Full Opinion (html_with_citations)

                               Fourth Court of Appeals
                                      San Antonio, Texas
                                             OPINION
                                         No. 04-14-00097-CV

                             Luis Alfredo ROSA and Myrna Lizzet Rosa,
                                            Appellants

                                                   v.

                                  MESTENA OPERATING, LLC,
                                          Appellee

                     From the 79th Judicial District Court, Brooks County, Texas
                                  Trial Court No. 13-12-16486-CV
                           Honorable Richard C. Terrell, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 17, 2014

AFFIRMED

           After he suffered an on-the-job injury, Luis Alfredo Rosa and his wife, Myrna Lizzet Rosa,

brought claims for negligence and premises liability against property owner Mestena Operating,

LLC. Mestena moved for traditional and no-evidence summary judgment on multiple grounds,

including chapter 95 of the Texas Civil Practice and Remedies Code, which governs property

owner liability for the acts of independent contractors. The trial court granted the summary

judgment based on chapter 95 and rendered a take-nothing judgment. On appeal, the Rosas argue
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the trial court erred in granting summary judgment against them because chapter 95 does not apply

to their claims. We conclude that it does apply, and therefore, affirm the trial court’s judgment.

                                          BACKGROUND

       On September 14, 2009, Mr. Rosa was injured at work while performing maintenance on

wooden electrical poles situated on real property located in Brooks County, Texas, and owned by

Esteban Garcia. AEP Texas Central Company, a utility company, had an easement on the Garcia

property. AEP had contracted with Quality Pole Inspection and Maintenance, Inc., to perform

maintenance on its poles on the Garcia property. Mr. Rosa was employed by Quality Pole.

       Mestena, an operator of oil and gas wells, holds a mineral lease on the Garcia property.

Mestena operates numerous oil and gas wells on the Garcia property. Mestena did not have a

contractual relationship with Quality Pole.

       In their pleadings, the Rosas alleged that Mr. Rosa, while working on a pole on AEP’s

easement, came into contact with an energized ground wire and suffered an electric shock. The

ground wire was connected to equipment on Mestena’s mineral lease. The Rosas’ theory was that

Mestena’s equipment—specifically a lightening arrester—had malfunctioned and caused the

ground wire to be energized when it should not have been. The allegedly faulty equipment was

located 1400 feet—almost the length of four football fields—away from the site where Mr. Rosa

was injured. The Rosas asserted Mestena knew or should have known about the danger posed by

the energized ground wire.

       After conducting discovery, Mestena moved for traditional and no-evidence summary

judgment. Mestena asserted it was a property owner under chapter 95, and therefore, was entitled

to the protection afforded by that statutory scheme. Mestena further argued that the exception to

chapter 95’s general rule of non-liability did not apply here because there was no evidence that



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Mestena had actual knowledge of the alleged dangerous condition that caused Mr. Rosa’s injuries

and exercised or retained any control over the work done by Mr. Rosa.

       In response, the Rosas argued that chapter 95 did not apply to Mestena. According to the

Rosas, chapter 95 applied “only to those situations where a property owner hires someone with

expertise to repair or renovate some improvement on [its] property and that individual is injured

while performing work on the property owner’s premises.” The Rosas further argued,

       Mestena did not contract with anyone in this case, either AEP or Quality Pole, to
       repair, renovate, or modify any improvement to real property owned by it. Rather,
       the contract in question involved AEP, as the owner of wooden electrical poles and
       possessor of a utility easement, who contracted with Quality Pole to repair and
       renovate its poles located on its easement. Mestena was a stranger to that contract.
       Accordingly, Chapter 95 does not apply to Mestena, and Mestena is not entitled to
       either a traditional or no-evidence summary judgment under the statute.

(emphasis in original). Additionally, the Rosas argued (1) the summary judgment evidence raised

a genuine issue of material fact as to whether Mestena had actual or constructive knowledge of the

dangerous condition, and (2) they were not required to introduce evidence on the element of control

to avoid summary judgment because chapter 95 does not apply to this case.

       The trial court granted the summary judgment, concluding not only that chapter 95 applied

to the circumstances of this case, but also that the Rosas produced no evidence raising a fact issue

as to the exception articulated in chapter 95. The Rosas appealed.

                                     STANDARD OF REVIEW

       We review the trial court’s summary judgment de novo. Provident Life & Accident Ins. Co.

v. Knott,
128 S.W.3d 211, 215
 (Tex. 2003). In a traditional summary judgment motion, the movant

bears the burden to show that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c);
id. at 215-16
. In a no-evidence summary

judgment motion, the movant asserts there is no evidence of one or more specified elements of a

claim or defense on which the adverse party would have the burden of proof at trial. TEX. R. CIV.
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P. 166a(i). In responding to a no-evidence summary judgment motion, the nonmovant has the

burden to produce evidence that raises a genuine issue of material fact on the challenged elements.

Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600
 (Tex. 2004). If the nonmovant fails to meet his

burden to produce evidence that raises a genuine issue of material fact on the challenged elements,

then the trial court must grant the motion. TEX. R. CIV. P. 166a(i). When reviewing a summary

judgment, we take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Knott,
128 S.W.3d at 215
.

        When, as here, the order granting summary judgment specifies the grounds on which

summary judgment was granted, we review the summary judgment on those grounds. See

Cincinnati Life Ins. Co. v. Cates,
927 S.W.2d 623, 626
 (Tex. 1996). However, if the summary

judgment is not sustainable on the grounds specified by the trial court, we may, in the interest of

judicial economy, review other grounds properly preserved by the movant but not considered by

the trial court. See
id.

                                           CHAPTER 95

        Chapter 95 of the Texas Civil Practice and Remedies Code was enacted in 1996 as part of

a sweeping tort-reform package. Montoya v. Nichinrin-Flex U.S.A., Inc.,
417 S.W.3d 507, 510-11

(Tex. App.—El Paso 2013, no pet.); Moreno v. BP America Production Co., No. 04-08-00036-

CV,
2008 WL 4172248
, at *1 (Tex. App.—San Antonio 2008, pet. denied). Chapter 95 enunciates

a general rule of non-liability for property owners when a contractor or subcontractor or an

employee of a contractor or subcontractor is injured while performing repairs or construction.

Under chapter 95, a property owner is not liable for any injury to a contractor, a subcontractor, or

an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an

improvement to real property unless: (1) the property owner exercises or retains control over the

manner in which the work is performed; and (2) the property owner had actual knowledge of the
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danger or condition resulting in the injury. TEX. CIV. PRAC. & REM. CODE ANN. § 95.003 (West

2011).

         At trial, the defendant property owner has the burden to establish that chapter 95 applies to

the plaintiff’s claim. Montoya,
417 S.W.3d at 511
; Covarrubias v. Diamond Shamrock Refining

Co.,
359 S.W.3d 298, 301
 (Tex. App.—San Antonio 2012, no pet.). Once the property owner has

shown that chapter 95 applies to the claim, the burden shifts to the plaintiff to establish that his

claim falls under the exception articulated in section 95.003. Montoya,
417 S.W.3d at 511
;

Covarrubias,
359 S.W.3d at 301
. To establish the exception in the summary judgment context, the

plaintiff must present evidence raising a material fact issue on both prongs of section 95.003: (1)

that the property owner exercised or retained some control over the work, and (2) that the property

owner had actual knowledge of the danger or condition resulting in the injury. Covarrubias,
359 S.W.3d at 301
; Gorman v. Meng,
335 S.W.3d 797, 802-03
 (Tex. App.—Dallas 2011, no pet.).

         Chapter 95 defines a “property owner” as a person or entity that owns real property

primarily used for commercial or business purposes. TEX. CIV. PRAC. & REM. CODE ANN.

§ 95.001(3) (West 2011). In this case, no one disputes that Mestena, a mineral lease owner, is a

property owner as defined by section 95.001(3). See Painter v. Momentum Energy Corp.,
271 S.W.3d 388, 397
 (Tex. App.—El Paso 2008, pet. denied) (concluding mineral lessee qualified as

a property owner under chapter 95); Francis v. Coastal Oil & Gas Corp.,
130 S.W.3d 76, 84
 (Tex.

App.—Houston [1st Dist.] 2003, no pet.) (holding defendant was a property owner under chapter

95 because it held the mineral leases pertaining to the premises and under well-settled law a

mineral lease conveys a fee simple determinable interest in real property).

                                             DISCUSSION

         On appeal, the Rosas argue that the trial court erred in granting summary judgment because

chapter 95 does not apply in this case. In their summary judgment response, the Rosas argued that
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“chapter 95 applies only in those situations where a property owner hires someone with expertise

to repair or renovate some improvement on their property and that individual is injured while

performing work on the property owner’s property.” According to the Rosas, section 95.003

contemplates a “contractual relationship” between a property owner and a contractor for

improvements to real property owned by it. The Rosas emphasize that the only contract in this case

was the contract between AEP and Quality Pole to renovate and repair poles; Mestena was a

stranger to this contract. The Rosas further argue that because Mestena did not have a contractual

relationship with a contractor for improvements to real property owned by it, chapter 95 does not

apply to this case. 1 Mestena counters that chapter 95, by its plain language, applies to any

negligence claim against a property owner for injury to a contractor or a subcontractor or an

employee of a contractor or subcontractor, even in the absence of a contract between the property

owner and the contractor.

         In construing a statute our fundamental objective is to determine and give effect to the

legislature’s intent. In re Lee,
411 S.W.3d 445, 450-51
 (Tex. 2013) (orig. proceeding). As the

Texas Supreme Court has instructed, “[t]he plain language of the statute is the surest guide to the

legislature’s intent.”
Id. at 451
. If the words of a statute are clear and unambiguous, we apply them

according to their plain and common meaning. Galbraith Eng’g Consultants, Inc. v. Pochucha,
290 S.W.3d 863, 867
 (Tex. 2009). “When a statute is clear and unambiguous, we do not resort to

extrinsic aides such as legislative history to interpret the statute.” City of Round Rock v. Rodriguez,
399 S.W.3d 130, 137
 (Tex. 2013). We may presume, however, that the legislature acted with




1
 In their reply brief, the Rosas attempted to clarify their argument, asserting that chapter 95 requires “either a direct
contractual relationship between the claimant’s employer and the property owner or that there be privity of contract
between the claimant’s employer and the property owner.” (emphasis in original).

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knowledge of the existing law and with reference to it. Id.; Acker v. Texas Water Comm’n,
790 S.W.2d 299, 301
 (Tex. 1990).

       We now examine the pertinent language of chapter 95, which is found in sections 95.002

and 95.003. Section 95.002, the section of the statute that expressly governs the applicability of

chapter 95, does not limit the application of the statute in the manner described by the Rosas. It

provides:

       § 95.002. Applicability

       This chapter applies only to a claim:

       (1) against a property owner, contractor, or subcontractor for personal injury, death,
       or property damage to an owner, a contractor, or a subcontractor or an employee of
       a contractor or subcontractor; and

       (2) 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 95.002 (West 2011). Nothing in the express language of

chapter 95.002 indicates that property owners like Mestena, who did not have a contractual

relationship with a contractor, are excluded from the protection afforded by the statute.

       Section 95.003 provides:

       § 95.003. Liability for Acts of Independent Contractors

               A property owner is not liable for personal injury, death, or property damage
       to a contractor, subcontractor, or an employee of a contractor or subcontractor who
       constructs, repairs, renovates, or modifies an improvement to real property,
       including personal injury, death, or property damage arising from the failure to
       provide a safe workplace unless:

               (1) the property owner exercises or retains some control over the manner in
       which the work is 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.
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TEX. CIV. PRAC. & REM. CODE ANN. § 95.003 (West 2011). Like section 95.003, section 95.002

makes no mention of a contractual relationship between the property owner and a contractor.

       The Rosas nevertheless contend chapter 95’s plain language, its legislative history, and the

former law all show that chapter 95 contemplates a contractual relationship between the property

owner and a contractor. With regard to the statute’s language, the Rosas direct our attention to

section 95.003 which provides that a property owner is not liable to an employee of a contractor

“unless the property owner exercises some control over the manner in which the work is

performed, other than the right to order the work to start or stop or to inspect progress or receive

reports.” The Rosas argue that the phrase “control over the manner in which the work is

performed” imposes a requirement that a contractual relationship exist between the property owner

and the contractor. For support, the Rosas rely on Johnston v. Oiltanking Houston, L.P.,
367 S.W.3d 412, 416
 (Tex. App.—Houston [14th Dist.] 2012, no pet.), where the appellate court

explained that “[a] party can prove control through evidence of an agreement that ‘explicitly

assigns the premises owner a right to control’ or by evidence that the ‘owner actually exercised

control over the manner in which the independent contractor’s work was performed.’”(emphasis

added). Contrary to the Rosas’s position, Johnston does not stand for the proposition that proof of

a contract between a premises owner and a contractor is the only way to establish that a premises

owner exercised control. Instead, Johnston recognizes that the exercise of control may also be

proven through the actual exercise of control.
Id. at 416-17
. We, therefore, reject the Rosas’s

argument that the statute’s plain language requires the existence of a contract between the property

owner and a contractor.

       The Rosas also contend the former law shows that chapter 95 requires a contract between

the premises owner and a contractor. Before the adoption of chapter 95, a Texas property owner


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was generally not liable for injuries sustained by an independent contractor because the property

owner had no duty to see that an independent contractor performed his work in a safe manner.

Redinger v. Living, Inc.,
689 S.W.2d 415, 418
 (Tex. 1989) (citing Abalos v. Oil Development Co.,
544 S.W.2d 627, 631
 (Tex. 1976)). However, in Redinger, the Texas Supreme Court adopted

section 414 of the Restatement (Second) of Torts, which provided an exception to the general rule

when a premises owner or a general contractor exercised some control over the work of a

subcontractor or an independent contractor.
Id.
 Chapter 95, and more specifically section 95.003,

codified Redinger’s requirement that as a prerequisite to liability a property owner must exercise

or retain some control over the manner in which the work is performed. Ellwood Texas Forge

Corp. v. Jones,
214 S.W.3d 693, 700
 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); Sinegal

v. Ryan Marine Serv.,
712 F.Supp.2d 597, 602
 (S.D. Tex. 2008). Additionally, section 95.003

further limited a property owner’s liability by requiring a plaintiff to prove that the owner had

actual knowledge—as opposed to constructive knowledge—of a dangerous condition. Johnston,
367 S.W.3d at 416
; Ellwood,
214 S.W.3d at 700
; Sinegal,
712 F.Supp.2d at 602
. After considering

the former law, we cannot say it supports the conclusion that chapter 95 requires the existence of

a contract between the property owner and a contractor.

       The Rosas finally contend the legislative history shows that chapter 95 contemplates a

contractual relationship between the property owner and a contractor. The Rosas, however, do not

argue that chapter 95 is ambiguous. Under these circumstances, we are not permitted to resort to

legislative history to construe the statute. See Rodriguez,
399 S.W.3d at 137
 (noting that when a

statute is clear and unambiguous as written, courts are not permitted to resort to legislative history

to construe the statute). But even if we could consider this argument, the result would be no

different. The Rosas’s legislative history argument focuses on a comment made by one legislator.

“Statements made during the legislative process by individual legislators or even a unanimous
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legislative chamber are not evidence of the collective intent of the majorities of both legislative

chambers that enacted a statute.” Molinet v. Kimbrell,
356 S.W.3d 407, 414
 (Tex. 2011).

       We conclude that, by its plain language, chapter 95 is not limited to situations where a

contract exists between the property owner and a contractor. We, therefore, hold that chapter 95

applied to the situation presented in this case.

       The Rosas also argue on appeal that chapter 95 did not apply here because the real property

to which the improvements were made was not the same real property that qualified Mestena to

be a property owner. However, because this argument was not presented in the Rosas’s summary

judgment response, we may not consider it on appeal. “Issues not expressly presented to the trial

court by written motion, answer or other response shall not be considered on appeal as grounds for

reversal.” TEX. R. CIV. P. 166a(c).

                                            CONCLUSION

       Under the plain language of the statute, chapter 95 applied to this case. Thus, the trial court

correctly concluded that Mestena met its summary judgment burden to show that chapter 95

applied. Because Mestena met its burden, the burden shifted to the Rosas to raise a material fact

issue as to whether (1) Mestena exercised or retained some control over the manner in which the

work was performed, and (2) Mestena had actual knowledge of the danger or condition resulting

in the injury and failed to adequately warn. As the Rosas acknowledged in the trial court, and now

concede on appeal, no evidence existed that Mestena exercised or retained control over the manner

in which Rosa’s work was performed. Therefore, the trial court did not err in granting summary

judgment under chapter 95. Because we have determined that the summary judgment was

sustainable on the grounds specified in the judgment, we need not review the other summary

judgment grounds preserved by Mestena but not ruled on by the trial court.



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The trial court’s judgment is affirmed.

                                             Karen Angelini, Justice




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