                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00438-CV


GERARDO DELEON                                                     APPELLANT

                                       V.

THOS. S. BYRNE, LTD., F/K/A                                        APPELLEES
THOS. S. BYRNE, INC. AND
UNIQUE STAFF LEASING I, LTD.,
D/B/A UNIQUE STAFFING


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          FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                        MEMORANDUM OPINION1
                                    ----------

                               I. INTRODUCTION

      Appellant Gerardo DeLeon‘s foot was crushed when a forty-thousand-

pound aerial boom lift ran over it while he was working on Montgomery Plaza in

Fort Worth. DeLeon brought a personal injury suit against the general contractor


      1
      See Tex. R. App. P. 47.4.
on the project, Appellee Thos. S. Byrne, Ltd., f/k/a Thos. S. Byrne, Inc., and

against Appellee Unique Staff Leasing I, Ltd. d/b/a Unique Staffing.2 The trial

court granted summary judgment for Appellees Byrne and Unique on all of

DeLeon‘s causes of action. DeLeon perfected this appeal.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      Appellee Byrne, as the general contractor, had a contract with the owner of

the property, Kimco Montgomery Plaza L.P., concerning the building of

Montgomery Plaza. Byrne entered into a subcontract with Sparkling Clean for

Sparkling Clean to wash the exterior of the Montgomery Plaza buildings.

Sparkling Clean had a contract with a staff leasing company, Appellee Unique,

under which Unique leased employees to Sparkling Clean.

      In December 2006, Sparkling Clean rented an aerial boom lift and sent

three individuals to Montgomery Plaza—DeLeon, Gray, and Frederrick Carter—

to wash the exterior of the buildings. Gray operated the boom lift, Carter was the

flagman responsible for watching out for pedestrians and his co-workers, and

DeLeon was responsible for making sure the boom lift did not run over the hose.

DeLeon was injured when the boom lift ran over his foot. At the time, Carter was

not in the area but had walked around the building to shut off the hydrant.

DeLeon sued Byrne and Unique for negligence and gross negligence.

      2
       DeLeon also brought suit against the subcontractor who had employed
him, Jimmy Don Purselley, Individually and d/b/a Sparkling Clean Pressure Wash
(Sparkling Clean), and against the operator of the boom lift, Shawn ―Pete‖ Gray,
but DeLeon subsequently nonsuited them without prejudice.


                                        2
                III. SUMMARY JUDGMENT STANDARDS OF REVIEW

                     A. No-Evidence Summary Judgment

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant‘s

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the

nonmovant produces summary judgment evidence that raises a genuine issue of

material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008).

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).              If the

nonmovant brings forward more than a scintilla of probative evidence that raises


                                       3
a genuine issue of material fact, then a no-evidence summary judgment is not

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030

(2004).

                      B. Traditional Summary Judgment

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant‘s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).

      When reviewing a summary judgment granted on specific grounds, the

appellate court must consider those grounds expressly ruled on and that the

movant preserves for appellate review that are necessary for final disposition of

the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625–26 (Tex.

1996). But if a party preserves the other grounds presented that were not ruled




                                        4
on by the trial court, a court of appeals may consider, in the interest of judicial

economy, those other grounds that the trial court did not rule on. Id.

                       IV. SUMMARY JUDGMENT FOR BYRNE

      In his third issue, DeLeon argues that the trial court erred by granting

summary judgment for Byrne. Byrne moved for traditional summary judgment,

arguing that it owed no duty to DeLeon because it did not control the manner,

means, and details of the work done by Sparkling Clean as a subcontractor and

that, regarding DeLeon‘s claim that Byrne was negligent in hiring Sparkling

Clean, a general contractor cannot be liable to an independent contractor‘s

employee for negligent hiring. The trial court granted summary judgment for

Byrne and dismissed the case against it.

     A. Duty—Control of the Independent Contractor’s Work Required

      Generally, a general contractor does not have a duty to see that a

subcontractor performs work in a safe manner.         Lee Lewis Constr., Inc. v.

Harrison, 70 S.W.3d 778, 783 (Tex. 2001); Redinger v. Living, Inc., 689 S.W.2d

415, 418 (Tex. 1985). However, a limited duty arises if a general contractor

retains control over the manner in which the independent contractor‘s work is

performed. Lee Lewis Constr., Inc., 70 S.W.3d at 793; Koch Refining Co. v.

Chapa, 11 S.W.3d 153, 154 (Tex. 1999).         The general contractor‘s ―duty of

reasonable care is commensurate with the control it retains‖ over the

subcontractor. Hoechst–Celanese Corp. v. Mendez, 967 S.W.2d 354, 355 (Tex.

1998).   The general contractor must retain the right to control the means,


                                         5
methods, or details of the independent contractor‘s work, ―‗the control must relate

to the injury the negligence causes, and the contract must grant the contractor at

least the power to direct the order in which work is to be done.‘‖ Dow Chem. Co.

v. Bright, 89 S.W.3d 602, 606 (Tex. 2002) (quoting Elliott–Williams Co. v. Diaz, 9

S.W.3d 801, 804 (Tex. 1999)) (citations omitted); see also Mendez, 967 S.W.2d

at 357 (requiring ―nexus‖ between retained supervisory control and condition or

activity that caused injury).

      Section 414 of the Restatement (Second) of Torts, which the Texas

Supreme Court adopted in Redinger, further explains this principle:

      One who entrusts work to an independent contractor, but who
      retains the control of any part of the work, is subject to liability for
      physical harm to others for whose safety the employer owes a duty
      to exercise reasonable care, which is caused by his failure to
      exercise his control with reasonable care.

689 S.W.2d at 418 (quoting Restatement (Second) of Torts § 414 (1977)). The

comments to section 414 further explain:

      In order for the rule stated in this Section to apply, the employer
      must have retained at least some degree of control over the manner
      in which the work is done. It is not enough that he has merely a
      general right to order the work stopped or resumed, to inspect its
      progress or to receive reports, to make suggestions or
      recommendations which need not necessarily be followed, or to
      prescribe alterations and deviations. 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.

Mendez, 967 S.W.2d 354, 356 (Tex. 1998) (quoting Restatement (Second) of

Torts § 414 cmt. c (1965)).      An employer who is aware that its contractor


                                         6
routinely ignores applicable federal guidelines and standard company policies

related to safety may owe a duty to require that corrective measures be taken or

to cancel the contract. Id. (citing Tovar v. Amarillo Oil Co., 692 S.W.2d 469, 470

(Tex. 1985)). And an employer who gives on-site orders or provides detailed

instructions on the means or methods to carry out a work order owes the

independent-contractor employee a duty of reasonable care to protect him from

work-related hazards. Id. at 357 (citing Redinger, 689 S.W.2d at 418).

      Control can be established in two ways: by (1) a contractual right of

control, or (2) an exercise of actual control. Bright, 89 S.W.3d at 606; Lee Lewis

Constr., Inc., 70 S.W.3d at 783. The distinction is important because determining

what a contract says is generally a question of law for the court, while

determining whether someone exercised actual control is a generally a question

of fact for the jury. Lee Lewis Constr., Inc., 70 S.W.3d at 783.

      Here, DeLeon argues that Byrne retained both actual and contractual

control over Sparkling Clean.

             B. Contractual Control Over Sparkling Clean’s Work

      A contract may impose control upon a party, thereby creating a duty of

care. Bright, 89 S.W.3d at 606; Elliott-Williams Co., 9 S.W.3d at 804. ―If the right

of control over work details has a contractual basis, the circumstance that no

actual control was exercised will not absolve the general contractor of liability.‖

Elliott–Williams Co., 9 S.W.3d at 804. It is the contractual right of control, and

not the actual exercise of control, that gives rise to a duty to see that an


                                         7
independent contractor performs work in a safe manner. Bright, 89 S.W.3d at

606; Elliott–Williams Co., 9 S.W.3d at 804.

      Here, the subcontract between Byrne and Sparkling Clean provided that

Sparkling Clean was an independent contractor, responsible for and with control

over ―all construction means, methods, techniques, procedures, supervision,

and/or coordination of the Subcontract Work including any means, methods,

techniques, procedures, supervision, and/or coordination related to the safety of

Subcontractor‘s employees or any other persons working in the area of the

Subcontract Work.‖

      Despite this language, DeLeon points to several provisions in the Byrne-

Sparkling Clean subcontract as evidence that Byrne retained contractual control

over Sparkling Clean.3 The subcontract required Sparkling Clean to comply with


      3
       DeLeon also points to the Kimco-Byrne contract as evidence that Byrne
exercised control over Sparkling Clean. The Byrne-Sparkling Clean subcontract
made all documents reflecting the agreement between Kimco, as the owner of
Montgomery Plaza, and Byrne, as the contractor for the project, part of the
Byrne-Sparkling Clean subcontract. DeLeon points to the following provision in
the Kimco-Byrne contract to argue that Sparkling Clean‘s employees were
considered Byrne‘s employees:

             In all relations with respect to Work between the
      subcontractors and Owner [Kimco], the subcontractors and their
      employees shall be considered as employees of Contractor [Byrne].
      Nothing contained in this Contract shall create any contractual
      relations between a subcontractor and Owner [Kimco]. Contractor
      [Byrne] shall be responsible to Owner [Kimco] for Contractor‘s
      [Byrne‘s] subcontractors . . . .

However, the Byrne-Sparkling Clean subcontract provided that if there was a
conflict between the terms of the Kimco-Byrne contract and the Byrne-Sparkling

                                        8
a number of safety regulations and to have a safety program in place.          For

example, a document titled ―Sub-Contractor Safety Responsibility and Program

on Thos. S. Byrne, Ltd. Projects,‖ attached to and made a part of the Byrne-

Sparkling Clean subcontract, requires that all subcontractors ―have this own [sic]

safety program‖ and lists seven things that the program should include.

However, requiring Sparkling Clean to comply with safety regulations and rules

did not impose on Byrne, as a general contractor, a duty to the employees of

Sparkling Clean, an independent contractor, to control job-site safety. See Shell

Oil Co. v. Khan, 138 S.W.3d 288, 293–94 (Tex. 2004) (―[A] contract requiring

independent contractors to comply with general safety practices and train their

employees to do so cannot constitute a right to control job-site safety.‖); Bright,

89 S.W.3d at 607 (holding that contract requiring independent contractors of

general contractor to comply with safety rules and regulations promulgated by

general contractor did not impose any duty on general contractor to independent

contractor‘s employees); Bell v. VPSI, Inc., 205 S.W.3d 706, 720 (Tex. App.—

Fort Worth 2006, no pet.) (holding employer of independent contractor retained

no contractual control when contract required compliance with employer‘s safety

practices and applicable law); Andrews v. DT Const., Inc., 205 S.W.3d 4, 12–13

Clean subcontract, then the terms of the Byrne-Sparkling Clean subcontract
controlled. The subcontract stated that Sparkling Clean was an independent
contractor, and this provision controls the relationship between Byrne and
Sparkling Clean here.




                                        9
(Tex. App.—Eastland 2006, no pet.) (―Requiring its subcontractors to have their

employees learn and follow general safety procedures subjected [the general

contractor] to only a narrow duty to make certain that its safety requirements and

procedures did not unreasonably increase the probability and severity of injury.‖).

      Paragraph 5.01 of the Byrne-Sparkling Clean subcontract allowed Byrne to

order Sparkling Clean to make changes in the Subcontract Work, including

additions, deletions, or other revisions. Paragraphs 10.01 and 10.02 required

that Sparkling Clean maintain a qualified person approved by Byrne on the job at

all times and instructed that Byrne shall ―[n]ot issue or give any instructions,

orders or directions directly to employees or workmen of the Subcontractor other

than the person[s] supervising or directing the Subcontract Work.‖ [Emphasis

added.] But Byrne‘s ability to prescribe alterations and deviations in Sparkling

Clean‘s work did not equate to Byrne retaining contractual control over Sparkling

Clean‘s methods of work.       See Mendez, 967 S.W.2d at 356; Restatement

(Second) of Torts § 414 cmt. c. Similarly, Byrne‘s ability to give instructions to

the supervisor for Sparkling Clean did not give Byrne the right to control the

means, methods, or details of Sparkling Clean‘s work; general contractors have

the right to ensure the work is performed according to contract specifications.

See Victoria Elec. Coop., Inc v. Williams, 100 S.W.3d 323, 329 (Tex. App.—San

Antonio 2002, pet. denied).

      However, paragraph 8.01 specifies,




                                        10
             Should [Sparkling Clean] fail at any time to supply a sufficient
      number of properly skilled workmen and/or sufficient materials and
      equipment of the proper quality, as determined by [Byrne] in its sole
      discretion, or fail in any respect to prosecute the Subcontract Work
      with promptness and diligence, or fail to promptly correct defective
      Work or fail in the performance of any of the agreements herein
      contained, [Byrne] may, at its option without notice, provide such
      labor, materials and equipment and deduct the cost thereof, together
      with all loss or damage occasioned thereby, from any money then
      due or thereafter to become due to [Sparkling Clean] under this
      Agreement.

This provision gave Byrne more than just the right to approve or reject the

number of Sparkling Clean‘s workers or the type of materials and equipment it

used. See Abarca v. Scott Morgan Residential, Inc., 305 S.W.3d 110, 127 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied) (holding that general contractor

retained contractual right to control scaffolding that ultimately caused injuries to

subcontractor‘s employees because contract provided that general contractor

was responsible for providing scaffolding); cf. Victoria Elec. Coop., Inc., 100

S.W.3d at 329 (holding that contract provision allowing owner right to decide

what equipment subcontractor used in transporting utility poles was not evidence

of contractual control because it referred to owner‘s ―right to inspect and approve

the work on the [p]roject, which is a right any general contractor has to ensure

the work is performed according to contract specifications‖).    Instead, Byrne, at

its discretion, could substitute labor, materials, and equipment for those of

Sparkling Clean if Byrne determined them insufficient; this provision essentially

gave Byrne the right and discretion to control the means, methods, and details of




                                        11
Sparkling Clean‘s work to the extent that Sparkling Clean was not entirely free to

do its work in its own way. See Restatement (Second) of Torts § 414 cmt. c.

      Moreover, Byrne‘s specific right to control the number of workers under

paragraph 8.01 was related to the activity that caused DeLeon‘s injury. See

Bright, 89 S.W.3d at 606; Elliott–Williams Co., 9 S.W.3d at 804. Byrne‘s project

engineer for Montgomery Plaza, Scott Salyer, testified that Byrne required four

people to operate a boom lift—the operator, two flagmen, and someone to

handle the hoses—and that, during a meeting with Purselley, Salyer informed

him of that requirement. Yet Sparkling Clean had only three workers on the job

when DeLeon was injured.       Byrne had the contractual right to control the

―‗operative detail‘‖ of the number of workers on the job and to provide—pursuant

to paragraph 8.01 of the contract—an additional worker to meet its own

requirement of four workers. Mendez, 967 S.W.2d at 356 (quoting Restatement

(Second) of Torts § 414 cmt. c).

      We hold that Byrne retained a 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 and that, consequently and as a matter of law, Byrne

retained control over Sparkling Clean‘s work. This contractually-retained control

related to the activity that caused DeLeon‘s injury. Accordingly, we hold that the




                                       12
trial court erred by granting Byrne‘s summary judgment motion on DeLeon‘s

negligence cause of action. We sustain this portion of DeLeon‘s third issue.4

                              C. Negligent Hiring

      An employer who hires an independent contractor may be held responsible

for his acts if the employer ―‗knew or should have known that the contractor was

incompetent and a third person is injured because of such incompetency.‘‖

McClure v. Denham, 162 S.W.3d 346, 354 (Tex. App.—Fort Worth 2005, no pet.)

(quoting Tex. Am. Bank v. Boggess, 673 S.W.2d 398, 400 (Tex. App.—Fort

Worth 1984, writ dism‘d)).    In other words, an employer has a duty to use

ordinary care in hiring an independent contractor. Id.; Ross v. Tex. One P’ship,

796 S.W.2d 206, 216 (Tex. App.—Dallas 1990), writ denied, 806 S.W.2d 222

(Tex. 1991). Courts have held that an employee of an independent contractor,

however, cannot be considered a third party to whom such a duty is owed. See,

e.g., McClure, 162 S.W.3d at 354; Hagins v. E–Z Mart Stores, Inc., 128 S.W.3d

383, 393 (Tex. App.—Texarkana 2004, no pet.).

      Here, DeLeon cites the Texas Supreme Court‘s decision in Pollard v.

Missouri Pac. R.R., 759 S.W.2d 670 (Tex. 1988), as support for his position that


      4
         Having found as a matter of law that Byrne retained contractual control
precluding summary judgment, we need not address whether a fact issue exists
showing that Byrne retained actual control over Sparkling Clean‘s work. See
Tex. R. App. P. 47.1; see also Bright, 89 S.W.3d at 606 (explaining that if the
right of control over work details has a contractual basis, the circumstance that
no actual control was exercised will not absolve the general contractor of
liability).


                                       13
he may maintain a negligent hiring cause of action against Byrne. In McClure,

this court addressed the applicability of Pollard to negligent hiring cases:

      Pollard sued Missouri Pacific Railroad Company (MOPAC) after he
      was injured while he was an employee of Balch, an independent
      contractor retained by MOPAC. The Texas Supreme Court held that
      the court of appeals applied the wrong standard in upholding the trial
      court‘s grant of summary judgment in favor of MOPAC. The court
      held that the evidence showed that MOPAC retained the right of
      control over Balch‘s work, thereby giving rise to a duty of care. In
      remanding the case to the trial court, the court noted that Pollard
      had also asserted a negligent hiring claim, which was not
      controverted by MOPAC‘s motion for summary judgment or
      addressed by the court of appeals.

      Thus, Pollard did not directly address the issue of whether an
      employee of an independent contractor can bring a negligent hiring
      claim against the person who hires the independent contractor.
      Rather, the court, after holding that MOPAC‘s contractual retention
      of control over Pollard‘s employer gave rise to a duty of care, noted
      that Pollard‘s negligent hiring claim presented another fact issue
      because the claim had not been addressed by the court of appeals
      or controverted by MOPAC‘s summary judgment motion.

      We will join our sister courts in Dallas and Texarkana in holding that
      appellant, as an employee of an independent contractor, could not
      bring a negligent hiring claim against the Denhams, the persons who
      hired the independent contractor. Therefore, the trial court did not
      err in granting the Denhams‘ motion for summary judgment on
      appellant‘s negligent hiring claims.

See McClure, 162 S.W.3d at 355 (citation omitted).

      In accordance with our holding in McClure, we hold here that the trial court

did not err by granting summary judgment for Byrne on DeLeon‘s negligent hiring

claim. See id. We overrule the remainder of DeLeon‘s third issue.

                       V. SUMMARY JUDGMENT FOR UNIQUE




                                         14
      In his fifth issue, DeLeon argues that the trial court erred by granting

summary judgment for Unique. He argues that evidence exists to show that

Gray and DeLeon were employees of Unique, that Unique breached a duty owed

to its employees by not conducting safety inspections, safety orientation, or

training, and that Unique was negligent in its training and supervision of its

employees and is vicariously liable for Gray‘s and Purselley‘s actions. DeLeon

also argues that ―[t]he issue of whether DeLeon is or was an employee of Unique

is not dispositive to the issue of whether Unique is liable to him for damages.‖

      Unique moved for both no-evidence and traditional summary judgment.5 In

the order granting summary judgment for Unique, the trial court specified that it

was granting the motion ―on only the limited issue of whether the work being

performed by . . . Deleon and . . . Sparkling Clean . . .and . . . Gray on the

occasion in question was outside the scope of the contract between Sparking

Clean and . . . Unique.‖ Because the trial court granted summary judgment on

this limited ground, we must address whether summary judgment was proper on

this ground. See Cates, 927 S.W.2d at 625–26 (explaining that appellate courts

must consider specific grounds expressly ruled on in summary judgment).


      5
       The majority of Unique‘s summary judgment grounds were alleged as no-
evidence grounds; its only argument for traditional summary judgment was the
affirmative defense of worker‘s compensation. However, regarding its no-
evidence claims, Unique pointed to evidence attached to its motion to support
those claims. This does not transform the motion into a traditional summary-
judgment motion, and we will consider that evidence only if it creates a fact
question. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).


                                        15
                         A. The April Contract Controls

      The summary judgment record contains two contracts between Sparkling

Clean and Unique, one dated March 4, 2003, and another dated April 1, 2003. In

order to determine whether the trial court‘s specific summary judgment, which

was based on the contract between Sparkling Clean and Unique, was proper, we

must first address DeLeon‘s argument that a fact issue exists regarding which

contract controlled. Both contracts are signed by Purselley for Sparkling Clean

and by a representative of Unique; the April contract contains an integration

clause stating that it supersedes all previous contracts.6

      At the December 2008 deposition of Garry Bradford, president and CEO of

Unique, he was shown the March contract and agreed that it governed the

relationship between Unique and Sparkling Clean; the April contract was not

mentioned or presented at this deposition.7 However, Unique attached to its

February 17, 2010 motion for summary judgment the April contract and an

affidavit of Bradford, in which he averred that the April contract was controlling.



      6
        The two contracts are different in several respects. For example, the
March contract states that the leasing arrangement between the parties applies
to all existing employees of Sparkling Clean and any new employees hired by
Sparkling Clean, whereas the April contract states that new employees hired by
Sparkling Clean become co-employees of Unique only by filling out an
employment application and other documents for Unique.
      7
      Unique also presented the March contract in its responses to subpoena
duces tecum as the document reflecting the contractual relationship between it
and Sparkling Clean on the date that DeLeon was injured.


                                         16
      DeLeon argues that a genuine issue of material fact exists regarding which

contract between Sparkling Clean and Unique controls because Bradford‘s

deposition testimony—that the March contract governed the agreement between

the parties—conflicts with his affidavit statement that the April contract controls.

DeLeon cites Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988),

for the proposition that a fact issue exists when conflicting inferences may be

drawn from a deposition and from an affidavit made by the same person and filed

in a summary judgment proceeding. But conflicting inferences cannot be drawn

here because the contracts speak for themselves. The subsequent April contract

states that it supersedes all previous contracts, both contracts are signed by

Purselley for Sparking Clean and by a representative of Unique, and DeLeon has

not presented any evidence that the April contract is invalid.8 Thus, the April

contract is the governing agreement between the parties.

      Pursuant to the controlling April contract, Sparkling Clean‘s employees

became co-employees of Unique as follows:

            The existing employees of [Sparkling Clean] in Texas listed in
      the New Client Sign Up Form shall become co-employees of Unique
      on the effective date of this Agreement as set forth above.

      8
        Similarly, DeLeon‘s argument—in his fourth issue—that Bradford‘s
affidavit should be stricken because he did not explain the change in his
testimony also fails. Cf. Farroux v. Denny’s Restaurants, Inc., 962 S.W.2d 108,
111 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (refusing to consider plaintiff‘s
affidavit that contradicted plaintiff‘s deposition testimony because ―[w]ithout an
explanation of the change in the testimony, we assume the sole purpose of the
affidavit was to avoid summary judgment‖). Thus, we overrule DeLeon‘s fourth
issue.


                                        17
      [Sparkling Clean] expressly agrees and understands that no
      individual shall become an employee in Texas and be entitled to any
      of the services provided under this Agreement unless the individual
      has, prior to commencing employment, completed Unique‘s
      employment application, W-4 withholding form, and Form I-9, all of
      which must be delivered to and accepted by Unique prior to
      employment. . . . [Sparkling Clean] should not consider any
      individual to be an employee of Unique for purposes of the payment
      of wages or employment taxes or coverage by workers‘
      compensation insurance, medical insurance or any other employee
      benefit or service until Unique notifies [Sparkling Clean] by e-mail or
      facsimile of Unique‘s acceptance of employment of such individual.

The contract provides that Unique is responsible for payment of wages, tax

withholdings and reporting, workers‘ compensation, and employee benefits for

employees assigned to Sparkling Clean by Unique. Under the contract, Unique

also shares with Sparkling Clean ―the right of direction and control over

employees assigned to [Sparkling Clean]‘s work sites,‖ ―the right to hire, fire,

discipline, and reassign assigned employees,‖ and ―the right of direction and

control over the adoption of employment and safety policies and the

management of workers‘ compensation claims, claim filings and related

procedures.‖9 See Tex. Lab. Code Ann. § 91.032(a)(1), (4), (5) (West 2006)


      9
      The contract also provides,

            As part of Unique‘s shared right of direction and control over
      the management of safety, risk and hazard control involving
      assigned employees performing work at [Sparking Clean‘s] work
      site, Unique retains the right to perform safety inspections of
      [Sparkling Clean‘s] equipment and premises and to promulgate and
      administer employment and safety practices. However, liability for
      employee safety is a responsibility of [Sparkling Clean], who controls
      the work site and its business operations.


                                        18
(requiring that contracts between staff leasing company and client provide that

staff leasing company shares with its client ―the right of direction and control‖

over and ―the right to hire, fire, discipline, and reassign‖ assigned employees and

―the right of direction and control over the adoption of employment and safety

policies and the management of workers‘ compensation claims, claim filings, and

related procedures‖). However, the contract states,

      [I]f [Sparkling Clean] shall make payments of any type to the
      employees contrary to this Agreement, [Sparkling Clean] alone shall
      be responsible for all taxes, reporting requirements and other
      liabilities with respect to those payments and the work performed by
      employees for such payments shall be deemed solely for the benefit
      of [Sparkling Clean] and outside the scope of employee‘s
      employment with Unique . . . .

      The trial court‘s specific summary judgment for Unique was based on this

provision.

    B. A Genuine Issue of Material Fact Exists on Whether Gray was an
                    Employee of and Paid by Unique

      To determine whether the trial court properly granted summary judgment

for Unique on the basis that the work performed by Sparkling Clean, DeLeon,

and Gray on the Montgomery Plaza project was outside the scope of the contract

between Sparking Clean and Unique, we must first determine whether evidence

exists to raise a factual dispute regarding whether Gray or DeLeon were

employees of Unique at that time and whether Sparkling Clean paid them directly

for their work on the Montgomery Plaza project.




                                        19
      DeLeon‘s    summary     judgment    evidence   includes   transcripts   from

Purselley‘s and Gray‘s depositions and an affidavit of DeLeon. Purselley testified

at his deposition that Gray was paid by Unique for his work on the Montgomery

Plaza project for the day that DeLeon was injured and that Sparkling Clean never

paid Gray personally for work he did for Sparkling Clean. Purselley also testified

that Unique paid employees for work done for Sparkling Clean regardless of

whether they had an application form on file as required under the contract; 10

Purselley would simply call Unique, tell the company to pay a certain employee

for a certain number of hours, and Unique would pay the employee. Purselley

testified at an earlier deposition that DeLeon was the only person that Sparkling

Clean hired directly, that DeLeon was a day laborer, and that Sparkling Clean

paid his wages directly. Gray testified at his deposition that he had continuously

worked for Sparkling Clean from 2001 until after the Montgomery Plaza job in

2006, and that he received his paychecks from Unique. W-2 forms for Gray from

2003 and 2006, showing Unique as his employer, were attached to his deposition

testimony.

      Examining the record in the light most favorable to DeLeon, as the

nonmovant, indulging every reasonable inference and resolving any doubts

against the motion, nothing in the record raises a fact issue that DeLeon was

employed by Unique; instead, the evidence demonstrates that he was a day

      10
        Carter and Gray filled out applications for employment with Unique the
day after DeLeon‘s accident.


                                         20
laborer hired and paid directly by Purselley. See Tex. R. Civ. P. 166a(i) & cmt.;

Sudan, 199 S.W.3d at 292. Thus, no evidence exists that Unique owed any duty

to DeLeon as an employee of Unique.

      However, that does not end our inquiry. The contract provision at issue—

the one upon which the trial court based its specific summary judgment—

provides that if Sparkling Clean paid an employee contrary to the agreement,

then the work performed by that employee for such payment shall be outside the

scope of the employee‘s employment. It does not state that all work performed

by any employee on a given project is outside the scope of the contract if

Sparkling Clean pays one employee directly for his work on that project. In other

words, here, if Gray was acting as Unique‘s employee and paid by Unique when

DeLeon was injured, the contract provision at issue would not apply to make

Gray‘s work outside the scope of employment with Unique.          Examining the

record in the light most favorable to DeLeon, he brought forth more than a

scintilla of evidence to raise a genuine issue of material fact that Gray was an

employee of Unique and paid by Unique for work he did on the Montgomery

Plaza project on the day that DeLeon was injured. See Tex. R. Civ. P. 166a(i) &

cmt.; Sudan, 199 S.W.3d at 292. Purselley‘s and Gray‘s deposition testimony—

that Unique paid Gray for his work on the Montgomery Plaza project for the day

that DeLeon was injured and that Sparkling Clean never paid Gray personally for

work he did for Sparkling Clean—is some evidence raising a fact issue. Thus,

we hold that the trial court erred by granting summary judgment on the limited


                                       21
ground that the work performed by Sparkling Clean and Gray was outside the

scope of the contract between Sparkling Clean and Unique. Because summary

judgment was granted on only this limited basis, we decline to consider the

remaining grounds for summary judgment that the trial court did not consider.

See Cincinnati Life Ins. Co., 927 S.W.2d at 626; Delaney v. Univ. of Houston,

835 S.W.2d 56, 58, 61 (Tex. 1992) (declining to address legal arguments on

which the trial court did not base summary judgment); Pilgrim Enters., Inc. v. Md.

Cas. Co., 24 S.W.3d 488, 499 (Tex. App.—Houston [1st Dist.] 2000, no pet.)

(same). We sustain DeLeon‘s fifth issue.

                                  VI. CONCLUSION

      Having overruled DeLeon‘s fourth issue and part of his third issue, we

affirm the trial court‘s summary judgment for Byrne on DeLeon‘s negligent hiring

claim. Having sustained part of his third issue and sustained his fifth issue, and

having held that the trial court erred by granting summary judgment for Byrne on

DeLeon‘s negligence claim and for Unique on the limited ground that the work

performed by Sparkling Clean and Gray was outside the scope of the contract

between Sparkling Clean and Unique, we reverse the trial court‘s judgments on

those grounds and remand this case to the trial court for further proceedings

consistent with this opinion.11


      11
         We need not address DeLeon‘s second issue in which he argues that the
trial court erred by granting summary judgment for Byrne and Unique because he
was entitled to a spoliation presumption. See Tex. R. App. P. 47.1. Similarly, we
need not address DeLeon‘s first issue in which he argues that the trial court erred

                                        22
                                                 SUE WALKER
                                                 JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: January 5, 2012




by denying his motion for continuance and for additional discovery regarding
Unique‘s motion for summary judgment.

        On appeal, DeLeon moved to strike portions of Unique‘s statement of facts
in its brief to this court; we carried the motion with the case. We deny DeLeon‘s
motion and note that we have not considered any factual assertions not
supported by the record. See Marshall v. Hous. Auth. of San Antonio, 198
S.W.3d 782, 789 (Tex. 2006).


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