Angel Mendoza v. Hacienda Services, Inc. Dba Censeo Homes
CourtTexas Court of Appeals, 1st District (Houston)
Date FiledAugust 31, 2026
Docket01-24-00620-CV
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
Opinion issued August 31, 2026
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-24-00620-CV
———————————
ANGEL MENDOZA, Appellant
V.
HACIENDA SERVICES, INC. D/B/A CENSEO HOMES, Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2022-12390
MEMORANDUM OPINION
Chapter 95 of the Texas Civil Practice and Remedies Code protects property
owners against liability to contractors, subcontractors, and their employees under
certain circumstances, unless the property owner exercises or retains control over
the manner in which the work is performed, had actual knowledge of the danger or
condition that caused the plaintiff’s injury, and failed to adequately warn him. TEX.
CIV. PRAC. & REM. CODE § 95.003. Angel Mendoza sued for injuries he suffered
when he fell while working as a contractor for Hacienda Services, Inc. d/b/a
Censeo Homes (“Censeo”). The trial court granted take-nothing summary
judgment in Censeo’s favor, and Mendoza appealed.
On appeal, Mendoza argues that the trial court erred by granting summary
judgment because Censeo did not conclusively prove that Chapter 95 applies and
because the summary judgment evidence created a question of fact about the
applicability of the statutory exception. We conclude that the statute applies. In
addition, we conclude that Mendoza failed to produce evidence relating to control
or actual knowledge in response to Censeo’s no evidence motion for summary
judgment.
Accordingly, we affirm.
Background
Hacienda Services, Inc. is a residential homebuilder that has done business
as Fronterra Homes and Censeo Homes. Censeo built a number of houses in a new
development in Angleton, Texas. Mendoza, who referred to himself as a
“subcontractor,” owned a business called “Domingo’s Painting,” and employed
2
multiple people.1 Mendoza primarily did interior and exterior painting for
homebuilders like Censeo and Lennar Homes, but Mendoza was also “kind of a
handyman.” In addition to painting, Mendoza had “learned to do a bunch of other
stuff” including sheetrock, carpentry, and pressure washing, and he had done a
variety of other tasks on Censeo projects on an ad hoc basis. Cortez described
walking through building projects with Mendoza, pointing out miscellaneous tasks
that needed to be completed (including sheetrock repairs, carpentry, pressure
washing, and trash removal), and Mendoza telling him what he could do and how
much each task would cost. Censeo would then pay Mendoza for those services by
issuing a variance purchase order.2
Mendoza, through Domingo’s Painting, painted houses for Censeo in its
Angleton development. On May 10, 2021, he and one of his employees arrived to
work on two houses: one at 753 Rosewood Lane and the other next door. The one-
story house at 753 Rosewood Lane had been sold, and the sale was scheduled to
close several days later. Mendoza was engaged to help with final “punch list”
1
Because Mendoza’s injuries limit his ability to speak, Mendoza testified by
deposition through an interpreter and the use of hand signals.
2
In his deposition, Jeff Cortez, who had worked for Censeo in both warranty issues
and construction, spoke highly of Mendoza. Cortez said he used Mendoza for
warranty work for Censeo before he became a construction superintendent. He
testified that Censeo called on Mendoza for “almost every warranty call that
needed paint. He was—he was our best guy.” When asked if Mendoza was a good
worker, Cortez said: “He was the best worker we had. . . . [H]e was just awesome
with customers. You could send him to somebody’s house and not be worried
about anything. He was great with customers. He was a great painter.”
3
items to make the one-story house ready for closing, and his employee was tasked
to do “little stuff” on the interior of the two-story house next door.
Jeff Cortez, who was Censeo’s construction superintendent for those two
houses, testified about the communications he had with Mendoza regarding the
final punch list. Cortez did not use a formal punch list for the interior of the house.
He said: “The inside doesn’t really require [a written punch list], because the inside
we blue tape. So me and [Mendoza] had worked together so—long enough that I
didn’t need to point to anything. If there was something on the ceiling, I would
mark it on the floor and he would know. Everything on the walls was marked. I
would write on the tape on the inside of the house like, ‘Whatever this is.’ And so
really, the punch list on the inside was just blue tape, and we walked the outside . .
. .”
As for the exterior, Cortez explained: “There was a little paint touch-up, a
little caulking. It’s just when the house—it’s just sitting outside, so you’re going to
get paint things messed up. Caulking is going to crack. And it’s the first thing you
see when you pull into the driveway, so . . . you notice it.” Cortez was asked: “[S]o
basically you were, like, ‘Fix this,’ pointed to the dormer?” Cortez said: “Yeah. I
was like, ‘Just make sure the caulking is good. Touch up the paint. Wipe down the
window.’”
4
In his deposition, Mendoza denied that he was given instructions regarding
the work to be done on the dormer of the house.3 Miguel Garcia, a Censeo project
manager who testified as the corporate representative, said nobody at Censeo told
Mendoza how to do his job because “[h]e’s a professional . . . an expert in his
field.” Garcia also said that Censeo did not provide Mendoza with safety training
“[b]ecause it’s his responsibility.”
Mendoza had his own equipment, including ladders, that he brought with
him and used for interior and exterior painting jobs.4 Mendoza set up his extension
ladder at the one-story house. Mendoza had worked on roofs two or three times
without incident before his fall. But he did not know whether he wore fall
protection on the day of his accident.
Cortez was upstairs in the house next door with a plumber, Mendoza’s
employee was painting downstairs, and Mendoza was working alone at the one-
3
At his deposition, Mendoza was asked:
Q: On May 10th, 2021, did Jeff Cortez give you instructions
regarding work to be done on the dormer, which is on the
roof, of a home in Angleton, Texas?
A: No (indicating).
Mendoza recalled working “on the roof” of the house on May 10, 2021, but he did
not remember working at the house before the accident.
4
Cortez said that “all the trades” bring their own equipment because “[w]e don’t
provide anything.”
5
story house.5 Cortez heard Mendoza’s employee screaming, ran downstairs, and
found Mendoza unconscious on top of his ladder in the driveway of the one-story
house. Although he did not witness the accident, Cortez said it looked like the
ladder tipped backwards because Mendoza was face up on the ladder with his head
toward the street. Cortez said: “[I]t looked like . . . his head went between the two
rungs and hit concrete . . . . Imagine in your head if you were using a ladder as,
like, a gurney to pick somebody up, that’s what it looked like.” Cortez stayed with
Mendoza until an ambulance arrived, and he later ensured that Mendoza’s wife
was notified about the accident.6
Cortez testified that Censeo “really didn’t” manage fall protection at the
jobsites because it was up to each subcontractor to train their workers. He said:
“[W]e didn’t have, like, a safety meeting and protocols or training or anything like
that. . . . I mean, we had a binder . . . they printed out and gave us to keep in our
cars in case anybody asked for it; but it wasn’t like hammered home or anything.”
According to Cortez and Garcia, Censeo did not provide any fall protection, and it
was up to the individual contractors to provide it. Cortez said that Mendoza had
5
A Censeo Homes salesperson was inside the one-story house at the time of the
accident, and she came outside after Mendoza fell.
6
Cortez testified that he emailed a statement about the incident to Deidre Foster,
who was investigating the accident internally. Although he did not see what
happened to Mendoza, Cortez wrote: “Suspected fall from roof or ladder slipped
when leaving roof.” Cortez did not believe the ladder slipped due to Mendoza’s
position on the ground when Cortez reached him.
6
been on roofs, and “he wasn’t unsure of his footing.” Cortez also said that he had
“never seen anybody use fall protection.” However, Garcia said that was not
consistent with his experience at Censeo, and he suggested that, due to his relative
inexperience, Cortez might not have known what fall protections to look for.
According to Garcia, Censeo screens contractors for quality and safety, and
he said that contractors can be terminated if it is “blatantly obvious” that they are
“not being safe,” including violating OSHA regulations. He said that Censeo
should not hire, and should fire, a contractor who acts unsafely. He agreed that
Censeo’s project managers should be trained to identify a contractor’s unsafe acts
and that contractors should follow applicable federal regulations pertaining to
safety. He also agreed that Censeo “should not knowingly keep having a contractor
do an unsafe thing,” and that “assign[ing] a contractor to do a job on a second story
roof” when Censeo “know[s] that they’re not going to be using fall protection”
endangers the contractor. But he emphasized that it was up to the contractors to
follow their own safety rules.
Garcia repeatedly testified that fall protection was not needed where
Mendoza was working because it was a one-story house, with the roof at nine feet.
He said that considering that it was less than ten feet high and accounting for the
7
slope of the roof, Censeo’s safety manual did not require fall protection.7 Garcia
also relied on “toolbox talks,” which were employee talks about “some of the
things that we see out there in the field,” in reaching his conclusion that no fall
protection was needed at an elevation less than ten feet.
Garcia was asked about an OSHA (Occupational Safety and Health
Administration) regulation that requires fall protection such as guardrails with
toeboards, safety net systems, or personal fall arrest systems when an “employee
[is] on a steep roof with unprotected sides and edges 6 feet or more above lower
levels.” Garcia emphasized that the rule was for employees, and Mendoza was not
an employee. He acknowledged that Censeo’s safety manual did not address work
on roofs and that Garcia was a painter. Garcia said that Censeo did not consider
fall protection for heights under ten feet: “I’m just telling you that it’s not
something we look for because we know that it’s under 10 foot. Anything outside
of that, cornice guys, framers, roofers, they all have fall protection for those
purposes.” Garcia agreed that a contractor should abide by applicable regulations,
including those specifying when fall protection is needed, and that Censeo should
7
Garcia’s deposition indicates that Censeo’s safety manual was an exhibit, but the
manual does not appear in the appellate record, and it was not offered as
summary-judgment evidence. Garcia testified that on page 15, the manual stated:
“Use fall arrest systems when working on ladder jacks that are more than 10 feet
above the ground.”
8
not continue to employ contractors that fail to use fall protection when needed
because it endangers the contractor.
Garcia explained that Censeo’s safety manual came from the Texas
Association of Builders, and he read the following from the safety manual:
This program is not meant to replace the safety plans of our
independent contractors. Our independent contractors are responsible
for developing and maintaining their own safety plans specific to their
respective trade or occupation. These standards are simply to
emphasize some of the common hazards and safety practices that may
be found on company jobsites.
Garcia said that Censeo’s safety manual applied to employees, and that as a
contractor, Mendoza was responsible for determining whether he needed fall
protection and providing it:
Now if Mr. Mendoza felt like he needed fall protection, our manual
states that he is responsible to supply his own fall protection, whether
it’s equipment, what it is to do that. And so if we misjudged as a
builder that he—that he didn’t need fall equipment, at the end of the
day, we rely on his expertise and his competence to identify that.
Mendoza’s injuries from the fall were severe, disabling, and included a
traumatic brain injury that limits his ability to speak. Mendoza sued Censeo along
with the manufacturer and the installer of the roofing shingles. The statement of
facts consisted of the following four numbered paragraphs:
10. On May 10, 2021, Plaintiff [Mendoza] was performing work as
a painter at a one-story house located on the 700 block of Rosewood
Lane in Angleton, Texas 77515.
9
11. Plaintiff was performing the work under his trade name,
Domingo’s Painting, and had been hired by Defendant Censeo Homes
to do the work.
12. The roof of the house, which had just been installed by
Defendant Dalco Roofing, was loose and granular. Defendant Dalco
Roofing installed Tamko Heritage Shingles, manufactured by
Defendant Tamko, on the roof in question.
13. Plaintiff was on the roof doing touch-up work on the roof jacks
when, suddenly and without warning, he fell to the ground below,
causing severe trauma to his brain that resulted in permanent injuries.
Mendoza alleged causes of action for negligence and premises liability. As
to his negligence claim, Mendoza alleged that Censeo “proximately caused” the
incident in the following ways:8
a) Failing to use reasonable care in performing and/or overseeing
work at the property where the incident occurred;
b) Failing to provide a safe workplace;
c) Failing to provide adequate training;
d) Placing Plaintiff in a dangerous position and failing to act as a
reasonable person in preventing harm;
e) Failing to provide appropriate equipment for Plaintiff’s use;
f) Failing to warn Plaintiff of the dangers associated with the task;
g) Failing to warn Plaintiff of the dangers associated with the roof;
8
Mendoza’s negligence claim is technically a negligent activity claim and will be
treated as such here. Mendoza also sued the manufacturer and the installer of the
roofing shingles, and he nonsuited his claims against them before the trial court
rendered the summary judgment from which he now appeals.
10
h) Failing to warn Plaintiff of dangers associated with the
equipment provided by Defendants.
i) In failing to remove, eliminate or abate the dangerous
conditions which existed at all times material hereto; and
j) Other acts deemed negligent and grossly negligent.
As to his premises liability claim, Mendoza alleged that he was an invitee on
the premises because he was performing work for Censeo’s benefit. Mendoza
pleaded that Censeo owed him “a duty to not create dangerous conditions on the
premises and to warn of dangerous conditions that it knew or reasonably should
have known about.” Mendoza alleged that Censeo breached its duties by:
a) Failing to use reasonable care to protect Plaintiff against
unreasonable risk of harm;
b) Failing to properly inspect the premises for dangerous
conditions;
c) Creating a dangerous condition on the premises and failing to
remedy the dangerous condition;
d) Failing to warn of a dangerous condition that Defendants
created on the premises;
e) Failing to warn of or cure a dangerous condition that
Defendants knew or should have known existed on the
premises; and
f) Other acts deemed negligent.
Censeo filed a traditional and no evidence motion for summary judgment.
Censeo’s summary judgment evidence consisted of the transcripts of the
depositions of Mendoza, Cortez, and Garcia. In its traditional motion for summary
11
judgment, Censeo argued that Chapter 95 of the Texas Civil Practice and Remedies
Code applied, that the exception did not apply because Censeo did not retain
control over the manner in which Mendoza performed his work, and that Censeo
had no duty to warn or make safe the open and obvious condition (the height of the
roof). Censeo also argued that there was no evidence of control or actual
knowledge. Thus, Censeo sought summary judgment on traditional grounds on the
question of applicability and the first element of the exception, and it sought
summary judgment on no evidence grounds on both elements of the exception.
Mendoza responded, attaching as summary judgment evidence the same
transcripts of his and Cortez’s depositions and a purchase order for interior and
exterior painting of the house where Mendoza fell. The purchase order was dated
October 28, 2020. He also claimed that he was engaged in maintenance activities
outside the scope of the statute and that Censeo sent him to work on the roof
despite knowing that he would not use fall protection.
The trial court initially denied the summary judgment motion because
Censeo had not proven that it was a property owner. Censeo then filed a
supplemental motion for summary judgment, attaching evidence that it owned the
property on the day of the fall. The trial court granted final summary judgment in
favor of Censeo, and Mendoza appealed.
12
Analysis
On appeal, Mendoza argues that the trial court erred by granting Censeo’s
summary judgment motion.
I. Standards of Review
A. Traditional Motion for Summary Judgment
To prevail on a traditional motion for summary judgment, the moving party
must prove there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law on the issues expressly set out in the
motion. TEX. R. CIV. P. 166a (former); see Lujan v. Navistar, Inc., 555 S.W.3d 79,
84 (Tex. 2018). “To establish entitlement to summary judgment based on an
affirmative defense . . . the defendant must conclusively establish each element of
its affirmative defense.” First Sabrepoint Cap. Mgmt, L.P. v. Farmland Partners
Inc., 712 S.W.3d 75, 84 (Tex. 2025); De La Rosa v. Miracle Farm, Inc., No. 01-
23-00579-CV, 2025 WL 2832218, at *3 (Tex. App.—Houston [1st Dist.] Oct. 7,
2025, no pet.) (mem. op.). We review summary judgments de novo. Weekley
Homes, LLC v. Paniagua, 691 S.W.3d 911, 915 (Tex. 2024). In doing so, we
“examine the entire record in the light most favorable to the nonmovant, indulging
every reasonable inference and resolving any doubts against the motion.” City of
Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). And when, as here, the trial
court does not specify the grounds on which it granted a summary judgment, we
13
must uphold the trial court’s judgment if any of the grounds properly presented are
meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013);
Pertolanitz v. Waldroup, 722 S.W.3d 168, 172 (Tex. App.—Houston [1st Dist.]
2025, no pet.).
B. No Evidence Motion for Summary Judgment
After an adequate time for discovery, a party may move for summary
judgment contending that there is no evidence of one or more essential elements of
the nonmovant’s claims, upon which the nonmovant would have the burden of
proof at trial. See TEX. R. CIV. P. 166a(i) (former); see Lozada v. Posada, 718
S.W.3d 262, 266 (Tex. 2025). The motion must state the elements as to which
there is no evidence. TEX. R. CIV. P. 166a(i) (former). Once the movant files a
proper motion, the burden then shifts to the nonmovant to present evidence raising
a genuine issue of material fact as to each of the elements specified in the motion.
See id.; JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021). To
defeat a no-evidence motion for summary judgment, the nonmovant is not required
to marshal its proof; his response need only point to evidence that raises a fact
issue on the challenged element. State v. $3,774.28 in U.S. Currency, 713 S.W.3d
381, 388 (Tex. 2025).
A no-evidence motion “will be sustained when (a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or of
14
evidence from giving weight to the only evidence offered to prove a vital fact,
(c) the evidence offered to prove a vital fact is no more than a mere scintilla, or
(d) the evidence conclusively establishes the opposite of the vital fact.” Lozada,
718 S.W.3d at 266 (quotations omitted). “Less than a scintilla of evidence exists
when the evidence is so weak as to do no more than create a mere surmise or
suspicion of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003) (quotation omitted). “More than a scintilla of evidence exists when the
evidence rises to a level that would enable reasonable and fair-minded people to
differ in their conclusions.” Id (quotation omitted).
On appeal, we consider the evidence in the light most favorable to the
nonmovant, crediting evidence a reasonable jury could credit and disregarding
contrary evidence and inferences unless a reasonable jury could not. Merriman,
407 S.W.3d at 248.
II. Chapter 95
A. Limitation on Liability and Applicability of Statute
Chapter 95 of the Texas Civil Practices and Remedies Code was enacted 30
years ago as part of a sweeping tort-reform package. Francis v. Coastal Oil & Gas
Corp., 130 S.W.3d 76, 82 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The
statute applies “when an independent contractor or its employee, who was hired to
‘construct[t], repai[r], renovat[e], or modif[y]’ an improvement to the owner’s
15
property, brings a ‘claim for damages caused by negligence’ that ‘arises from the
condition or use’ of that improvement.” CenterPoint Energy Houston Elec., LLC v.
Wilder, —S.W.3d—, No. 01-22-00853-CV, 2025 WL 2248569, at *13 (Tex.
App.—Houston [1st Dist.] Aug. 7, 2025, pet. denied) (quoting TEX. CIV. PRAC. &
REM. CODE §§ 95.001, 95.002).
Chapter 95 applies “to all negligence claims that arise from either a premises
defect or the negligent activity of a property owner or its employees.” Abutahoun
v. Dow Chem. Co., 463 S.W.3d 42, 50 (Tex. 2015). In a premises liability case, it
limits liability “for injuries to contractors and their employees . . . [when] . . .
landowners exercise control over the work and possess actual knowledge of the
injury-causing condition, and then only if the owner fails to provide an adequate
warning.” SandRidge Energy, Inc. v. Barfield, 642 S.W.3d 560, 566 (Tex. 2022).9
Chapter 95 applies only “when the injury results from a condition or use of
the same improvement on which the contractor (or its employee) is working when
the injury occurs.” Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016).
A “condition” is “an intentional or an inadvertent state of being.” Los Compadres
9
“In contrast, at common law, a premises owner may be liable for failing to warn of
a dangerous condition of which the owner did not know, but should have
discovered by exercising reasonable care.” SandRidge Energy, Inc. v. Barfield,
642 S.W.3d 560, 566 n.22 (Tex. 2022). Compare, e.g., CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (“[T]he elements of a premises claim are:
(1) Actual or constructive knowledge of a condition on the premises by the owner
or occupier . . . .”), with TEX. CIV. PRAC. & REM. CODE § 95.003 (“A property
owner is not liable . . . unless . . . the property owner had actual knowledge of the
danger or condition . . . .”).
16
Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 785 (Tex. 2021) (citing Abutahoun,
463 S.W.3d at 49). “An improvement is any addition to real property, other than
fixtures, that can be removed without causing injury to the real property.” Id. at
784; see Ineos, 505 S.W.3d at 568 (construing improvement to consist of entire
system of furnaces stemming from common header as opposed to single part of
individual furnace plaintiff worked on).
We construe “improvement” narrowly to adhere to the statute’s requirement
that “the injury arise from the condition or use of the improvement that the
contractor or subcontractor ‘constructs, repairs, renovates, or modifies.’” Los
Compadres Pescadores, 622 S.W.3d at 784 (quoting TEX. CIV. PRAC. & REM.
CODE § 95.002(2)) (declining to consider whether power lines were dangerous
condition of workplace generally and focusing on condition of improvement, i.e.,
foundation pilings). However, “[i]f a dangerous condition, by reason of its
proximity to an improvement, creates a probability of harm to one who ‘constructs,
repairs, renovates, or modifies’ the improvement in an ordinary manner, it
constitutes a condition of the improvement itself.” Id. at 785–86 (quoting TEX. CIV.
PRAC. & REM. CODE § 95.002(2)); see Weekley Homes, 691 S.W.3d at 915 (stating
in premises liability cases “contractor does not need to be injured by the
improvement itself if the claim arises from a ‘condition’ of the improvement”).
17
The defendant property owner has the burden of establishing the
applicability of Chapter 95 by conclusively proving that the plaintiff has brought a
claim: (1) for damages caused by negligence resulting in personal injury, death, or
property damage, (2) asserted against a person or entity that owns real property
primarily used for commercial or business purposes, (3) asserted by an owner,
contractor, or subcontractor or an employee of a contractor or subcontractor, and
(4) 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. Los Compadres Pescadores, 622 S.W.3d at 782; CenterPoint
Energy Houston Elec., 2025 WL 2248569, at *14; see TEX. CIV. PRAC. & REM.
CODE §§ 95.001, 95.002. A defendant property owner may rely on a plaintiff’s
factual allegations, not pleaded in the alternative, to define the issues and
determine whether Chapter 95 applies. See Weekley Homes, 691 S.W.3d at 916;
see also Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (observing that
plaintiff’s petition “is the best and all-sufficient evidence of the nature of the
action.”). Whether Chapter 95 applies is a question of statutory construction that
we review de novo. Abutahoun, 463 S.W.3d at 46; Phillips v. Dow Chem. Co., 186
S.W.3d 121, 130 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
18
B. Claimant’s Burden Under Chapter 95
“Under the common law, an independent contractor or its employee can
recover against a property owner for premises liability or negligence if the owner
exercised some control over the relevant work and either knew or reasonably
should have known of the risk or danger.” Ineos, 505 S.W.3d at 561. But if
Chapter 95 applies to the plaintiff’s claim, it is the plaintiff’s “sole means of
recovery.” Abutahoun, 463 S.W.3d at 51. And the plaintiff must meet the more
onerous evidentiary burden imposed by the statute. CenterPoint Energy Houston
Elec., 2025 WL 2248569, at *13.
If the owner meets its burden to conclusively establish the statutory
elements, a plaintiff cannot recover on his negligence claim against a property
owner unless he shows that:
(1) the property owner exercised or retain[ed] some control over
the manner in which the work [was] performed, other than the
right to order the work to start or stop or to inspect progress or
receive reports; and
(2) the property owner had actual knowledge of the danger or
condition resulting in the personal injury, death, or property
damage and failed to adequately warn.
TEX. CIV. PRAC. & REM. CODE § 95.003 (emphasis added).
III. Censeo Conclusively Proved Applicability of Chapter 95
In its traditional motion for summary judgment and supplemental motion for
summary judgment, Censeo argued that Chapter 95 applied to Mendoza’s claims.
19
A. First Element: Claim for Damages Caused By Negligence
Resulting in Personal Injury
In his live pleading, Mendoza alleged that he was on the roof “doing touch-
up work on the roof jacks” when he fell to the ground, suffering “severe trauma to
his brain that resulted in permanent injuries.” Thus, Mendoza’s live pleading
established that he brought a claim for damages caused by negligence resulting in
personal injury, conclusively establishing the first of the four elements Censeo had
the burden to prove. See Los Compadres Pescadores, 622 S.W.3d at 782 (stating
four elements property owner must prove to demonstrate applicability of Chapter
95); Weekly Homes, 691 S.W.3d 916 (stating defendant property owner can rely on
plaintiff’s factual allegations).
B. Second Element: Real Property Ownership
The second element Censeo had to prove was that it was an entity that owns
real property primarily used for commercial or business purposes. See Los
Compadres, 622 S.W.3d at 782. Censeo attached an affidavit and business records
to its supplemental motion for summary judgment. The affidavit from Censeo’s
accountant, Deidre Foster, stated: “On May 10, 2021, the date of the accident
involving Mr. Mendoza, Hacienda Service Inc. was the owner of the home being
constructed at 753 Rosewood Lane in Angleton, Texas. The property was
subsequently transferred to the new owners on May 14, 2021.” The deed of trust
transferring the home to the purchasers was also attached. In addition, Censeo’s
20
corporate representative testified that Censeo built new residential homes for sale.
This summary judgment evidence conclusively establishes the second element. See
Los Compadres, 622 S.W.3d at 782.
C. Third Element: Claimant is Contractor
The third element Censeo had to prove was that the claim was brought by an
owner, contractor, or subcontractor or an employee of a contractor or
subcontractor. See id. In his deposition, Mendoza indicated that he was a
subcontractor and that he owned the subcontracting business, Domingo Painting.
Both Cortez and Garcia also testified that Mendoza was a contractor. This evidence
conclusively establishes the third element. See id.
D. Fourth Element: Claim Arises from Condition or Use of
Improvement to Real Property When Claimant Constructs,
Repairs, Renovates, or Modifies Improvement
The fourth element that Censeo had to prove was that Mendoza’s claim
arose from the condition or use of an improvement to real property where Mendoza
constructed, repaired, renovated, or modified the improvement. See id. In his live
pleading, Mendoza alleged that the roof “was loose and granular,” and that he was
on the roof “doing touch-up work on the roof jacks” when he fell. Both Mendoza
and Censeo have maintained that the relevant improvement to the real property at
issue in this case was the dormer. Mendoza’s allegations implicate a dangerous
condition of the roof, in close proximity to the dormer. See Weekley Homes, 691
21
S.W.3d at 916 (holding that property owner may rely on plaintiff’s factual
allegations). Thus, Mendoza has alleged that his injuries arose from a condition of
an improvement to real property. See Los Compadres Pescadores, 622 S.W.3d at
785–86 (“If a dangerous condition, by reason of its proximity to an improvement,
creates a probability of harm to one who ‘constructs, repairs, renovates, or
modifies’ the improvement in an ordinary manner, it constitutes a condition of the
improvement itself.”).
Where the parties disagree is on the second part: whether Mendoza was
constructing, repairing, renovating, or modifying the improvement that allegedly
caused his accident. Mendoza argues that he was not because his “tiny touch ups”
to the house did not constitute “constructing, repairing, renovating, or modifying”
an improvement. In the trial court, Censeo argued that Mendoza’s allegations of
negligence all stem from his “work on a condition of an improvement to real
property.” On appeal, Censeo responds that the work Mendoza was doing
constituted a modification because he was changing the form of the dormer’s paint
from flawed to unflawed and changing the state of the window from unsealed to
sealed by applying caulk to seal gaps and cracks in the existing caulking in
anticipation of the house sale closing.
Chapter 95 does not define the terms “constructs, repairs, renovates, or
modifies.” See, e.g., Priority Artificial Lift Servs., LLC v. Chiles, 698 S.W.3d 1, 14
22
(Tex. App.—Houston [14th Dist.] 2024, no pet.); Vela v. Murphy Expl. & Prod.
Co.-USA, No. 04-18-00830-CV, 2019 WL 7196603, at *4 (Tex. App.—San
Antonio Dec. 27, 2019, no pet.) (mem. op.). Because this is a matter of statutory
construction, we review the matter de novo and look to the terms’ common
meanings. See Ineos, 505 S.W.3d at 563. In determining the common, ordinary
meanings of these words, we may look to dictionaries and other sources. E.g.,
Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563 & n.10 (Tex. 2014).
Chapter 95 was enacted in 1995, and it has not been amended. At that time,
these words had the following common definitions:
1. construct: build, make;
2. repair: to restore to good condition, fix;
3. renovate: to make like new again, put in good condition, repair;
4. modify: change, alter.
WEBSTER’S NEW COMPLETE DICTIONARY 113, 333, 443 (1995). Similarly, several
of our sister courts of appeals have already considered the meaning of these terms
as used in Chapter 95, using a dictionary definition to guide their understanding of
their ordinary, common meaning.
1. construct—to build or form by putting together parts; frame;
devise.
2. repair—to restore to a good or sound condition after decay or
damage; mend: to repair a motor; to restore or renew by any
23
process of making good, strengthening, etc.: to repair one’s
health by resting.
3. renovate—to restore to good condition; make new or as if new
again; repair.
4. modify—to change somewhat the form or qualities of; alter
partially.
Montoya v. Nichirin-Flex, U.S.A., Inc., 417 S.W.3d 507, 512 (Tex. App.—El Paso
2013, no pet.) (quoting WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY
436, 1236, 1632 (2003)); accord Priority Artificial Lift Servs., 698 S.W.3d at 14;
Vela, 2019 WL 7196603, at *4; Morales v. Alcoa World Alumina L.L.C., No. 13-
17-00101-CV, 2018 WL 2252901, at *7 (Tex. App.—Corpus Christi May 17,
2018, pet. denied) (mem. op.). The Fourteenth Court of Appeals concluded that
“these definitions illustrate [that] Chapter 95 is intended to encompass actions that
effect some change upon an improvement’s condition, form, or qualities.” Priority
Artificial Lift Servs., 698 S.W.3d at 14.
Censeo’s summary-judgment evidence showed that Mendoza was engaged
to perform touch-up painting, corrective caulking as needed, and basic cleaning
(wiping down) on the dormer window. Cortez explained that just by virtue of being
outside, the paint can get “messed up” and “[c]aulking is going to crack.” Because
the dormer faces the front of the house, these defects are noticeable “when you pull
into the driveway,” so Cortez told Mendoza to “fix” it. Mendoza’s activities
constitute repair or renovation because he was acting to restore the window to good
24
condition or to make it like new again and put it in good condition. See WEBSTER’S
NEW COMPLETE DICTIONARY 443 (1995); see also Priority Artificial Lift Servs.,
698 S.W.3d at 14; Vela, 2019 WL 7196603, at *4; Morales, 2018 WL 2252901, at
*7; Montoya, 417 S.W.3d at 512.
We conclude that the summary-judgment evidence satisfies the fourth
element. See Los Compadres Pescadores, 622 S.W.3d at 782. Because Mendoza
did not produce any summary judgment evidence creating a genuine question of
material fact on this element, we hold that Censeo conclusively proved that
Chapter 95 applies. See id.
IV. The Exception to the Applicability of Chapter 95
Censeo moved for traditional summary judgment as to the element of control
and for no-evidence summary judgment as to both prongs of the statutory
exception. Because Mendoza has the burden of proof to show that the exception
applies, to defeat summary judgment, he had to produce evidence that creates a
fact issue as to whether Censeo “exercised or retain[ed] some control over the
manner in which the work [was] performed,” that Censeo “had actual knowledge
of the danger or condition” that caused his injuries, and that Censeo “failed to
adequately warn” him. See TEX. CIV. PRAC. & REM. CODE § 95.003.
25
Mendoza argues that he did produce more than a scintilla of evidence
showing that the exception to Chapter 95 applies in this case. Censeo argues that
he did not.
As pleaded and litigated by the parties, Mendoza had primarily two theories
about the danger or condition that caused his injuries. First, he pleaded that there
was a defect in the roof itself, which he described as “loose and granular.” Second,
he argued that Censeo told him to work on the roof, knew that he had not used
personal fall protection in the past, and had safety policies that controverted federal
regulations about when such fall protection was needed. Mendoza argues that
Censeo exercised “some control” over