## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00089

- CV

MARTIN MATA , AND WIFE ENNA FERNANDEZ MATA INDIVIDUALLY AND FABRIZIO MATA , Appellant s V. ARGOS USA LLC , Appellee s

On Appeal from the 61st District Court Ha rris County, Texas Trial Court No. 2018

- 62967

- D

Before Morriss, C.J., Stevens and Carter , * JJ. Memorandum Opinion by Justice Stevens

____________________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### ME MORANDUM OPINION
O n the afternoon of April 3, 2018, another driver lost control of his vehicle and struck the passenger side of Martin Mata ’s vehicle, forcing him into a lane of traffic occupied by a tractor

trailer owned by Efrai n Lozano d /b/a Lozano Trucking (Lozano) and driven by Luis Her n andez.
Ma rtin ’s vehicle struck the right quarter panel of Lozano’s traile r, became lodged underneath the trailer , and was dragged until Hernandez could stop the vehicle. As a result , Ma rtin and his family ( collectively the Mata s ) sued , among others , Loza n o , Hernandez, Spiritual Logistics LLC (Logistics), River Aggregates LLC ( Aggregates ), and Argos USA LLC (Argos USA) for the injuries they allegedly suffered as a result of the accident. 1 The Matas appeal the summary judgment in favor of, and the dismissa l of all of their c laims against , Argos USA. For the reasons stated, we affirm the trial court’s summary judgment and dismissal of all the Matas’ claims against Argos USA.
I. Background
In their live petition , the Matas alleged that Lozano and Herna ndez negl i g e ntly caused the
Matas ’ injuries because they failed to equip their trailer with side underride guards, were speeding , failed to timely apply the brakes , f ailed to properly maintain the brakes on their vehicles , and failed to take a thirty

- m inute break i n e i g ht hours

. They alleged (1) that Argos
USA was vicariously liable for the negligent acts an d omissions of Lozano and Hernandez under the Federal Motor Carrier Safety Regulations (FMCSR) and the Texas Transportation Code,

1 Originally appealed to the Fourteenth Court of Appeals, this cas e w as trans ferred to this C ourt by the Texas Supreme Court pursua n t t o its docket equa lization efforts

. See T EX
. G OV ’ T C ODE A NN . § 73.001. We are u naware of any conflict between pre cedent of the Fourteenth Court of Appeals and t hat of this Court on any r ele va nt iss ue. S ee T EX . R. A PP . P. 41.3.3

(2) that it was li able for t he n egligent h i ring of Loz ano and Hernandez both at common law and under the FMCSR and the Texas Transportation Code because Logistics was its agent, (3) that it had assumed a duty to ensure the safety of Lozano’s tractor/trailer by its int ernal safet y pol ic ie s , (4) that it was negligent per se because it violated the FMCSR and the Texas Transportation Code , and (5) that its actions also constituted gross negligence. Argos USA filed a traditional motion for summary judgment as to t he Matas ’ negl igenc e cla im s against it , and both a traditional and no

- evidence motion for summary judgment as to their claim for gross negligence. In its motion, Argos USA assert ed that it owed no duty to t he
Matas under the FMCSR because (1) the tractor/trailer was n ot in volve d i n interstate commerce

a n d (2) Argos was a shipper of the property being transported, no t a transporter of the property. It also asserted that it was not a motor carrier under the Texas Transportation Code becaus e it did not control, op erate , or d irect the o peration of Lozano’s t r actor/trailer or its driver. As to t he
Matas ’ common

- law negligence claims , Argos USA asserted that it did not owe t he Matas a duty because (1) neither Logistics nor Lozano w as its agent, (2) it did not contro l or ha ve t he rig ht t o control the means and d etails of how the work was performed by Logistics or Lozano, (3) it was not an employer of Lozano or Hernandez, and (4) it di d not have a statutory or regulatory duty to maintain or monitor Lozano’s tractor/tra i ler. Rega rding t he Ma tas ’ claim for gross n e gligence , Argos USA asserted that (1) it had no duty to t he Matas , (2) since it was not negligent, gross negligence was precluded, and (3) there was no evid e nce that its acts or omissions involved an extreme ri s k or t hat it was sub je ctively aware of an ex t reme risk. Argos USA also moved to4

sever t he Matas ’ claims against it from the remainder of the case after the trial court granted its summary judgment motion

. In their response to the motion for summary jud g ment , t he Matas argu ed that (1) Argos
USA di d not show , as a matter of law , that it was entitled to summary judgment on t he Matas ’

common - law negligent hiring claim; (2) Argos USA had a duty to hire competent independent contractors; (3) Argos USA breach e d that dut y by f ailin g to investigate Logisti cs and Lozano; (4) Argos USA had a duty to investigate safety practices of Logistics ; (5) Argos USA failed to follow its own safety policies; and (6) failure to follow its own policies was some evidence of
gross ne g ligenc e . The Ma t as also argu ed that Argos US A w as vicariously liable for Logistics’ s and Lozano’s negligence since they were Argos USA ’ s agents by virtue of it having its own Department of Transportation (DOT) number and cho osing to confer its authority o nto Lo gistics ,

u s in g Logistics to arrange for trucks o n a daily basis for eight years, and requiring that deliveries arrive at Argos USA ’ s facility at a certain time. After Argos USA filed a reply to t he Matas ’ response and objected to some of the

ev i dence that t he M atas f il ed in support of their response, an d after t he Matas filed sur

- replies and additional evidence, the trial court granted Argos USA ’s summary judgment motion,
dismissed all t he Matas ’ claims against Argos USA , and severed t he Mata s ’ clai ms agains t Argos
US A from the original lawsuit.
II. Sta n dard of Review

“ Our review of a summary judgment is de novo. ” Reg ’ l Specialty Clinic, P.A. v. S.A. Randle & Assoc s. , P.C. , 625 S.W.3d 895, 900 (Tex . App.

— Houston [14 th Dist.] 2021, no pe t.)5

(c iting Valence Op erating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005) )

. “ Because the trial
court ’ s summary judgment does not specify the ground or grounds on which it was granted, we uphold the court ’ s judgment if properly supported by any groun d assert ed in the motion

. ” Id

. (cit in g Carr v. Brasher , 776 S.W.2 d 567, 569 (Tex. 1989) )

. “ When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inferenc e and resolve any doubts in the n onmova nt ’ s f avor. ” Id

. (citing Do rs ett , 164 S.W.3d at 661 )

.

“ T o b e entitled to traditional summary judgment, a movant must establish there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. ” Id

. (citing T E X . R. C IV . P . 166a(c ); Mann Frankf or t Stein & Lipp Advisors, In c. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009) )

. “ A defendant who conclusively negates a single essential element of a cause of action or conclusively establishes an affirmative defense is en titled to

su mmary judg ment on that c laim. ” Id

. (citing Frost N at’ l Bank v. Fernandez , 315 S.W.3d 494,
508

– 09 (Tex. 2010) ). “ Once the movant produces evidence entitling it to summary judgment, the burden shifts to the nonmovant to present evidence raisi ng a gen uine i ssue of ma terial fact. ”
I d

. at 900

– 01 (citing Walk er v . Harris , 924 S.W.2d 375, 377 (Tex. 1996) )

. “ Evidence is

c onclusive only if reasonable people could not differ in their conclusions. ” City of Keller v. Wilson , 168 S.W.3d 802, 816 (Tex. 20 05 ) ).
III. Argos USA Produc ed Sufficie nt Evidence to Entitle It to Summ ary Judgment
In their first and second issues, t he Matas complain that the trial court erred in granting summary judgment on the issue of duty based on the applicability of federal and sta te sta tutes6

and regula tions and o n t he Matas ’ common - law agen cy a nd negligent hiring causes of action because Argos USA purportedly relied o n a no - evidence standard , rather than the traditiona l summary judgment standard. Although t he Matas brief these is sues t ogethe r, we will address the m separately

. A. Argos USA’s Li abil ity Under the F ederal Regulations In support of its motion for summary judgment, Argos USA produced evidence that showed that , when it had a load of sand or aggregate it needed delive re d to i ts pla nt, it wou ld contact Logist ic s and give it the quantity it n eeded and would instruct it where the loads were to be delivered. Although Argos USA opened at 6:00 a.m. and had a time after which it would not receive loads, it did not direct Logis ti cs what time t o deliver the loads. L og istics acted as a broker and co ntac ted available trucking companies to obtain and deliver the loads, but Argos USA never gave it qualifications for the trucks or direct ed its operational activity. Argos USA also d id n ot pro vide L ogistics w ith any direct io n or requirements as to findin g dr ivers. When Argos USA hired Logistics to deliver sand from Aggregates , it never specified the equipment to use or which trucking company to use. In addition, on the day of the ac cide nt, Lo zano w as operati ng under his o wn DOT number. Argos US A also p rodu ced evidence that Lozano never received any instruction from Argos USA and that Logistics , not Argos USA, told it where to pick up the load

. Other than instructi ng L ozano where to unload at its plant, Argos USA did not t ell Logistics how to do its jo b or giv e it any instruction regarding the maintenance of its vehicles. When Logistics contacted Lozano to deliver loads for Argos USA, it told Lozano the day to de live r the loads, but7

did n ot tell it the time of day to del iv er them. It was Lo zano’s option on ho w ma ny loads it would accept to deliver in a day. Argos USA’s evidence also showed that it did not have a written contract with Logistics and that it never had a con tract with Lozan o. Loza no’s representative also t es tified that it did not know if it would ha ve p ut side underride guards on its trailer if Argos USA had requested it do so , since Argos USA had no control over its vehicles

. In addition , Argos pro duced eviden ce that it hir ed Logistics as a broker to eng a ge trucking comp anies to haul sand and aggre gate it had purchase d from Aggregates in Conroe, Texas, to its plant in Tomball, Texas. It also produced undisputed evidence that , o n the date of the acc ident, Logis t ics hired Lozano to haul the sand from Aggre g ates to Argos USA’s plant in
Tomball.

“ Gene rall y, an employer has no duty to ensure that an independent contractor performs its work in a safe manner. ” Fifth Club, Inc. v. Ramirez , 196 S.W.3d 788 , 791 ( Tex. 2006) (cit ing
Lee Lewis Constr., Inc. v. Harr i son , 70 S.W.3d 778, 783 (Tex. 2001) )

. Howeve r, “ if the work itself in volves a nondelegable duty, whether inherently dangerous or statutorily prescribed ,” the

em ployer is “ generally held liable for an ind epende nt contrac tor’s tortious acts. ” Id

. at 795.
T he FM CSR creates a nondelegable duty for “ motor c arriers authorize d to operat e by the Federal Motor Carrier Safety Administration

. ” Rodriguez v. Panther Expedited Serv s. , Inc

. , No. 04

- 17

- 00291

- CV , 2018 W L 3622 066 , at * 6 (Tex. App.

— San Antonio July 31, 20 1 8, pet. denied) (mem. op.) (citing Morris v. JTM M aterial, Inc

. , 78 S.W.3d 28, 38 (Tex. App.

— Fort Worth 2002, no pet.); 49 C.F.R. § 376.1 ). “ [ B]ecause u nder the FMCSR interstate motor carriers have a leg al rig ht and dut y to control leased vehicles that a r e operated for their benefit, the8

regulat i ons crea te a statutory employee relationship between the employees of the owner

- lessors and the lessee

- carriers. ” Id

. (citing Motloch v. Albuquerque T ortil la Co. , Inc

. , 454 S.W. 3d 30,
3 8

– 39 (Tex. App.

— Eastland 20 1 4, no pet.) )

. As a result, “ an interstat e motor ca rrier is vicariously liable as a matter of law under the FMCSR for the negligence of its statutory employee d rivers. ” Id

. (citing Motloch , 45 4 S.W .3d at 39 )

. Neverthele ss, “ the Texas Supreme Court has he l d that when analyzing whether a defendant i s a motor carrier, a court must focus on the specific transaction at issue, not merely whether a defendant is certified as a motor carrier. ” Id

. (cit ing G onzale z v. R amirez , 46 3 S.W.3d 499, 506 (Tex. 2015) (pe r c uriam) (citing Camp v. TNT Logistics Corp

. , 553 F.3d 502, 507 (7th Cir. 2009); Harris v. Velichkov , 860 F. Supp. 2d 970, 979 (D. Neb. 2012), aff’d , Harris v. FedEx
Na t’l LTL , 760 F.3d 780 (8th Ci r. 20 14)) ). This means tha t “ possession of a motor carrier
li c ense is not determinative of the applica b ility of the regulations; rather, the critical inquiry is what capacity the defendant was acting during the transaction or incident. ” Id

. (citing Camp , 553 F.3d at 507 ). “Feder al courts have specifically held th a t shipper s who engage independent
contra c tors to t ransport goods are not subject to the FMCSR. ” Id

. (citing Harris , 860 F. Supp. 2d at 979; Caballero v. Archer , Civil Action No. SA

- 04

- CA

- 561

- OG, 2007 WL 62 8755, at *4 (W.D . Tex. Feb. 1, 2007) (order) )

. In i t s traditional motion for summary judgm e nt, Argos USA asserted that the FMCSR was not applicable on two bases : ( 1) the transportation of the goods d id not involve interstate

commerce and (2) i n thi s tran sactio n , Argos U SA was a shipper, not a motor carrie r . On appeal , t he Matas contend that the tr i al court erred in granting summary judgment on their claims based9

on Argos USA’s alleged duties under the FM C S R because Argos USA relied on the Texa s Sup reme C ourt’s holding i n Gonzalez v. Ramirez that the FM C S R applies “ only to transportatio n in interstate commerce, ” 463 S.W.3d 499, 50 2 (Tex. 2015) (per curiam) , and that Argos USA argued that there was no evidence that Lozano was hired to trans port property acros s stat e lines. The Matas argue that , because in G o nzalez , the c ourt was addressing a no

- evidence s ummary ju dgement, and Argos USA only argued no evidence for this basis , the trial court erred in granting summary judgment on this claim.
I n their b rief o n appe al , t he Ma tas do not challenge the other basi s for summary judgment on the claims based on th e inapplic ability of the FMCSR to Argos USA , i.e., that , in this incident , it was a shipper, not a transporter. “ When, as in the present case, a movan t asse rts

mu ltiple gro unds for summary judgment, and the t rial court does not specify in the order the
grou n d on whic h summary judgment was granted, the appellant must negate all grounds on appeal. ” Heritage Gulf Co ast Prop s. , Ltd. v. Sandalw ood Ap artment s , Inc

. , 416 S.W.3d 64 2 , 653 (Tex. App.

— Houston [14 th Dis t .] 2013 , no pet.) (citing Star

- Telegram, Inc. v. Doe , 915 S .W.2d 471, 473 (Tex. 1995); Lewis v. Adams , 979 S.W.2d 831, 833 (Tex. App.

— Houston [14th Dist.] 1998, no pet.) )

. “ If the appe llant fails t o chal lenge a ll ground s on which the judgment may have be e n granted, the appellate court must uphold the s u mmary judg ment. ” Id

. ( citing Lewis , 979 S.W.2d at 833; Fields v. City of Tex

. City , 864 S.W.2d 66, 68 (Tex. App.

— Houston [14th Dist.]
1 993, writ den ied) )

. Beca use the tr ial court could have based its summ a ry judgment on the10

undisputed evidence that show e d that , at the t ime of the accident , Argos USA was the shipper, 2
not a motor carrier under the F MCSR, which was not challen ged on appeal , we m ust af f irm the

s ummary judgment on t he Matas ’ cla im s based on an y duty arising under the FMCSR. To the exten t that t he Matas ’ brief can be construed as a challenge to the legal sufficiency of the evidence supporting the trial court’s sum mary judgment on th ese cl aims , t he Matas do not mention the evidence p roduced by Ar g os USA or analyze how the evidence was insu f ficient , d o
not cite any a uthority that would support an argument that the evidence was insufficient , and do
not offer any citations to the re cord t hat wo uld suppor t a complaint that the evidence pr oduced by Arg o s USA was insufficient. However, our appell a te rules r equire that “ [t] he brief must contain a clear and concise argument for the contentions made, with appropriate ci tations to authorit ies an d to t he record

. ” T EX
. R. A PP . P. 38.1(i)

. As a result, we co n clude that any complaint that the evidence i s legal ly i n sufficie nt i s inadequately briefed and waived. See Rahman v. Foster , No. 05

- 16

- 01042

- CV , 2018 WL 1373890 , at * 2 (Tex. App.

— Dallas Mar

. 19,
20 18 , no pet .) (mem. op.) ; Brown v. Bank of Am ., N.A. , No. 0 1

- 14

- 00725

- CV, 2015 WL 4760201, at *5

– 6 (Tex

. App.

— Hous ton [1st Dist.] Aug. 13, 2015, no pet.) (mem. op.) ; Teter v. Comm’n for Lawyer Discipline , 261 S.W.3d 796, 799 ( Tex. App.

— Dallas 20 08, no pet.) ; Smith

2 In its summary judgme n t m ot ion addressing this gro und, Arg o s USA did not make a no

- evidence argument, but , rather , it argued that the evide nce showed that it was a shipper. In t heir response to the motion for summary ju dgm ent, t he Matas d id not address this issue.11

v. Comm ’ n for Lawyer Discipline , 4 2 S.W.3d 362 , 3 6 3

– 64 ( Tex. App.

— Houston [14 th Dist.]
2001 , n o pet. )

. 3
B. A rgos USA’s Liability Under the Texas Transportation Code
In Gonzalez , the Texas Supreme Court also considered wh ether a shipper can be li able a s
a motor carrier under the Texas Transp o r ta tion Code and its accompanying regulations. The

c ourt not ed tha t “ Texas ha s adopted many

— but not all

—

parts of the Federal Regulations, as well as their federal interpretations. ” Gonzalez , 463 S.W.3 d at 5 0 3 (ci ting 37 T E X
. A DMIN
. C ODE § 4.11(a), (b)(3 ) )

. 4 “ The Texas R egulations apply to ‘ commercial motor vehicles ’ and hold

‘ moto r carriers ’ responsible for their ‘ employees. ’ ” I d

. ( citing 37 T EX
. A DMIN
. C ODE § 4.11(a); 49 C.F.R. §§ 387.1, 390.3(a), 39 0.11, 391.1, 396.1 ). “ Texas law defines ‘ motor carr i e r ’ in pertinent part as ‘ an individual

. . . or other legal entity t hat contro ls, operates, or directs the operation of one or more vehicles that transport persons or cargo. ’ ” Id

. ( quoting T EX
. T RANSP
. C ODE A NN
. § 643.001(6 ); 37 T EX
. A DMIN
. C ODE § 4.11( b ) (1 ) )

.

“ In ana l yzing whether a defendant is a motor carrier, we fo c us on the specific transaction at issue. ” Id

. at 504 (citing Camp , 553 F.3d at 507; Velichkov , 860 F.Supp.2d at 9 79)

. Thus, an indiv idual or leg al entity is a “motor carrier ” (and ther e f or e responsible for its “employees”) if it

“‘ control[led], operate[ d ], or dire ct[ed] ’ the operation of the truck ” during the transaction or incident

. Id

. (quoting T EX
. T RANSP
. C ODE A NN
. § 643.001(6) )

. At t he sam e time , an entit y that

3 Even if t h e Ma ta s had properly challen ged the su fficiency of the e vidence and challenged Argos USA ’s ground that the FMCSR did not apply to it because at the time of the accident it was a shipper, not a mo tor ca rrier, we would find that Argos USA produced sufficient e vi de nce to entitle it to s ummary j ud gment on that ground.

4 “ Accordingly, we look to f ederal case law for guid ance. ” Gonzalez , 463 S.W.3d at 503 n. 10 (citing R.R. St. & Co. v. Pilgrim Enters., In c . , 166 S .W.3d 232, 241 (Tex. 2005 ) ).12

instructs the tran s p or ter of goods w here to pick up and deliver the goods , and that does not

c o ntrol, ope rate, or direct the operation of the truck, acts as a shipper , not a motor carrier , and i s not liable for the torts of the t ranspo rter. See id

. a t 505

– 06.
In their firs t is sue, t he Mata s also challenge the trial court’s summary judgment on thei r claims ba sed on liability under the Texas Transportation Code

. The Matas assert that the trial

co urt erred because Argos USA relied on Gon zalez , a no - evid ence summary judgment c a s e, and included a statement in its argument that there was no evidence tha t it contro lled, operated, or directed the operation of Lozano’s truck. However , t he Matas do not e xplain how reliance on the law gove rning the li ability of motor carriers and non

- l ia bility of shi p pers under the Texas Transportation Code as set forth in G o nzalez is improper in a traditional summary judgment motion, and they cite no authority holding tha t it is improper. Further, in thei r brie f , t he Matas do not mention any of the e v id ence produced by Argos USA in support of its summary judgment motion , and they ignor e Argos USA’s argument in its motion that it was not acting as a motor carrier at the ti me of the accident , but as a shippe r , and there fore was n ot liable un der the Tex a s T ransportation Code and its regulations. Finally , Argos USA produced e vidence that it did not control, op erate, or di rect eithe r Logistics or the oper a t io n of Lozano’s truck and that , at the time of the accident , it was a shippe r . T he Matas fail to expla i n how the tria l court err ed in granting the traditional motion for summary judgment simply b ecause Argos USA also pointed out that there was no evidence to the contrary

. The Mat as also do not cite any authority s upport ing an argument that it would be error t o g rant sum mary ju dgment under these circumstance s .13

To the extent that t he M a tas ’ brief can be construed as a challenge to the legal sufficiency of the evidence supporting t he trial court’s summary judgment o n thes e clai ms, t he Ma tas do not mention the e v id ence pro duced b y Argos USA or analyze how the evide nce was insufficient, do not cite a ny authority that would support an argument that the evidence was insufficient, and offer no reco rd citations tha t woul d support a complaint that the evidence produce d by Argos
U SA wa s insufficient. As a re sult, we conclude that a n y complain t that the evidence is legally insufficient is inadequately briefed and waived. 5 See T EX
. R. A PP . P. 38.1(i) ; Rahman , 20 18 WL 137389 0 , at *2 ; Brown , 2015 WL 4760201 , at *5

– 6 ; Tete r , 2 61 S.W.3 d at 79 9 ; Smith , 42 S.W.3d
at 363

– 64

. For the reasons stated, we find that the trial court did not err in granting Argos USA’s

su mma ry judgment on t he Matas ’ claims based on liability u nder t he FMC SR and the Texas Transportation Code. W e , ther e f or e, overr ule t he Matas ’ first issue

. C. A rgos USA’s Liability Und e r the Comm on Law As stated earlier, an employer generally “ has no duty to ensu re that an independent contractor performs its work i n a sa fe man ner. ” Fif th Club, Inc. , 196 S.W.3d at 791

. E v en s o , it

“ c an be h eld vicariously liable for its independent con t ractor’s a ctions if the owner retains some control over the manner in which th e contractor performs the work that causes the damage

. ”
Go nzalez , 463 S.W. 3d at 506 (citing Fifth Club, Inc. , 1 96 S .W.3d at 791 )

. But an employer

“ ‘ can direct when and where a n independe nt contractor does the work and can request

5 Even if the Matas h a d pr operly challeng ed the sufficie nc y of the evidence supporting the trial court’s sum mary judgment on its claims b ased on Argos USA’s alleged liability under the Texas Transportation Code, we wou ld find t hat Argos USA produced sufficient evidence that it did not contro l, oper ate, or di rec t either Logistics or the operation of Lozano’s truck ; that , at the time o f the accident , it was a shipper, not a motor carrier ; and that , as a matter of law , i t was not liable under the Texas Transportation Code.14

information and reports about the work ’ without assuming vicarious liability. ” Id

. (quot ing Fifth Club , Inc. , 196 S.W.3d at 792 )

.

“ A n a gen t is one who i s authorized by a person or entity to transact b u siness or manage some affair for the person or entity. ” Coleman v. Klockner & Co. AG , 180 S.W.3d 577 , 588 ( Tex. App.

— Houston [14 th Dist. ] 2005 , no pet. ) (citing Townsend v. Univ. Hosp

. - Un i v . o f Colo

. , 83 S. W. 3d 913, 921 (Tex. App.

— Texarkana 2002, pet. de n ied) ). “ T he critical element of an agency relationship is the right to contro l, and the principal must have control of both the me ans

an d deta ils of the process by which t he agent is to a c c omp l ish his task in order for an agency relationship to exist. ” I

d

. (citing Townsend , 180 S. W .3d at 921)

. “ Absent proof of the right to
contr ol the means and details of the work performed, only a n inde penden t contract or relationship is established. ” I

d

. (c i ting Hap

py In du s. Corp. v. Am. Specialties, Inc

. , 983 S.W.2d 8 44, 852 (T ex. App.

— Corpus Christi 1998, pet. dism’d w.o.j.) )

. 6
In their seco nd issue, t he Matas assert that the trial court erred in gra nting summary ju dgment on their common - law claims b a s ed o n duty, a gency , and negligent hiring because Argos USA relied o n Gonzale z , a no - evidence summary judgment case, and included a statement
i n its argument that there was no evidence that it had any co ntrol over the p erformance of the

w ork of Logistics o r Lo z ano . The M atas ’ brief ignores the extensive argument by Argos US A in

6 I n t he ir live petitio n, t he Matas alle ged that Logistics was the agent of Argos USA, that Lo gistics as an agent o f Argos USA was negligent in hiring and retaining Lozano , and that Argos USA was l iabl e f or th e actions of its agent. They also alleged a caus e of a ction for the n egl igent hiring o f L ozano based on its alleged non

- delegable du ties und er the FMC SR and the Texas Transportation Code that we have previously discussed

. The Matas also alleg e li ab i lity under Sect ions 402, 411, 424, and 427 for the neg l i ge nt hiring of Loza no . However, bec aus e Logistics hired Lozano, n ot Argos USA, this th eory of liability also appears to rest on either Logistics being the agent of Argo s US A or Ar gos US A be ing a motor carrier under the FMCSR and the Texas Transportatio n C od e in regard to th e accident.15

its su mmary judgment motion that the evidence showed that it did not control or have a right to control the me ans and details of the work of Log istics or Lozan o and its relian c e on authorities
ot he r than Gonzalez

. In fact, in this portion of the summary j udgment m otion, Argos USA did not rely on Gonzalez

. The Matas also do not mention in their brief any of the evidence produced by Argos USA i n support of its summary judgment m o tio n . Finally, t h e Matas fail to explain how the trial court erred in granti ng the trad itional summary judgment when Argos USA
pr oduced evid ence that it did not control and did not have the right to control the me ans an d details of the work of either Lo g i sti c s or Lozano, s im ply because Argos USA also pointed out that there was no ev idence to the contrary. The Matas also do not cite authority supporting an argument that it would be error to grant summary judg ment u nder t hese circu mstances. To the exten t tha t t he Matas ’ br ie f can be construed as a challenge to the legal sufficienc y of the ev idence supporting the trial court’s summar y judgment on these claims, t he Matas do not mention the evidence produced by Argos USA or analyze h ow the evide nce was insu f f ici e nt, do not cit e any authority that would support an argument that the evi de nce was i nsufficient, and do not make any citations to the record that would support a complaint that the evidence produced by Ar gos US A was insufficie nt. As a re sult, we con c l ude that any compl ai nt that the evidence is legally insufficient is inadequat el y briefed and waived. 7 See T EX
. R. A PP . P. 38.1(i) ; Rahman ,

7 Eve n i f t he Matas had properly c hallenged the suffici ency of the evidence supporting the trial court’s summary judgment on its common - law c l ai ms, we would f ind that Argos USA produced sufficient evidence that Logistics wa s it s independent con tractor, that Loz ano was Logistics’ s independen t contractor, and t hat Argos USA did not have actual control or the right to control Logistics’ s or Loz ano’s pe rfor man ce of t heir work. For that reason, we would find that , as a matter of l aw , Argos USA was n ot liab le to t he Mat as for the torts of Logistics or Lozano and that it owed no duty to t he Matas to ensure that Logistics and Lozano performed their work safely.16

2018 WL 1373890 , at *2; Brown , 2015 WL 4760201 , at *5

– 6; Teter , 261 S.W.3d at 79 9 ; Smith , 42 S.W.3d at 363

– 64

. Sin c e t h e Matas ’ second i ssue has not shown any trial court error, w e overrule it

. I n their third issue , the Matas assert that summary judgment on their common - law claims was improper becaus e there w ere ge nuine issues of material fact that precl u d e s u mmary judgment. The Matas p oi nt to the following evidence:
1. Argos USA re tai ned Logist ics to obtain trucks and drive rs since 20 13 to deliver raw materials, sometimes as often as eight to ten deliveries per day. 8
2. Arg os USA ’s o wn safety policies set f o r th i n a document en titled “Road Sa fety Best Practices Guideline” r ega rding the hiring of contractors (a) ack nowledge d the safety r isks inherent in hiring con tactors, (b) required contractors to comply with pre

- selec tion r equire ments, and (c) required con t r act o rs hired for of f

- site transp or tation to have a safe t y management pro cess for ro ad safety that inclu d e d that its vehicles pass inspections an d that it repair any found defects

. 3. The testimony of Jesse Belmon, Argos US A’s sa fety r epresentat ive that (a) A rgo s USA ha d not ad opted the saf et y standards for contractors, (b) that he had not addressed risks re garding contractors , (c) that Argos USA h ad not applied the road safety elements in pre

- selecting contractors , (d) that he di d not know if Lo zano had a r o a d s a fety policy , an d (e) th at he d id not know whether Argos USA had a s ystem to find and repair defec ts in contractor’s vehicles

. 9
4. Testimon y that Argos USA did not require an application from Logistics. The Matas ar gue th at , be cause ther e was eviden c e th a t Argos USA rec ognized the r is k of hiring outside contractors but d id not follow its own safety po licies in hiring them , this was

8 Altho u gh t h e Mat as po int to this evidence, they fa il to ana lyze how thi s fa ct would create a ny liability for Arg os USA for the torts of Logistics.

9 Belmon also testified that he had never seen the “ Road Safety Best Practices Guideline” before his deposit ion

. B y a ff idavit , he also testified that the document w as not a manual i n us e by Argos USA and that the manu al apparently originated with an Argos entity i n Colombia.17

sufficie nt to create a genuine issue of material fact as to whether Argos USA was negl igent and
gr ossly negl igent

.

“ A le g a l d u ty must exist b efore a defen da nt can be liable for negligence. ” En tex, A Div. of Noram Energy Cor

p. v. Gonzalez , 94 S.W.3d 1 , 4 ( Tex. App

. — Houston [14 th Dist.] 2002 , pet. denied ) (citing Reeder v. Daniel , 61 S.W.3d 359, 3 64 (Te x. 2001) )

. “ Whether a d u ty exists is a
que stion of law fo r the court to decide from the facts surrounding the occurrence in q uestion. ” Id

. (citing Thapar v. Zezulka , 994 S.W.2d 635, 637 (Tex. 1999) )

. A company’s internal polic ies , taken alon e , do not es tablish th e standard o f c ar e . FFE Transp. Serv s . , Inc. v. Fulgham , 154 S.W.3d 84 , 92 ( Tex. 200 4)

. Likewise, a company’s inte rnal policies or procedures “do not crea te a negligence duty where none would otherwise exist.” Entex , 94 S.W.3d at 1 0 (cit ing Ja cobs

Cathe y Co. v. Coc k r u m , 947 S.W.2d 288, 291

– 92 (Tex. A pp.

— Waco 1997, writ denied) ; Estate

o f Catlin v. Gen. Motors Corp

. , 936 S.W.2d 447, 451 (Tex. App.

— Houston [ 14th Dist.] 1996, no writ) )

. For that reason, even assuming that the “Road Saf ety Be st Pra ctices Gui deline” is
p r o p er l y before us, 10 i t is not suff ic ient by itself to create a duty on th e part of Argos USA toward
t he Matas

. Nevertheless, t he Matas argue th at the affidavits of their expert s establishe d that duty , the standard of car e, and Argos USA’s bre ach of duty

. T h e M atas cite us to the entire i ni tial affidavit of its expert, Brian K. Jones, consisting of approxim ately eighteen pages, and to Jones’s

10 In the trial court , Argos USA objected to the admission of this document because it lacked auth entica ti on. The trial court did not rule on that o bjec tion. On appeal, t he p arties dispute whethe r Ar gos USA’s objection to t he Matas ’ proffer ed authentica tion was an objection as to its fo rm, which is waived if not ruled on by the trial court, or an obj ection to i ts s ubstance, which is not waived by the lac k of a trial cour t ru li ng. See Wakefi eld v. Wel ls Fargo Bank, N.A

. , No. 14

- 12

- 00686

- CV , 2013 WL 6047031 , at *2 (Tex. App.

— Houston [14 th Di st.] Nov. 14, 2013 , no pet.) (mem. op.)

. Because the result will be the s ame whether we consider th e evidence or not , we need not deci d e t he nature of the object ion.18

en tire supplemental affidavit with its attachment s , consisti ng of almost 300 pag es, wi thout identifyin g which pages c o nt a in the relevant portions. W e have reviewed Jones’s initial affida vit and have determined that it does not mention Argos USA at all and expresses no opinion as to its duty, the applicable standard of care , or any b reach of dut y by Argos USA. Our re v i e w o f Jones’s supple mental affida vi t reveals that it quotes at length from the “Road Safety Best
Pract ices Guideline ,” but only expresses the opinion that Argos USA was in violation of its own policies and procedures a nd tha t it f ailed to c omply with th e o b jec t ive stated in t he po licies.
J ones does not express an opinion r egarding Argos USA’s duty, the s tandard of care , or Argos USA’s breach of any duty.
Even indulging every reasonable inference in favor of t he Matas , this e videnc e only sho ws that Argos U S A ma y have had inter nal safety po li cies regarding the hiring of contr actors that it failed to follow. Because a company’s internal safety p olicies do not establish a standard of care or duty , this evidence is insuffic ient t o rais e a genuin e issue of ma te r i al f act of any duty on the part of Argos USA

. Without a legal duty , a claim for negligence fails. See Fulgham , 154 S.W.3d at 92

– 93; Entex , 94 S.W.3d at 9

– 11

. Likewise, withou t a legal duty there can be no
gross neg ligenc e. Se e Shell Oi l v. Humphrey , 8 8 0 S

. W .2d 170, 174 ( Tex. App.

— Hou st on [14 th Dist.] 1994, writ denied) ( a finding of gross negligence requ ires a finding that the defendant

o wed a duty of care to the plaintiff). We , therefore, overrule t he Matas ’ thi rd iss ue. Fi nally, alt hough t he Mat as d o no t designate it as one of thei r issues on appeal , in their discus sion of the first two issues , t he Matas argue that the trial court erred in granting summary judgment on all their common - law claims because Argos USA did n ot spe cifically identify each19

o f t he claims in it s motion for sum ma ry judgment. The Matas a rgue tha t , in their live pet ition , t he y ass erted the following claims that were not addressed in the motion for summary judgment : 1. Argos USA “ had a common law duty t o keep the road s safe for the g e ne ra l public ” ; 2. A rgos USA “ volu nt arily assumed a duty to Lozano to require a safe truck ” ; 3. Argos USA should have warned Lozano to “ instal l side underride guards in or about 2014 ” ; 4. Argos USA owed a duty to t he Mat as to “ mak e t he traile r safer by equi p p in g it with automat ic brake adjus te rs, working brake lights and sid e underride guards ” ; and
5. Argos US A had a non - delegable duty to direct “ L ozano truck to operate in a safe condition while it was on their property

. ”
As t he Matas point out , “[s ] ummary j u d gm en ts

. . . may on ly be granted up on grounds expressly asserted i n the summary judgment motion. ” G & H Towing Co. v. Magee , 347 S.W.3d 293 , 297 (Tex. 2011) (per curiam) (citing T EX
. R. C IV
. P

. 166a(c) )

. Furt her , “[g ] ranti ng a

s ummary jud gment on a cla i m n ot addressed in t he summary jud gm ent motion

. . . is, as a general rule, reversible error. ” Id

. (citing Chessher v. Sw. Bell Tel. Co

. , 658 S.W.2d 563, 564 (Tex. 1983) (per curiam) )

. However , in G & H Towi ng , the c ourt also recognized that the harmless e rr or rule applies
t o summary judg me nts. Id

. For that r eason, “ [a] lthough a trial court errs in gra nting a summary judgment on a cause of action not expressly presented by written motion,

. . . the error is ha rmle ss whe n the omitted ca use of action is p r e cl ud ed as a matter of law by othe r grounds raised in the case. ” Id

. at 297

– 98 (citing Withrow v. Sta te Farm Lloyds , 990 S.W.2d 432, 437

– 38 (Tex. App.

— Texarkana 1999, pet. denied ) )

. Thus, a summary judgment may be affirm ed eve n20

though t he “ motion omitte d on e of multiple cau ses of action, w hen the omitted groun d was intertwined with, and precluded by, a g round addressed in the motion

. ” Id

. at 297 (citing Zarzosa v. Flynn , 266 S.W.3d 614, 621 (Tex. App.

— El Pas o 2 008, no pe t.) ; W ithrow , 99 0 S.W.2d at 437

– 3 8 ; V

og el v. Travelers Indem. Co. , 9 66 S.W.2d 748, 754

– 55 ( Tex. App.

— San Antonio 1998, no pet.); Cissne v. Robertson , 782 S.W.2d 912, 918 ( Tex. App.

— Dallas 1989, writ denied) )

. A review of t he Matas ’ live petiti on sho ws tha t thei r assertio n of each of the o m i tt ed causes of acti on was based o n their allegations th at Argos USA had the right to control the safe ty features of Lozano’s truck , that Argos USA had a duty because of its agency relationship with Logistics, or th at Arg os USA had non

- d elegable duties un d e r th e F MCSR and the Texas Transpo rt ation Code

. As a re sult, each of these causes of action w as intertwine d with , and precluded by, grounds asserted in the motion upon which the trial court gr anted sum mar y judgme nt. I

d

. For th at reaso n , we find that a n y e rr or by the trial court in grant i ng summa ry judgment on the causes of action omitted from the summary judgment motion was harml ess. Id

. at 298. IV. Conclus ion For the reasons stated, we affirm the trial cou rt ’s sum mary j udgment an d dismissal of all
t he Ma t a s ’ c laims against A rgos USA

.

S c o tt E. Stevens Justice Date Submitted: February 9, 2022 Date Decided: April 22 , 2022