AFFIRM and Opinion Issued January 31, 2013




                                               In The
                                  (!niirt uf ipiat
                         Fift1! Jistrirt nf Lixa at 1aIta
                                       No. 05-1i-01314-CV


        JENNIFER LOGAN, INI)IVIJ)UALLY AND AS IEPRiSENTATIV1 OF
           THE ESTATE OF CHRISTOPHER LOGAN, DECFASED, ANI)
           AS NEXT FRIENI) OF COLL1N LOGAN, A MINOR, Appellants

                                                 V.

                       IRVING CLUB ACQUISITION CORP., Appellee


                       On Appeal from thel 16th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. I)C-11-11118


                              MEMORANDUM OPINION
                            Before Justices Moseley, Francis, and Lang
                                    Opinion By Justice Francis

       Christopher Logan died while      retrieving   golf balls from a water hazard at Las Colinas

Country Club which is owned and operated by Irving Club Acquisition Corporation. Christopher’s

widow, Jennifer Logan, sued various defendants, including ICAC. for negligence and premises

liability on behalf of herself, her husband’s estate, and her minor    son,   Collin. ICAC filed no

evidence and traditional motions for summary judgment. After granting summary judgment in

1CACs favor, the trial court severed the claims against ECAC from the remaining claims against the

remaining defendants. In a single issue, Jennifer challenges the trial court’s granting of summary

judgment, claiming genuine issues of material fact exist regarding the existence of ajoint enterprise
 between IC\C and Logans employers at the time of his death, Dickie and Debbie Seeders cl/b/a A—

 tlus (lol [‘ Ball Retrieval             We affirm.

            A—Plus had a two—year contract with IC’AC to                         retrieve     gol 1’ halls Irom water hazards on the

golf course. After the contract expired, Dickie continued to contact ICAC about hail retrieval and

was allowed on the course to do so. In addition to Dickie. Christopher was                                           one   of two men who

retrieved balls lbr A-Plus.

            Around tour o clock in the afternoon of June 24. 2009. Christopher arrived at Las Colinas

Country Club to dive for golf balls. i-Ic borrowed a golf cart and went to the water hazard near the

18th green. Although he had previously used scuba gear to dive for golf balls, on this occasion,

Christopher used a homemade air hookah system he borrowed from Dickie. At least one person saw

the hookah system pumping air around 5:30 p.m.                                    When the course closed at 9:00 p.m. and

Christopher had not returned with the golf cart. employees became concerned and notified the

director of the golfcourse. He. in turn, called the lrving Police Department. Christopher’s body was

recovered from the lake, and an autopsy showed he suffered carbon monoxide poisoning which

resulted in his death by drowning.

           In her sole issue, Jennifer contends the trial court erred in granting ICAC’s motions for

summary judgment because genuine issues of material facts exist regarding the existence ofa joint

enterprise between ICAC and A-Plus.

           Because ICAC presented both no evidence and traditional grounds, we first address the

challenges to ICAC’s no evidence summarvjudgment motion.                                     See   Ford Motor Co. v. Ridg-iray. 135

S.W.3d 598, 600 (Tex. 2004). A party may move for summary judgment on the ground there is no


      .Tennitër originalls challenged the trial courts orderse ering ICAC’s cause ftom the remaining las suit At oral argumenL howeer the parties
infiirmed the Court that the underl\ ing lawsuit had been resolved, and the se’erance issue was moot. Iherefore.we do not address Jennifer’s second
issue
evidence of one or more essential elements ofa claim or defense on which the adverse parties would

have the burden (l proof at trial. L;tJi?. lid. v. iioieno. 201 S.\V.$d 66. 688 (Tex. 2006) (per

curiam). tnless the respondents produce summary judgment evidence raising a genuine issue of

material fact. the court must grant the motion. ‘lix. R. Civ. P. 1 66a( i ):    Johnson   v Brewer &

Prjichurcl P.C.. 73 S.W.3d 193.   2Q7
                                        (Tex. ())

       To succeed in a traditional motion fir summary judgment, the movant must establish there

are no genuine issues of material fact and it is entitled to judgment as a matter of law. W Jnvs,, Inc.

v. Urena, 162 S.W.3d 547. 550 (Tex. 2005). In reviewing a summary judgment, we consider the

evidence in the light most favorable to the nonmovants and resolve any doubt in their favor. Nixon

v. Mr. Property Mgint (‘o., 690 S.W.2d 546, 548--49 (Tex. 1985). Where, as here, the trial court’s

order granting summary judgment does not specify the basis for the ruling, we must affirm the trial

court’s judgment ifany of the theories advanced are meritorious. 111 Invs.. Inc.. 162 S.W.3d at 550.

       Joint enterprise is a theory involving derivative liability in which one enterprise participant

may be held responsible for a cause of action proven against another enterprise participant. In re

Tex. Dep 1 ofTraiisp..218 S.W.3d 74, 78 (Tex. 2007) (orig. proceeding) (per curiam). The elements

ofa joint enterprise are: (1) an agreement, express or implied, among the members of the group; (2)

a common purpose to be carried out by the group: (3) a “community of pecuniary interest” in that

common purpose among the members; and (4) an equal right to a voice in the direction of the

enterprise, which gives an equal right of control. Tex. Dept of Tranp. v. Able, 35 S.W.3d 608, 613

(Tex. 2000). The ordinary meaning of’pecuniary” is of or pertaining to money.” St. .Joseph Hosp.

v. Wolff 94 S.W.3d 5 1 3. 531 (Tex. 2002). However, it is not sufficient that the parties have merely

a common business interest or even a common pecuniary interest. Id. at 527—28. Nor is the

existence of monetary benefits flowing from the arrangement sufficient to satisfy this element. Id.
at 532. Rather. to satisfy the third element. there must be evidence the interest is monetary in nature

and the monetary interest is common among the members of the group-—it must be one shared

without special or distinguishing characteristics” in the relevant common purpose. Id.

        In its motion for summary judgment, ICAC claims there is no evidence it had a joint

enterprise with A-Plus because. in part. there was no evidence of community of pecuniary interest

In response. Jennifer alleges both parties had a ‘monetary interest in every single golfball retrieved”

and that each “received an economic gain from every single ball.”

        The summary judgment record shows ICAC and A-Plus had a written two-year agreement

in which A-Plus agreed to retrieve and remove golf balls from the water hazards on the golf course

and ICAC agreed to pay I 2 for each golf ball removed. Even though the agreement had expired,

the parties continued to do business. Although Jennifer contends this alone is some evidence of a

community of pecuniary interest, we cannot agree. Nothing in the agreement or the rest of the

summaryjudgment record shows the parties contemplated anything more than a business contract.

There is no evidence ofajoint project, nor is there evidence (1) the parties shared any resources in

furthering a joint effort, (2) the parties pooled efforts or monetary resources to lbrther a common

goal or purpose. or (3) any monetary benefits were to be shared between ICAC and A-Plus “without

special or distinguishing characteristics.” See Seureau v. &xonkfobil Corp, 274 S.W.3d 206,223

(Tex. App.—Houston [14th Dist] 2008, no pet). Rather, the summary judgment evidence shows

ICAC hired A-Plus to perform work as an independent contractor. See Blackburn v. Columbia Med

dr., 58 S.W.3d 263,276-77 (TeL App.—Port Worth 2001, pet denied); Ta Dep’t of Transp. v.

CUy ofFloresville Elec. Power & Light Sys., 53 S.W.3d 447,457 (Tex. App.—San Antonio 2001,

no pet). The mere fact that both parties benefitted from the contract is not sufficient without more,

to establish a community of pecuniary interest. See Blackburn, 58 S.W.3d at 276 (concluding no



                                                -4-
summaryjudgment evidence ofcommunity ofpecuniary interest where record contained no evidence

to show sharing ofresources, pooling offimds. monetary investment, costs or benefits to either party

and showed only limited evidence of mere convenience to parties arising from arrangement and

shared general business interest). In light of the sununary judgment record before us. we cannot

conclude the trial court erred in granting summary judgment in favor of1CAC on the theory ofjoint

enterprise. See &. Joseph Hosp., 94 S.W.3d at 528 (while franchisors, wholesalers, and suppliers

may benefit financially from downstream marketing oftheir goods or services, their interests in said

activities are not held in ‘community” with franchisee, retailers. or customers because they are not

shared “without special or distinguishing characteristics.”); City ofFloresville Eke. Power & Light

Sys.. 53 S.W.3d at 457 (concluding no evidence ofcommunity of pecuniary interest where TxDOT

hired company to perform maintenance on traffic signal poles, company was paid by the number of

poles it completed, and there was no pooling ofresources or pooling ofefforts; TxDOT simply hired

company “to perform work as an independent contractor.”). Cf Able, 35 S.W.3d at 614 (concluding

evidence produced at trial that project contemplated joint effort utilizing frderal, state, and local

fimds; shared resources in furtherance of the ultimate purposes of providing mass transit; and

realized economic gain on the investment was some evidence ofcommunity ofpecuniary interest).

We overrule Jennifer’s sole issue.

       We affirm the trial court’s judgment.



                                                       /Molly Francis/
                                                      MOLLY FRANCIS
                                                      JUSTICE

11 l3l4F.P05




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                                       JUDGMENT
JENNIFER LOGAN, INDIVIDUALLYAND                     Appeal from the 116th Judicial District Court
AS RIPRLSLNIAHVI 01 1 IlL [S FAIL                   of Dallas County, Texas. (Tr.CLN0. DC.-l 1-
OF CHRISTOPHER LOGAN, DECEASED.                     11118).
AND AS NINE I Rh ND 01 (011 IN                      opinion delivered by Justice Francis. Justices
LOGAN. A MINOR. Appellants                          Moselev and Lang participating.

No. 05-11-01314-CV            V

IRVING   CLUB     ACQUISITION
CORPORATION, Appellee

        In accordance with this Court’s opinion of this date. the judgment of the trial court is
AFFIRNIE1). It is ORDERED that appeliee Irving Club Acquisition Corporation recover its costs
of this appeal from appellants Jennifer Logan. Individually and as Representative of the Estate of
Christopher Logan, Deceased, and as Next Friend of Collin Logan. a Minor.


Judgment entered January 3 1, 2013



                                                      /Molly Francis/
                                                    MOLLY FRANCIS
                                                    JUSTICE
