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Ramirez v. Garcia
Citations: 413 S.W.3d 134; 2013 WL 4673828; 2013 Tex. App. LEXIS 11195Docket: No. 07-11-00385-CV
Court: Court of Appeals of Texas; August 29, 2013; Texas; State Appellate Court
Samuel Lee Jackson, acting as next friend for his minor son and as personal representative of Rexee Jo Jackson's estate, along with Erma Ramirez and Janie Crosby, appeals the trial court’s summary judgment favoring Cua-hutemoc “Tim” Gonzalez regarding a fatal traffic collision that resulted in three fatalities. The case involves a traffic incident linked to Gonzalez, who owns Gonzalez Farms, engaged in custom harvesting and contracted with Chester Farms to harvest and transport silage. Gonzalez utilized his own equipment but needed additional trucks, leading to a contract with Robert Garcia of 3R/Garcia Trucking, who provided three trucks for the operation. On October 5, 2009, Garcia, alongside additional drivers, resumed harvesting after delays due to weather. A fourth truck, a 1980 International tandem owned by Garcia, was also used. While en route to the feedyard, a tire blowout caused the tandem truck, driven by Raymond Ramirez, to veer into oncoming traffic, resulting in a head-on collision with an SUV driven by Tammy Jackson, which also carried her daughter, Rexee Jo. Both Tammy and Rexee Jo died instantly, while Ramirez succumbed to injuries shortly thereafter. The court's decision affirms some aspects of the trial court's ruling while reversing and remanding others for further consideration. Jackson, the father of Rexee Jo and former husband of Tammy, initiated a lawsuit against Garcia and Gonzalez, with Ramirez and Crosby intervening. Gonzalez filed for both traditional and no-evidence summary judgment against Ramirez and Crosby, leading the trial court to grant both motions in May 2011. Subsequently, a default judgment was entered against Garcia on August 22, 2011, awarding Jackson over $4.5 million and severing Jackson’s claims against Garcia, while claims against Gonzalez remained active. Jackson and Gonzalez engaged in competing hybrid motions for summary judgment. The trial court accepted Gonzalez’s no-evidence motion and denied Jackson’s, finding no necessity to rule on Gonzalez’s traditional motion. The severance of Jackson’s and Ramirez and Crosby’s claims against Garcia was made final in the trial court’s order, confirming the summary judgments in favor of Gonzalez. The default judgment against Garcia, which was not appealed, is considered final for Jackson’s claims. Ramirez and Crosby later non-suited their claims against Garcia, which are not under appeal, leaving Garcia out of the current proceedings. The key issues on appeal involve the summary judgments in favor of Gonzalez against two different sets of appellants, each seeking to establish Gonzalez's liability. The legal framework for a no-evidence motion for summary judgment is highlighted, defining it as akin to a pretrial directed verdict, allowing a party without the burden of proof to challenge the existence of evidence supporting essential elements of the opposing party's claims. The review standard requires evidence to be viewed favorably for the non-moving party, and if more than a scintilla of evidence is presented, the no-evidence summary judgment is deemed improper. Evidence that merely creates surmise or suspicion is considered no more than a scintilla and is legally insufficient. A no-evidence motion for summary judgment can be sustained under certain conditions, including a complete lack of evidence for a vital fact or if the evidence conclusively disproves it. In a negligence claim regarding the loading of a truck, the plaintiff, Jackson, must demonstrate the existence of a legal duty, a breach of that duty, and damages resulting from the breach. While there is some indication that Gonzalez’s employee assumed responsibility for the loading process, the determination of a breach of duty remains critical. Jackson references a DPS Trooper’s report indicating the truck was loaded with 20 tons of silage, while expert testimony suggests the truck's safe capacity is 13.8 tons. Jackson argues this evidence suffices to overcome the no-evidence challenge, but the court must evaluate whether it constitutes more than a scintilla of evidence regarding breach. Pace admitted that his report's notation of "twenty tons" for the load was a guess, lacking personal knowledge or independent analysis to confirm the actual weight. He clarified that he did not know the moisture content or load history of the 1980 International truck driven by Raymond Ramirez, Jr., and the spilled silage could not be weighed due to contamination with diesel fuel. The estimate of twenty tons was based on inquiries with Littlefield Feedyard regarding average weights of trucks unloading silage, not on direct evidence from the accident scene. The court emphasized that such speculative evidence does not satisfy the legal standard for creating a genuine issue of material fact, citing prior cases that establish mere suspicion or weak evidence as insufficient. The record contained no additional evidence regarding the actual weight of the load at the time of the collision. Although Jackson referenced Gonzalez's testimony suggesting that the tandem truck could theoretically carry twelve to fourteen tons, this did not provide evidence of the actual load. Thus, without concrete evidence of the silage's weight on the day of the collision, Jackson's claim of negligent loading could not withstand Gonzalez’s no-evidence motion for summary judgment. Jackson did not provide sufficient evidence to support a critical element of his claim, leading the trial court to correctly grant Gonzalez's no-evidence motion for summary judgment regarding the negligent loading of the truck driven by Ramirez. Jackson also attempted to establish Gonzalez's liability through the concept of "statutory employment" as defined by federal motor carrier safety regulations (FMCSR), which Texas has partially adopted. Statutory employment implies vicarious liability for carriers to ensure public safety, applicable regardless of the nature of the relationship between the carrier and the driver. Texas incorporates FMCSR definitions, categorizing an “employer” as any entity involved in interstate commerce that owns or leases commercial vehicles. The term “employee” includes individuals who impact commercial motor vehicle safety, such as drivers and independent contractors while operating these vehicles. However, Texas chose not to adopt the FMCSR definition of “motor carrier,” opting instead for a definition from the Texas Transportation Code, which defines a motor carrier as an entity that controls or operates vehicles transporting persons or cargo within the state. The courts in Castillo and Martinez have examined the application of Texas's motor carrier definition in relation to statutory employment, addressing circumstances similar to the current case. Hays Construction was contracted by the Harris County Flood Control District for excavation work on a bayou and arranged for Sprint Sand, Clay to receive the excavated dirt. Hays also engaged truck brokers, including Moisés Melendez, to find drivers for hauling services. Melendez connected with Salvador Bello of Bello Transportation, who enlisted his brother Delfino to haul dirt. After two days of successful hauling, Delfino's truck collided with Luis Martinez's car, resulting in Martinez's fatal injuries. Martinez’s family initially sued Delfino, Salvador, and Bello Transportation, later adding Hays Construction and Melendez, claiming violations of the Federal Motor Carrier Safety Regulations (FMCSR) in Texas. They argued Hays Construction was the "statutory employer" of the Bellos and Melendez, thus vicariously liable for their negligence. The trial court granted summary judgment to Hays Construction, which contended it was not a “motor carrier,” asserting the FMCSR did not apply. However, the court noted Hays Construction was responsible for hauling dirt, obtained permits, and managed the operation, suggesting it could fall under the Texas definition of “motor carrier.” Conversely, in a different case, Castillo v. Gulf Coast Livestock Market, the court found no fact issue regarding whether the livestock auction barn was a “motor carrier,” as most cattle were delivered by their owners, and the specific incident involved a driver operating someone else’s truck without the barn's direct involvement. Castillo argued that Gulf Coast Livestock Market (Gulf Coast) was liable for Hellen's negligence as Hellen's statutory employer under the Federal Motor Carrier Safety Regulations (FMCSR) adopted in Texas. The San Antonio Court first evaluated whether Castillo provided sufficient evidence to classify Gulf Coast as a “motor carrier.” The court referenced the Martinez decision, noting the evidence that raised a factual issue regarding the definition of “motor carrier.” Upon reviewing the evidence presented by Castillo, the court highlighted that Gulf Coast’s managing owner stated that while hauling services were advertised on their website, Gulf Coast only arranged for transport in limited instances when cattle owners could not do so themselves. In these cases, Gulf Coast merely identified truckers to transport livestock without exercising control over the drivers or vehicles. The court noted that Gulf Coast employees did not load livestock, manage the size of loads, dictate travel routes, or control the transport process, only unloading the livestock once trucks were parked in designated areas. Additionally, a sign at Gulf Coast's location indicated that unloading was to be performed by employees, applying to all drivers. Consequently, the court found that Castillo did not provide sufficient evidence to demonstrate Gulf Coast's control over the transportation operations, affirming that summary judgment was appropriate on the “motor carrier” issue. In a related case, Gonzalez testified that he directed drivers on pick-up and delivery but acknowledged that drivers chose their own routes, illustrating the lack of control over transport operations. Gonzalez maintains significant control over truck conditions, requiring his approval for the trucks used in harvesting. He expressed that he would not load silage into a truck with poor tire conditions, admitting that had he seen the tandem truck that day, he would have refused to load it. Despite Garcia's assertion that Gonzalez specifically requested the tandem truck for its suitability for sandy soil, Gonzalez denied having made such a request and claimed he had not seen either the truck or its driver, Ramirez, before this incident. Garcia highlighted that the harvester operator, typically Javier, signals when the trailer is full, and both drivers and Gonzalez are compensated at the end of the harvest based on an agreed rate of eighteen cents per mile. Gonzalez insists that he sets the hauling rates and that the truck owner is responsible for their vehicle's condition. He acknowledged a general inspection process and asserted he would not load unsafe trucks, although he admitted to not inquiring about Garcia's safety record or the condition of his drivers' trucks. Gonzalez's role includes deciding which trucks to load and managing harvesting logistics, while in his absence, Javier has the authority to make similar decisions. He expects Javier to prioritize safety in his choices. The evidence indicates that Gonzalez retains control over the harvesting process, including the authority to refuse unsafe trucks for loading. Evidence indicates that, according to the agreement with Chester Farms, Gonzalez was responsible for transporting silage from the farm to the feedyard. In response to Gonzalez’s no-evidence motion for summary judgment, Jackson presented sufficient evidence to categorize Gonzalez as a "motor carrier" under Texas Transportation Code § 643.001(6), which defines such an entity as one that controls or operates vehicles for transporting cargo on public roads. Regarding the question of whether Gonzalez qualifies as an "employer," the court noted that for Hays Construction to be vicariously liable for Delfino's actions, it must be considered Delfino's "statutory employer" under the Federal Motor Carrier Safety Regulations (FMCSR) § 390.5. The evidence established that Salvador Bello owned the truck involved in the incident, and there was no claim that Hays Construction leased it. However, the court recognized that a motor carrier may still qualify as an employer if it "assigns an employee to operate" a vehicle. The court clarified the term "assign" using its ordinary meaning, which implies appointing a duty or task. Hays Construction argued that it had no control over the routes taken by drivers or how frequently they operated, asserting that drivers acted independently. Despite this, the evidence showed that drivers reported to Hays Construction's site, where company employees verified licenses and insurance, provided permits, loaded trucks, and directed unloading. Drivers submitted receipts to Hays Construction for payment. In light of this evidence, the court determined that a factual issue existed regarding whether Hays Construction assigned drivers to operate dump trucks for transporting excavated dirt. Thus, the no-evidence summary judgment concerning Hays Construction's status as a statutory employer was deemed improper. Similarly, since Gonzalez may qualify as an employer under the FMCSR if he owns or leases a commercial vehicle or assigns employees to operate one, the evidence supporting his status as a motor carrier also suggests he may assign employees to operate commercial vehicles, potentially qualifying him as an employer. Although drivers could choose their delivery routes, Gonzalez directed their arrival times and provided delivery locations, further indicating his level of control over the operation. The record indicates that evidence exists to support the claim that Gonzalez assigned the task of operating a truck for silage transportation, similar to the situation in Martinez regarding Hays Construction. Garcia and Ramirez are suggested to be classified as "employees" under the Federal Motor Carrier Safety Regulations (FMCSR) despite being labeled as independent contractors by Gonzalez. The FMCSR extends the definition of "employee" to include independent contractors operating commercial vehicles. The court found sufficient evidence to challenge Gonzalez's characterization of Garcia and Ramirez as independent contractors and thus recognize them as employees under Texas law and FMCSR. In addressing Jackson's appeal, the trial court's no-evidence summary judgment on Jackson's negligent overloading claims was deemed appropriate. However, Jackson provided more than a scintilla of evidence regarding Gonzalez’s status as a "motor carrier" and "employer," leading the court to sustain his challenge against the summary judgment concerning statutory employment. Additionally, Ramirez and Crosby raised five specific issues on appeal against the trial court's summary judgment in favor of Gonzalez, arguing that Gonzalez owed Ramirez a legal duty, assumed legal responsibilities, entered into a joint enterprise with Garcia, and had a duty as a motor carrier. The court noted that the Third Amended Petition filed by Ramirez and Crosby came after the summary judgment was granted, but it thoroughly reviewed these documents to determine the validity of the issues raised. Gonzalez’s motion for summary judgment was granted by the trial court, resulting in a take-nothing judgment against Ramirez and Crosby on May 19, 2011. Subsequently, on May 23, 2011, Ramirez and Crosby filed their Third Amended Petition, introducing allegations of negligent hiring of an independent contractor, statutory employment, violations of motor carrier safety regulations, and negligent overloading of the truck, explicitly stating that Gonzalez assumed a duty to Ramirez. On May 26, they submitted a second supplemental response to Gonzalez’s motion for summary judgment, seeking to adopt arguments from Jackson regarding negligent overloading and statutory employment. Generally, while trial courts have discretion to permit amendments, courts consistently rule that amendments after a judgment is rendered are untimely. In **Prater v. State Farm Lloyds**, the court refused to consider a second amended petition filed after a summary judgment had been granted, treating it as a nullity. Similarly, Ramirez and Crosby's Third Amended Petition was filed post-judgment, making their attempt to amend their claims too late. Their allegations regarding assumed duty and other claims were not presented to the trial court prior to the judgment, thus could not be considered on appeal, as established in **Marshall v. Sackett**. Consequently, since Gonzalez did not expressly move for summary judgment on these new grounds, the trial court could not have granted a summary judgment based on them. Summary judgment motions and responses must rely on the issues expressly presented to the trial court. Ramirez and Crosby's third amended petition and their second supplemental response to Gonzalez's motion for summary judgment were deemed untimely, as they were filed post-summary judgment. Consequently, the new allegations and Jackson's contentions were not considered by the trial court or the appellate court. The appellate review is confined to the record available at the time the trial court granted summary judgment, which includes Ramirez and Crosby's second amended petition asserting negligence through actual control over Garcia and joint enterprise liability, Gonzalez’s amended motion for summary judgment, and their original and first supplemental responses. Therefore, issues raised on appeal regarding assumed duty, statutory employment under the FMCSR, and negligent hiring are excluded from consideration for overturning the trial court’s decision. Ramirez and Crosby assert that Gonzalez's control over the transportation of silage imposed a legal duty to ensure the safety of the truck used. They argue that Gonzalez's retained control over 3R/Garcia's operations created a duty to prevent the use of an unsafe vehicle, aligning with the Texas Supreme Court's adoption of the Restatement (Second) of Torts, which holds that an employer who retains control over an independent contractor's work may be liable for harm caused by a failure to exercise that control with reasonable care. The general rule is that a contractor is not liable unless they retain some degree of control over how the work is performed. The necessary degree of control to establish such a duty is further delineated by Texas Supreme Court precedents, emphasizing that the employer may be vicariously liable if they maintain control over the means and methods of the work. An employer must maintain a degree of control over how work is performed for liability to arise in relation to an independent contractor. Merely having the ability to halt work or suggest changes does not equate to control over work methods. Liability may be established either through a contractual agreement explicitly granting control or evidence showing actual control exercised by the employer. The distinction between “right of control” and “retained control” is crucial, as contractual interpretation is a legal question, while actual control is a factual question for the jury. The Texas Supreme Court has ruled that a general contractor may be liable for injuries caused by an independent contractor if the general contractor retains the power to direct work and ensure it is done safely. In cases where the general contractor's superintendent actively supervised and approved safety measures, such as fall protection systems, this demonstrated retained control, imposing a duty of care towards the independent contractor’s employees. Conversely, there are instances where the general contractor's level of retained control does not result in a duty. An injured employee of an independent contractor claimed that a duty of care was established due to the presence of a safety representative from the employer, who could have intervened to prevent unsafe lifting practices. However, the Texas Supreme Court determined that this did not constitute sufficient evidence to create a duty owed to the independent contractor's employee. The mere presence of a safety representative, who could alert employees of unsafe actions, was inadequate to demonstrate the requisite control necessary to establish a duty of care. In a related case, the court similarly rejected the argument that an employer's safety representative's presence and lack of thorough inspection created a duty to ensure workplace safety. The analysis requires examining whether Gonzalez retained control over the conditions that caused the injuries and death of Ramirez. Liability requires more than a general right to direct work or inspect progress; it necessitates a significant degree of control. In this case, the incident involved a blowout of an unsafe tire on a tandem truck that led to the accident. The critical question is whether Gonzalez had the authority to control the conditions of the trucks used for transporting harvested silage. Despite his claims of limited responsibility regarding truck maintenance, Gonzalez acknowledged some authority over the safety of the independent contractors' equipment. He indicated that while he could advise on tire conditions, he could not enforce changes to them, reflecting a complex relationship between responsibility and authority in safety matters. Gonzalez clarified that had he seen the condition of the tandem truck's tires as depicted in the photographs before loading, he would not have proceeded due to safety concerns. He specifically stated that recapped tires should not be on the steering axle, emphasizing that this practice is unsafe. Gonzalez suggested that Garcia attempted to utilize the unsafe truck in Gonzalez's absence, implying that Garcia was aware of Gonzalez's authority to approve or deny the loading of trucks. Gonzalez, as the owner, acknowledged his responsibility for his machinery and personnel, asserting that he would make the final decisions regarding truck loading. Due to his illness, he did not attend the Chester Farms field on the day of the incident, leaving Javier in charge, whom he trusted to ensure only safe trucks were loaded. Gonzalez recognized that Javier likely had more experience in truck safety than himself. Evidence indicated that Gonzalez had communicated with Garcia about using the tandem truck due to the sandy soil at Chester Farms, suggesting he had directed its use for transporting silage. Gonzalez affirmed that inspecting equipment before transport is crucial and stated he would not employ a driver who arrived in an unsafe vehicle. Despite acknowledging the importance of a driver's safety record, he admitted he did not investigate Garcia's work history before hiring him, although he did consult a competitor about Garcia's experience shortly after hiring. Gonzalez did not discuss competitor Garcia's safety history or equipment because he believed there were no issues, as Garcia had been hauling for him without incident. Although he recognized the importance of checking a driving company’s background for safety, Gonzalez admitted he did not inquire about Garcia's driver hiring processes, maintenance practices, safety records, or insurance details. He did, however, visually inspected three of Garcia's trucks upon their arrival, which appeared well-maintained and safe. Problems arose with a tandem truck that was loaded without inspection and was in poor condition, potentially due to Gonzalez's direction or Garcia's actions in his absence. While Gonzalez lacked direct control over driver hiring and truck maintenance, he claimed the authority to refuse loading unsafe trucks. He noted that his brother, Javier, would take on this responsibility in his absence. Evidence suggests that Gonzalez retained some control over the operations, which could imply a duty of care regarding safety inspections and the decision to use trucks deemed unsafe. The summary judgment evidence indicates that reasonable minds could differ on whether Gonzalez held sufficient control over Garcia’s operations to warrant such a duty to employee Ramirez. Gonzalez's control over 3R/Garcia's operations is a factual question that requires a full examination of the record, as established in Lee Lewis Construction. Ramirez and Crosby presented sufficient evidence that Gonzalez retained control over the trucks used for silage transport, which prevents a no-evidence summary judgment in his favor. However, their claim that Gonzalez and Garcia were engaged in a joint enterprise, thus making Gonzalez liable for Garcia’s negligence, lacks sufficient evidence. To prove a joint enterprise, the following elements must be established: 1) an agreement among the parties, 2) a common purpose, 3) a community of pecuniary interest, and 4) equal rights in directing the enterprise. The Texas Supreme Court has maintained these requirements, emphasizing the need for a shared monetary interest among group members. This community of pecuniary interest is assessed based on pooled efforts and resources aimed at achieving common economic goals, distinct from merely having a common business interest. Evidence in past cases, such as Able, illustrates that substantial financial collaboration is necessary to establish this community of interest. Evidence demonstrated that the project involved resource sharing between parties, leading to economic gains through savings. However, the Fort Worth Court found no evidence of a "community of pecuniary interest" between a hospital and a radiology group, concluding that the relationship was that of independent contractors rather than a joint enterprise. Although both parties benefited from the arrangement, the court emphasized that a shared business purpose does not suffice to establish a community of interest. In the current case, no evidence indicated that Gonzalez and Garcia pooled resources as required by joint enterprise law. Instead, Garcia provided trucks and drivers for hauling silage, receiving payment based on specific terms per ton and per mile. Their shared interest in harvesting and delivering silage did not constitute a shared pecuniary interest, as their financial interests were calculated differently. The summary judgment evidence indicated an independent contractor relationship, with limited convenience and a general business interest insufficient to prove a joint enterprise. Because Ramirez and Crosby failed to provide evidence of a community of pecuniary interest, their joint enterprise claim was invalid, leading to the trial court's proper granting of Gonzalez’s no-evidence summary judgment on that issue. The court upheld the summary judgment in favor of Gonzalez regarding Jackson's claims of negligent overloading and the negligence claims from Ramirez and Crosby. However, the court deemed the no-evidence summary judgment improper concerning Jackson's statutory employment claims and Ramirez and Crosby’s negligence claims based on retained control, thus sustaining those related points of error. The trial court's no-evidence summary judgment is affirmed in part, reversed in part, and remanded for further proceedings. The parties involved include Jackson (plaintiff/appellant), Ramirez (intervenor/appellant), Crosby (intervenor/appellant), and Gonzalez (defendant/appellee). Gonzalez contends that the definition of "employer" should be interpreted to link the "assigns employees to operate it" language solely to vehicles owned or leased by the motor carrier, arguing that this interpretation avoids rendering part of the statute superfluous. The court emphasizes the importance of not interpreting statutes in a manner that makes any clause meaningless, citing prior case law. Despite Ramirez and Crosby's motion for reconsideration, the court maintains that the summary judgment record remains unchanged post-judgment. Generally, after a summary judgment, the trial court can only consider the existing record unless new issues are raised.