                                                                                      ACCEPTED
                                                                                  04-17-00609-CV
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                                1/22/2018 1:03 PM




                         No. 04-17-00609-CV
                                                       FILED IN
                                                4th COURT OF APPEALS
                 IN THE COURT OF APPEALS FOR THE SAN ANTONIO, TEXAS
                FOURTH JUDICIAL DISTRICT OF TEXAS
                                                1/22/2018 1:03:16 PM
                           SAN ANTONIO            KEITH E. HOTTLE
                                                        CLERK



                           Marta Arredondo,
                              Appellant
                                  v.

     AEP Texas Central Company, T&D Solutions, LLC, and
            TechServ Consulting & Training, Ltd.,
                         Appellees

         Appeal from the 79th District Court of Brooks County, Texas
                      {Hon. Richard Terrell Presiding}


       BRIEF OF APPELLEE AEP TEXAS CENTRAL COMPANY


LAW OFFICE OF                             SCHAUER & SIMANK, P.C.
AUDREY MULLERT VICKNAIR

Audrey Mullert Vicknair                   G. Don Schauer
State Bar No. 14650500                    State Bar No. 17733298
802 N. Carancahua, Ste. 2100              615 N. Upper Broadway, Ste. 700
Corpus Christi, Texas 78401-0038          Corpus Christi, Texas 78401-0781
(361) 884-5400; (361) 884-5401 fax        (361) 884-2800; (361) 884-2822 fax
avicknair@vicknairlaw.com                 dschauer@cctxlaw.com


Attorneys for Appellee AEP Texas
Central Company


                                      i
                                        TABLE OF CONTENTS
INDEX OF AUTHORITIES.................................................................................... iv

STATEMENT OF THE CASE .............................................................................. viii

STATEMENT REGARDING ORAL ARGUMENT ...............................................x

ISSUES PRESENTED, RESTATED ........................................................................x

      1. The trial court properly rendered summary judgment for AEP.

         a.       AEP owed no duty to the Plaintiff.
               1.     T&D is an independent contractor and Appellant fails to raise a
         genuine issue of material fact otherwise. Appellant does not allege AEP
         exercised actual control, and AEP did not have contractual control.

               2.     Appellant does not dispute that TechServ, the inspector, is an
         independent contractor as its contract with AEP specifically states; Appellant
         does not contend AEP had actual control and does not cite to any contractual
         provisions to the contrary.

         b.    Removing a stub pole and filling the hole with dirt is not an inherently
         dangerous activity.

2.       Appellant does not challenge all of the arguments lodged in AEP's No-
         Evidence Motion for Summary Judgment, granted by the trial court.
         Specifically, AEP argued there was no evidence of foreseeability or proximate
         cause.

STATEMENT OF FACTS ........................................................................................1

I.     Plaintiff’s Allegations ......................................................................................1

II.     AEP Files a Traditional and No Evidence Motion for Summary
         Judgment (C.R. 28-202) ..................................................................................2

       A. AEP’s Summary Judgment Evidence .......................................................3

III. Plaintiff’s Response ...........................................................................................7
       A.      Arredondo’s Summary Judgment Evidence ............................................ 7
                                                          ii
IV. AEP’s Reply in Support of its Summary Judgment Motions ..........................10
V.     Appellant’s First Supplemental Response ......................................................10

VI. AEP’s Sur-Reply..............................................................................................11

VII. T&D and TechServ’s Summary Judgment Motions .......................................11

SUMMARY OF THE ARGUMENT ......................................................................12

ARGUMENT ...........................................................................................................14

I.     Standard of Review..........................................................................................14
II.    Summary Judgment was Properly Granted to AEP ........................................16
       A. AEP Owed No Duty to the Appellant: this Work was Performed by
       Independent Contractors ................................................................................16

             1. Premises Liability ................................................................................16

             2. Negligence and Gross Negligence .......................................................18

             3. No Liability for the Work of Independent Contractors .......................20
       B. Control Must be Actual or Contractual .................................................. 23
       C. AEP Did Not Have Contractual Control Over T&D ................................24

       D. Appellant Does Not Allege AEP Had Actual or Contractual
       Control Over TechServ; TechServ’s Status as an Independent
       Contractor is Unrebutted ...............................................................................29
III. The Removal of a Stub Pole is Not an Inherently Dangerous Activity..........29

IV. Appellant Has Not Addressed AEP’s No Evidence Motion Regarding
    Foreseeability or Proximate Cause ................................................................35

CONCLUSION ........................................................................................................36

PRAYER .................................................................................................................36

CERTIFICATE OF COMPLIANCE .......................................................................38
CERTIFICATE OF SERVICE ................................................................................38

                                                           iii
                                      INDEX OF AUTHORITIES

CASES
Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627 (Tex. 1976) .................................17

Agric. Warehouse, Inc. v. Uvalle, 759 S.W.2d 691
  (Tex.App.--Dallas 1988, writ denied).................................................................30
Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945 (Tex. 1998) .......................23

Bastida v. Aznaran, 444 S.W.3d 98 (Tex.App.—Dallas 2014, no pet.) ..................19

Bontke v. Cargill Meat Logistics Solution, Inc., No. 07-12-00328-CV, 2014 WL
  1493369, 2014 Tex.App. LEXIS 4048 (Tex.App.--Amarillo April 14, 2014, no
  pet.) (mem. op) ............................................................................................. 30, 31
BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485
  (Tex. App.—San Antonio 2013, pet. denied) .....................................................15

Braudrick v. Wal-Mart Stores, Inc., 250 S.W.3d 471
   (Tex.App.--El Paso 2008, no pet.) ............................................................... 20, 21
Cameron Mill & Elevator Co. v. Anderson, 34 Tex. Civ. App. 105, 78 S.W. 8
  (1903), aff'd, 98 Tex. 156, 81 S.W. 282 (1904)........................................... 33, 34
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195 (Tex. 1995) ............................ 18, 19

Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649 (Tex. 2007) ...... 30, 31, 33

Cincinnati Life Ins. v. Cates, 927 S.W.2d 623 (Tex. 1996).............................. 15, 35

City of Alton v. Sharyland Water Supply Corp., 402 S.W.3d 867
   (Tex.App.--Corpus Christi 2013, pet. denied) ....................................................19

City of San Antonio v. Greater San Antonio Builders Ass’n, 419 S.W.3d 597
   (Tex.App.—San Antonio 2013, pet. denied) ......................................................14
City of Waco v. Kirwan, 298 S.W.3d 618 (Tex. 2009) ............................................19

Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997) ....... 16, 18, 22

Columbia Med. Ctr. of Los Colinas, Inc. v. Hogue, 271 S.W.3d 238
  (Tex. 2008)..........................................................................................................18

                                                           iv
Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983) .................................16
Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) ........................................15

E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48
   (Tex. App.--Houston [14th Dist.] 2014, pet. dism'd) ................................ 17, 18

Fagerberg v. Steve Madden, Ltd., No. 03-13-00286-CV, 2015 WL 4076978
  (Tex. App.--Austin July 3, 2015, no pet.) (mem. op.) ........................................23

Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903
  (Tex.App.--Fort Worth 2009, pet. denied) .........................................................24
Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788 (Tex. 2006) .................... 21, 23, 26, 27

Ford Motor Co. v. Miles, 967 S.W.2d 377
  (Tex. 1998) (Gonzalez, J., concurring) ...............................................................19
Ford Motor Co. v. Ridgeway, 135 S.W.3d 598 (Tex. 2004) ...................................15

General Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008) .....................................17

Gillespie v. Hernden, 516 S.W.3d 541
   (Tex.App.—San Antonio 2016, pet. denied) ..................................................... 15

Graff v. Beard, 858 S.W.2d 918 (Tex. 1993) ..........................................................21
Hanna v. Vastar Res., Inc., 84 S.W.3d 372
  (Tex. App.--Beaumont 2002, no pet.).................................................................31

Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354
  (Tex. 1998) (per curiam) .....................................................................................27
Jacobs v. Huser Constr., Inc., 429 S.W.3d 700
   (Tex.App.--San Antonio 2014, no pet.) ................................................. 20, 24, 28

KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70 (Tex. 2015) ......................................14

Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) ...............................................18

Koch Ref. Co. v. Chapa, 11 S.W.3d 153 (Tex. 1999).................... .20, 21, 22, 26, 28

Kolius v. Ctr. Point Energy Houston Elec. LLC, 422 S.W.3d 861
  (Tex.App.--Houston [14th Dist.] 2014, no pet.). .......................................... 31, 32

                                                        v
Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) (per curiam) .........................19
Lee Lewis Constr. Co. v. Harrison, 70 S.W.3d 778 (Tex. 2001) ............................17

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) .....................................14

MBank El Paso N.A. v. Sanchez, 836 S.W.2d 151
  (Tex. 1992) (Hecht, J., dissenting) .....................................................................30
Merriman v. XTO Energy Inc., 407 S.W.3d 244 (Tex. 2013) .......................... 15, 35

Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401 (Tex. 2009)....................17

Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex. 2016) ............ 16, 17, 18
Oncor Elec. Deliv. Co., LLC v. Murillo, 449 S.W.3d 583
  (Tex. App.--Houston [1st Dist.] 2014, pet. denied) ............................................17

Randall Noe Chrysler Dodge, LLP v. Oakley Tire Co., 308 S.W.3d 542
  (Tex.App.--Dallas 2010, pet. denied) .................................................................31

Richards v. Domino’s Pizza, Inc., No. 05-96-0024-CV, 1997 WL 644867
   (Tex.App.--Dallas Oct. 21, 1997, pet. denied)
   (not designated for publication) ..........................................................................31

Scott Fetzer Co. v. Read, 945 S.W.2d 854
   (Tex.App.--Austin 1997), aff’d, 990 S.W.2d 732 (Tex. 1998)...........................30

Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118
   (Tex.App.--Houston [1st Dist.] 2002, pet. denied)..............................................19

Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994) ..........................................19
Vann Horn v. Chambers, 970 S.W.2d 542 (Tex.1998) ...........................................19

Victoria Elec. Coop., Inc. v. Williams, 100 S.W.3d 323
   (Tex. App.--San Antonio 2003, pet. denied). ............................ 21, 22, 26, 27, 28

Weidner v. Sanchez, 14 S.W.3d 353
  (Tex. App.--Houston [14th Dist.] 2000, no pet.) .................................................24




                                                       vi
STATUTES AND RULES
TEX. R. APP. P. 39.1. ................................................................................................ ix

TEX. R. CIV. P. 166a(i) .............................................................................................14




                                                           vii
TO THE HONORABLE FOURTH COURT OF APPEALS:

       COMES NOW Appellee AEP Texas Central Company (“AEP”) and files its

Appellee’s Brief. The trial court properly granted traditional and no evidence

motions for summary judgment filed by AEP. The judgment should be affirmed.

                            STATEMENT OF THE CASE

       This is an appeal from an order granting both a traditional and no evidence

summary judgment to AEP. Appellant Marta Arredondo filed suit against AEP and

T&D Solutions on September 15, 2015, in the 79th Judicial District Court, Brooks

County, Texas, Cause No. 15-08-16992-CV, the Hon. Richard Terrell presiding

(C.R. 14, 22).1 She later added TechServ as a defendant (C.R. 22). By her Second

Amended Petition, she alleged negligence, negligence per se and gross negligence

against all defendants, asserting that she fell into a shallow hole on her property

allegedly caused by the removal of a utility “stub” pole2 two weeks prior (C.R. 23-

27).

       AEP answered (C.R 20, 204-205) and filed a traditional and no-evidence

motion for summary judgment (C.R. 28-202).



1
  Appellant requested a separate record for each Defendant/Appellee. AEP here cites to the
record filed in reference to itself.
2
  A “stub pole” is generally a utility pole from which the top portion has been cut off after
the uppermost (electric) lines have been removed and transferred to a new pole but to which
other wires (usually telephone or cable television) remain attached on the lower portion;
the stub pole is not removed from the ground until all wires attached to it have been
relocated.
                                             viii
       Arredondo filed a Third Amended Petition that changed her allegation

regarding the timing of the removal of the pole, asserting that the acts made the basis

of the suit occurred months prior (C.R. 210-216). She did not revise her causes of

action (id.).

       Arredondo filed a response to AEP’s traditional motion for summary

judgment (C.R. 217-337). As to the no-evidence motion, she argued she needed

additional discovery to respond (C.R. 229-230). AEP filed a Reply (Supp. C.R. 10-

20 [filed 11/2/17]).3

       The summary judgment was argued in open court (R.R. 2, passim) but because

of discovery disputes between Plaintiff, TechServ and T&D, final submission was

set for a later date (C.R. 451).

       Arredondo filed a first supplemental response to AEP’s summary judgment

motion supplementing one argument she had made previously, but did not address

all of the elements challenged by AEP’s no evidence motion (C.R. 452-565). AEP

filed a reply (C.R. 566-572).

       The trial court granted AEP’s traditional and no evidence motions (C.R. 573-

74, 578-79). The trial court also granted traditional and no evidence motions for

summary judgment filed by T&D and TechServ.



3
 There are two Supplemental Clerk’s Records; the one referred to herein was filed
November 21, 2017 at AEP’s request.
                                          ix
                STATEMENT REGARDING ORAL ARGUMENT

        AEP believes oral argument is not necessary. TEX. R. APP. P. 39.1. The

dispositive issues have been authoritatively decided and the complete record is

before this Court. The decisional process would not be significantly aided by oral

argument. Id.



                        ISSUES PRESENTED, RESTATED

   1.    The trial court properly rendered summary judgment for AEP.

        a.    AEP owed no duty to the Plaintiff.

              1.     T&D is an independent contractor and Appellant fails to raise a
        genuine issue of material fact otherwise. Appellant does not allege AEP
        exercised actual control, and AEP did not have contractual control.

              2.     Appellant does not dispute that TechServ, the inspector, is an
        independent contractor as its contract with AEP specifically states; Appellant
        does not contend AEP had actual control and does not cite to any contractual
        provisions to the contrary.

        b.    Removing a stub pole and filling the hole with dirt is not an inherently
        dangerous activity.

   2.    Appellant does not challenge all of the arguments lodged in AEP's No-
        Evidence Motion for Summary Judgment, granted by the trial court.
        Specifically, AEP argued there was no evidence of foreseeability or proximate
        cause.




                                           x
                            STATEMENT OF FACTS

     I.    Plaintiff’s Allegations
     By her Third Amended Petition, Arredondo alleges that in July, 2014, she was

mowing her lawn when she stepped backward into a hole “2 ½ to 3 feet deep” which

she contends was “left from the removal of a utility pole that took place previously.”

(C.R. 211) The evidence shows the pole was removed in December 2013 (C.R. 65-

66). In her Brief, Appellant acknowledges T&D marked the work as complete on

December 2, 2013 and that TechServ marked the inspection complete on December

9, 2013 (Ant Br at 10, 11). In her response to T&D’s summary judgment motion,

Arredondo averred: “Initially, Plaintiff believed the hole was created a few weeks

before this incident, however it has been discovered that the hole was likely created

many months before this incident occurred. It is believed that the utility pole was

removed from Plaintiff’s yard a few weeks before this incident. Plaintiff has since

updated her Petition to reflect this newly discovered information.” (T&D C.R. 136)

     Appellant alleged in her petition, “Defendants had a utility easement on her

property,” “had sole responsibility for the safe maintenance, inspection and control

for the easement after undertaking removal of the pole and created a defect in the

easement property when they removed the pole and failed to fill the hole or otherwise

warn of its existence.” (C.R. 211)

     Arredondo alleged negligence, negligence per se and gross negligence (C.R.


                                          1
212). She asserted as basis for her negligence and negligence per se claims, “A

possessor of land is liable to an injured person if the possessor of land creates a

dangerous condition and then fails to warn of the existence of the condition or

Landlord fails to make all repairs and do whatever is necessary to put and keep the

premises in a safe condition. The Defendants failed to properly inspect, repair, and

maintain the easement after removal of the pole.” (C.R. 212)

     II.   AEP Files a Traditional and No Evidence Motion for Summary
           Judgment (C.R. 28-202)
     In its traditional motion, AEP noted that Arredondo is the owner of the property

in question, and denied having an easement on the property (C.R. 30, n. 1, C.R. 31).

But AEP argued that regardless of either party’s status, T&D Solutions and

TechServ were independent contractors solely responsible for the work performed;

AEP had no control over the means, manner or method of their work (C.R. 29-37).

Because Arredondo’s injury was allegedly the result of the property's condition

rather than an activity, premises liability principles apply. An owner/occupier of land

has no duty with regard to premise defects created by an independent contractor, or

to inspect and warn of alleged dangerous conditions resulting from the independent

contractor's work, absent a right to control the work that created the alleged defect.

AEP, having no such control, neither owed nor breached any duty to Arredondo

(C.R. 30-37).



                                          2
    In the no-evidence portion of its motion, AEP asserted Arredondo could adduce

no evidence to support the elements of her claims, that is, no evidence to show:

    “1. That AEP had any duty to the Plaintiff because the condition of which
    she complains was created by an independent contractor and not AEP;

    2. That AEP, under the circumstances and facts herein, breached any duty
    to the Plaintiff because Plaintiff has failed to establish that AEP exercised
    any control over the independent contractor either contractually or
    actually;

    3. That AEP had any reason to foresee that Plaintiff’s injuries could result
    from the work of the independent contractor.

    Specifically, there has been no evidence to date that has shown that AEP
    breached any legal duty to the Plaintiff or that any act or omission of AEP
    proximately caused the Plaintiff’s damages. Thus, Defendant moves for
    summary judgment because there is no evidence of the above-referenced
    elements of the Plaintiff’s causes of action.”

(C.R. 29, 37-38) (emphasis added)

           A. AEP’s Summary Judgment Evidence

    The undisputed evidence shows that AEP contracted with T&D Solutions to

perform the removal of the pole and filling of the hole and with TechServ Consulting

and Training to inspect the work that T&D was hired to perform.

    Roel Lopez, an engineering technician with AEP, testified by deposition that

he drew up a work order that included the removal of the pole, referred to as a “stub

pole” (C.R. 42, 46, 47-48, 49). The task entailed pulling the pole out of the ground,

filling the hole with dirt, and returning the pole to the AEP yard (C.R. 48). Lopez

testified he does not, in his work orders, tell the independent contractors how the

                                          3
work is to be done (C.R. 49 “I don’t specify, on any of the projects, what they’re

using.”). The contractor is expected to cover the hole or warn if it has not done so

(C.R. 50).

     Lopez testified that TechServ, the independent contractor inspector AEP used

in the area at the time, verified the work in the field and was expected to confirm the

hole was covered or a warning was placed (C.R. 50, 51, 52, 55-56). AEP was not

involved in how or when the inspector did its job (C.R. 51). Lopez testified, “[A]

TechServ contractor [Richard Luna] signed off on the project that they inspected or

looked over the work.” (C.R. 52-54) If a hole was left after a job, it was the

responsibility of the T&D Solutions crew working the job to warn the public (C.R.

50). It was the inspector's duty to point out if a job was not done properly or if a hole

had not been filled (C.R. 55-56).

     Robert Ramos, a foreman with T&D Solutions, testified by deposition that he

received the aforementioned work order, and he and his crew performed all of the

tasks contained therein (C.R. 58, 63, 64-65, 69-70). Ramos supervised T&D’s work

that day (C.R. 70). No one from AEP was there (id.). T&D had removed stub poles

before and knew how to do it; no one had to tell them how; only T&D was at the site

(C.R. 70-71). T&D only used T&D equipment and T&D employees to remove the

pole (id.).

     Ramos confirmed that Richard Luna was the TechServ inspector (C.R. 67-68).


                                           4
“He was an inspector for, contract inspector for AEP, which he would go and inspect

us and the job, for us to work safe and -- that was his job to check, like, that pole is

removed and everything was done by AEP's specs.” (C.R. 68) “[T]hey do audits and

they go to your job sites.” (id.) Richard Luna was physically at this jobsite (id.).

       Danny Garcia, the AEP supervisor in the Falfurrias area at the time, testified

that when AEP hires a professional contractor, it does not tell them how to do their

job (C.R. 194, 198, 199-200, 201). Rather, AEP's third party contractors and

inspectors are professional utility contractors that know how to do their jobs, which

AEP expects them to do (C.R. 201-202). When a stub pole is removed, it is expected

that the hole is filled in to leave it safe and intact (C.R. 202).

       Authenticated copies of the contracts in effect on the date the work was

performed are in evidence (C.R. 79; T&D: C.R. 82-137; TechServ: C.R. 139-192).

Under the general terms and conditions for the services to be provided by each of

the contractors, each contractor is expressly designated and defined as an

independent contractor. As to T&D Solutions:

 4.0       RELATIONSHIP OF THE PARTIES

               4.1       Contractor [T&D] and all of its employees and Subcontractors
               are, with respect to Owner [AEP], independent contractors. Contractor
               will be solely responsible for the supervision, direction, and control of its
               employees and Subcontractors. Contractor is responsible for the
               payment of all compensation, benefits, and employment taxes with respect
               to the Contractor's employees.

(C.R. 91). “Contractor hereby agrees to provide all supervision, labor, equipment

                                              5
and specified material necessary to perform … maintenance services….” (C.R. 82,

¶ I.) Work Requests and Authorizations include only a scope of work (C.R. 82-83,

¶¶ II. a, b).

       “Contractor shall at its expense provide everything necessary for the

complete, proper and timely execution of the Work….” (C.R. 90, ¶ 2.1) “Work”

“means all of Contractor’s obligations under the Contract.” (C.R. 89, ¶ 1.13)

       The contract further requires the independent contractor to be responsible for

all damages to private property occasioned by their work (C.R. 117, ¶ 1.2.3).

       AEP’s contract with TechServ states:

 1.0      DEFINITIONS
                1.1       Contract: "Contract" means the Contract Letter signed by the
                parties and all documents referenced in the Contract Letter.

                1.2     Consultant: "Consultant" means the entity contracting with
                Owner for the performance of Work. In performing this Contract,
                Consultant shall be an independent contractor.

(C.R. 148) TechServ is the named “Consultant” in the contract (C.R. 139).

“Consultant agrees to provide all supervision, labor, and specified equipment and

material necessary to perform joint use engineering services….” (C.R. 142)

“Consultant     shall at its expense provide everything necessary for the complete,

proper and timely execution of the Work including, but not limited to, home office

support, supervision, labor, tools, transportation, equipment, materials and supplies,

unless explicitly excluded in the Contract.” (C.R. 148, ¶ 2.1) “Work” “means all of


                                               6
Consultant’s obligations under the Contract.” (id. at ¶ 1.5)

    III.   Plaintiff’s Response

     Arredondo lodged three arguments in her Response to AEP’s motion for

summary judgment:

     “AEP is the dominant easement holder of the property where this incident
     occurred and therefore owed a duty to use ordinary care in order to avoid injury
     to the Plaintiff, the servient easement holder”;

     “Defendant AEP had a contractual right to control Defendant T&D, and
     therefore has a duty to ensure their work was done with ordinary care as to not
     create a dangerous condition that could harm Plaintiff”; and
     “Even if Defendant T&D is considered an independent contractor, which
     Plaintiff denies, the work they performed is considered inherently dangerous,
     and therefore AEP's duty to make safe is non-delegable.”

(C.R. 217-18)

     Arredondo did not contend that AEP had contractual (or any) control over

TechServ, the independent contractor inspector she concedes inspected and

approved T&D Solutions’ work (C.R. 217-230). She also did not respond to AEP’s

no evidence motion. Instead, she alleged that she needed more time for discovery

(C.R. 229-230).

             A. Arredondo’s Summary Judgment Evidence
      Arredondo attached, to her summary judgment response, AEP’s Response to

Interrogatories, which states, “The work in question was performed on the city right-




                                          7
of-way.” (C.R. 235)4 She also attached her deposition, in which she confirmed that

this is her property and there is a city easement or right of way in the area where the

incident occurred (C.R. 244 depo p. 79).

       Arredondo’s deposition also states that in July 2014 she was mowing her

grass in an area of her property where a utility pole had previously been removed

(C.R. 240 depo p. 26, 27). She had no actual knowledge when the pole was removed

from the ground and from her property (C.R. 244 depo p. 79-80). The grass was

“tall” (C.R. 240 depo p. 27). She says she backed up while mowing and one of her

feet stepped into what she believes was a 2 ½ foot deep hole (C.R. 241 depo p. 30).

She does not know if a hole was left after the pole was removed; she did not check

to see (C.R. 242 depo p. 42-43). She also did not look at the high grass area before

mowing (id. depo p. 42).

      Arredondo also attached excerpts from AEP supervisor Daniel Garcia’s

deposition, which reiterates that AEP hires independent contractors to perform these

tasks, and the third party inspector has to sign off on the job before the contractor is

paid; AEP relies on the contractors and inspectors to do their jobs (C.R. 312-13 [“we

don’t tell them how to do….”]). The inspector ensures the job is complete and calls



4
 The interrogatories also reiterate that a contractor removed a stub pole on the
premises; that T&D Solutions was performing work as the independent contractor;
and that TechServ was hired to inspect the work performed (C.R. 235-36).

                                           8
the contractor back if it is not (id.).

       Arredondo attached excerpts from AEP engineering technician Roel Lopez’s

deposition, which show the contract inspector (TechServ) inspects the crew and is

responsible for ensuring the work is done to AEP standards (C.R. 335). The property

has to be put back the way it was (C.R. 335). It is the responsibility of the contractor

– the crew working the job (T&D) -- to cover any hole or warn about it (C.R. 336).

Lopez testified, “The inspector [TechServ] gets involved in that he's checking and

verifying the work out in the field.” (C.R. 336)

     Arredondo presented no evidence that a hole was left in the ground after the

stub pole was removed in December 2013. She testified she did not know (C.R. 242

depo p. 42-43). In her Appellant’s Brief in this Court regarding TechServ, she quotes

from the deposition of TechServ’s Richard Luna, who testified expressly that when

he inspected T&D’s work, the hole where the stub pole was located was filled (Tech

Serv Ant Br. at 25: “It was covered when I inspected it.”). She also concedes T&D’s

Robert Ramos testified he filled the hole; the hole was immediately covered with

dirt when the pole was removed (id. at 28-30).

     In her Brief regarding AEP, Appellant states:

     T&D [sic] had an independent contract with Techserv wherein Techserv
     would inspect work performed by T&D. (2RR9). Techserv employee,
     Richard Luna, inspected Appellant’s property. (Techserv1CR438).
     Techserv inspected the work completed by T&D on Appellant’s property
     and marked the inspection complete on December 9, 2013. (2RR9).


                                           9
(Ant Br. at 11).5

     IV.   AEP’s Reply in Support of its Summary Judgment Motions

      In its Reply in support of its summary judgment motions, AEP countered all

of Arredondo’s arguments with substantial case law (11/21/17 Supp C.R. 10-20) and

argued (1) there is no evidence of an easement; (2) AEP has no contractual control

over T&D; and (3) the removal of a stub pole is not an inherently dangerous activity.

AEP reiterated its no evidence arguments (id. at 18).

     V.    Appellant’s First Supplemental Response

     The trial court granted extensions of time and a continuance and did not submit

the motions for summary judgment for decision until August 16, 2017 (C.R. 424,

445, 449, 451). Arredondo filed a Supplemental Response on August 9, 2017 (C.R.

452-455). She argued only that this case involved an inherently dangerous activity,

categorizing this as “electrical work” and also arguing utility poles are heavy and

can cause injury if they fall on a person (C.R. 452-56). Arredondo quotes from

depositions and attaches (but never addresses, references or cites, as the rules

require) an unauthenticated “news release” and a “magazine article” to support her

position that utility work is inherently dangerous.

     Arredondo did not respond to AEP’s no evidence motion for summary



5
 There is no evidence T&D had a contract with TechServ. AEP had the contracts with
T&D and TechServ.
                                          10
judgment, in particular AEP’s arguments that there was no evidence of foreseeability

or that any act or omission of AEP proximately caused Arredondo’s damages.

    VI.    AEP’s Sur-Reply

      In its Sur-Reply, AEP reiterated authority from the Texas Supreme Court and

this Court that shows the removal of a stub pole is not inherently dangerous, and

reiterated all of its no evidence grounds (C.R. 566-571).

    VII. T&D and TechServ’s Summary Judgment Motions

    Both T&D and TechServ filed traditional and no evidence motions for summary

judgment as well (T&D C.R. 31-127; TechServ C.R. 29-168). Both argued

principally that there was no evidence of causation; the evidence shows the hole in

question was filled in December 2013 and the plaintiff has no controverting evidence

(see, C.R. 242 depo p. 42-43).

    The trial court granted all the Defendants’ traditional and no evidence motions

for summary judgment (AEP C.R. 578; T&D C.R. 423; TechServ C.R. 498).




                                         11
                      SUMMARY OF THE ARGUMENT

      AEP owed no duty to Appellant. It is undisputed the work here was performed

by T&D and TechServ, both of which were independent contractors. Arredondo

contends a stub pole was removed from the ground on her property in December

2013, and the hole was not filled in at that time. T&D was under contract, as an

independent contractor, with AEP to remove the pole and fill the hole. TechServ

served as a contract inspector of T&D’s work. AEP was not at the site, did not

perform the work, and had no control over the work of either company.

      To prove liability on the part of AEP, Arredondo has to show that AEP had

the requisite amount of control over these independent contractors, either by the

actual exercise of control or by the terms of the contracts between the parties.

Arredondo does not contend that AEP exercised actual control over either contractor.

Thus, she has to prove AEP had contractual control.

      Arredondo alleges AEP contractually controlled T&D, the party tasked with

removing the pole and filling the hole. But the evidence does not support her

contention. The contract expressly states T&D is an independent contractor. No

contract provision highlighted by Appellant shows that AEP had sufficient control

over T&D to erase the independent contractor relationship. AEP did not have control

over the operative details of T&D’s work, and did not control any activity that

allegedly caused Appellant’s injury. AEP did not have such control over T&D that


                                        12
it was not free to do the work in its own way.

      Appellant has never alleged that AEP actually or contractually controlled

TechServ. The TechServ contract specifically states that TechServ is an independent

contractor, with corresponding additional provisions making TechServ solely

responsible for, and in control of, its work. It is undisputed TechServ signed off on

the job as complete on December 9, 2013. TechServ found the job to have been

performed properly.

      Appellant cannot show a non-delegable duty on the part of AEP. Removal of

a stub pole is not an inherently dangerous activity that would preclude AEP from its

independent contractor defense. Arredondo’s deposition excerpts and arguments are

focused on live electricity and the weight of the pole, neither of which is at issue in

this case (she was injured by neither). In addition, the Supreme Court has specifically

held that working with electricity is not inherently dangerous (if it were in issue).

Indeed, the Supreme Court has rarely found an activity inherently dangerous.

Arredondo failed to meet her burden of proof here.

      Further, Appellant has not challenged AEP’s no-evidence motion on the

issues of foreseeability or causation. These are fundamental elements of her claim,

contested by AEP. As both are possible bases for the trial court’s granting of

summary judgment, Appellant has waived her challenge to the trial court’s order.

      Finally, the trial court granted summary judgment to T&D and to TechServ.


                                          13
Plaintiff’s claims against AEP are based upon alleged acts or omissions by T&D and

TechServ. If those summary judgments are upheld, so too should summary judgment

be affirmed to AEP.

                                      ARGUMENT

    I.     Standard of Review
    Appellant addresses only the standard of review on appeal from the granting of

a traditional motion for summary judgment. But, the trial court also expressly

granted AEP’s no evidence motion. A no-evidence summary judgment movant must

assert that "no evidence supports one or more essential elements of a claim for which

the non-movant would bear the burden of proof at trial." KCM Fin. LLC v.

Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015) (citing TEX. R. CIV. P. 166a(i)). "The trial

court must grant the motion unless the non-movant raises a genuine issue of material

fact on each challenged element." Id. On appeal, this Court reviews the evidence

presented by the non-movant in the light most favorable to her, "crediting evidence

favorable to that party if reasonable jurors could, and disregarding contrary evidence

unless reasonable jurors could not." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,

582 (Tex. 2006).

      This Court reviews a trial court's traditional summary judgment de novo. City

of San Antonio v. Greater San Antonio Builders Ass’n, 419 S.W.3d 597, 600

(Tex.App.—San Antonio 2013, pet. denied). The Court takes as true all evidence


                                         14
favorable to the non-movant, and indulges every reasonable inference and resolves

any doubts in the non-movant's favor. Id. The traditional summary judgment 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. Id.

      The trial court did not state the issues on which it granted AEP’s traditional

and no evidence motions; therefore, any ground asserted will support the judgment,

and all grounds must be challenged on appeal or they are waived. Cincinnati Life

Ins. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996); Merriman v. XTO Energy Inc., 407

S.W.3d 244, 248 (Tex. 2013); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.

2001). Summary judgment may be affirmed on any meritorious ground alleged.

Merriman, 407 S.W.3d at 248.

      When parties file both traditional and no evidence motions, this Court reviews

the no evidence motion first. Gillespie v. Hernden, 516 S.W.3d 541, 553

(Tex.App.—San Antonio 2016, pet. denied) (citing Ford Motor Co. v. Ridgeway,

135 S.W.3d 598, 600 (Tex. 2004) (“recognizing that a no-evidence review should

be conducted first”); BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485, 509 (Tex.

App.—San Antonio 2013, pet. denied) (“same”)).




                                          15
     II.    Summary Judgment was Properly Granted to AEP

            A. AEP Owed No Duty to the Appellant: This Work was Performed
               by Independent Contractors6

            1. Premises Liability

       Appellant brought a premises liability claim against the Defendants, asserting

a premise defect. AEP focused its arguments in the trial court on its independent

contractor defense. AEP would note preliminary that the status of the Appellant is

unclear since she owned the property in question. In addition, Appellant has never

produced any evidence of an easement on the property. Regardless of the status of

the parties, AEP owed Appellant no duty here.

       Premises liability is founded on the theory that a property owner generally

owes those invited onto the property a duty to make the premises safe or to warn of

dangerous conditions, as reasonably prudent under the circumstances. Occidental

Chem. Corp. v. Jenkins, 478 S.W.3d 640, 648 (Tex. 2016); Corbin v. Safeway Stores,

Inc., 648 S.W.2d 292, 295 (Tex. 1983).

       Assuming for the sake of argument AEP was in control of the premises, “A

general contractor in control of the premises is charged with the same duty as an

owner or occupier.” Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527



6
  While recognizing that the no evidence motion should be reviewed first, because the
arguments presented in the traditional motion establish all of the legal principles, AEP sets
forth its traditional arguments first. This also tracks Appellant’s briefing.
                                             16
(Tex. 1997). Assuming similarly that an easement existed, “As an easement holder,

a party qualifies as an occupier of the premises for the purposes of creating a duty in

tort.” Oncor Elec. Deliv. Co., LLC v. Murillo, 449 S.W.3d 583, 590 (Tex. App.--

Houston [1st Dist.] 2014, pet. denied).

      “Like any other negligence action, a defendant in a premises case is liable

only to the extent it owes the plaintiff a legal duty. Whether such a duty exists is a

question of law for the court.” General Elec. Co. v. Moritz, 257 S.W.3d 211, 217

(Tex. 2008) (citing Lee Lewis Constr. Co. v. Harrison, 70 S.W.3d 778, 782 (Tex.

2001); Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627, 631 (Tex. 1976)). Appellate

courts review de novo a determination regarding whether a legal duty is owed.

Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009).

      Premises liability is a branch of negligence law, a "special form" that

applies to a property owner/occupier who allegedly creates a dangerous condition

on its property. Jenkins, 478 S.W.3d at 648. The claim of a person injured by the

condition is one sounding in premises liability regardless of how she chooses to

plead it. see, e.g. E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 57 (Tex.

App.--Houston [14th Dist.] 2014, pet. dism'd) ("Artful phrasing of the pleadings

to encompass … any other theory of negligence does not affect the application

of premises liability law.").

      A person injured on property occupied by another may have either a


                                          17
negligence claim or a premises liability claim against the occupier. Jenkins, 478

S.W.3d at 644; Olivo, 952 S.W.2d at 527; Roye, 447 S.W.3d at 56. When the injury

is the result of a contemporaneous, negligent activity on the property, ordinary

negligence principles apply and the plaintiff must have been injured by the activity

itself. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). That is not

Arredondo’s allegation.

      When the injury is allegedly the result of the property's condition, as alleged

here, premises liability principles apply. Jenkins, 478 S.W.3d at 644; Roye, 447

S.W.3d at 56-57 (holding plaintiff was limited to a premises liability claim for the

allegation that he was injured by a condition of the property). In that event “the

injured party is limited to a premises liability theory and must prove his status to

establish the type of duty owed by the premises owner.” Roye, 447 S.W.3d at 57.

           2. Negligence and Gross Negligence

      "Negligence arises when an actor breaches a legal duty in tort, and the breach

proximately causes damages." Columbia Med. Ctr. of Los Colinas, Inc. v. Hogue,

271 S.W.3d 238, 246 (Tex. 2008). The threshold inquiry in a negligence case is

whether the defendant owes a legal duty to the plaintiff. Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The existence of a duty is a question of

law for the court to decide from the facts surrounding the occurrence in question. Id.




                                         18
The duty may be imposed by contract or law. City of Alton v. Sharyland Water

Supply Corp., 402 S.W.3d 867, 874 (Tex.App.--Corpus Christi 2013, pet. denied).

      Without a duty, AEP cannot be held liable to the Appellant for negligence. Id.

at 875; see Kroger Co. v. Elwood, 197 S.W.3d 793,794 (Tex. 2006) (per curiam).

"The non-existence of a duty ends the inquiry into whether negligence liability may

be imposed." Vann Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).

      The plaintiff must establish both the existence and violation of a duty owed to

her by the defendant in order to establish liability in tort. Centeq Realty, 899 S.W.2d

at 197. Arredondo was therefore required to present evidence raising a genuine issue

of material fact that AEP breached a duty to her and that its breach, if any,

proximately caused her damages. City of Alton, 402 S.W.3d at 875.

      Claims for negligence and gross negligence are inextricably intertwined.

Bastida v. Aznaran, 444 S.W.3d 98, 109 (Tex.App.—Dallas 2014, no pet.) (citing

Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 126

(Tex.App.--Houston [1st Dist.] 2002, pet. denied)). Gross negligence presumes a

negligent act or omission. Id. (citing Ford Motor Co. v. Miles, 967 S.W.2d 377, 390

(Tex. 1998) (Gonzalez, J., concurring) (itself citing Transp. Ins. Co. v. Moriel, 879

S.W.2d 10, 23 (Tex. 1994)).

      If there is no negligence liability, there can be no liability for gross negligence.

City of Waco v. Kirwan, 298 S.W.3d 618, 623 (Tex. 2009) (“As with negligence


                                           19
actions. . . a defendant may be liable for gross negligence only to the extent that it

owed the plaintiff a legal duty.”); West v. SMG, 318 S.W.3d 430, 442-43 (Tex. App.-

Houston [1st Dist.] 2010, no pet.) (summary judgment properly granted because

plaintiff failed to present evidence of duty, a necessary element of her negligence

and gross negligence claims); R T Realty, LP v. Texas Utils. Elec. Co., 181 S.W.3d

905, 914 (Tex. App.--Dallas 2006, no pet.) (“The threshold inquiry regarding a gross

negligence claim is whether a legal duty existed.”).

           3. No Liability for the Work of Independent Contractors

      “Generally, an owner of land does not owe any duty to ensure independent

contractors perform their work in a safe manner.” Shell Oil Co. v. Kahn, 138 S.W.3d

288, 295 (Tex. 2004); Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999).

Premises defects arising on property where an independent contractor is working are

divided into two categories: (1) defects existing when the independent contractor

enters and (2) defects created by his work. Kahn, 138 S.W.3d at 295; Jacobs v. Huser

Constr., Inc., 429 S.W.3d 700, 703 (Tex.App.--San Antonio 2014, no pet.);

Braudrick v. Wal-Mart Stores, Inc., 250 S.W.3d 471, 476-77 (Tex.App.--El Paso

2008, no pet.). “[A]n owner or occupier has no duty with regard to defects created

by an independent contractor, unless he retains a right to control the work that

created the defect.” Braudrick, 250 S.W.3d at 476-77. Absent "a relationship

between the parties giving rise to the right of control, one person is under no legal


                                          20
duty to control the conduct of another, even if there exists the practical ability to do

so." Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993).

      For a duty to attach, the owner or occupier’s role “must be more than a general

right to order the work to start or stop, to inspect progress or receive reports, to make

suggestions or recommendations which need not necessarily be followed, or to

prescribe alterations and deviations.” Koch Ref. Co., 11 S.W.3d at 155; accord,

Braudrick, 250 S.W.3d at 476-77. As the Supreme Court continued in Koch, “Such

a general right is usually reserved to employers, but it does not mean that the

contractor is controlled as to his methods of work, or as to operative detail. There

must be such a retention of a right of supervision that the contractor is not entirely

free to do the work in his own way.” Id., 11 S.W.3d at 155; accord, Victoria Elec.

Coop., Inc. v. Williams, 100 S.W.3d 323, 326 (Tex. App.--San Antonio 2003, pet.

denied).

      Employers can direct when and where an independent contractor does
      the work and can request information and reports about the work, but
      an employer may become liable for the independent contractor's
      tortious acts only if the employer controls the details or methods of the
      independent contractor's work to such an extent that the contractor
      cannot perform the work as it chooses.

Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 792 (Tex. 2006) (emphasis added).

      In Braudrick, the plaintiffs tripped over a speed bump in a Wal-Mart/Sam’s

Club parking lot at night, in an area under construction, and sued the Wal-Mart

entities and the independent contractor Emerson alleging premises liability: an

                                           21
unpainted speed hump and poor lighting. Id., 250 S.W.3d at 474-75. Wal-Mart

established that the construction and lighting were solely under the control of

Emerson, the independent contractor, pursuant to the contract between the parties.

Id. at 477-78, 480. The take-nothing judgment in favor of Wal-Mart was affirmed.

Id. at 481.

      In Victoria Elec. Coop., Victoria Electric contracted with Urban Electrical

Services to construct and maintain electrical distribution lines in its franchise area;

Urban loaded six utility poles onto a truck to transport them to the installation area.

Id., 100 S.W.3d at 325. The poles extended beyond the end of the trailer and

necessary warnings were not attached. Id. As the truck and trailer crossed an

intersection, the decedent ran into the extended poles and sustained fatal injuries. Id.

Plaintiffs sued Victoria Electric, Urban, and the truck driver. This Court noted, “The

employer must have some latitude to tell its independent contractors what to do, in

general terms, and may do so without becoming subject to liability.” Id. at 326 (citing

Koch Ref. Co., 11 S.W.3d at 156). “Further, we must remember that liability results

only when the right of control relates to the injury-producing activity itself.” Id.

(citing Olivo, 952 S.W.2d at 528).

      Here, there is no dispute that AEP hired independent contractors – T&D to

remove this stub pole and fill the hole on Appellant’s property, and TechServ to

inspect the work. Therefore, unless Appellant can prove AEP had control over these


                                          22
independent contractors, AEP owed no duty to Appellant related to the work

performed by them.

           B. Control Must be Actual or Contractual

      A party can prove right to control either with evidence of a contractual

agreement that explicitly assigns a right to control, or with evidence of actual control

over the manner in which the work was performed. Fagerberg v. Steve Madden, Ltd.,

No. 03-13-00286-CV, 2015 WL 4076978, *1 (Tex.App.--Austin July 3, 2015, no

pet.) (mem. op.) (citing Fifth Club, 196 S.W.3d at 791-92; Baptist Mem. Hosp. Sys.

v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) (which holds, “Because an

independent contractor has sole control over the means and methods of the work to

be accomplished, however, the individual or entity that hires the independent

contractor is generally not vicariously liable for the tort or negligence of that

person.”)). “An entity is not liable for an independent contractor's acts unless it had

some right to control the contractor's work.” Id. (citing Fifth Club, 196 S.W.3d at

791-92).

      Appellant does not allege that AEP exercised actual control over either T&D

or TechServ. Thus, Appellant has to show AEP had a contractual right to control

these independent contractors before liability against AEP can attach.




                                          23
            C. AEP Did Not Have Contractual Control Over T&D

      Appellant alleges AEP had contractual control over T&D. But the evidence

does not support her contention. T&D was expressly defined as an independent

contractor, with commensurate independent duties accordingly, in the contract.

      “A contract expressly providing that a person is an independent contractor is

determinative of the relationship absent evidence that the contract is a mere sham or

subterfuge designed to conceal the true legal status of the parties or that the contract

has been modified by a subsequent agreement between the parties.” Farlow v. Harris

Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex.App.--Fort Worth 2009,

pet. denied); Weidner v. Sanchez, 14 S.W.3d 353, 373 (Tex. App.--Houston [14th

Dist.] 2000, no pet.). There is no evidence of either here.

      In Jacobs, this Court examined a contract to determine whether the defendant

retained a contractual right to control the means, methods, or details of the plaintiff’s

employer’s work. After examining several contract provisions, which gave the

general contractor the right to ensure that the subcontractor’s work met the general

contract and subcontract’s specifications and schedules, the Court focused on the

section entitled: “22. Independent Contractor,” which stated, “[S]ubcontractor shall

be an independent contractor and shall assume all of the rights, obligations, and

liability applications [sic] to it as such independent contractor.” Id., 429 S.W.3d at

704. This Court held that the plain language of the subcontract established the


                                           24
general contractor had no control over the details of the subcontractor’s work. Id.

         Applied to this case, Section 4 of the contract between AEP and T&D makes

clear that T&D is an independent contractor and is solely responsible for the

supervision, direction, and control of its employees and subcontractors.

   4.0        RELATIONSHIP OF THE PARTIES
                4.1 Contractor [T&D] and all of its employees and Subcontractors
                are, with respect to Owner [AEP], independent contractors. Contractor
                will be solely responsible for the supervision, direction, and control
                of its employees and Subcontractors. Contractor is responsible for
                the payment of all compensation, benefits, and employment taxes with
                respect to the Contractor's employees.

(C.R. 91). As shown in the Statement of Facts, other contractual provisions likewise

evidence the independent contractor status of T&D (C.R. 82, ¶ I.; C.R. 82-83, ¶¶ II.

a, b; C.R. 90, ¶ 2.1; C.R. 89, ¶ 1.13; C.R. 117, ¶ 1.2.3).

         There is no specific contractual language implicating a right to control the

operative details of how T&D worked, or denying T&D the ability to do its work in

its own way, to trigger liability. Id., 429 S.W.3d at 704. The provisions of the

contract establish AEP had no right to control the means, methods, or details of

independent contractor T&D’s work.

         In support of her argument, Appellant first contends that AEP had the right to

give instructions, but concedes the provision she highlights does not say that AEP

can instruct as to the “means, methods and details of T&D’s work.” (Ant Br. at 19)

To the contrary the contract states, “Contractor will be solely responsible for the

                                           25
supervision, direction, and control of its employees and Subcontractors.” (¶ 4) The

contract also states AEP will give only a scope of work, without detail (¶¶ II. a, b).

      Even if the provision Appellant highlights is interpreted to mean that AEP had

a general right to order the work to start or stop, to inspect progress or receive

reports, to make suggestions or recommendations which need not necessarily be

followed, or to prescribe alterations and deviations (which it does not), this “does

not mean that the contractor is controlled as to his methods of work, or as to operative

detail.” Koch Ref. Co., 11 S.W.3d at 155. There is no retention of a right of

supervision such that T&D “is not entirely free to do the work in its own way.” Id.

      Appellant next cites to a tool provision in the contract (Ant Br. at 19). There

is no evidence that specialty tools were needed to fill the hole with dirt, or that

ordinary tools had to be used in an unusual way. And asking T&D to provide a list

of tools, procedures and practices (id.) is no more indicative of control than

requesting information and reports about the work, which does not subject the owner

to liability. Fifth Club, 196 S.W.3d at 792.

      This Court held in Victoria Elec. Coop. that similar provisions as those above

were not sufficient to find more than supervisory control and thus did not trigger

liability. Id., 100 S.W.3d at 327-28. “Although Victoria Electric did reserve the right

to order corrections if the work was not being done safely, Victoria Electric's right

to require Urban to operate safely is not evidence of control over the ‘details of what


                                          26
was being done’ so as to impose liability.” Id. at 328.

      Appellant next concedes that for liability to attach, there must exist a right of

control over the injury-causing activity itself (Ant Br. at 20) (citing Victoria Elec.

Coop., 100 S.W.3d at 327). Requiring that the work be done as expeditiously as

possible with the least inconvenience to the private property owner (Ant Br. at 20-

21) does not amount to control of the details or methods of the independent

contractor's work to such an extent that the contractor cannot perform the work as it

chooses. Fifth Club, 196 S.W.3d at 792. Nor does it show that AEP had any control

over the (alleged) injury-causing activity itself. There was also no need for an

excavation here (Ant Br. at 20).

      The remaining list of items highlighted by Appellant (Ant Br. at 21-22) do not

evidence a right of control over the alleged injury-causing activity itself: removing

the pole and filling the hole with dirt. Language spoken and uniforms worn have no

relation to the allegations in this case, nor are there allegations of negligent hiring or

training. In addition, as this Court noted in Victoria Elec. Coop., an employer who

required the independent contractor to train its employees in safety measures was

not liable to an employee who was injured because of a violation of those safety

measures. Id., 100 S.W.3d at 328 (citing Hoechst-Celanese Corp. v. Mendez, 967

S.W.2d 354, 356 (Tex. 1998) (per curiam)).

      In sum, AEP did not have the right to control the details or methods of T&D’s


                                           27
work to such an extent that T&D could not perform the removal of this stub pole and

filling of the hole as it chose. None of the provisions cited by Appellant establish

that AEP had the right to control the “operative detail” of T&D’s work. Koch Ref.

Co., 11 S.W.3d at 155; Victoria Elec. Coop., 100 S.W.3d at 328-29, 330. “The scope

of [AEP’s] duty did not extend to control over the details of how” stub poles are

removed and holes are filled. Victoria Elec. Coop., 100 S.W.3d at 329. Absent such

specific right of control, the contract does not create in AEP any duty of care to

Appellant. Jacobs, 429 S.W.3d at 705; Victoria Elec. Coop., 100 S.W.3d at 328-29,

330. Moreover, there is no nexus between the specific provisions of the contract

quoted by Appellant and the condition or activity that allegedly caused her injury.

Victoria Elec. Coop., 100 S.W.3d at 327.

      Finally, as shown in the Statement of Facts, the summary judgment evidence

makes clear that no one from AEP told the T&D employees how to perform their

job. Testimony establishes that Robert Ramos, the T&D foreman, was supervising

the work and no one from AEP was at the work site when it was accomplished.

Appellant tendered no evidence to refute this testimony. AEP did not retain or

exercise control over T&D’s methods or the operative details of the work,

specifically the removal of the pole and the filling of the resulting hole. There is no

genuine issue of material fact; AEP owed no duty to Appellant. Summary judgment

was properly granted.


                                          28
           D. Appellant Does Not Allege AEP Had Actual or Contractual
              Control Over TechServ; TechServ’s Status as an Independent
              Contractor is Unrebutted

      Appellant has never alleged that AEP had actual or contractual control over

TechServ, which was hired to inspect T&D’s work and approve the final product.

The TechServ contract specifically states that TechServ is an independent

contractor, with corresponding additional provisions making TechServ solely

responsible for, and in control of, its work (C.R. 148, accord 139, 142, 148 ¶¶ 1.5,

2.1). Appellant cites no provisions to the contrary.

      TechServ was the last entity on the property in the performance of the work

that is the basis of Appellant’s lawsuit. Appellant concedes T&D completed its work

on December 2 and TechServ signed off on the work as completed on December 9,

2013. AEP’s summary judgment argument, supported by evidence, that TechServ

is an independent contractor has gone unchallenged by Appellant. AEP cannot be

held liable for any alleged act or omission on the part of TechServ. Summary

judgment in favor of AEP on Appellant’s allegations of wrongdoing on the part of

TechServ must be affirmed.

    III.   The Removal of a Stub Pole is Not an Inherently Dangerous Activity

    Appellant alleges AEP owes a non-delegable duty to her because the work

performed was inherently dangerous, and thus notwithstanding T&D and

TechServ’s status as independent contractors, AEP is still liable (Ant Br. at 23).


                                          29
     “Texas courts have found very few activities so inherently dangerous as to

impose a nondelegable duty.” Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d

649, 652, n. 12 (Tex. 2007) (citing, e.g., MBank El Paso N.A. v. Sanchez, 836 S.W.2d

151, 159 (Tex. 1992) (Hecht, J., dissenting)). MBank cited multiple cases in which

“Texas courts [] have refused to characterize use of heavy equipment, inflammable

materials, electrical work, blasting, and refinery operations as ‘inherently dangerous’

activities.” Id., 836 S.W.2d at 159 (emphasis added). “Inherently dangerous

activities are generally those that are dangerous in their normal, non-defective state.”

Cent. Ready Mix, 228 S.W.3d at 653 (as Appellant concedes, Ant Br. at 23).

      “Work is inherently dangerous if it must result in probable injury to a third

person or the public.” Scott Fetzer Co. v. Read, 945 S.W.2d 854, 861-62 (Tex.App.-

-Austin 1997), aff’d, 990 S.W.2d 732 (Tex. 1998) (Appellant concedes this as well,

Ant Br. at 23) (emphasis added). “Inherently dangerous work has been described as

that which is dangerous no matter how skillfully done.” Id. (citing Agric. Warehouse,

Inc. v. Uvalle, 759 S.W.2d 691, 695 (Tex.App.--Dallas 1988, writ denied)). The

following, in addition to those tasks listed above and below, are not inherently

dangerous:

    handling of commercial livestock. Bontke v. Cargill Meat Logistics Solution,
     Inc., No. 07-12-00328-CV, 2014 WL 1493369 *4, 2014 Tex.App. LEXIS
     4048 (Tex.App.--Amarillo April 14, 2014, no pet.) (mem. op) (summary
     judgment affirmed);



                                          30
    using a spray apparatus to apply paint. Randall Noe Chrysler Dodge, LLP v.
     Oakley Tire Co., 308 S.W.3d 542, 547 (Tex.App.--Dallas 2010, pet. denied)
     (affirming summary judgment);

    delivery of groceries to a refrigerated box at a shore base. Hanna v. Vastar
     Res., Inc., 84 S.W.3d 372, 377-78 (Tex.App.--Beaumont 2002, no pet.)
     (affirming summary judgment);

    pizza delivery. Richards v. Domino’s Pizza, Inc., No. 05-96-0024-CV, 1997
     WL 644867 *3 (Tex.App.--Dallas Oct. 21, 1997, pet. denied) (not designated
     for publication) (affirming summary judgment).

      In Richards the court noted prior precedent that armed security service,

construction work, protection of property, and use of a plumber’s torch were also

not inherently dangerous activities. Id. at *3.

      As the Bontke court observed:

      There are inherent risks in most any activity; yet, the presence of those
      risks does not ipso facto mean injury or harm will or probably will result
      due to the conduct of that activity. For instance, electric shock is an
      inherent risk faced by an electrician; yet, performing electrical work is
      not an inherently dangerous activity. The same is true of handling
      explosives; one need not think hard to see what inherent risks may exist
      there. Yet, it is not an inherently dangerous activity.
Id., 2014 WL 1493369 at *5 (citing Cent. Ready Mix, 228 S.W.3d at 652, n. 12).

“So, it is not enough to simply say that the chance of injury renders the action

inherently dangerous.” Id.

      The plaintiff bears the burden to point out summary judgment evidence raising

a genuine issue of material fact that the contractor’s work was inherently dangerous.

Kolius v. Ctr. Point Energy Houston Elec. LLC, 422 S.W.3d 861, 868 (Tex.App.--


                                          31
Houston [14th Dist.] 2014, no pet.). Appellant cites deposition excerpts for the

proposition that electric utility work is inherently dangerous. But nowhere is utility

work defined. And at no point is there any testimony concerning the very activity at

issue and being performed by T&D in this case: removal of a stub pole and filling

the resulting hole with dirt.

      Appellant focuses on the work of linemen and electricians, that is, work with

electricity and electrical circuits, falling energized lines, and electrocution (Ant Br.

at 24-28). She also attempts to draw a distinction between electricians and linemen,

without explanation (Ant Br. at 29-33). Her injury does not arise from work with

electricity, or the unidentified dangers experienced by linemen. And a pole did not

fall on her (Ant Br. at 31). Rather, Appellant alleges she stepped into a hole. She

fails to show how any activity on the part of any T&D or TechServ employee in this

case was inherently dangerous, causing her injury as a result. No witness testified

that removing a stub pole and filling the hole with dirt is inherently dangerous.

     In Kolius, 422 S.W.3d 861, the plaintiff alleged a fire was caused by the

allegedly wrongful act of restoring electric current after a hurricane. The plaintiff

then argued that working with toppled power lines in a disaster zone that was

recently under water, and working on electrical power lines, are inherently

dangerous activities. As here, the plaintiff’s argument focused on the dangers of

electrical power lines and electrocution, but the plaintiff’s allegation was of


                                          32
something else entirely. The Fourteenth Court was not cited to, and did not find, any

Texas case holding that any of the actions made the basis of either plaintiff’s

arguments or his actual allegations were inherently dangerous. Id. at 867-868. So

too here: Appellant cites no case for the proposition that removal of a stub pole and

filling the hole with dirt is an inherently dangerous activity, and the Texas Supreme

Court has specifically refused to characterize electrical work as inherently

dangerous. Cent. Ready Mix, 228 S.W.3d at 652 n.12.

     Appellant cites a 1903 case involving a property owner’s hiring of an

independent contractor to dig a hole in a Fort Worth city street that was

approximately 34 feet long, 28 feet wide, and 12-14 feet deep. Cameron Mill &

Elevator Co. v. Anderson, 34 Tex. Civ. App. 105, 106, 78 S.W. 8, 9 (1903), aff'd, 98

Tex. 156, 81 S.W. 282 (1904). The purpose of the excavation was to install

underground storage tanks for fuel oil. Id. The appellee, a 13-year-old boy, was

riding his bike and fell into the pit at 9 o’clock at night in the dark. There were no

lights, signals or barriers around the pit. Id. “[E]xcavation in a street is a nuisance,

because it renders public travel dangerous.” Id. at 107. All of the cases cited in

Cameron Mill involve excavations on public streets of various cities.

     The facts of Cameron Mill are not “very similar to the facts at issue in this case”

as Appellant contends (Ant Br. at 24). A 34 x 28 x 12-14 foot excavation in a public

street is wholly and substantially different from a small hole on a grassy area on


                                          33
private property. In addition, since 1903, Texas law regarding inherently dangerous

activities has evolved significantly as set forth above.

     In addition, the Cameron Mills court held, “In those cases where the defect,

obstruction or fault is purely collateral to the work contracted to be done, and is the

result entirely of the wrongful act of the independent contractor or his workmen, the

employer should not be held liable, because such act is not to be anticipated by him.”

Id., 34 Tex.Civ.App. at 108. As set forth herein, any alleged hole remaining on

Arredondo’s property (which all defendants deny) was purely collateral to the work

contracted to be done and occurred because of the act of an independent contractor.

AEP should not be held liable, because such act was not anticipated by AEP.

     In sum, there is nothing inherently dangerous in the removal of a utility pole

and filling a hole with dirt. No probable injury to the public will arise from this

activity. Nor is this a case in which a pit was excavated in the middle of a city street.

This was a city right of way at the edge of Appellant’s property; it is alleged (but not

proved) that a small hole was created there when a stub pole was removed.

     Appellant has tendered no case, and no evidence, to show that removal of a stub

pole and filling of the hole with dirt is an inherently dangerous activity. Summary

judgment was properly granted to AEP.




                                           34
   IV.   Appellant Has Not Addressed AEP’s No Evidence Motion Regarding
         Foreseeability or Proximate Cause
      AEP moved for no evidence summary judgment on the ground that there was

no evidence of foreseeability or proximate cause (C.R. 29, 37-38). Arredondo has

not responded to those bases for summary judgment in the trial court or on appeal.

Indeed, in her briefing with respect to the other defendants in the case, she concedes

that employees from both T&D and TechServ testified the hole was filled and the

job was completed in December 2013. Appellant testified she did not know

otherwise.

      As shown in the Statement of Facts, in the trial court, in response to AEP’s no

evidence motion, Arredondo asked for more time for discovery. The trial court

granted that request. After discovery was completed, Arredondo filed a supplemental

response to AEP’s motion, but only addressed her previous assertion that the work

was inherently dangerous. Arredondo did not address AEP’s no evidence motion.

      To the extent the trial court granted AEP’s no evidence motion because it

found no evidence of foreseeability and/or proximate cause, such ruling has gone

unchallenged and the summary judgment should be affirmed. Cates, 927 S.W.2d at

625; Merriman, 407 S.W.3d at 248.




                                         35
                                   CONCLUSION
      AEP asserted, in its traditional motion for summary judgment, that the acts or

omissions made the basis of this case were solely controlled by independent

contractors. Appellant has not contested TechServ, the inspector’s, status as an

independent contractor. Nor has she asserted that AEP had actual control over T&D.

She alleges only that AEP had contractual control over T&D, but she has failed to

raise a genuine issue of material fact in this regard. T&D was expressly identified as

an independent contractor and no provision in the contract absolved T&D of its

ability and right to do its work in its own way. AEP did not retain control over the

operative details of T&D’s work.

      Removing a stub pole and filling a hole with dirt is not an inherently

dangerous activity. AEP owed no non-delegable duty here.

      Appellant did not respond to AEP’s no evidence arguments on the elements

of foreseeability and causation. The trial court granted AEP’s no evidence motion

without stating the basis. Foreseeability and causation have gone unchallenged. The

trial court’s no evidence summary judgment should be affirmed.

                                       PRAYER

      WHEREFORE, Appellee AEP Texas Central Company prays the Court to

affirm the trial court’s judgment, and for all other relief to which it is entitled.




                                            36
Respectfully submitted,
/s/ Audrey Mullert Vicknair
Audrey Mullert Vicknair
State Bar No. 14650500
LAW OFFICE OF AUDREY MULLERT VICKNAIR
802 N. Carancahua, Ste. 2100
Corpus Christi, Texas 78401-0038
(361) 884-5400; (361) 884-5401 fax
avicknair@vicknairlaw.com

/s/ G. Don Schauer
G. Don Schauer
State Bar No. 17733298
SCHAUER & SIMANK, P.C.
615 N. Upper Broadway, Ste. 700
Corpus Christi, Texas 78401-0781
(361) 884-2800; (361) 884-2822 fax
dschauer@cctxlaw.com

Attorneys for Appellee AEP Texas Central
Company




        37
                      CERTIFICATE OF COMPLIANCE
       The undersigned certifies, pursuant to TEX. R. APP. P. 9.4(i)(2)(B), that this
computer-generated brief is 8,784 words long according to the word count of the
computer program used to prepare this document (Microsoft Office Word 2010),
from the Statement of Facts through the end of the Prayer. Typeface font is 14-point
in the body and 13-point in the footnotes.

                                         /s/ Audrey Mullert Vicknair
                                           Audrey Mullert Vicknair

                         CERTIFICATE OF SERVICE
       I hereby certify that a true and correct copy of the foregoing instrument was
served in accordance with the Texas Rules of Appellate, on counsel named below,
on this the 22nd day of January, 2018, using the Tex.gov electronic e-filing system.

Craig Farrish
THOMAS J. HENRY INJURY ATTORNEYS
521 Starr Street
Corpus Christi, Texas 78401
Counsel for Appellant
Kelsi Wade
James M. Tompkins
Branch Masterson Sheppard
GALLOWAY JOHNSON TOMPKINS BURR & SMITH
1301 McKinney Street, Suite 1400
Houston, Texas 77010
Counsel for T&D Solutions, LLC
Jose Trevino, Jr.
Joseph Cuellar
Nicholas Smith
VALDEZ TREVINO, P.C.
Plaza Las Campanas
1826 N. Loop 1604 West, Suite 275
San Antonio, Texas 78248
Counsel for TechServ Consulting and Training, Ltd.

                                              /s/ Audrey Mullert Vicknair_
                                                  Audrey Mullert Vicknair
                                         38
