Opinion issued February 27 , 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 1 8
- 00 136
- CV

——————————— TONYA BAUER, AS GUAR DIAN OF THE PERSON A ND ESTATE OF EMILY BAUER, AN INCA PACITA T ED PERSON , Appellant V. GULSHAN ENTERPRISES, INC , Appellee
On Appeal from th e 190th District Court

Harris County, Texas Trial Court Ca se No. 20 1 4
- 71024
- B

MEMORANDUM OPINION The term “synthetic cannabinoid,” commonly called “synthetic marihuana,” refers to a class of chemical compounds created to mimic the effects of2

tetrahydrocannabinol (THC), the psychoactive constituent of the marihuana plant. 1 Synthetic cannabinoids are m an - made , unregulated chemicals produced in underground labs, ofte n overseas, and then shipped to the United States in powder ed or crystal form. 2 The chemicals are then mixed with acetone and manually sprayed onto plant material before packaging. As laws are enacted making it illegal to sell, buy, or possess certain chemicals , manufacturers simply alter the ir formulas. 3 As a result, the composition of many of these products , some of which contain lethal contaminants , is largely unknown , making it difficult for health care professionals to diagnose and treat patients in emergency cases. 4
For several years, synthetic cannabinoids have been sold in convenience stores, novelty stores, and over the internet. 5 They are market ed in colorful packages

1 N AT ’ L I NST
. ON D RUG A BUSE , D RUG F ACTS : W HAT ARE SYNTHETIC CANNABINOIDS ? (Feb. 2018), https://www.drugabuse.gov/publications/drugfacts/ synthetic

- cannabinoids

- k2spice

. 2 O FFICE OF THE A TT ORNE Y G EN
. OF T EX
. , A GENCY I NITIATIVES , S YNTHETIC D RUGS , https://www2.texasattorneygeneral.gov/initiatives/synthetics/

. 3 N AT ’ L I NST
. ON D RUG A BUSE , D RUG F ACTS : W HAT ARE SYNTHETIC CANNABINOIDS ? (Feb. 2018), https://www.drugabuse.gov/publications /drugfacts/ synthetic

- cannabinoids

- k2spice. 4 Id. ; O FFICE OF THE A TT ORNE Y G EN
. OF T EX
. , A GENCY I NITIATIVES , S YNTHETIC D RUGS , https://www2.texasattorneygeneral.gov/initiatives/synthetics/

. 5 U.S. D EP ’ T OF J USTICE , D RUG E NF ’ T A GENCY , D RUGS OF A BUSE , at 88

– 89 (2017 ed.), https://www.dea.gov/documents/2017/06/15/drugs

- abuse

.3

to attract young consumers. 6 Currently, s ixty percent of individuals admitted to
Texas emergency rooms for treatment related to synthetic

- c annabinoid use are between the ages of 12 and 20

. 7 This is such a case.
Here , a teenage girl suffered debilitating , permanent injuries after using synthetic marihuana that a friend obtained from a convenience store. A ppellant , Tonya Bauer, a s g uardian o f t he pe rson a nd the e state o f Emily Bauer, a n i ncapac itated p erson (“Bauer”) , br ought negligence claims against the convenience

store owner , the lessee, and the entities that supplied the convenience store gas
pumps with gasoline

. In this appeal, Bauer challenges the trial court’s summary judgment in favor of the gasoline distributor , appellee , Gulshan Enterprises, Inc. (“Gulshan”)

. In her sole issue, Bauer contends that the trial court erred in granting summary judgment for Gulshan , and denying her motion for reconsideration, because she presented evidence rais ing genuine issues of material fact

. Because we conclude that there is simply no evidence to support the duty element of Bauer’s negligence claim against the gasoline distributor , we affirm the trial court’s judgment

.

6 N AT ’ L I NST
. ON D RUG A BUSE , D RUG F ACTS : W HAT ARE SYNTHETIC CANNABINOIDS ? (Feb. 2018), https://www.drugabuse.gov/pub lications/drugfacts/ synthetic

- cannabinoids

- k2spice.
7 O FFICE OF THE A TT ORNE Y G EN
. OF T EX
. , A GENCY I NITIATIVES , S YNTHETIC D RUGS , https://www2.texasattorneygeneral.gov/initiatives/synthetics/

.4 Background ConocoPhillips Company (“ConocoPhillips”) 8 is engaged in the production, refining , and marketing of petroleum products under various brands

. Gulshan is a wholesale distributor of motor vehicle fuels to independent dealers (“dealers”) and
to retail outlets , i.e., gas stations

. On March 1, 2010, ConocoPhillips and Gulshan entered into a supply agreement , the “Branded Market er Agreement ” (“BMA”). Under its terms , ConocoPhillips agreed to sell gasoline to Gulshan , as “Marketer,” for resal e to Gulshan’s customers . The B MA authorized Gulshan to sell ConocoPhillips

- branded gasoline through stations it owns or operates and to sell gasoline to independent dealers who own or operate such stations

. In the BMA, ConocoPhillips also granted Gulshan a license to use certain ConocoPhillips brand names in the advertising, distribution, and sale of gasoline and
to display ConocoPhillips brand identification and signage at th e stations Gulshan supplied. Noting that Con ocoPhillips ha d a protect able business interest in ensuring that Gulshan’s sales and distribution s would be accomplished in a manner respect ing the standards, reputation , and integrity of the ConocoPhillips b rands , the BMA set out certain “Brand and Image Standards , ” discussed below , with which Gulshan was required to comply

. Gulshan was also required to ensure to ConocoPhillips that each of the dealers and gas stations that it supplied also complied. The parties agreed that

8 ConocoPhillips is not a party to this appeal.5

the BMA was “personal to [Gulshan]” and for the sole use and benefit of Gulshan and ConocoPhillips. The parties agreed that, i n the event that Gulshan failed to comply , or to ensure compliance , with the Brand and Image Standards, ConocoPhillips could assess fees against Gulshan, “debrand” the gas station , or terminate the BMA. On January 31, 2012, Gulshan executed a Marketing Contract with a n independent dealer , Bin Enterprises Inc. (“Bin”)

. 9 Also o n that day, Bin purchased from Global New Millennium Partners, Ltd. 10 a convenience store and gas station located at 11150 Huffmeister Road in Houston , known as Handi

- Stop #79 (“Handi

Stop”)

. Under the terms of the Marketing Contract, Gulshan agreed to supply Bin with ConocoPhillips gasoline , branded as “Phillips 66 ,” at Bin’s locations, including Handi

- Stop. And, Bi n agreed to operate in accordance with the standards of Gulshan and its supplier

. In the Marketing Contract, the partie s expressly agreed that Gulshan
was to have no right of control over Bin’s operation of its business es , including Handi

- Stop

. In October 2012, Bin leased Handi

- Stop to Khalid Khan. During the fall of 2012, S hawn Kettlewell and Emily Bauer were sophomores in high school

. According to Shawn , he and Emily frequently smoked marihuana together and, o n occasion, they used cocaine, Xanax, and e cstasy. On December 7,

9 Bin is not a party to this appeal. 10 Global New Millenium Partners, Ltd. is not a party to this appeal.6

2012, they skipped school and smok ed marihuana periodically throughout the day. Late that afternoon, a friend, Anserra Dupree, Jr., went to Handi

- Stop and purchased synthetic marihuana , specifically, one bag of “Kush” 11 and one bag of “Klimax

. ” Shawn, Emily, and Anserra then gathered with fr iends and smoked approximately half of the contents of each bag. A ccording to A nserra , Emily generally “added other things when she smoked.” After smoking synthetic marihuana at around 7:00 p.m. , Emily began feeling dizzy and had a headache. She took prescribed medication and went to sleep. When

s he awoke 15 minutes later , she began mumbling , screaming, and throwing things. After she bit Shawn , he called for emergency assistance

. Emily was taken by ambulance to North Cypress Medical Center. Shawn discarded the remaining portions of the synthetic marihuana that he and Emily had smoked. At the hospital, Emily was disoriented, screamed for people who were not there , thrashed violen tly , and bit the side rails of her bed

. According to the medical evidence, Emily exhibited clinical signs and symptoms consistent with synthetic cannabinoid toxicity. She was placed in a medically

- induced coma and on a

11 See T EX
. H EALTH & S AFETY C ODE § 481.1031 (designating certain synthetic chemical cannabinoids as controlled substances) ; see also In re T.B.V.J ., No. 01

- 17

- 00892

- CV, 2018 WL 1747264, at *1 (Tex. App.

— Houston [1st Dist.] Apr. 12, 2018, pet. denied) (mem. op.) ; A.R. v. Tex

. Dep ’ t of Family & Protective Servs ., No. 03

- 15

- 00185

- CV, 2015 WL 4909908, at *1 n.4 (Tex. App.

— Austin 2015, no pet.) (mem. op.) (noting th at kush is a mixture of herbs and spices “sprayed with synthetic compounds that mimic the effects of controlled substances like ecstasy and meth”).7

ventilator. She suffered multiple i schemic strokes and was diagnosed with primary central nervous system vasculitis

. She developed quadriparesis, cortical visual impairment, and a seizure disorder. Emily spent months in the hospital and underwent therapy before returning home. Emily’s me dical issues are ongoing. She requires near constant supervision and requires assistance to perform basic tasks. The cost of caring for Emily for the rest of her life is estimated to be between $10,822.665.99 and $12,262,949.30.
Bauer , Emily’s mother, brought claims against “Phillips 66 Company , ” 12 Gulshan, Bin, and Khan for p roducts liability , negligence, fraud, breach of implied warranty of merchantability, and intentional infliction of emotional distress. The trial court granted summary judgm ent in favor of Phillips 66 Company , dismissing Bauer’s claims against it. The trial court also granted summary judgment in favor of Gulshan on Bauer’s products

- liability claims. Bauer non

- suited all of her other claims, except her n egligence claim

. The trial court severed Bauer’s negligence claim against Gulshan from her claims against Bin and Khan. This appeal concerns only Bauer’s negligence claim against Gulshan.
In her negligence claim against Gulshan , Bauer alleged that Gulshan owed Emily a duty of reasonable care not to create an unreasonable risk of harm. She asserted that the BMA assigned contractual duties to Gulshan to monitor and inspect

12 In 2012, Phillips 66 Company became an independent company.8

the activities at Handi

- Stop to ensure that the “sale or use of illegal drugs or drug paraphernalia [did] not occur

. ” And, Gulshan breached these duties by failing to perform its duties of monitoring and inspecting the store. She asserted that, a lthough Gulshan apparently conducted some type of inspections of Handi

- Stop, Gulshan did
not perform inspec tions inside the retail store after January 31, 2012 , and such failure to exercise reasonable care proximately caused Emily’s harm. Bauer further asserted that Gulshan’s conduct constituted a “negligent undertaking” giving rise to a duty to Emily because it performed services that it knew , or should have known , were necessary for her protection

. Bauer asserted that Gulshan failed to exercise reasonable care in performing those services, that Emily suffered harm based on her reliance on Gulshan ’s performance , and that Gulshan’s performance increased Emily’s risk of harm.
Bauer also alleged that Gulshan was vicariously liable for the negligence of Bin and Khan. She a sserted that “Gulshan was the o wner/operator of Handi

- Stop , ” that Bin and Khan acted as Gulshan’s agents , and that Bin and Khan negligently performed their duties to monitor and inspect the store. Bauer further alleged that Gulshan was grossly negligent. Gulshan filed a combined motion for traditional and no - evidence summary judgment on Bauer’s negligence claim

. Gulshan argued that it was entitled to judgment as a matter of law because t he trial court had previously granted summary9

judgment in favor of Gulshan on Bauer’s products

- liability claim s , and Bauer had simply recast her products

- liability claims as an artfully plead negligence claim. Gulshan further argued , as pertinent here, that there was no evidence that it “breached an y duty allegedly owed to Emily or that its conduct caused [her] harm.” Gulshan did not own or operate Handi

- Stop, had no contractual right to control Handi

- Stop, and did not exercise any control over it. In addition, th ere was no evidence that it underto ok to perform any services, failed to exercise reasonable care in performing any services, that Emily suffered harm based on her reli ance on Gulshan, or that Gulshan ’s performance increased Emily’s risk of harm.
In h er summary -

judgment response, Bauer ar gued that Gulshan owed Emily a duty of reasonable care based on its contractual duties under the BMA. She asserted that, “[ u ] nder the BMA, Gulshan h eld the right to (1) control activities taking place on the premises where Emily’s injuries arose, (2) inspect the premises for offensive and illegal activities, and (3) direct the conduct of those working on or around the premises.” Bauer assert ed that the BMA “alerted Gulshan and put them on notice to criminal risks that were attendant to this type of business.” And, “[t]o that end, the BMA assigned Gulshan a duty

— and Gulshan undertook that duty

— to prevent the ‘sale or use of illegal drugs or drug parapher nalia ’ at any of the Phillips
66

- branded fuel station s it serviced including Handi

- Stop .” Bauer asserted that there

was substantial evidence that Gulshan “ controlled the activities on the premises,10

failed to exercise reasonable care in the exercise of tha t control, and, as a direct result, ” Emily was injured. As her summary -

judgment evidence, discussed below, Bauer presented the BMA, the Marketing Contract, a photograph of packages of synthetic marihuana , and various letters. She also attached excerpts o f her deposition, the transcript of a recorded statement of Anserra, and the d eposition s of Shawn, Shoukat Dhanani (president of Gulshan), and Salman Bin Hameed (president of Bin). Bauer also attached medical records, medical expert reports, and excerpts of the depositions of
Dr s . Greg Andres and Jeff Lapoint

. A fter a hearing , trial court granted summary judgment in favor of Gulshan without specifying the grounds and dismiss ed Bauer’s claim against it

. Bauer filed a motion for reconsideration, again arguing that the summary

- judgment evidence presented issues of fact. The trial court denied Bauer’s motion for reconsideration. Summary Judgment
In her sol e issue, Bauer argues that the trial court erred in granting Gulshan’s motion for no - evidence summary judgment on her negligence claim because she presented more than a scintilla of evidence on each of the challenged elements of her claim

. See T EX
. R. C IV
. P. 166a(i). Bauer argue s that the trial court erred in granting Gulshan’s motion for traditional summary judgment on her negligence claim because Gulshan did not conclusively establish that she simply recast her11

products

- liability claim as a negligence claim. See T EX
. R. A PP
. P. 166a(c). She f urther asserts that the trial court erred in denying her motion for reconsideration on the same ground s . A. S tandard of Review We review a trial court ’ s summary judgment de novo. Valence Operating Co.
v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005)

. In conducting our review, we take as true all evidence favorable to the non

- movant, and we indulge every reasonable inference and resolve any doubts in the non

- movant ’ s favor. Id. If a trial court grants summary judgment without specifying the grounds for g ranting the motion, we must uphold the trial court ’ s judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power, Inc ., 186 S.W.3d 145, 148 (Tex. App.

— Houston [1st Dist.] 2005, pet. denied). A party seeking summary judgment may combine in a single motion a request for summary judgment under both the traditional and no - evidence standard s . Binur v. Jacobo , 135 S.W.3d 646, 650

– 51 (Tex. 2004). When a party s eeks summary judgment on both grounds in the trial court and the trial court ’ s order does not specify its reasons for granting summary judgment, we first review the propriety of the summary judgment under the no

- evidence standard. See Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004); see also T EX
. R. C IV
. P. 166a(i). If we conclude that the trial court did not err in granting summary judgment under the no

-12

evidence standard, we need not reach the issue of whether the trial court erred in granting summary judgment under the traditional standard

. See F ord Motor Co ., 135 S.W.3d at 600 ; see also T EX
. R. C IV
. P. 166a( c )

. To prevail on a no

- evidence summary

- judgment motion, the movant must establish that there is no evidence to support an essential element of the non

movant ’ s claim on which the non

- movant would have the burden of proof at trial. See T EX
. R. C IV
. P. 166a(i); Hahn v. Love , 321 S.W.3d 517, 523

– 24 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non

- movant to present evidence raising a genuine issue of material fact as to each of the elements challenged in the motion. Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006). A no

- evidence summary judgment may no t be granted if the non

- movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. See Ridgway , 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence “rises to a lev el that would enable reasonable and fair

- minded people to differ in their conclusions.” Merrell Dow Pharm s ., Inc.
v. Havner , 953 S.W.2d 706, 711 (Tex. 1997).
In a traditional motion for summary judgment, the movant has the burden to establish that no genu ine issue of material fact exists and that it is entitled to judgment as a matter of law

. See T EX
. R. C IV
. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp ., 988 S.W.2d 746, 748 (Tex. 1999). When a13

defendant moves for a traditional summary j udgment, it must either: (1) disprove at least one essential element of the plaintiff ’ s cause of action or (2) plead and conclusively establish each essential element of an affirmative defense, thereby defeating the plaintiff ’ s cause of action. See Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1995)

. Once the movant meets its burden, the burden shifts to the non

- movant to raise a genuine issue of material fact precluding summary judgment. Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if reasonable and fair

- minded jurors could differ in their conclusions in light of all of the summary

- judgment evidence. Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 75 5 (Tex. 2007). Generally, w e restrict the scope of our review of a trial court’s ruling on a motion for summary judgment to that evidence that was before the trial court at the time that it ruled on the motion

. Neely v. Comm ’ n for Lawyer Discipline , 302 S .W.3d 331, 347 n.16 (Tex. App.

— Houston [14th Dist.] 2009, pet. denied) ; see also
T EX
. R. C IV
. P. 166a(d)

. “When a motion [to reconsider] is filed after the rendition of summary judgment, a trial court has the discretion to consider the grounds in [the] post

- judgment motion and supporting proof[,] and reaffirm its summary judgment based on the entire record.” Charbonnet v. Shami , No. 04

- 12

- 00711

- CV, 2013 WL 2645720, at *5 (Tex. App.

— San Antonio June 12, 2013, pet. denied) (mem. op.) ( internal quota tions omitted ). “The trial court also has the discretion to simply deny14

a motion filed after the entry of summary judgment without considering its substance.” Id

. “In the latter situation, an appellate court need only consider arguments and evidence pre sented prior to the summary

- judgment hearing.” Id

. Whe n, as here, however, the trial court ’s order affirmatively states that it considered the evidence attached to a motion to reconsider, we review the summary judgment based on the grounds and proof in both the prejudgment and post

- judgment filings. Timothy Patton, Summary Judgments in Texas § 7.06[1] (3d ed. 2013); see also Circle X Land & Cattle Co., Ltd. v. Mumford Ind. Sch. Dist ., 325 S.W.3d 859, 863 (Tex. App.

— Houston [14th Dist.] 2010, pet. denied) (review ing evidence attached to motion to reconsider because order reflected that trial court considered such evidence ); Stephens v. Dolcefino , 126 S.W.3d 120, 134 (Tex. App.

— Houston [1st Dist.] 2003, no pet. ) ( considering evidence offered at hearing on motion to reconsider because trial court ruled that it would consider such evidence ); cf. McMahan v. Greenwood , 108 S.W.3d 467, 500 (Tex. App.

— Houston [14th Dist.] 2003, pet. denied) ( declining to consider evidence attached to motion for new tri al because trial court ’s order did not state that it considered such evidence). B. Legal Principles
T he common

- law doctrine of negligence consists of: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately

re sulting from the breach. Praesel v. Johnson , 967 S.W.2d 391, 394 (Tex. 1998 )

.15

The threshold inquiry i s the existence of a duty

. Id. A duty is a “legally enforceable obligation to co mply with a certain standard o f conduct.” Hand v. Dean Witter Reynolds , Inc ., 889 S.W.2d 483, 491 (Tex. App.

— Houston [14th Dist.] 1994, writ denied). “ Texas law generally imposes no duty to take action to prevent harm to others absent certain special relationships or circumstances. ” Torrington Co. v. Stutzman , 46 S. W.3d 829, 837 (Tex. 2000) (citing Restatement (Second) of Torts § 314 (1965) (“The fact that [an] actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such a ction.”) ) . If the defendant has no duty, then he cannot be held liable for negligence

. J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc ., 302 S.W.3d 515, 529 (Tex. App.

— Austin 2009 , no pet. ). Special relationships include th ose existing between employer and employee, parent and child, and independent contractor and contractee. Greater Hous

. Transp. Co. v. Phillips , 801 S.W.2d 523, 525 (Tex. 1990) ; see also Golden Spread Council, Inc. v. Akins , 926 S.W.2d 287, 289

– 90 , 292 (Tex. 1 996 ) (“There are some cases in which a duty exists as a matter of law because a special relationship exists between the parties. In such cases, the duty analysis ends there.”). Whether to impose a duty under certain circumstances is a question of law. Walker v. Harris , 924 S.W.2d 375, 377 (Tex. 1996)

. In deciding whether to impose a duty, the court must balance the risk , foreseeability, and likelihood of injury against16

the social utility of the actor’s conduct, the magnitude of the burden of guarding

a gainst the injury, and the consequences of placing the burden on the defendant. Golden Spread Council, Inc. , 926 S.W.2d at 289

– 90. Courts have also emphasized other factors, such as whether one party had superior knowledge of the risk or t he right and ability to control the actor whose conduct precipitated the harm

. Id. at 290. Further, c ourts have recognized that one who voluntarily , whether gratuitously or for compensation, undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other’s person or property will not be injured by the undertaking

. Colonial Sav. Ass’n v. Tay lor , 544 S.W.2d 116, 119

– 20 (Tex. 1976). To establish a “negligent undertaking,” the plaintiff must show that : (1) the defendant undertook to perform services that it knew or should have known were necessary for the plaintiff ’ s protection; (2) the defenda nt failed to exercise reasonable care in performing those services; and either (a) the plaintiff suffe red harm because of her rel iance on the defendant’s performance or (b) the defendant ’ s failure to exercise such care increased the plaintiff ’ s risk of har m. Nall v. Plunkett , 404 S.W.3d 552, 555

– 56 (Tex. 2013) (citing Restatement (Second) of Torts § 324A (providing rule for liability to third person for negligent performance of undertaking ) ). A negligent undertaking differs from simple negligence in that the duty allegedly breached derives from the services undertaken. Torrington Co. , 46 S.W.3d17

at 838

– 39

. The critical inquiry concerning the duty element in a negligent undertaking is whether the defendant acted in a way that requires the imposition of a duty where one otherwise would not exist. Nall , 404 S.W.3d at 555

. Such a duty may arise if a person affirmatively undertakes to provide services to another upon which reliance can be based. See Osuna v. S. Pac. R.R ., 641 S.W.2d 229, 230 (Tex. 1982) (“Having undertaken to place a flashing light at the crossing for the purpose of warning traveler s, the railroad was under a duty to keep the signal in good repair, even though the signal was not legally required.”)

. A duty is not created by a failure
to act. Fort Bend Cty. Drainage Dist. v. Sbrusch , 818 S.W.2d 392, 397 (Tex. 1991)

. C. Analysis Here, Gulshan , in its summary

- judgment motion, a rgued that there is no evidence that it “breached any duty allegedly owed to Emily or that its conduct caused [her] harm.” See T EX
. R. A PP
. P. 166a(i). Thus, Gulshan challenged each of the elements of Bauer’s negligence claim. See Lampasas v. Spring Ctr., Inc ., 988 S.W.2d 428, 436 (Tex. App.

— Houston [14th Dist.] 1999 , no pet. ) ; see also T EX
. R. C IV
. P. 71 (providing that courts are to give effect to substance of motion rather than title or form); In re J.Z.P ., 484 S.W.3d 924, 925 (Tex. 2016). Gulshan further argued that there is no evidence that it undertook any action that caused Emily’s harm. Specifically, there is no evidence that Gulshan performed services that it knew or should have known were necessary for Emily’s protection;18

that it fai led to exercise reasonable care in performing any such services; or either that Emily ’s reli ance upon Gulshan’s performance caused her injury or that Gulshan’s alleged performance increased Emily’s harm. See T EX
. R. A PP
. P. 166a(i) ; N all , 404 S.W.3d at 55 5

– 56

. Bauer, i n her summary

-

judgment response, w ith respect to the duty element of her claim, argu ed that Gulshan owed Emily a duty of reasonable care based on (1) Gulshan’s contractual dut ies under the BMA and control over Handi

- Stop (simple negligence theory) and (2) having affirmatively undertaken to inspect and monitor Handi

- Stop (negligent

- undertaking theory)

. 1. Simple Negligence
Bauer first argued that the BMA assigned a contractual duty to Gulshan to

“ prevent the ‘sale or use of illegal drugs or drug paraphernalia’ at any of the Phillips
66

- branded outlets it serviced including Handi

- Stop .” And, Gulshan agreed to maintain “extensive control” over Handi

- Stop. Thus, Gulshan assumed a duty to Emily, arising in tort, to exercise reasonable care in inspecting and monitoring the
store

. The BMA provides that ConocoPhillips ha d a protect able busines s interest in ensuring that Gulshan’s distribution of branded products was accomplished in a manner consistent w ith ConocoPhillips’ standards, reputation, and integrit y . Thus,

s ection 5 of the BMA, “Brand and Image Standards ,” requires that Marketers, i. e.,19

Gulshan, and its Marketer Supplied Outlets, i.e., Handi

- Stop, uphold certain standards reflecting on the reputation of ConocoPhillips. These include treating all
person s fairly, honestly, and courteously; providing efficient service to consumers;
prop erly addressing consumer complaints; keeping the building and grounds clean; operating with well

- groomed personnel; and operating during certain business hours. In addition, section 5(D) , on which Bauer relies, provides: Consistent with the principles herein set forth, . . . Marketer [Gulshan] shall conduct its independent business operations in compliance with the standards set forth below, which will promote the continuing good reputation of ConocoPhillips and all other branded ConocoPhillips marketers. [Gulshan] shall ensure to ConocoPhillips that all Marketer Supplied Outlets [ such as Handi

- Stop ] and the Marketer Supplied Dealers [Bin] shall also compl y with these standards.

. . . . (D) Each Marketer Supplied Outlet [ H andi

- Stop ] must complement the community and the environment. Furthermore, [ Handi

- Stop ] must not engage, permit, or cooperate in any conduct that reflects unfavorably on the reputation of ConocoPhillips in the community served by [Gulshan], or in ConocoPh illips’ opinion impairs the goodwill associated with the ConocoPhillips

. . . . [Gulshan] shall cooperate, and shall take reasonable steps to ensure that the operators of [ Handi

- Stop ] . . . its employees, vendors, contractors, and agents cooperate fully with the performance of [Gulshan’s] obligations under this [BMA] . . .

. [Gulshan] shall not permit on, in[,] or from [ Handi

- Stop ] : i. price gouging

. . . ; ii. any illegal consumption of intoxicating beverages; iii. the sale or use of illegal drugs or drug paraphernalia ; iv. the sale of tobacco

. . . or alcoholic beverages to minors

. . . ; v. any offensive merchandise . . . .20

(Emphasis added.) Thus, under the BMA, in order to protect the reputation and goodwill of ConocoPhillips, Gulshan had a duty to ensure ConocoPhillips that the
gas stations it service d , such as Handi

- Stop, cooperated and complied with ConocoPhillips’s standard s, such as prohibiting the sale of illegal drugs or drug paraphernalia. Bauer argued that Gulshan owed these duties to Emily based on the following language in section 5: “Marketer specifically understands and agrees that the Brand and Image Standards are reasonable and of material significance to this Agreement and to the consumers who patronize Marketer Supplied Outl ets
. . . .” (Emphasis added.) T he BMA reflects, however, that it constitutes an agreement between ConocoPhillips and Gulshan, and section 36 expressly provides: “This agreement is personal to [Gulshan] and is intended for the sole use and benefit of [Gulshan] and ConocoPhillips. No Marketer Supplied Dealer or any other third party is a third party beneficiary under this Agreement.”
T o ensur e compliance with the “Brand and Image Standards , ” section 5 requires that Handi

- Stop participate, at Gulshan’s expense, in the ConocoPhillips “Brand and Image Standards Program.” The program terms, as applied, provide that evaluations of Handi

- Stop’s com pliance with the Brand and Image Standards “shall be communicated through an evaluation form completed by ConocoPhillips or its designee.” (Emphasis added.) Section 5 provides that, in the event that Handi

- Stop21

failed an evaluation, ConocoPhillips was to give written notice to Gulshan. Then, Gulshan was required to contact the gas station and ensure that the deficiency was corrected. T he remedy for any failure to uphold the Brand and Image Standards was for ConocoPhillips to assess fees against Gulshan, to “debrand” Handi

- Stop of its Phillips 66 affiliation, or to terminate the BMA. Thus, the BMA assigns the duty to inspect Handi

- Stop for compliance with the Brand and Image Standards to ConocoPhillips, not to Gulshan. Importantly, Bauer concedes in her appellate brief that “Gulshan was not obligated to inspect stores under the BMA.”
Bauer further asserted that Gulshan assumed a duty to Emily, arising in tort, to exercise reasonable care in inspecting and monitoring Handi

- Stop because Gulshan agreed to maintain “extensive control” over the store. See G olden Spread Council, Inc. , 926 S.W.2d at 289

– 90. It is undisputed, however, that Gulshan did not own or operate Handi

- Stop. Rather, as Bauer states in her brief, “[a]t the time of Emily’s injury, Bin was the owner and dealer of the [Handi

- Stop].” And, the undisputed summary - judgment evidence shows that, at such time, Handi

- Stop was leased to and operated by Khan. Importantly, u nder the terms of the Marketing Contract between Gulshan and Bin, the parties expressly agreed that Gulshan would have no right of control over Bin’s operation of Handi

- Stop:22

Nothing in this Agreement is intended to make [Bin] and [Gulshan] joint venturers or partners, or otherwise to create a master

- servant or pri ncipal

- agent relationship between [Bin] and [Gulshan]. Neither party shall have the authority to make any commitments whatsoever in the name or on the behalf of the other.

. . . In the performance of this Agreement, Dealer [sic] acknowledges that [Bin] is engaged as an independent business entity and is familiar with the operation and management of the convenience store and service station business, and nothing herein shall be con strued as granting [Gulshan] any right to control or direct [Bin] with respect to [Bin’s] conduct of such business(es).

. . . (Emphasis added.) We further note that Bauer expressly states in her brief that her claim is “not based on theories of agency.” We conclude that Bauer did not present evidence to raise a genuine issue of material fact regarding the duty element of her negligence claim, based on a simple negligence theory

. See Ridgway , 135 S.W.3d at 600; Havner , 953 S.W.2d at 711. 2. Negligent Undertaking
Bauer next argued that “Gulshan undertook, through its conduct and contract with ConocoPhillips, to safeguard the [Handi

- Stop].” And, “Gulshan was responsible for ‘taking action to correct or improve any deficiencies’ identified durin g an evaluation.” In doing so, Gulshan entered into a contractual agreement to render services at Hand i

- Stop. Thus, she a sserts, Gulshan had a common - law duty in tort to exercise reasonable care in undertaking its contractual obligations

. Again, with respect to the duty element of a negligent undertaking, Bauer was first required to present evidence that Gulshan undertook to perform services

. See23

Nall , 404 S.W.3d at 555

– 56

. A contractual obligation may constitute an undertaking

“ so long a s it is accompanied by a least partial performance or reliance

. ” Guillory v. Seaton, LLC , 470 S.W.3d 237, 241 (Tex. App.

— Houston [1st Dist.] 2015 , pet. denied ) ; see also Chapman Custom Homes, Inc. v. Dall

. Plumbing Co ., 445 S.W.3d 716, 717 (Tex. 2014) (“[T]he negligent performance of a contract that proximately injures a non

- contracting party ’ s property or person states a negligence claim[.]” (emphasis added) ) . However, a duty is not created by a failure to act

. Fort Bend Cty. Drainage Dist. , 81 8 S.W.2d at 397

. In Fort Bend County Drainage District , the supreme court held that a mere promise to render a service coupled with neither performance nor reliance impose s
no tort duty upon the promisor. Id. at 396 . There, the District constructed a wooden bridge over a drainage channel on private land and promised the landowner that it would repair any damage caused by the District’s use of the bridge

. Id. at 393

– 94. Later, an easement

- holder notified the District that th e bridge had become unsafe

. Id. at 394. A District foreman inspected the bridge and determined that the wooden piers were simply rotting, but told the easement holder, “ We will take care of it.” Id

. A District superintendent also said that he would “ se e what [the District] could do about it and [would] talk to the bosses about it.” Id. After months went by without repairs, the plaintiff c rossed the bridge in a truck , the bridge collapsed, and the truck fell into the drainage channel. Id. The plaintiff sued the District, alleging negligence24

in failing to repair the bridge. Id . The plaintiff argued that the District, its employees having promised repairs, had under taken a duty to repair the bridge

. Id. at 395. The supreme court disagreed, concluding that the District ’s employees’ promises alone did not constitute an undertaking of an affirmative course of action and that there was no evidence that the District ha d taken any affirmative action thereafter

. Id. at 396

– 97. Further , because the District ’ s promis es were n ot communicated to the injured plaintiff , he could not have re lied upon the m. Id. at 397. Thus, without some affirmative course of action beyond the making of a mere promise , and without reliance on that promise, the District did not have a duty to the plaintiff to repair the bridge. Id. at 39 7

– 9 8. The court further noted that , although the Distri ct had repaired other area bridges in the past, such conduct did not give rise to a duty to act on th e occasion at hand

. Id. at 397. Similarly, this Court, in Knife River Corporation v. Hinojosa, held that the plaintiff presented no evidence to support her negligence claim based on a negligent

undertaking theory. 438 S.W.3d 625, 637 (Tex. App.

— Houston [1st Dist.] 2014, pet. denied.). There, the Texas Department of Transportation (“Department”) contracted with the defendant to resurface a section of highway

. Id. at 628. The construction contract incorporated the Department’s standards and required that the defendant

- contractor give written notice of any latent conditions. Id. Upon receipt of such notice, the Department engineer w as to investigate and determine whether25

cost adjustments should be made for the project. Id. at 629. During the project, the defendant’s employees noted safety issues in a section of road involving a box culvert and a steep shoulder drop

- off. Id . Employees verbally informed the on

- site Department inspector but did not send written notice. Id. Once the project was complete , a Department engineer inspected the work by driving the 4.5

- mile stretch that had been resurfaced and approv ed the work. Id. The drop

- off remained. Id. Five years later, a tractor

- trailer driver was killed after he swerved to avoid a head

- on collision with another vehicle, the right front tire of his rig fell into the drop

off near the box culvert, and he lost control of the truck. Id. at 627. The plain tiff, the driver’s spouse, sued the defendant for negligence. Id. at 629. Based on a theory of negligent

- undertaking, she asserted that the defendant had undertaken certain duties under the construction contract for the benefit of third pa r ties, such as the driver

. Id. (noting that plaintiff alleged , “On entering a contract which it should have recognized as necessary to the protection of the public, Knife River [] had a duty to exercise reasonable care in the performance of that contract.” ). Specifical ly, she alleged, the defendant undertook duties not to leave drop

- off s that exceeded certain standards and to send notice to the Department of such issues. Id. at 629

– 30. And, the defendant did not use reasonable care in performing these duties. Id. at 630. This Court, in reviewing the terms of the construction contract, noted that rectifying the drop

- off at the box culvert was outside the scope of the work. Id. We26

concluded that there was no affirmative undertaking. Id. at 637. We held that, b ecause the law imposes a duty to perform without negligence only those tasks that the actor has undertaken to accomplish , the defendant owed no duty

— as a matter of law

— to rec tify the drop off or to provide written notice regarding the defect. Id. Similarly , here, as discussed above, there is no evidence that Gulshan had a duty under the BMA to inspect Handi

- Stop. See id. (holding that rectifying drop

- off at box culvert was outside scope of work under construction contract)

. I n her summary

-

judgment response, Bauer asserted that Gulshan nevertheless undertook the duties to “ prevent the sale of drugs and drug paraphernalia at Handi

Stop[] which Gulshan did not do.” Citing a Brand and Image inspection report, Bauer asserted that, “[t]hrough Phillips 66 [ConocoPhillips] inspection reports which Gulshan received, it is more likely than not that Gulshan learned [that] pipes were being sold at the counter and [that] synthetic mar ihuana packaging was strewn about the parking lot.” And, “Gulshan admits ‘no inspections were conducted as to inside sales inside the retail store from the applicable time period of January 31, 2012 to December 31, 2012.’” As Bauer notes, under the BMA, “Gulshan was responsible for ‘taking action to correct or improve any deficiencies’ identified during an evaluation .” (Emphasis added.) The Brand and Image Inspection report Bauer cites reflects that , on February 12, 2012, a representative of Market Force Information, Inc., on behalf of27

ConocoPhillips/Phillips 66 , inspected the Handi

- Stop. The store received a passing score. The only deductions noted a re based on the store not displaying current credit card decals in the s tore or on the fuel dispensers, the brand logo not being visible on the cashier’s clothing, and certain issues with signage. There are no remarks about synthetic marihuana

. Bauer also points to a photograph of trash outside the Handi

- Stop store and a ph otograph attached to an inspection report dated March 21, 2014, some 15 months after Emily’s injury. Th e report and photographs d o not constitute evidence that Gulshan knew, or reasonably should have known, at the time of Emily’s injury , that Handi

- Stop w as selling synthetic marihuana

. More importantly, this evidence does not constitute evidence that Gulshan failed to exercise reasonable care in performing services that it affirmatively undertook

. See Osuna , 641 S.W.2d at 230 ; Knife River , 438 S.W.3d at 63 7. Again, a duty is not created by a failure to act. Fort Bend Cty. Drainage Dist ., 818 S.W.2d at 397. Bauer also points to deposition testimony and statements that synthetic marihuana was in fact purchased at Handi

- Stop in the months leadin g up to, and on the day of, Emily’s injury. Even taking this evidence as true, however, Bauer do es not direct us to any evidence that Gulshan , at the time that Emily was injured , knew or should have known this to be true. See Reyna v. Acad. Ltd ., No. 01

- 15

- 00988

- CV, 2017 WL 3483217, at *8 (Tex. App.

— Houston [1st Dist.] Aug. 15, 2017 , no28

pet. ) (mem. op.). Again , this testimony do es not constitute evidence that Gulshan failed to exercise reasonable care in performing services that it affirmatively under took

. Bauer further argue d that Dhanani’s deposition testimony reflects that Gulshan undertook to inspect and “safeguard” the Handi

- Stop. The record shows that Dhanani testified that Zafar Tahir inspected stores that Gulshan and its subsidiary “operated ,” not stores that were leased out. Dhanani testified that, hypothetically, if he were to become aware that any of Gulshan ’s store s were selling synthetic marihuana , he would have “immediately stopped it.” It is undisputed that Gulshan did not own or operate Handi

- Stop. Rather, Bin owned the Handi

- Stop and leased it to Khan. Dhanani testified that Gulshan generally did inspect stores for which it was “just a supplier of fuel , ” and he discussed how he “assum [ e d ] ” such inspection might work in “a hypothetical case.” With respect to whether Gulshan ever inspected Handi

- Stop, however, Dhanani testified: Q. Do you know specifically if Gulshan ever inspected [Handi

Stop]? A. Specifically, I don’t know. Like in Fort Bend C ounty Drainage Dist rict , however, evidence that Gulshan had performed other inspections of other stores in the past does not constitute evidence of an affirmative undertaking at Handi

- Stop. 818 S.W.2d at 397 (holding evidence that Distr ict had repaired other area bridges in past did not alone give rise to duty to29

repair on occasion at issue)

. The summary

- judgment record further shows that Hameed testified that ConocoPhillips performed inspections of the store and sent the reports to Gulshan and to him. Hameed then met with the tenant, Khan, as necessary. In support of her argument, Bauer relies on EnGlobal U.S., Inc. v. Gatlin , 449 S.W.3d 269 ( Tex. App.

— Beaumont 2014, no pet.). There, Phillips 66 contracted with Clean Harbors, an industrial service contractor, to clean oil storage tanks at a refinery. Id. at 272. Gatlin, an employee of Clean Harbors, was injured while working at the refinery. Id. At the time of the accident, ENGlobal was a contractor performing engineering and construction management services for Phillips 66 at th e refinery. Id. at 272

– 73. The relationship between ENGlobal and Phillips 66 was governed by a master service a greement (“MSA ”). Id. at 273. Gatlin sued ENGlobal for negligence, asserting a negligent

- undertaking theory. Id. The court concluded that , to the extent that the MSA required ENGlobal to provide “ safety over the work site, ” then ENGlobal had a contractual duty under the MSA to make the work site safe in the manner, if any, specified by the MSA. Id. at 282. And , to the extent ENGlobal undertook to perform its contractual promise to provide safety, and to the extent it shoul d have recognized that its actions were necessary for the protection of Gatlin, then ENGlobal also had a duty in tort to exercise reasonable care in performing its undertaking so as not to injure Gatlin. Id.30

Here, unlike in ENGlobal , however, there is no evidence that Gulshan had a duty under the BMA to inspect Handi

- Stop. Further, there is no evidence that Gulshan affirmatively undertook to inspect Handi

- Stop. Having viewed all the evidence in the light most favorable to Bauer , we conclude that she did n ot present more than a scintilla of probative evidence to raise a genuine issue of material fact regarding the element of breach of duty in support of her negligence claim against Gulshan

. See Ridgway , 135 S.W.3d at 600; Havner , 953 S.W.2d at 711. Accordi ngly, we hold that the trial court did not err in granting summary judgment in favor of Gulshan on Bauer’s negligence claim

. See T EX
. R. C IV
. P. 166a( i ); KPMG Peat Marwick , 988 S.W.2d at 748.
Because Bauer did not establish the breach of a legal duty, we do not reach her assertions that the summary

- judgment evidence established the existence of genuine issues of material fact regarding proximate cause. See Van Horn v. Chambers , 970 S.W.2d 542, 544 (Tex. 1998) ( “The nonexistence of a duty ends the inquiry into whether negligence liability may be imposed

. ”).
We overrule Bauer’s sole issue

.31 Conclusion We affirm the trial court’s judgment.

Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Keyes and Countiss

. Keyes, J., dissenting.