      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-03-00275-CV



                                  Herbert L. Wilson, Appellant

                                                  v.

            Mitul Patel d/b/a Best Western Rockdale and Sai-Om, Inc., Appellees




     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
         NO. 27,888, HONORABLE EDWARD P. MAGRE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Herbert L. Wilson performed odd jobs and repairs for appellees Mitul Patel

d/b/a Best Western Rockdale and Sai-Om, Inc. On August 15, 2001, Wilson fell from a ladder while

attempting to repair a gutter at the motel owned and run by appellees, sustaining serious injuries that

required him to be airlifted to a hospital. He sued appellees for negligence and for wrongful

termination. Appellees moved for summary judgment on grounds that Wilson was an independent

contractor, not an employee. Following a hearing, the trial court granted summary judgment in favor

of appellees and dismissed Wilson’s claims with prejudice. We will affirm.


                                        Standard of Review

               Our review of the granting of a traditional motion for summary judgment is well

established: summary judgment is properly granted only when the movant establishes that there are
no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ.

P. 166a(c); Missouri Pac. R.R. v. Lely Dev. Corp., 86 S.W.3d 787, 790 (Tex. App.—Austin 2002,

pet. dism’d). A defendant seeking summary judgment must as a matter of law negate at least one

element of each of the plaintiff’s theories of recovery or plead and prove each element of an

affirmative defense. Missouri Pac., 86 S.W.3d at 790. Not until the defendant establishes its right

to summary judgment does the plaintiff bear the burden of raising a fact issue. Id. In reviewing the

grant of summary judgment, we take evidence favorable to the nonmovant as true and make every

reasonable inference and resolve all doubts in favor of the nonmovant. Id.

               Whether a worker is an employee or an independent contractor is determined by

whether the employer had “the right to control the progress, details, and methods of operations” of

the work, meaning the employer controlled not only the end result, “but also the means and details

of its accomplishment.” Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 312

(Tex. 2002); Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex. 1990). This right to

control is determined by factors such as: (1) the independent nature of the worker’s business; (2)

whether he furnished his own tools, supplies, and materials; (3) his right to control the work’s

progress, other than final results; (4) the time for which he is employed; and (5) whether he is paid

by the job or by a unit of time. Limestone Prods., 71 S.W.3d at 312.

               It is not necessary that each of the above factors be present to find that the worker is

an independent contractor. See Thompson, 789 S.W.2d at 278-79 (“[e]xamples of the type of control

normally exercised by an employer include” several factors later set out in Limestone (emphasis

added)); Shannon v. Western Indem. Co., 257 S.W. 522, 524 (Tex. Comm’n App. 1924, judgm’t

adopted) (“There are numerous evidential elements which go to determine . . . whether one is an


                                                  2
independent contractor or not. It is seldom or ever that any one of these elements is decisive of the

question.”); Farrell v. Greater Houston Transp. Co., 908 S.W.2d 1, 3 (Tex. App.—Houston [1st

Dist.] 1995, writ denied) (“occasional assertion of control” does not change nature of independent

contractor relationship; “[t]he true test is the right of control; exercise of control is evidentiary

only”); Black’s Law Dictionary 612 (7th ed. 1999) (factor is a “cause that contributes to a particular

result” (emphasis added)). An employer may give direction as to the specifications of a job, details

such as the position of a structure, or the “character of materials and workmanship” and still maintain

an independent contractor relationship. United States Fid. & Guar. Co. v. Goodson, 568 S.W.2d

443, 447 (Tex. Civ. App.—Texarkana 1978, writ ref’d n.r.e.); see Koch Ref. Co. v. Chapa, 11

S.W.3d 153, 155 (Tex. 1999) (premises owner “must have some latitude to tell its independent

contractors what to do, in general terms, and may do so without becoming subject to liability”).

“Control” as would define a relationship as one of employer/employee is control over the details of

the work itself and the worker’s physical conduct, not simply the end result. Goodson, 568 S.W.2d

at 447


                                             Discussion

               Wilson testified that he performed odd jobs around town and at the motel. He did not

have a set schedule with the motel and only worked when called for a specific job. Wilson did not

get paid hourly, but only after each particular job. The motel did not provide Wilson with a W-2

form, pay overtime or vacation pay, provide medical insurance, or withhold social security or taxes.

Patel explained what needed to be done and usually did not watch Wilson work. Wilson used both

his own tools and equipment and those of the motel. On the day of the accident, Patel asked Wilson



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to fix a gutter that was not draining properly. The day before, Wilson had brought his own ladder

and an assistant to work on a related task, but on the day of the accident he was alone and did not

bring his ladder. Instead, he got the ladder from the motel’s storage room, set it up, and started to

climb. Although Wilson said he expected Patel to come out and hold the ladder, he never asked

Patel to do so, and Patel had never helped him in the past. Wilson was on the second step when the

ladder tilted, causing him to fall backwards. Wilson did not know why the ladder wobbled, but said

it might have been resting on a cord Wilson was using. The ladder itself had no defects that would

have made it tilt.

                Patel testified in his deposition that Wilson performed repair and maintenance work

for the motel. Wilson did not have a written agreement with the motel, had not completed the

motel’s employment application, and was not on the regular payroll or paid by the hour, but per job.

When a job arose, Patel called Wilson at home to arrange a work time that would not disturb the

motel’s guests. If there were several tasks, Patel told Wilson the order in which they should be done.

Patel would explain what needed to be done, and Wilson would explain what materials were

necessary and give an estimated cost of labor and materials; Patel generally arranged for payment

for the necessary materials, and Wilson picked them up. The motel owned the ladder and a set of

tools so that Patel and others could perform maintenance and repair work when needed. On the day

of the accident, Wilson asked to use the motel’s ladder, and Patel agreed and gave Wilson a key to

the room where the ladder was stored. Wilson did not ask Patel for help, but in hindsight, Patel

believed the accident could have been avoided if someone had held the ladder. Patel did not know

of any other times that anyone had fallen from the ladder or that the ladder had been out of balance.




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               The evidence in this case shows that Wilson was an independent contractor, not an

employee of the motel. Wilson testified in his deposition that he was a “[j]ack of all trades” and

performed “odd jobs” at the motel and at other businesses. Wilson did not have a set schedule at the

motel, and worked and was paid only when a job arose. Appellees did not pay Wilson a salary or

an hourly wage, give him a W-2 tax form, take out for social security, pay him overtime or vacation

pay, or provide health insurance or other benefits. Patel told Wilson what tasks needed to be done

and the priority they should be placed in, but did not supervise Wilson’s work. Patel did not specify

how Wilson was to complete a job, but instead told Wilson what the end result should be. Although

Wilson worked alone and used the motel’s ladder on this particular day, the day before he had

brought his own ladder and his assistant to work on a related task.

               Wilson argues that because Patel would give him the priority of tasks and on at least

one occasion gave Wilson a suggestion on how to proceed, he exercised control over Wilson’s work.

However, monitoring a job’s progress or giving a suggestion to ensure that the end result is adequate

does not mean that Patel exercised control over the details of Wilson’s physical work at the motel.

See, e.g., Goodson, 568 S.W.2d at 447. Wilson also asserts that control was shown by the fact that

Patel specified that he wanted the work to be done during certain hours, to avoid disturbing guests.

However, Wilson did not have regular work hours, and Patel’s specifying a range of hours so as not

to disturb the motel’s guests is akin to requiring work to be done during an establishment’s business

hours. Wilson also points to testimony that Patel directed Wilson as to which rooms he could enter

and at what time. The place of business was a motel, and it would be unreasonable to require that

a motel operator could not give its independent contractors guidance and direction as to when a room




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was vacant or which rooms needed repair.1 Viewing the evidence in the light most favorable to

Wilson, there is not a scintilla of evidence to indicate that his relationship with appellees was

anything other than as an independent contractor.

               Wilson next argues that, even if he was an independent contractor as a matter of law,

appellees did not establish their affirmative defense under section 95.003 of the civil practice and

remedies code. Section 95.003 provides that a property owner is not liable for injury to an

independent contractor unless the owner (1) “exercises or retains some control over the manner in

which the work is performed, other than the right to order the work to start or stop or to inspect

progress or receive reports”; and (2) had actual knowledge and failed to warn of the danger or

condition that caused the injury. Tex. Civ. Prac. & Rem. Code Ann. § 95.003 (West 1997).

               When, as here, there is no contract giving a property owner a right of control, such

a right can still be shown if there is evidence that the owner actually did exercise control over the

manner in which the contractor did his work. See Chapa, 11 S.W.3d at 155-56 (discussing similar

provisions in Restatement (Second) of Torts § 414); Clayton W. Williams, Jr., Inc. v. Olivo, 952

S.W.2d 523, 528 (Tex. 1997) (same); Kelly v. LIN Tel. of Tex., L.P., 27 S.W.3d 564, 570-71 (Tex.

App.—Eastland 2000, pet. denied) (discussing section 95.003). There is no evidence here that Patel

exercised any control over Wilson’s performance of the gutter repair or other work, other than to tell

him what needed to be fixed. On Wilson’s request, Patel allowed him to use the motel’s ladder


       1
          Wilson also asserts that appellees did not establish that no other tax form was provided or
the details of how job payment was determined. However, the testimony showed that Wilson was
paid per job, that he did not receive a W-2 tax form, that appellees did not withhold social security
or taxes from his pay, and that Wilson was responsible for paying taxes himself. Appellees
established that there was no fact issue as to Wilson’s status, and the burden then shifted to Wilson
to produce evidence raising a fact issue, if there was any such evidence. See Missouri Pac. R.R. v.
Lely Dev. Corp., 86 S.W.3d 787, 790 (Tex. App.—Austin 2002, pet. dism’d).

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because Wilson had not brought his own. As discussed above, there is no evidence that appellees

exercised any actual control that would give rise to liability under section 95.003. Furthermore, there

is no evidence that Patel knew of and failed to warn Wilson of any danger or condition that led to

Wilson’s injury. The ladder was not defective or dangerous. There were no potholes or other cause

for the ground to be uneven. Wilson testified that he might have set one of the ladder’s legs on top

of a cord, thus causing the ladder to wobble. Patel testified that in hindsight, the accident could have

been avoided had someone held the ladder. He also testified that in general he knew that it was

possible to hurt oneself when climbing a ladder. However, Wilson testified to the same facts.

Wilson had the same general knowledge of the possible dangers associated with the use of ladders,

which is all Patel could have warned him of. In fact, the ladder itself had affixed to it a label giving

the same warnings. Patel knew of no other danger or condition of which he could have warned

Wilson. Appellees showed that, pursuant to section 95.003, they cannot be held liable for Wilson’s

injury, and Wilson failed to produce evidence showing otherwise.

               The trial court did not err in granting summary judgment in favor of appellees. We

affirm the judgment of the trial court.




                                               __________________________________________

                                               Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: March 25, 2004


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