AFFIRM in Part, REVERSE in Part, and REMAND; and Opinion Filed August 1, 2013.




                                          S  In The
                                       Court of Appeals
                                Fifth District of Texas at Dallas

                                       No. 05-11-00895-CV

                    JUAN JOSE SEGOVIA, Appellant
                                 V.
   SKYLINE PLACE DALLAS, LLC & SRA MANAGEMENT LLC D/B/A OLYMPUS
                         PROPERTY, Appellees

                        On Appeal from the 68th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC11-07702-C

                                MEMORANDUM OPINION
                           Before Justices Moseley, O'Neill, and Lewis
                                    Opinion by Justice Lewis
       Appellant Juan Jose Segovia (“Segovia”) appeals from a summary judgment rendered in

favor of appellees, Skyline Place Dallas, LLC and SRA Management, LLC (“SRA”). In three

issues, Segovia claims the trial court erred (1) by failing to sustain any objections and special

exceptions to appellees’ summary judgment motion; and (2) by granting summary judgment. We

affirm in part, reverse in part, and remand to the trial court for further proceedings.

Background

       Segovia filed this action against multiple defendants following a workplace injury.

Segovia alleges he sustained injuries from a fall when standing on a handrail while painting a

stairwell at Skyline Place Apartments (“Skyline Apartments”) in Dallas.
       Skyline Place, LLC (“Skyline”) owned Skyline Apartments at the time of the accident.

SRA d/b/a Olympus Property, which managed the apartments, is owned by brothers Anthony

and Chandler Wonderly. In May 2008, Skyline contracted with Penco Central, Inc. (“Penco”) for

improvements to be made to the apartments. Penco sub-contracted with Romano Painting

Services, Inc. to perform the painting for the project. Romano sub-contracted with Ramundo

Rodriguez (“Rodriguez”) who then sub-contracted with Segovia as a painter. When Segovia

arrived at the apartments on August 13, 2008, Rodriguez provided him with paint and brushes

and directed him to the stairwell to start painting. Segovia requested a ladder from Rodriguez,

but it was never provided. Segovia stood on a rail to paint the stairwell and immediately fell and

sustained injuries.

       Segovia testified the only people present at the time of his injury were Rodriguez and

another painter. Segovia claims he never spoke to any employee or representative of Skyline or

SRA. Deposition testimony by Anthony Wonderly established neither Skyline, nor SRA was

aware of Penco sub-contracting any work from the project until after this lawsuit was filed.

       In August 2009, Segovia filed this suit claiming general negligence, negligence per se,

gross negligence, negligent hiring, and malice. On March 30, 2011, defendants Skyline and SRA

filed a traditional and no-evidence motion for summary judgment. On April 25, 2011, Segovia

filed objections and special exceptions to the summary judgment motion, as well as his first

amended petition. Segovia’s amended petition added claims for fraud and breach of contract.

The trial court scheduled and held a hearing on the summary judgment on May 2, 2011. At the

hearing, defendants were present and Segovia’s counsel was not. After the hearing, the trial court

granted defendants’ motion. Segovia then filed a motion to reconsider the summary judgment

which the trial court granted. A second hearing on the summary judgment motion was held on

June 13, 2011, and the trial court ultimately granted the summary judgment again.

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       On appeal, Segovia claims the trial court erred by (1) failing to sustain any objections and

special exceptions to appellees’ summary judgment motion; and (2) granting summary judgment.

We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4.

Standard of Review

       Appellees’ motion for summary judgment included traditional grounds and no-evidence

grounds; we review both types of motions under well-settled standards. We review a trial court’s

decision to grant summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d

656, 661 (Tex. 2005). In a traditional motion, the party moving for summary judgment has the

burden to prove there is no genuine issue of material fact and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548

(Tex. 1985); S & I Mgmt., Inc. v. Choi, 331 S.W.3d 849, 852 (Tex. App.—Dallas 2011, no pet.).

Defendants who move for summary judgment may meet this burden by either (1) disproving at

least one essential element of each theory of recover, or (2) conclusively proving all elements of

an affirmative defense. Choi, 331 S.W.3d at 852. Evidence favorable to the non-movant will be

taken as true and every reasonable inference must be indulged in favor of the non-movant and

any doubts resolved in its favor. Nixon, 690 S.W.2d at 549.

       By contrast, a no-evidence summary judgment motion pursuant to rule 166a(i) is

essentially a motion for a pretrial directed verdict. See TEX. R. CIV. P. 166a(i); Mack Trucks, Inc.

v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). Once a no-evidence motion is filed, the burden

shifts to the non-moving party to present evidence raising an issue of material fact as to the

elements specified in the motion. Tamez, 206 S.W.3d at 582; Choi, 331 S.W.3d at 853. When a

successful summary judgment movant presents both traditional and no-evidence grounds, we

must affirm if summary judgment can be sustained under either standard. Choi, 331 S.W.3d at

853.

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       We review a party’s objections to summary judgment evidence under an abuse of

discretion standard. Nat’l Liab. and Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527–28 (Tex. 2000).

I. OBJECTIONS AND SPECIAL EXCEPTIONS

       Segovia complains the trial court erred by failing to sustain his objections and special

exceptions to appellees’ summary judgment motion. Special exceptions are normally used when

a motion or response states grounds that are unclear or ambiguous. See McConnell v. Southside

Indep. Sch. Dist., 858 S.W.2d 337, 342–43 (Tex. 1993). Segovia timely filed his objections and

special exceptions and each of the 23 objections and exceptions are based on the motion itself as

opposed to the evidence presented. Some of the “objections” raised by Segovia are: “the

allegations contained in [the motion] are unsupported by any summary judgment evidence;”

statements made in the motion “attempt to improperly shift the burden;” the motion improperly

used the pleadings to support allegations in the motion; and citations to legal authority in the

motion do not prove its allegations. None of the “objections” or exceptions directly complains

about the summary judgment evidence. Further, Segovia does not complain about the clarity or

ambiguity of the motion. Indeed, Segovia’s objections and special exceptions are more in the

nature of a summary judgment response, challenging the arguments and authorities put forward

in appellees’ summary judgment motion. To the extent these responsive comments have

substantive significance, we understand them to be a challenge to appellees’ right to judgment as

a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)

(the movant must establish entitlement to a summary judgment on the issues expressly

presented). Therefore, we conclude this first issue does not present arguments independent from

Segovia’s second issue, i.e., whether the trial court erred in granting appellees’ motion for

summary judgment.




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II. GRANTING OF SUMMARY JUDGMENT

Traditional Summary Judgment

       Segovia contends the trial court erred in granting appellees’ traditional motion for

summary judgment, which asserted appellees were not liable as a matter of law pursuant to

Chapter 95 of the Texas Civil Practice and Remedies Code. Segovia’s response argues appellees

failed to meet their burden because, as required by Chapter 95, they never conclusively proved

that (1) either of them was the owner of the property, or (2) Segovia was “constructing,

repairing, renovating, or modifying an improvement” to the property at the time of his fall.

Does Chapter 95 Apply?

       Segovia contends appellees owed Segovia the common law duty that property owners

owe to those who come onto their land. However, Chapter 95 of the Texas Civil Practice and

Remedies Code provides a defense for claims of negligence against property owners by

independent contractors. See Dow Chem. Co. v. Abutahoun, 395 S.W.3d 335, 343 (Tex. App.—

Dallas 2013, pet. filed). Chapter 95 governs a property owner’s liability to independent

contractors. As relevant here, the statute applies to a claim (1) against a property owner for

personal injury (2) to a contractor, or a subcontractor or an employee of a contractor or

subcontractor (3) that arises from the condition or use of an improvement to real property where

the contractor or subcontractor renovates or modifies the improvement. TEX. CIV. PRAC. & REM.

CODE ANN. § 95.001(1), (3), 95.002 (West 2011). Under chapter 95:

       A property owner is not liable for personal injury, death, or property damage to a
       contractor, subcontractor, or an employee of a contractor or subcontractor who
       constructs, repairs, renovates, or modifies an improvement to real property,
       including personal injury, death, or property damage arising from the failure to
       provide a safe workplace unless:
               (1) the property owner 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



                                               –5–
                  (2) the property owner had actual knowledge of the danger or condition
          resulting in the personal injury, death, or property damage and failed to
          adequately warn.

Id. at § 95.003 (West 2011). Section 95.001 defines a “property owner” as “a person or entity

that owns real property primarily used for commercial or business purposes.” Id. at § 95.001.

Appellees had the initial burden to establish that Chapter 95 applies to them. See Rueda v.

Paschal, 178 S.W.3d 107, 111 (Tex. Civ. App.—Houston [1st Dist.] 2005, no pet.) The burden

then shifts to Segovia to prove (1) the owner exercised or retained some control over the manner

in which the work was performed and (2) that the property owner had actual knowledge of the

danger and did not adequately warn of that danger. See TEX. CIV. PRAC. & REM. CODE ANN. §

95.003.

          In their traditional motion for summary judgment, appellees sought to prove Chapter 95

applied to them, they maintained no control over the manner in which the work was performed,

and they had no knowledge Segovia was standing on the handrail instead of using a ladder to

paint the stairwell. There is undisputed evidence Chandler Wonderly and his brother Anthony

Wonderly are the owners of SRA and that Chandler Wonderly is owner of the real property and

improvements. 1 Anthony Wonderly’s deposition testimony is not controverted in the record nor

is the Construction Agreement for renovations between Penco Central, Inc. (“Contractor”) and

Skyline Place Apartments (“Owner”) which is signed by Anthony Wonderly for Skyline Place

Apartments. Segovia contends the testimony of Anthony Wonderly was that “one of them owned

the land and apartments on which” Segovia was working at the time of his fall and this testimony

is not enough. Segovia contends because the deposition testimony was to ownership by Chandler

Wonderly and not Skyline Place Dallas, LLC, there remains a question of fact as to ownership of

the property. However, after appellees submitted summary judgment evidence of ownership and

   1
       We note that Segovia’s pleadings addressed appellees, and no one else, as the owner and manager of the apartment property.



                                                                    –6–
the burden shifted to Segovia, he presented nothing inconsistent or conflicting with Anthony

Wonderly’s testimony or the Construction Agreement. We find no conflicting evidence in the

record which would raise a genuine issue of material fact as to the identity of the owner or

manager of the property where Segovia’s injury occurred.

       Section 95.003 provides the exception to liability “unless” the property owner exercises

or retains some control over the manner in which the work is performed and the owner had

actual knowledge of the actual condition that caused the injury. TEX. CIV. PRAC. & REM. CODE

ANN. § 95.003. Appellees’ motion provided evidence proving contractually they did not retain or

exercise control over the manner that Rodriguez and his employees performed the painting of the

apartments. Segovia’s response to the summary judgment motion failed to produce more than a

scintilla of probative evidence to show any such control existed. None of Segovia’s evidence

raises a fact question

       Segovia contends he was painting at the Skyline Apartments and the “painting” does not

equate to “constructs, repairs, renovates, or modifies an improvement to real property” as

required by Chapter 95. TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. Segovia goes to great

length arguing the painting of the apartment was not a modification, but he fails to address

whether the painting of the property qualifies as a repair or renovation. Because the trial court

could have found the painting was a repair or renovation, Segovia failed to raise a genuine issue

of fact regarding the application of Chapter 95 to the painting of the property. See Trail v.

Friedrich, 77 S.W.3d 508, 509 (Tex. Civ. App.—Houston [1st Dist.] 2002, pet. denied)

(applying Chapter 95 to a painting contractor). We conclude Segovia failed to raise a genuine

issue of material fact as to application of Chapter 95 of the Texas Civil Practice and Remedies

Code. Consequently, Segovia’s negligence claims, including negligence, negligence per se, gross

negligence, and negligent hiring and supervision, are barred by Chapter 95.

                                              –7–
       Segovia’s petition includes a cause of action for breach of contract. In their traditional

summary judgment motion, appellees claim there is no contract between Skyline or SRA and

Rodriguez (whom hired Segovia) and produced evidence of the deposition testimony showing

the company Skyline contracted with was Penco. The summary judgment record fails to show

Skyline or SRA were aware that Penco hired any subcontractors, who hired another

subcontractor, who hired Segovia. In Segovia’s response to the summary judgment, he provided

no evidence of a contract or any legal argument or authority of an implied contract. Therefore,

we conclude Segovia failed to raise an issue of fact to preclude the granting of summary

judgment as to his claim for breach of contract.

Intentional Tort Claims

       Segovia argues appellees’ motion failed to establish that they did not owe a legal duty to

him and failed to address his claims of fraud and malice. At the time of the summary judgment,

Segovia’s live pleading contained claims of fraud and “malice” which are not barred by Chapter

95. We have already established Segovia’s negligence claims requiring a legal duty are barred by

Chapter 95, now we address Segovia’s claims not barred by Chapter 95.

       As for the cause of action for fraud, Segovia alleges Skyline, SRA and Penco engaged in

fraud because the Penco contract required Penco to have insurance to cover claims for injuries

such as those sustained by Segovia but Penco claims to have no such insurance. Appellees'

motion for summary judgment only addressed claims pursuant to Chapter 95, claims where

appellees owed a duty to Segovia, and claims requiring the existence of a contract; it does not

address the elements or a cause of action for fraud. Segovia’s response to the motion asserts

appellees’ failure to address his fraud claim. However, the summary judgment order states,

appellees “are entitled to summary judgment on all Plaintiff’s claims.” The order further states

“that Plaintiff, Juan Jose Segovia, take nothing against Defendants Skyline Place Dallas, LLC

                                               –8–
and SRA Management, LLC d/b/a Olympus Property.” Because the summary judgment order

grants more relief than requested, we sustain Segovia’s issue regarding his cause of action for

fraud. See G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (Granting summary

judgment on a claim not addressed in the summary judgment motion is, as a general rule,

reversible error.)

        As for Segovia’s cause of action for “malice,” we express no opinion concerning the

existence of such an independent tort; the issue is not before us. Appellees’ motion for summary

judgment did not address this claim in any fashion, and so we sustain Segovia’s issue regarding

this claim as well.

Conclusion

        We affirm the trial court’s judgment regarding the causes of action for negligence,

negligence per se, gross negligence, negligent hiring and supervision, and breach of contract. We

reverse the trial court’s judgment regarding the cause of action for fraud and “malice.” We

remand this case for further proceedings consistent with this opinion.




                                                     /David Lewis/
                                                     DAVID LEWIS
                                                     JUSTICE


110895F.P05




                                               –9–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

JUAN JOSE SEGOVIA , Appellant                         On Appeal from the 68th Judicial District
                                                      Court, Dallas County, Texas
No. 05-11-00895-CV          V.                        Trial Court Cause No. DC11-07702-C.
                                                      Opinion delivered by Justice Lewis.
SKYLINE PLACE DALLAS, LLC & SRA                       Justices Moseley and O'Neill participating.
MANAGEMENT LLC D/B/A OLYMPUS
PROPERTY, Appellees

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's
judgment regarding the causes of action for fraud and malice. In all other respects, the trial
court's judgment is AFFIRMED. We REMAND this cause to the trial court for further
proceedings consistent with this opinion.
        It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 1st day of August, 2013.




                                                    /David Lewis/
                                                    DAVID LEWIS
                                                    JUSTICE




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