DISSENT and Opinion Filed January 24, 2020




                                               In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-19-01171-CV

                          IN RE EAGLERIDGE OPERATING, LLC

                 Original Proceeding from the 192nd Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-18-05402


                                DISSENTING OPINION
                   Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                             Dissenting Opinion by Justice Whitehill

       An independent contractor that creates an unreasonably dangerous property condition

continues to have ordinary negligence liability for injuries that condition causes after the contractor

finishes its work and leaves the premises. While working under a third party contract, Aruba

(allegedly) created an unreasonably dangerous property condition that caused or contributed to

Lovern’s injuries after Aruba finished its work and left the property. Does Aruba have continuing

ordinary negligence liability to plaintiffs?

       The majority opinion says “no,” because Aruba also owned a fractional portion of the

working interest and therefore the case is governed exclusively by premises liability rules, which

in the usual case provide that the owner’s liability ends when it sells its interest and exits control

of the property. The majority opinion’s logic is flawed because it ignores the fact a person can
simultaneously act in two different legal capacities that produce distinct legal rights and

responsibilities.

        I would agree with the majority opinion that Occidental Chemical Corp. v. Jenkins, 478

S.W.3d 640 (Tex. 2016) controls the case if the evidence conclusively established that Aruba built

and maintained this equipment in its capacity as co-owner. Occidental holds that an owner’s

potential liability for creating a dangerous property condition is governed by premises liability

principles when in fact the owner does the work itself, that is, without hiring an actual independent

contractor to do the work for the owner. Id. at 648. But the majority opinion does not acknowledge

that the facts here are different from the Occidental facts.

        Here, there is more than a scintilla of evidence that USG hired and paid Aruba as an actual

independent contractor to do the work at issue in this case. That is, there is more than a scintilla

of evidence that Aruba performed the work at issue in its factual and legal capacity as an

independent contractor with a third party. If the jury were to find that to be so, then under Strakos

v. Gehring, 360 S.W.2d 787 (Tex. 1962) Aruba’s potential liability for mal-performing that work

would exist under ordinary negligence principles. Id. at 790–91. Specifically, under Strakos,

(i) Aruba’s ordinary negligence liability for shoddy work that causes or contributes to an injury

would continue even after Aruba finished its work and left the property and (ii) Eagleridge properly

designated Aruba as a responsible third party. See id.

        Because there is more than a scintilla of evidence in the mandamus record that Aruba

created the injury causing unreasonably dangerous condition in its legal capacity as an actual

independent contractor for USG (instead of deciding on its own to do the work itself), the trial

court was legally required to honor Eagleridge’s responsible third party designation and deny

plaintiffs’ motion to strike that designation. But the trial court didn’t do that. Accordingly, the

trial court abused its discretion; Eagleridge lacks an adequate legal remedy; and Eagleridge is

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entitled to its requested mandamus relief. See In re Molina, 575 S.W.3d 76, 79 (Tex. App.—

Dallas 2019, orig. proceeding) (abuse of discretion to strike responsible third party designation

where there was more than a scintilla of evidence supporting that designation).

                                               I. FACTS

        For present purposes, the mandamus record contains more than a scintilla of evidence

supporting these controlling facts:

        1.       This is a personal injury case related to a natural gas pipeline explosion at a well-

site.

        2.       At all relevant times, USG was the sole or majority working interest owner for the

well at issue.

        3.       During all but a few months at the end of that time, Aruba was also a fractional

working interest owner in the property.

        4.       Aruba was at all relevant times before April 2017 responsible for installing and

maintaining the equipment at issue.

        5.       There is some evidence that USG hired and paid Aruba as an independent

contractor to do installation and maintenance work that in some way caused or contributed to

causing the harm for which plaintiffs seek damages.

        6.       Aruba sold its fractional working interest before August 2017.

        7.       The injury causing event happened in August 2017.

        8.       Plaintiffs’ live pleading alleges that in its capacity as a contract operator Aruba was

a major actor responsible for causing plaintiffs’ injuries.




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                                           II. ANALYSIS

A.      Standard of Review and Designated Responsible Third Parties

        To obtain mandamus relief, a relator must show that the trial court clearly abused its

discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); In re Molina, 575 S.W.3d at 79.

        In that regard, it is established that trial courts have no discretion in determining what the

law is or in applying the law to the facts, even if the law is somewhat unsettled. In re Jorden, 249

S.W.3d 416, 424 (Tex. 2008) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at

135; Huie v. DeShazo, 922 S.W.2d 920, 927–28 (Tex. 1996) (orig. proceeding).

        Because the erroneous denial of a motion for leave to designate a responsible third party

skews the proceedings, potentially affects the litigation’s outcome, and compromises the defense

in ways unlikely to be apparent in the appellate record, such an error ordinarily renders the

appellate remedy inadequate.      In re Coppola, 535 S.W.3d 506, 509–10 (Tex. 2017) (orig.

proceeding) (per curiam). The same problems arise when a trial court erroneously grants a motion

to strike a responsible third party designation. Thus, the appellate remedy is also ordinarily

inadequate when a trial court commits such an error.

        Texas law allows a tort defendant to designate a person as a “responsible third party.” TEX.

CIV. PRAC. & REM. CODE § 33.004(a). The designation’s purpose is to have the responsible third

party submitted to the trier of fact as a possible cause of the claimant’s harm. See id. § 33.003.

This may reduce the percentage of responsibility attributed to the defendant, thus ultimately

reducing its liability to the claimant. See id. § 33.013; Flack v. Hanke, 334 S.W.3d 251, 262 (Tex.

App.—San Antonio 2010, pet. denied) (“[T]he defendant typically would be the party seeking to

retain the RTP in the jury charge to diminish his potential liability and perhaps eliminate any joint

and several liability.”).


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       Once a responsible third party has been designated, and after an adequate time for

discovery has passed, a party may move to strike the designation “on the ground that there is no

evidence that the designated person is responsible for any portion of the claimant’s alleged injury

or damage.” CIV. PRAC. & REM. CODE § 33.004(l). “The court shall grant the motion to strike

unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the

designated person’s responsibility for the claimant’s injury or damage.” Id. Thus, the question

for the trial court is whether the defendant produced sufficient evidence, more than a scintilla, for

a reasonable jury to find the responsible third party responsible for a portion of the claimant’s

injury or damages. In re Transit Mix Concrete & Materials Co., No. 12-13-00364-CV, 2014 WL

1922724, at *3 (Tex. App.—Tyler May 14, 2014, orig. proceeding) (mem. op.).

        The trial court’s ruling on a motion to strike presents a legal question. Ham v. Equity

Residential Prop. Mgmt. Servs., Corp., 315 S.W.3d 627, 631 (Tex. App.—Dallas 2010, pet.

denied). Thus, our review, even under the abuse of discretion mandamus standard, is de novo.

See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding) (“Under an

abuse of discretion standard, we defer to the trial court’s factual determinations if they are

supported by evidence, but we review the trial court’s legal determinations de novo.”).

B.     Discussion

       1.      Strakos and Occidental

       The trial court misapplied the law to the facts because it ignored the fact that Aruba’s

potential liability for the dangerous property condition, and thus its role as a designated responsible

third party, arises from Aruba’s activity in its capacity as an actual independent contractor—not

from its capacity as a partial property owner who performs self-help work on the property. That

result occurs because (i) the nature of the duties that a person owes depends on the capacity in

which that person acted when he created the dangerous condition; (ii) a person can have two


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distinct capacities when he creates an unreasonably dangerous property condition; and (iii) those

distinct capacities are not mutually exclusive.

         If the person was an (actual) independent contractor, under Strakos he owes independent

contractor duties and has independent contractor general negligence exposure to third parties for

injuries caused by his negligence in creating the unreasonably dangerous property condition—

even after his legal relationship to the property ends.

         But, if he acted for himself in his capacity as a property owner when he created the

unreasonably dangerous condition, under Occidental his premises liability exposure ends when he

sells his interest in the property. Under Occidental, that result applies even if the owner’s work

was something that the owner might have hired an independent contractor to do. See Occidental,

478 S.W.3d at 647–49.

         Significantly, Strakos holds that there can be concurrent negligence cases involving an

injury caused by a dangerous property condition when two different people are responsible for that

dangerous condition.     360 S.W.2d at 794.       Although that holding concerned two separate

contractors performing separate tasks involving the dangerous condition, property owners and

contractors can also be concurrently liable. That being so, a person can have concurrent negligence

liability for a dangerous property condition when that person acts as both (i) a partial owner with

premises liability duties and (ii) an actual independent contractor under contract with the a third

party.

         Occidental did not address the fact scenario this case presents. Instead, Occidental’s

conduct at issue in that case was solely as the property owner—not as an actual independent

contractor.

         The facts before us show that Aruba occupied both roles. First, it was a fractional working

interest owner, and Occidental’s property owner based premises liability rules apply to it in that

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capacity. Thus, Aruba post-sale has no continuing owner-based premises liability exposure for the

equipment that caused the explosion. That result follows because as a non-owner Aruba had no

ability to fix or warn against the problem. See Occidental, 478 S.W.3d at 648–49.

        But, second, Strakos’s independent contractor rules apply to Aruba’s capacity as USG’s

actual independent contractor.      Occidental does not address an independent contractor’s

continuing liability exposure, but Strakos does. Thus, Aruba post-sale has continuing general

negligence liability exposure.

        To the extent the supreme court rejected Jenkins’s “dual capacity” argument, it did so

because Occidental acted in only one capacity, not because the same result would have applied

had Occidental performed its liability causing activity in a different capacity as an independent

contractor for someone else. See id. at 647–48.

        In so doing, the supreme court analyzed Strakos at length. It then held that independent

contractors’ liability for creating unreasonably dangerous property conditions differs from

property owners’ liability for the same conduct because an independent contractor’s duties exist

due not only to its control of the premises but also to its work quality, which can be judged under

ordinary negligence principles after the contractor no longer controls the premises:

        [A]s Strakos recognizes, the duty of [independent contractors] is not necessarily
        co-extensive with that of the property owner because “the modern approach is to
        place contractors on the same footing as manufacturers of goods and apply the same
        general principles of negligence even after the acceptance of the work.” Strakos,
        360 S.W.2d at 792. The contractor’s duties are thus tied not only to its control of
        the premises but also to the quality of its contracted work. This latter duty may be
        judged under ordinary-negligence principles even after the contractor no longer
        controls the premises. Id.

Id. at 647.

        Applying Occidental, Strakos, and their reasoning to the present case compels the

conclusion that the critical fact distinguishing the present case from Occidental is that Aruba’s tort



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duties and corresponding post-sale liabilities arise from the quality of its work on the premises as

a legally distinct, actual independent contractor.

       2.      Arredondo

       Our San Antonio sister court in a case similar to Strakos recently discussed the different

causes of action that can arise when a person creates an unreasonably dangerous condition on real

property. See Arredondo v. Techserv Consulting & Training, Ltd., 567 S.W.3d 383 (Tex. App.—

San Antonio 2018, pet. pending). In that case, a utility’s two contractors were involved in

removing a utility pole on the owner’s property. One was the removal contractor who did the

removal work. The other was the technical, supervising contractor that did not do the actual

removal.

       The owner stepped in the hole and suffered personal injuries. She then sued the utility and

the two contractors.

       An issue concerned whether the plaintiffs’ claims against the removal contractor were

ordinary negligence or premises liability claims. The San Antonio court discussed Strakos,

Occidental, and the Restatement (Second) of Torts § 385 at length. The court then held that the

claims against the removal contractor were ordinary negligence claims, instead of premises

liability claims. In so doing, the court further held that: (i) “liability for a premises condition may

arise not only from ownership or control of the property, but also from one’s role in creating the

dangerous condition in the first instance” and (ii) “an actor such as an independent contractor or

servant acting on behalf of a property owner or possessor may be held liable under ordinary

negligence for creating a dangerous premises condition even after he is no longer in control of the

property.” Id. (citing Occidental, 478 S.W.3d at 645, 646–47).




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       3.      Application

       At this stage, Eagleridge was not required to prevail in its case that Aruba acted negligently

or what percentage of responsibility should be assigned to Aruba. Rather, to sustain its responsible

party designation for Aruba, Eagleridge needed to adduce only more than a scintilla of evidence

that Aruba engaged in ordinary negligence that caused or contributed to Lovern’s injury.

       Based on the mandamus record before us, Eagleridge adduced more than a scintilla of

evidence establishing grounds for ordinary negligence claims against Aruba based on Aruba’s

independent contractor activities that caused the plaintiffs’ injuries in suit. Indeed, plaintiffs’

fourth amended petition and Eagleridge’s expert report assert facts that do just that. Furthermore,

there is evidence that Aruba did installation and maintenance work that the plaintiffs allege was a

cause of the explosion that caused their injuries. Additionally, there is deposition testimony stating

that USG hired Aruba under contract to do that work.

       Plaintiffs (and the majority opinion) never contend otherwise. They instead rely on their

misreading of Occidental. Thus, there is more than a scintilla of evidence that Aruba acted

negligently and that such ordinary negligence was a proximate cause of Lovern’s injuries. That’s

enough to defeat plaintiffs’ motion to strike. See CIV. PRAC. & REM. CODE § 33.004(l).

       Because Texas law provides that a party like Aruba acting in its legal capacity as an actual

independent contractor can be liable in ordinary negligence for creating an unreasonably

dangerous condition while in control of the subject property, even after it loses control over the

property, the trial court erred as a matter of law in concluding otherwise. It matters not that Aruba

also had a separate legal capacity as a fractional working interest owner in the project. Texas law

generally respects separate legal capacities.




                                                 –9–
       Furthermore, improperly striking a responsible party designation is grounds for mandamus

relief. In re Molina, 575 S.W.3d at 79. Accordingly, we should conditionally grant Eagleridge’s

mandamus petition.




                                                /Bill Whitehill//
                                                BILL WHITEHILL
                                                JUSTICE


191171df.p05




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