS
Mandamus relief provides an “extraordinary remedy.” In re Rogers, 690 S.W.3d
296, 302 (Tex. 2024) (orig. proceeding) (per curiam) (quoting In re USAA Gen. Indem.
Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding)). Mandamus is discretionary in
nature, and it is governed by equitable principles. In re First Rsrv. Mgmt., L.P., 671 S.W.3d
653, 663 (Tex. 2023) (orig. proceeding); In re Garza, 544 S.W.3d 836, 840 (Tex. 2018)
(orig. proceeding) (per curiam). To obtain mandamus relief, the relator must show that the
trial court clearly abused its discretion and the relator lacks an adequate remedy by
appeal. In re Dall. HERO, 698 S.W.3d 242, 247 (Tex. 2024) (orig. proceeding); In re
AutoZoners, LLC, 694 S.W.3d 219, 223 (Tex. 2024) (orig. proceeding) (per curiam). In
this regard, there is no adequate remedy by appeal when the trial court abuses its
discretion by granting a new trial. In re Columbia Med. Ctr. of Las Colinas, Subsidiary,
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L.P., 290 S.W.3d 204, 209–10 (Tex. 2009) (orig. proceeding).
III. NEW TRIALS
Trial courts possess “considerable authority to grant new trials” and have the duty
“to do so when they observe problems that threaten the integrity of the process and,
therefore, the reliability of [a jury’s] verdict.” In re Rudolph Auto., LLC, 674 S.W.3d 289,
302 (Tex. 2023) (orig. proceeding). However, because “disregarding a jury’s verdict is an
unusually serious act that imperils a constitutional value of immense importance—the
authority of a jury”—the trial court may only do so “when clearly supported by sound
reasons.” Id. The Supreme Court of Texas has further explained that “[i]t is simply
impermissible for the district court, no matter how strongly it disagrees, to substitute its
own judgment for the jury’s as a basis for a new trial.” Id. at 307.
The trial court’s reasons for setting aside a jury’s verdict must be specifically set
forth in the order granting a new trial. Id.; see In re Davenport, 522 S.W.3d 452, 456 (Tex.
2017) (orig. proceeding). Trial courts are required to provide litigants with “an
understandable, reasonably specific explanation” for setting aside a jury verdict and
ordering a new trial. In re Bent, 487 S.W.3d 170, 173 (Tex. 2016) (orig. proceeding)
(quoting In re Columbia Med. Ctr., 290 S.W.3d at 213). Generally, this requirement is
satisfied when a trial court’s stated reason is “a reason for which a new trial is legally
appropriate” and “is specific enough to indicate that the trial court did not simply parrot a
pro forma template, but rather derived the articulated reasons from the particular facts
and circumstances of the case at hand.” Id. 173 (quoting In re United Scaffolding, Inc.,
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377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding)).
We look past the face of the new trial order to perform a merits-based review of
the validity of the trial court’s reasons for granting a new trial. In re Rudolph Auto., LLC,
674 S.W.3d at 300; In re Bent, 487 S.W.3d at 173. We do so because “[t]ransparency
without accountability is meaningless.” In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d
746, 758 (Tex. 2013) (orig. proceeding). Thus, a new trial order must show that it was
granted “only after careful thought and for valid reasons.” In re Davenport, 522 S.W.3d at
456 (quoting In re United Scaffolding, Inc., 377 S.W.3d at 688).
IV. GENERAL CONTRACTOR LIABILITY
To prevail on a negligence claim, the plaintiff must establish a legal duty owed to
the plaintiff by the defendant, a breach of that duty, and damages proximately caused by
the breach. Tenaris Bay City Inc. v. Ellisor, 718 S.W.3d 193, 197 (Tex. 2025). The
existence of a duty is “[a] threshold legal requirement for negligence liability.” Massage
Heights Franchising, LLC v. Hagman, 712 S.W.3d 615, 620 (Tex. 2025) (per curiam).
Whether a duty exists “is a question of law for the court to decide from the facts
surrounding the occurrence in question.” Elephant Ins. v. Kenyon, 644 S.W.3d 137, 145
(Tex. 2022) (quoting Greater Hou. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.
1990)).
“As a general rule, one who employs an independent contractor has no duty to
ensure that the contractor safely performs its work.” JLB Builders, L.L.C. v. Hernandez,
622 S.W.3d 860, 864–65 (Tex. 2021); see AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d
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289, 295 (Tex. 2020). However, an exception to this rule arises when an employer retains
some control over the manner in which the independent contractor performs the work that
causes the damage. JLB Builders, L.L.C., 622 S.W.3d at 865; AEP Tex. Cent. Co., 612
S.W.3d at 295. “A plaintiff can prove the requisite control by establishing that the general
contractor either actually controlled the manner in which the subcontractor performed its
work or had a contractual right to do so.” JLB Builders, L.L.C., 622 S.W.3d at 865; see
Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). In either case, the control
retained or exercised by the general contractor “must relate to the condition or activity
that caused the injury.” JLB Builders, L.L.C., 622 S.W.3d at 865 (quoting Clayton W.
Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997)). And in either case, the
control must extend to “the means, methods, or details of the independent contractor’s
work.” Dow Chem. Co., 89 S.W.3d at 606; see JLB Builders, L.L.C., 622 S.W.3d at 865;
AEP Tex. Cent. Co., 612 S.W.3d at 295. We bear in mind that a general contractor “must
have some latitude to tell its independent contractors what to do, in general
terms, . . . without becoming subject to liability.” Koch Ref. Co. v. Chapa, 11 S.W.3d 153,
156 (Tex. 1999) (per curiam); see AEP Tex. Cent. Co., 612 S.W.3d at 295.
If a written contract assigns the right of control to the general contractor, then the
plaintiff need not prove an actual exercise of control to establish a duty. See Dow Chem.
Co., 89 S.W.3d at 606 (“If the right of control over work details has a contractual basis,
the circumstance that no actual control was exercised will not absolve the general
contractor of liability.” (quoting Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex.
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1999))); Gonzalez v. VATR Const. LLC, 418 S.W.3d 777, 785 (Tex. App.—Dallas 2013,
no pet.). Conversely, if the contract does not explicitly assign control over the manner of
work to the general contractor, then the plaintiff must present evidence of the actual
exercise of control by the general contractor. See Dow Chem. Co., 89 S.W.3d at 606;
Gonzalez, 418 S.W.3d at 785. Whether a contract assigns a right of control is an issue of
law, whereas whether a party has exercised actual control is generally a question of fact.
Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001); Torres v. Ten Hagen
Excavating, Inc., No. 05-24-00827-CV, 2026 WL 641484, at *2 (Tex. App.—Dallas Mar. 6,
2026, pet. denied) (mem. op.). “When there are disputed facts regarding the actual
exercise of control, that question should be resolved by a jury.” Massage Heights
Franchising, LLC, 712 S.W.3d at 622.
V. CONTRACTUAL RIGHT OF CONTROL
Relator presents several arguments in support of its contention that the trial court
abused its discretion by concluding that relator retained contractual control over E&J’s
work. Relator asserts that the trial court’s explanation is insufficient; the real parties
received the instruction that they requested; the conclusion that relator retained
contractual control as a matter of law was not valid or legally appropriate; and the jury’s
finding that relator did not contractually retain control was not against the great weight
and preponderance of the evidence.
A. Facial Invalidity
Relator asserts that the trial court’s first basis for granting the motion for new trial,
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that relator retained control as a matter of law, is not supported by a sufficient explanation
in the new trial order. Relator contends that the trial court’s “explanation fails to meet the
minimum requirement that the order contain reasons that the record will support to justify
the ruling.” According to relator, the trial court’s explanation does not state what
contractual provisions it is relying upon to make its determination or how those provisions
apply in this case. Juarez asserts, in contrast, that the new trial “order is specific” and
identifies “the contractual provisions that gave [relator] a right of control and the trial
evidence supporting that finding.”
While the first paragraph of the new trial order lacks supporting details, the
remainder of the order discusses two separate contractual provisions, plus testimony,
regarding the trial court’s conclusion that relator retained contractual control as a matter
of law. Therefore, examining the order in its entirety, we determine that it was specific
enough to indicate that the trial court derived its articulated reasons for granting a new
trial from the particular facts and circumstances of the case at hand. See In re Bent, 487
S.W.3d at 173; In re United Scaffolding, Inc., 377 S.W.3d at 688–89. We reject relator’s
contention that the new trial order was facially invalid.
B. Objection to the Charge
Relator asserts that the real parties did not request that the jury be instructed that
it retained control; they did not request a directed verdict on this issue; and they did not
object to the submission of Question One regarding control. Relator thus contends that
the real parties received the charge that they requested, and a new trial cannot be based
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on invited error. See In re Dep’t of Fam. & Protective Servs., 273 S.W.3d 637, 646 (Tex.
2009) (orig. proceeding) (“The invited error doctrine applies to situations where a party
requests the court to make a specific ruling, then complains of that ruling on appeal.”).
However, a complaint that a jury’s answer is immaterial is not a jury charge complaint;
therefore, a party need not object to a jury question to later argue that it is immaterial.
Musallam v. Ali, 560 S.W.3d 636 (Tex. 2018). Thus, we disagree with relator’s contention
that the invited error doctrine bars relief in this case.
C. Contract Analysis
Relator contends that the trial court’s conclusion that relator retained contractual
control over its subcontractors as a matter of law was neither valid nor legally appropriate,
and contrary to the trial court’s finding, the jury’s determination that relator did not
contractually retain control was supported by factually sufficient evidence.
1. Contract Construction
We review an unambiguous contract and determine its meaning as a question of
law that we review de novo. Equinor Energy LP v. Lindale Pipeline, LLC, 731 S.W.3d 324,
327 (Tex. 2026). “In doing so, we ‘interpret contract language according to its plain,
ordinary, and generally accepted meaning unless the instrument directs otherwise.” Id.
(quoting URI, Inc. v. Kleberg County, 543 S.W.3d 755, 764 (Tex. 2018)). Our primary goal
in construing a contract is to ascertain the intentions of the parties; however, we focus on
objective indicia, rather than subjective interpretations, and therefore we pay “careful
attention to the text of the contract itself.” Id. We examine the entire contract and, to the
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extent possible, resolve any conflicts in the contract’s provisions by harmonizing them so
that none of the contract’s provisions will be rendered meaningless. Occidental Permian,
Ltd. v. Citation 2002 Inv. LLC, 689 S.W.3d 899, 905 (Tex. 2024).
2. Upstream Contract
Relator contends that the trial court’s reliance on the “upstream” or prime contract
to find that relator exercised contractual control over its subcontractor as a matter of law
is misplaced. Relator contends that the upstream contract defines the terms of the
relationship between relator and SBCISD, not the relationship between relator and its
subcontractor. Relator suggests that an upstream contract cannot, as a matter of law,
provide a duty between a general contractor and a subcontractor’s employee.
We agree with relator that some cases suggest as much. See Gonzalez, 418
S.W.3d at 786 (“The Estate’s reliance upon contractual provisions in contracts to which
Gonzalez is not a party or third-party beneficiary is misplaced. Gonzalez cannot rely on
upstream contracts to establish the existence of a duty.”); Wood v. Phonoscope, Ltd., No.
01-00-01054-CV, 2004 WL 1172900, at *10 (Tex. App.—Houston [1st Dist.] May 27, 2004,
no pet.) (mem. op.) (“Because Wood was not a party to the agreement, Phonoscope
correctly asserted that he was required, but failed, to establish either that he had standing
to enforce the agreement or that he was a third-party beneficiary of the contract.”), op.
supplemented on denial of reh’g, No. 01-00-01054-CV, 2004 WL 2476570 (Tex. App.—
Houston [1st Dist.] Nov. 4, 2004, no pet.) (mem. op.).
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However, we disagree with such a bright-line and broad proposition. Whether a
general contractor retains control over a subcontractor’s work requires an examination of
the prime contract and any subcontract in each case. See, e.g., Elliott-Williams Co., Inc.,
9 S.W.3d at 804 (“A contract may impose control upon a party thereby creating a duty of
care.”); Andrews v. DT Const., Inc., 205 S.W.3d 4, 11 (Tex. App.—Eastland 2006, no pet.)
(“To examine DT Construction’s ‘retained control’ in analyzing whether it owed a duty to
Andrews, we begin with a review of the construction contract and subcontracts.”). Thus,
contrary to relator’s suggestion, we include the prime contract in our review.
3. Analysis of the Contracts
We begin by noting that the new trial order does not reference the subcontract
between relator and E&J. The subcontract, designated as a “SHORT FORM,” comprises
three pages. It references the prime contract and requires E&J to perform its work “in
accordance with the Contract Documents and under the general direction of [relator].”
Pursuant to the subcontract, E&J agreed that it “shall be bound to [relator] by the terms
of the [Contract] Documents and this Agreement, and assume toward [relator] all of the
obligations and responsibilities that [relator], by these documents assumes toward the
Owner.” The subcontract further requires E&J to “comply with all laws and regulations.” It
provides that relator can terminate the subcontract if E&J “persistently or repeatedly
refuses or fails to supply enough properly skilled workers or proper materials,”
“persistently disregards laws, ordinances, or rules, regulations, or orders of a public
authority,” or if it commits “a substantial breach of the [Contract] Documents.” Examining
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the subcontract in its entirety, we conclude that it does not assign relator the right to
control the means, methods, or details of E&J’s work. See JLB Builders, L.L.C., 622
S.W.3d at 865; see AEP Tex. Cent. Co., 612 S.W.3d at 295.
We turn our attention to the prime contract. Relator and SBCISD signed American
Institute of Architects (“AIA”) Document A101-1997 to effectuate their agreement. AIA
Document A101-1997 incorporated by reference AIA Document A201-1997, which
includes the “General Conditions of the Contract for Construction.” As previously noted,
the new trial order references AIA Document A201-1997 sections 10.1 and 3.3.1. Section
10.1.1, which is contained in Article 10 governing the “Protection of Persons and
Property,” provides that: “The Contractor shall be responsible for initiating, maintaining[,]
and supervising all safety precautions and programs in connection with the performance
of the Contract.” Other sections in Article 10 contain similar provisions and require the
Contractor to “take reasonable precautions for safety of, and shall provide reasonable
protection to prevent damage, injury[,] or loss to . . . employees on the Work and other
persons who may be affected thereby.” And as stated previously, section 3.3.1, contained
in Article 3 “Contractor,” provides, in relevant part, that:
The Contractor shall supervise and direct the Work using the Contractor’s
best skill and attention. The Contractor shall be solely responsible for and
have control over construction means, methods, techniques, sequences
and procedures and for coordinating all portions of the Work under the
Contract, unless the Contract Documents give other specific instructions
concerning these matters. If the Contract Documents give specific
instructions concerning construction means, methods, []techniques,
sequences or procedures, the Contractor shall evaluate the jobsite safety
thereof and, except as stated below, shall be fully and solely responsible for
the jobsite safety of such means, methods, techniques, sequences or
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procedures. If the Contractor determines that such means, methods,
techniques, sequences or procedures may not be safe, the Contractor shall
give timely written notice to the Owner and Architect and shall not proceed
with that portion of the Work without further written instructions from the
Architect. If the Contractor is then instructed to proceed with the required
means, methods, techniques, sequences[,] or procedures without
acceptance of changes proposed by the Contractor, the Owner shall be
solely responsible for any resulting loss or damage.
We do not consider the foregoing provisions in isolation; rather, we consider the
entire contract in determining whether it assigned a right of control to relator over E&J’s
work on the project. See Occidental Permian, Ltd., 689 S.W.3d at 905. Section 1.1.2
explicitly provides that, “The Contract Documents shall not be construed to create a
contractual relationship of any kind . . . between any persons or entities other than the
Owner and Contractor.” Thus, the contract’s express terms provide that it governs only
the relationship between the owner and the general contractor and exclusively allocates
the rights and responsibilities in the contract between them. And, Article 5 regarding
“Subcontractors,” provides that “[a] Subcontractor is a person or entity who has a direct
contract with the Contractor to perform a portion of the Work at the site.” Thus, the prime
contract contemplates that relator would enter separate contracts with its subcontractors.
Further, Section 5.3.1 states that: “the Contractor shall require each Subcontractor . . .to
assume toward the Contractor all the obligations and responsibilities, including the
responsibility for safety of the Subcontractor’s Work, which the Contractor, by these
Documents, assumes toward the Owner and Architect.” Thus, the prime contract directed
relator to assign its responsibilities, including the responsibility for the safety of E&J’s
work, to E&J. The subcontract contains this required language as previously discussed.
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We determine that the prime contract, including the provisions cited in the new trial
order, imposed a broad duty on relator to supervise the safety of the work being
accomplished; however, this language does not show that relator had a contractual right
to control the means, method or details of E&J’s work, or the condition or activity that
caused Villegas’s death. See JLB Builders, L.L.C., 622 S.W.3d at 865 (quoting Clayton
W. Williams, Jr., Inc., 952 S.W.2d at 528); Dow Chem. Co., 89 S.W.3d at 606. Thus, we
join the courts that have considered this same contract, or contracts with substantially
similar provisions, in determining that the terms of the prime contract do not assign a duty
of care to a general contractor, such as relator, towards its subcontractor’s employees.
See, e.g., Torres, 2026 WL 641484, at *4; Chevez v. Brinkerhoff, No. 05-13-00572-CV,
2014 WL 7246798, at *4 (Tex. App.—Dallas Dec. 22, 2014, no pet.) (mem. op.); Deleon
v. DSD Dev., Inc., No. 01-03-00806-CV, 2006 WL 2506743, at *5–6 (Tex. App.—Houston
[1st Dist.] Aug. 31, 2006, pet. denied) (mem. op.); Andrews, 205 S.W.3d at 13. Therefore,
contrary to the trial court’s conclusion, relator did not, as a matter of law, retain contractual
control over Villegas’s work on the project.
D. Great Weight and Preponderance
The new trial order provides that “[t]he jury’s finding that [relator] did not
contractually retain control over the work was against the great weight and
preponderance of the evidence.” Relator asserts otherwise. The parties do not allege that
either the prime contract or the subcontract is ambiguous. We note that contract language
is not ambiguous “merely because the parties assert forceful and diametrically opposing
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interpretations.” In re D. Wilson Const. Co., 196 S.W.3d 774, 781 (Tex. 2006) (combined
app. & orig. proceeding); see Maxey v. Maxey, 617 S.W.3d 207, 219 (Tex. App.—
Houston [1st Dist.] 2020, no pet.). As stated previously, we review an unambiguous
contract and determine its meaning as a question of law. See Equinor Energy LP, 731
S.W.3d at 327. “An unambiguous contract will be enforced as written, and parol evidence
will not be received for the purpose of creating an ambiguity or to give the contract a
meaning different from that which its language imports.” David J. Sacks, P.C. v. Haden,
266 S.W.3d 447, 450 (Tex. 2008); see Maxey, 617 S.W.3d at 219. Because the contracts
at issue here are not ambiguous, we do not consider evidence other than the terms of the
contracts in determining their meaning.
That said, the referenced trial testimony, if we were to consider it, does not support
the trial court’s conclusion. As stated previously, the new trial order provides, in relevant
part, that:
Thompson testified that superintendent Layton was designated to prevent
accidents. The retained contractual control is far more than just the power
to stop work—the superintendent can take corrective or disciplinary actions
and assumes the safety responsibility for the entire project. Thompson
expected his superintendent to take prompt corrective action regarding
hazards and dangerous conditions. Thompson made several admissions
during trial regarding contractual control.
The order further references several sections of Thompson’s testimony in support of this
conclusion. However, we have carefully reviewed Thompson’s testimony, and it does not
support the findings in the new trial order. Thompson testified that, under section 3.3.1,
relator had full responsibility over the means, methods, and techniques for the project,
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and that section 3.3.1 states that the general contractor has a duty to make the job site
safe for everyone; however, he explained that the prime contract “has nothing to do
between the general contractor and the subcontractor.” He agreed that his responsibility
to SBISD “was to evaluate the job site safety and be fully responsible to the school district
for the job site safety.” However, he further stated that he “look[s] to [his] subcontractors
to make sure that their particular areas are safe.” When asked about section 3.3.2, which
states that the contractor is responsible to the owner for acts and omissions of the
contractor’s employees, he stated that relator’s responsibil