                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00212-CV


GERARDO DELEON                                                        APPELLANT

                                          V.

THOS. S. BYRNE, LTD. F/K/A                                              APPELLEE
THOS. S. BYRNE, INC.


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          FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 141-228560-08

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                         MEMORANDUM OPINION1

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                                   I. INTRODUCTION

   This is the second appeal in this case.2 Appellant Gerardo DeLeon perfected

this appeal from the trial court’s judgment on the jury’s verdict for Appellee Thos.

      1
       See Tex. R. App. P. 47.4.
      2
      See DeLeon v. Thos. S. Byrne, Ltd., No. 02-10-00438-CV, 2012 WL
42942 (Tex. App.––Fort Worth Jan. 5, 2012, no pet.) (mem. op.) (DeLeon 1).
S. Byrne, Ltd., f/k/a Thos. S. Byrne, Inc. DeLeon raises three issues on appeal,

all alleging error in the court’s charge to the jury. For the reasons set forth below,

we will affirm the trial court’s judgment.

              II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

      Byrne was the general contractor working on construction of a building in

Montgomery Plaza.       Byrne entered into a contract with Sparkling Clean 3 for

Sparkling Clean to clean the windows and outside of the building.             A self-

propelled boom being utilized by Sparkling Clean and operated by its employee

Shawn Gray ran over and crushed DeLeon’s foot. DeLeon was a Sparkling

Clean employee at the time. DeLeon filed the underlying suit seeking recovery of

personal injury damages.

      Prior to the first appeal, Byrne filed a motion for summary judgment on all

of DeLeon’s claims against it. Byrne moved for summary judgment on DeLeon’s

negligence claim on the ground that, as the general contractor, it owed no duty to

DeLeon because Sparkling Clean was an independent contractor.               Id. at *2

(noting that “Byrne moved for traditional summary judgment, arguing that it owed

no duty to DeLeon”).       The trial court granted Byrne’s motion for summary

judgment on all of DeLeon’s claims.

      In DeLeon 1, we affirmed the trial court’s summary judgment for Byrne on

all of DeLeon’s claims against it except DeLeon’s negligence claim. We held that

      3
       Jimmy Purselley owns Sparkling Clean and is doing business as
Sparkling Clean.

                                             2
as a matter of law, paragraph 8.01 of the contract between Byrne and Sparkling

Clean gave Byrne a limited contractual right “to control at its ‘sole discretion’ the

number of workmen, the skill of the workmen, the quality and quantity of the

materials used, as well as the promptness and diligence” of Sparkling Clean’s

work. Id. at *5. Because as a matter of law pursuant to paragraph 8.01 of the

contract Byrne retained control over these aspects of Sparkling Clean’s work, we

held that Byrne owed a duty of reasonable care commensurate with the limited

control it had contractually retained. Id. And because this contractually-retained

control related to the activity that caused DeLeon’s injury (DeLeon’s summary

judgment evidence established that four men, including flagmen, were necessary

to safely operate the boom and that only three were used at the time of the

accident), we reversed the trial court’s no-duty summary judgment on DeLeon’s

negligence claim against Byrne and remanded that claim to the trial court. Id.

Byrne did not file a petition for review, and mandate issued in DeLeon 1. See

Tex. R. App. P. 18.1(a).

      Following our remand, DeLeon’s negligence claim against Byrne

proceeded to trial. In question number one, the jury found that the negligence of

Byrne and of DeLeon proximately caused the injury in question. In question

number two, the jury found that Byrne was 25% responsible and DeLeon was

75% responsible.     Accordingly, the jury did not answer any of the damages

questions. The trial court entered judgment on the jury verdict that DeLeon take

nothing. DeLeon perfected this appeal.

                                         3
                           III. DELEON’S ISSUES ON APPEAL

         DeLeon raises three issues on appeal. They are:

1. The trial court erred in submitting the negligence and comparative responsibility
   of DeLeon, when the pleadings, the law of the case and the law established that
   DeLeon was the borrowed servant of Byrne, thereby depriving Byrne of the right
   to raise DeLeon’s contributory negligence and comparative responsibility as a
   defense to his claims. This submission was harmful error to DeLeon and
   requires reversal and remand for a new trial on all issues.

2. The trial court erred in refusing to separately submit the negligence and
   comparative responsibility of Sparkling Clean’s Purselley and Gray when their
   submission was an essential element of DeLeon’s vicarious liability cause of
   action against Byrne and the pleadings and legally sufficient evidence supported
   such submission. This failure to submit Purselley and Gray’s negligence and
   comparative responsibility was harmful error to DeLeon and requires reversal
   and remand for a new trial on all issues.

3. The trial court erred in refusing to submit DeLeon’s tendered “borrowed servant”
   instruction when the law required it as part of DeLeon’s vicarious liability claim
   against Byrne arising from Sparkling Clean’s work, and the pleadings and legally
   sufficient evidence supported its submission to properly explain that the jury
   could consider the conduct of Purselley and Gray in answering Byrne’s
   negligence and comparative responsibility questions in answering Questions 1
   and 2. This refusal was harmful error to DeLeon and requires reversal and
   remand for a new trial on all issues.

                   IV. BORROWED SERVANT DOCTRINE INAPPLICABLE

         The lynchpin of each of DeLeon’s issues on appeal is the premise that

   DeLeon, Purselley, and Gray were all borrowed servants of Byrne.          DeLeon

   argues that DeLeon 1 established as law of the case that DeLeon, Purselley, and

   Gray were the borrowed servants of Byrne4 and also that his pleadings and


         4
          With respect to DeLeon’s alleged status as a borrowed servant of Byrne,
   DeLeon’s brief asserts that the “law of the case doctrine established DeLeon was
   a borrowed servant of Byrne as a matter of law” and that

                                           4
evidence that he, Purselley, and Gray were the borrowed servants of Byrne5

entitled him to the charge submissions he did not receive, as set forth in his three

issues above.

     A. DeLeon 1 did not hold that DeLeon, Purselley, or Gray were the
                       Borrowed Servants of Byrne

      As set forth above, our holding in DeLeon 1 reversed the trial court’s grant

of summary judgment to Byrne on DeLeon’s negligence claim. We held that

pursuant to paragraph 8.01 of the contract between Byrne and Sparkling Clean,

Byrne retained a limited right of control concerning Sparkling Clean’s work to

      the contractual right to control the details of the work in question
      legally determined . . . that Byrne owed a duty of ordinary care to
      DeLeon as the employee of a subcontractor to act in an ordinarily
      prudent fashion in exercising its retained right to control, [and] it also
      had the legal effect of making DeLeon the borrowed servant of
      Byrne because the test for determining borrowed servant status is
      the same test as was used by this Court in finding the contractual
      right of control.

With respect to Purselley’s and Gray’s alleged status as borrowed servants of
Byrne, DeLeon’s brief asserts,

      As explained [above], this Court’s holding that Byrne retained the
      contractual right to control the injury producing activities of Sparkling
      Clean’s work was based on the same legal tests as used for
      determining master/servant and borrowed servant issues. Thus, it
      effectively determined as a matter of law that Sparkling Clean, which
      was an assumed name business of Purselley, and its general
      employees, Purselley and Gray, were the borrowed servants of
      Byrne for purposes of the activities which Byrne had the right to
      control.
      5
       DeLeon’s brief contains sections of argument titled, “DeLeon’s Pleading
and Legally Sufficient Evidence Supported Submission” of each of the charge
issues he complains of on appeal.

                                          5
provide labor, materials, and equipment for Sparkling Clean if Byrne determined

them insufficient. Deleon 1, 2012 WL 42942, at *5. Recognizing that this limited

right of contractual control existed as a matter of law per the terms of the contract

between Byrne and Sparkling Clean and that this contractually-retained control

(specifically, supplying a sufficient number of properly skilled workmen) related to

the activity that caused DeLeon’s injury, we held that Byrne had a duty

commensurate with the contractual right of control it had retained. Id. According

to paragraph 8.01 of the contract between Byrne and Sparkling Clean––set forth

in toto in DeLeon 1––Byrne’s remedy for Sparkling Clean’s failure to supply a

sufficient number of properly skilled workmen (or sufficient materials and

equipment) was to supply them itself and to deduct the cost of doing so from any

monies owed to Sparkling Clean. Id. Thus, the Byrne/Sparkling Clean contract

limited Byrne’s right of control over Sparkling Clean’s work to determining the

sufficient number of properly skilled workmen and determining the quality of the

materials and the equipment sufficient to perform the work and likewise to

exercising this contractually-retained control by providing such labor, equipment,

or materials itself.

       The “borrowed servant” doctrine operates to relieve an employer of liability

for actions of an employee who becomes the borrowed, loaned, or special

employee of another employer. 1 Edgar & Sales, Texas Torts & Remedies §

4.02[3] (2014). Conversely, the doctrine also operates to impose liability on the

latter employer for actions of an employee who becomes the borrowed, loaned,

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or special employee of that employer. Id. Nothing in our opinion in DeLeon 1

addressed the doctrine of borrowed servant. Neither side moved for summary

judgment on the application of this doctrine either offensively or as an affirmative

defense. No summary judgment evidence was offered on the issue.

      A general contractor’s contractually-retained right of control could possibly,

depending on the terms of the contract and the surrounding facts, implicate the

borrowed servant doctrine—such as when the contract assigns or loans an

employee to a general contractor for a particular task. See Producers Chem. Co.

v. McKay, 366 S.W.2d 220, 226 (Tex. 1963); Hodges v. Texas TST, Inc., 303

S.W.3d 880, 883 (Tex. App.—Eastland 2009, no pet.). But paragraph 8.01 does

not contain any language making any Sparkling Clean employee, including

DeLeon, Purselley, and Gray, the borrowed servants of Byrne.             See, e.g.,

Thompson v. Travelers Indem. Co. of Rhode Island, 789 S.W.2d 277, 278–79

(Tex. 1990) (setting forth examples of the types of control normally exercised by

employer); see also Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex. 1992)

(noting that a contract providing right to control certain employees “is a factor to

be considered,” but is not controlling, when determining whether an employee is

a borrowed servant of another). Instead, control contractually retained by Byrne

according to the language of paragraph 8.01 was to supply a sufficient number of

skilled workmen, materials, or equipment itself and to then bill Sparkling Clean.

The nature of Byrne’s contractually-retained, narrow right of control under

paragraph 8.01 of its contract with Sparkling Clean does not, as argued by

                                         7
DeLeon, have the legal effect of making DeLeon, Purselley, and Gray the

borrowed servants of Byrne.6 See Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d

801, 803 (Tex. 1999) (explaining that a “general contractor’s duty of care is

commensurate with the control it retains over the contractor’s work”); see also

Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001) (holding that

general contractor retained right to control subcontractor’s fall-protection systems

on the jobsite and “therefore had a duty of care toward [subcontractor’s

employee] commensurate with that right”). Because DeLeon 1 did not hold that

DeLeon, Purselley, or Gray was a borrowed servant of Byrne, we overrule the

portions of DeLeon’s first,7 second,8 and third9 issues premised on the contention

that DeLeon 1 did so hold.

      6
        DeLeon’s brief points out several times that in DeLeon 1, we held that as
a matter of law Byrne contractually retained control over aspects of Sparkling
Clean’s work. We explained in DeLeon 1, however, that in addressing a
contractual right of control, “determining what a contact says is generally a
question of law for the court.” DeLeon 1, 2012 WL 42942, at *3. Thus, we held
that as a matter of law, paragraph 8.01 of the Byrne/Sparkling Clean contract
said that Byrne retained a limited contractual right of control over Sparkling
Clean’s work that gave rise to a duty of care commensurate with that right of
control. Id. at *5. Thus, in DeLeon 1, we did not use the phrase “as a matter of
law” to mean that fact issues were conclusively established, as DeLeon seems to
contend in this appeal.
      7
      DeLeon’s first issue contended that Byrne was not entitled to submission
of DeLeon’s contributory negligence because DeLeon was a borrowed servant of
Byrne and Byrne did not prove it was a worker’s compensation subscriber.
      8
      DeLeon’s second issue contended that Purselley’s and Gray’s
comparative negligence should have been separately submitted because Byrne
was vicariously liable for the negligence of Purselly and Gray as Byrne’s
borrowed servants.

                                         8
 B. The Evidence does not Support Submission of any Issue or Instruction
    Premised on DeLeon’s, Purselley’s, or Gray’s Status as a Borrowed
                            Servant of Byrne

      DeLeon also argues that his pleadings and the evidence at trial raised the

borrowed servant theory so that he was entitled to the charge submissions raised

in his issues on appeal. DeLeon points to the reports and testimony of his two

liability experts, Thomas Gregory and James Drebelbis, as constituting evidence

that DeLeon, Purselley, and Gray were the borrowed servants of Byrne. The

testimony and reports of Gregory and Drebelbis constitute some evidence that

Purselley, Gray, and Sparkling Clean were negligent.          But evidence that

Purselley and Gray were negligent is not evidence that they were the borrowed

servants of Byrne. The testimony and reports of Gregory and Drebelbis also

constitute some evidence that Byrne itself was negligent by not providing a fourth

worker for the Sparkling Clean project per paragraph 8.01 of the contract. This

negligence is directly attributable to Byrne and is not evidence that DeLeon,

Purselley, or Gray were the borrowed servants of Byrne.    See 1 Edgar & Sales,

Texas Torts & Remedies § 4.04[2]; Read v. Scott Fetzer Co., 990 S.W.2d 732,

735 (Tex. 1998).    We have located no evidence in the record that DeLeon,

Purselley, or Gray was a borrowed servant of Byrne.        Because no evidence

exists that DeLeon, Purselley, or Gray was a borrowed servant of Byrne, we

overrule the remainder of DeLeon’s first, second, and third issues premised on

      9
        DeLeon’s third issue contends that he was entitled to a borrowed servant
instruction.

                                        9
the contention that more than a scintilla of evidence exists establishing that they

were.

                                  V. CONCLUSION

        Because DeLeon 1 did not hold that DeLeon, Purselley, and Gray were

borrowed servants of Byrne and because no evidence exists that DeLeon,

Purselley, or Gray was a borrowed servant of Byrne, the trial court did not abuse

its discretion by submitting DeLeon’s comparative fault, by refusing to submit the

negligence of Purselley and Gray, or by refusing to submit the borrowed servant

instruction tendered by DeLeon. See Columbia Rio Grande Healthcare, L.P. v.

Hawley, 284 S.W.3d 851, 855 (Tex. 2009); Shupe v. Lingafelter, 192 S.W.3d

577, 579 (Tex. 2006). Having overruled in toto DeLeon’s first, second, and third

issues, we affirm the trial court’s judgment.



                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE


PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: September 18, 2014




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