### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00534- CV

Denise Stroup, as Legal Guardian of D. L. S., an Incapacitated P erson, Appellant

v. MRM Managem ent, Inc., Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-1 7-0 0329 0, H ONO RAB LE K ARIN CRUMP , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

T h i s i s an appea l from a take- nothing summary judgme nt rende red by the distri ct

c o u r t o f T r a v is Co u n ty in a p e r s o n a l in

ju r y s u it

. A p p e ll a n t is Sa n d r a D e n is e St

r o u p ( St r o u p ) , G u a r d ia n for her brother Doug las L ee Stroup, and ap p ellee is MRM Manag ement, I nc. (MRM). The iss ue 1

conce rns the vicar ious liability vel non of MRM for the neg lige nt acts of Penny Har ring ton Taylor. Taylor and Doug las L ee Stroup wer e involved in an automobile-motorcy cle cra sh on east Oltorf Street in Austin in Aug ust 2015. I mmediately befor e the collision, Taylor drove her car from the drivewa

y of L a Quinta I nn onto eastbound Oltorf attempting to turn left ont o westbound Oltorf. At that time, Doug las Stroup was operating his motorcy cle east on the inside lane of Oltorf. The motorcy cle struck the driver’ s side of Taylor’s car . Stroup sued Tay lor asser ting that Tay lor’s neg lige nce pr ox imately

cause d her br other to suffe r seve re pe rsonal injuries.

Keller Wil liams Realty

is the trade na

me for MRM. 1Stroup ple aded further that Taylor was a licensed rea l-estate salesper son associate d

wi t h MRM and that at t he ti me of the colli sion, Taylor was eng ag ed in rea l-estate sales activiti es . Stroup claimed that MRM was vicar iously liable for Taylor’s tortious conduct pursuant to principles of (1) responde at superior; (2) principal-a g ent liability ; (3) joint enter prise; and (4) by operation of law pursua

nt to the Texas Occupa tions Code. Be fore the collision, Taylor had l i sted for sale a house located on Crest Avenue , which was owned by her husband. To make the house more attrac tive, she p l anned to do some landsca ping. She eng ag ed her friend L y nn Crossett, a landsca

pe contra ctor, to do the work. At the time, she and Crossett wer e car ry ing on an aff

air. On the morning of the collision, she and Crossett brea kfasted toge ther and then went to Home Depot wher e she boug ht supplies for the job. They then took a room at L a Quinta I nn on Oltorf. She paid for the room with her cre dit car d. Taylor testified

on deposition that Crossett neede d to stay at the motel for sever al nights to do the Crest Avenue job and other work located nea

rby

. At s o me point, Taylor decide d to move her car to a shaded are a. At that time, she noticed that the car was dusty and decide d to d ri v e t o a car wash. As she pulled onto Oltorf, the collision occurr ed.

After discovery , MRM filed a traditional and n o -e v i d ence motion for summary judgme nt, maintaining that it was not vicar iously liable for Taylor ’s co nduct beca use at all times rele vant, Taylor was acting as an independe nt contra ctor. After hear ing, the district court rende red a take -nothing summary

judgme nt. 2

After the district court re ndere d summary judgme nt, Stroup settled with Tay lor. 2 2I f there is no contra ct betwee n the parties constituting one of them as an independe nt

contra ctor, the courts rec og nize sever al fac tors to aid in making that deter mination, namely , (1) the independe nt nature o f t h e business; (2) his obliga tion to furnish nece ssary tools, supplies and

m at erials to perf

orm the job; (3) his rig ht to control the prog ress of the work except as to fi n al results; (4) the time f

or which he is e mploy ed; and (5) the method of pay ment whether by the time

or the job. Pitchfork Land & Cattl e Co. v. King , 346 S.W .2d 598, 603 (Tex. 1961). Right of control is the most importa nt of these fac tors in deter mining whether a master- serva nt rela tionship rathe r than an independe nt-contra ctor rela tionship exis ts. St. J oseph Hosp. v. W

olff , 94 S.W .3d 513, 542 (Tex. 2002). A contra ct expressly providing that a perso n is a n in d epende nt contra ctor is, howeve r, deter minative of the rela tionship absent evidenc e that the contra ct is a mere sham or subterfug e desig ned to conce al the true leg al status o f t h e p arties or that the contra ct has been modified by a subsequent ag ree ment betwee n the parties. Newspapers, Inc. v. Love , 380 S.W .2d 582, 588–90, 592 (Tex. 1964); Farlow v. Harris Methodist Fort W orth Hosp. , 284 S.W .3d 903, 911 (Tex. App.—For t Worth 2009, pet. denied); Bell v. VPSI , Inc. , 205 S.W .3d 706, 713 (Tex. App.—For t Worth 2006, no pet.). Stroup does not contend, nor does the summary -judg ment re cord show, that the contra ct betwee n the parties was modified or chang ed by a s u b s eq uent ag ree ment betwee n the parties. See Ne wspapers , 380 S.W .2d at 584.

Taylor’s status as an independe nt contra ctor is expressly established by the terms of th e p a r ti e s ’ c o n tr a c t. T h e c o n tr a c t is e n ti tl e d “ I n d e p e n d e n t Co n tr a c to r A g r e e m e n t
. ” T h e f i r s t p a r a g r a p h

3provides that the “L icense e [ sic]” MRM “eng ag es Age nt [Tay lor] as an independe nt contra ctor to

assist clients of the Marke t Center [MR M] with the purcha se and sale of rea l estate.” Parag raph 2A allows that Ag ent (Tay

lor) understands that she is enter ing into the Ag ree ment as an independent contra ctor and not as an employ ee. Parag raph 2A states further that “Ag ent’s [Tay lor’s] independe nt contra ctor status will define the par ties’ re lationship despite any contra ry desig nation that appea

rs in Ag ent’s [Tay lor’s] real e state license .”

Other summary -judg ment proof confirms her status as an i ndepende nt contra ctor. She worke d as much or as littl e as she wanted. I n the eig ht y ear s befor e the c ollisi on, she handled only a few completed sales. She rec eived pay ment only when a sale of proper ty closed. Taxes wer e not withheld from any commissions paid by MRM. Taylor provided her own “tools,” namely , her

own car , business car ds, y ard signs, lock box es, and marke ting materia ls. She paid for some, if not all, of her associate training

. The contra ct require d ag ents to pay for acc ess t o t h e MRM I ntrane t and ema il sy stem. She also paid for he r licensing and assoc iation fee s.

Stroup does not rely on extri n sic summary -judg ment evidenc e to show that the p ar t i es ’ co n t rac t was a sham or subterfug e. See id. I nstead, she contends that other terms of t h e contra ct and MRM’s manual of Policies and Gui d el ines raise fac t issues as to whether the “true ”

c o n tr a c t c r e a

te d a ma s te r - s e r

v a n t r e la ti o n s h ip

. I

n th a t c o nn e c ti o n St

r o u p e mp h a s iz e s Se c ti o n 4

. 9

. 1

. 1 4 of the manua l of Policies and Guidelines:

4.9.1.14 Dre ss P olicy

I t is important that ev er y o ne who associate s with and repr esents Keller Wil liams R ea l t y do so in a profe ssional manner . Associates should conduct themselves prope rl y in public , kee p their car clean, drive c ourteously

and maintain a w ell-g roomed a ppear ance . 4Appea ranc e is the single most important impression fac tor y ou have. I t is important to be well-g roomed from a well-ke pt hairsty le down to ones shoes. We are profe ssionals; our manner and appea ranc e should ref lect this at all times. This dress code should include coming into a Mar ket Center on a

n associate [’s] day

off. (Emphase s supplied.)

Stroup reg ards this section as p articularly rele vant beca use Taylor’s deposition testimony was that she was looking for a car wash when t h e co l l i s i o n occur red. I n the briefing , Stroup claims that this sec tion “ require s” Taylor to ke ep her car clea n, and, as such, is an example of MRM’s rig ht of control over her. We do not ag ree . J essica Tena nt, an administrative employ ee of MRM, testified on deposition tha t MRM cannot tell its real estate ag ents how to ac t, what to do, and how to run the ir business, but MRM can “coa ch” them into being “more profe ssional.” To her rec ollection, no ag ent has bee n terminated f

or violation of MRM’s policies and g uidelines. Section 4.9.1.14 does not “re quire” an ag ent to keep her car clea n. Rather, it provides that her car “should” be clea n as part of prese nting a “we ll-g roomed appea ranc e.” Appea

ranc e, we

are told, is t he sing le m ost important impression fac tor an a g ent has. B y the sec tion, MRM hopes to assist the ag ent bec ome a more succe ssful sales per son of re al estate

.

Re c o g n iz in g that the parties’ independe nt-contr a c to r a g r e e me n t p r e s e n ts a f

o r mi d a b le obstacle to rec overy , Stroup arg ues that it is in conflict with the Texas Real Estate L i ce nse Act,

see generally Tex. Occ

. Code §§ 1101.001–.806 (“ t h e Act”) , and there fore void. Stroup claims that Section 1101.803 cre ates a master- serva nt r elationship betwee n the supervising broker and its sales ag ent, as a

matter of la

w: 5A licensed broker is liable to the commission, the public, and the broker ’s clients for

any conduct eng ag ed in under this chapte r by the broker or by a sales ag ent associate d with or ac ting f

or the broke r.

Id. § 1101.803. Stroup acknow ledg es that she has found no Texas authority supporting her arg ument, and we see nothing in the Act expressly or impliedly prohibiting a person sponsored by or associate d with a broke r fr om being classified a s an indepe ndent contra ctor.

The purpose of t h e Act is to eliminate or reduc e fra ud that might be cause d by unlicensed, unscrupulous, or unqualified persons or entities that eng ag e in the rea l e state business. See H enry S. M iller Co. v. Treo Enters. , 585 S.W .2d 674, 675–76 (Tex. 1979); Justice v . W illard , 538 S.W .2d 651, 653 (Tex. Civ. App.—Amar illo 1976, no writ). I ts purpose is not to hold broker s responsible for damag es resulting from an acc ident cause d by their sales ag ent when she was not eng ag ed in the selling of re al estate at the time of the a ccide nt.

St r o u p a r g u e s f in a ll y th a t M RM f a il e d to conclusively neg ate joint-enterpr ise liabil it y . The elements of a joint enter prise are that the parties have (1) an expr ess or implied ag ree ment; (2) a common purpose; (3) a community of pecunia ry interest; and (4) “an equal rig ht to a voice in the direc tion of the enter

prise, which g ives an equal rig ht of control.” St. Joseph Hosp. , 94 S.W .3d at 525–26. MRM maintains that at least two elements of a joint enter prise are m i s s i n g i n i ts rela tionship with Taylor: (1) a community of pecunia ry interest, and (2) an equal rig ht to a voice in the direc tion of the enter

prise which g ives an e qual rig ht of control.

6More than a share d bu s i n ess purpose is require d for “a community of pecunia ry interest” to exis t. Blackburn v. Columbia Med. Ctr. of Arlington Subsidiary, L.P. , 58 S.W .3d 263, 276 (Tex. App. —For

t Worth 2001, pet. denied)

. The court in Blackburn found that the lac k of evidenc e to “show a sharing of resour ces, pooling of funds, monetary investment, costs or benef its to either party ” demonstrated no more than a g ener al business interest and convenie nce to the parties. Id. at 266–67. Her e there is no summary -judg ment evidenc e that MRM or Taylor share d resour ces, p o oled funds, or jointly made monetary investments involving proper ties Taylor listed or sol d throug h MRM. I nstead, Taylor paid a p o rt ion of her commission from completed transac tions to MRM in exchang e for having her license sponsored by MRM and for allowing her the opportunity to take advanta g e of training , the office , and softwar e prog rams offe red by MRM to manag e her

rea l estate business.

And MRM did not have an equal voice or equal ri gh t t o control the manner in wh i ch T ay lor manag ed her listi ng s or sold proper ties. As discussed previously , Taylor was n o t

c o n tr a c tu a ll y b o u

n d to k e e p h e r c a

r c le a n . Ra th e r th e p o li c ie s a

n d g u id e li n e s ma

n u a l me r e ly s u g g e s te d that ag ents kee p their ca

rs clea n as a pa rt of MRM’s dress policy

. The summary

judgme nt is affirmed.

__________________________________________ Bob E. Shannon, Justice Be fore J ustices Pury ear , Toth, and Shannon* Affir med Filed: Oc tober 18, 2018

7* Be fore Bob E. Shannon, Chief J ustice (r etired) , Third Court of Appe als, sitting by assig nment. See Tex. Gov’t Code § 74.003(b).

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