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Reversed and Remanded and Plurality, Concurring, and Dissenting Opinions filed March 31, 2009.




In The


Fourteenth Court of Appeals



NO. 14-07-00341-CV










On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2005-63422



C O N C U R R I N G  O P I N I O N

I concur with the outcome of the plurality opinion, but reach the same result on different grounds.  Because appellee failed to establish all the elements of his affirmative defense, I would hold the trial court erred when it granted appellee=s motion for summary judgment. 

Factual and Procedural Background

In March of 2005, appellant was employed as an air conditioning mechanic for Accurate Air Systems in Houston, Texas.  Appellee allegedly owned and operated a Chili=s restaurant at 1040 W. Sam Houston Parkway in Houston, Texas.  Appellee contracted with Accurate Air Systems to perform routine maintenance and repairs to the air conditioning unit located on the roof of the Chili=s restaurant.  On March 10, Accurate Air Systems assigned appellant to replace a compressor motor in appellee=s air conditioning unit. 

Appellant arrived at the Chili=s, briefly said hello to the manager, and then climbed a ladder to the roof of the restaurant.  Appellant removed the original compressor and planned to carry it toward a point on the roof from which he could lower it to the ground.  As he stepped away from the air conditioning unit with the compressor in his arms, the roof collapsed and a portion of his body fell through the opening.

Appellant filed the underlying lawsuit against appellee alleging it failed to exercise ordinary care in maintaining the restaurant premises, specifically the roof.  He claimed that as a result of his fall, he suffered injuries to his left leg, lower back, and right shoulder, foot, knee, and hip.  Appellant sought damages for physical impairment, medical expenses, past and future lost wages, mental anguish, and physical pain. 

Discovery revealed that appellee had previously scheduled replacement of the restaurant=s roof because it was leaking and had at least one Asoft spot.@  However, the restaurant=s manager did not tell appellant before he started work that there were any problems with the roof.

Appellee filed a motion for summary judgment contending that Chapter 95 of the Texas Civil Practice and Remedies Code precluded appellant=s recovery.  See Tex. Civ. Prac. & Rem. Code Ann. ' 95.001 et seq. (Vernon 2005).  Specifically, appellee argued it could have no liability to appellant because appellant himself testified appellee exercised no control over his work on the air conditioning unit.  See id. ' 95.003 (precluding property owner=s liability for injury to employee of a contractor unless owner exercises control over performance of the work and had actual knowledge, but failed to adequately warn, of the danger that resulted in the injury).

The trial judge granted appellee=s summary judgment motion, which appellant timely appeals.   


A.      Did Appellee Conclusively Prove Chapter 95 Applies to Appellant=s Claims?

Because it is dispositive of this appeal I address appellant=s fourth issue first.  In appellant=s fourth issue, he argues appellee failed to meet its burden of conclusively proving Chapter 95 applies as a matter of law because it was pleaded as an affirmative defense.

1.       Standard of Review

Under the traditional summary judgment standard of review, a movant has the burden to show at the trial level that there are no genuine issues of material fact, and he is entitled to judgment as a matter of law.  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and we make all reasonable inferences in his favor.  Id.  We review the trial court=s summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  A defendant is entitled to summary judgment if it conclusively negates at least one of the essential elements of a plaintiff=s cause of action or conclusively establishes all necessary elements of an affirmative defense.  Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).  Only when the defendant establishes its right to summary judgment, does the burden shift to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact.  Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

2.       Analysis

Appellant correctly asserts appellee failed to meet his burden of proving the applicability of Chapter 95.  The defendant in a Chapter 95 case must establish Chapter 95 applies to him.  Rueda v. Paschal, 178 S.W.3d 107, 111 (Tex. App.CHouston [1st Dist.] 2005, no pet.).  Once the defendant has shown the applicability of Chapter 95, a plaintiff has the burden to establish both prongs of Section 95.003.  Id.  A defendant proves Chapter 95 applies by presenting evidence conclusively establishing that all elements of Section 95.002 have  been met.  See Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d 346, 352 (Tex. App.CHouston [14th Dist.] 2008, no pet.).  Section 95.002, titled AApplicability@ requires a claim:

 (1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor of subcontractor; and

(2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement. 

Tex. Civ. Prac. & Rem. Code ' 95.002.  A Aclaim@ is a claim for damages caused by negligence. Id. ' 95.001(1) .  A Aproperty owner@ is a person or entity that owns real property primarily used for commercial or business purposes.  Id. ' 95.001(3).

In summation, appellee has the burden of proving: (1) appellee is a Aproperty owner@, (2) appellant is holding appellee liable for personal injury, (3) appellant was hired as an independent contractor, (4) appellant=s claims arise from a condition of an improvement on appellant=s property, and (5) appellee was repairing or modifying the improvement.  See id. ' ' 95.001, 95.002.  

 In this case, appellee attached three pieces of evidence to his motion for summary judgment: the affidavit of Todd Shaler, manger of Chili=s restaurant; excerpts from plaintiff=s objections and answers to defendant=s first set of interrogatories; and excerpts from appellant=s deposition.  All three of these documents focus on appellee=s lack of control over appellant=s work, an element of Section 95.003.  See id. ' 95.003(1).  As mentioned above, the burden of proving both prongs of Section 95.003 shifts to appellant only after appellee has first proved Section 95.002.  Rueda, 178 S.W.3d at 111. 

Nowhere in appellee=s attached summary judgment evidence does appellee establish it is the Aproperty owner@ of the Chili=s restaurant where appellant=s alleged injuries occurred.  In its evidence, appellee assumes its status as a property owner is established.  Because proving property owner status is an element of Section 95.002, a mere assumption of status is not sufficient.  See id. ' 95.002(2).  Appellee has failed to meet its burden of proving Chapter 95 applies.  Therefore, I would hold summary judgment was improperly granted because appellee did not conclusively establish all necessary elements of its affirmative defense.  See Cathey, 900 S.W.2d at 341. 


For the reasons stated above, I would hold the trial court erred in granting appellee=s motion for summary judgment.  Accordingly, I agree the summary judgment should be reversed, albeit for reasons different from those stated in the plurality opinion.  Thus, I respectfully concur in the result only.




/s/      John S. Anderson





Panel consists of Justices Yates, Anderson, and Brown.  (Brown, J., plurality), Yates, J., dissenting).