COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

J ESUS DEL GADO SAUCEDO , Appellant,

v. AL EJ ANDRO ACOSTA HO RNER, A/K/A AL EJ ANDRO ACOSTA, L AURA ACOSTA, CAROL YN RAB E, I NDI VI DUAL L Y AND A S THE ADMI NI STRATRI X OF THE ESTATE OF CARL YL E J . RABE, JR., Appellee s. § § § § § § § § § No. 08-08-00340- CV

Appea l from County Court at L aw No. 6 of El Paso County , Texas (TC # 2005-8319)

O P I N I O N
J esus Delg ado Saucedo appea ls from an order g ranting summary judgme nt in favor of Alejandr o Acosta Horne r a/k/a Alejandr o Acosta and L aura Acosta, and an order g ranting summary judgme nt in favor of Caroly n Rabe, I ndividually and as the Administratrix of the Estate of Carly le
J . Rabe, Jr. For the r easons that f ollow, we af

firm.
F ACTUAL SUMMA RY S auce do has been employ ed by Ciudad J uare z, Chihuahua, Mexi co as a maintenan ce employ ee since 1991, but he also soug ht work in El Paso on his day s off. Saucedo’ s rela tive, Cruzit a Mejia, did ironing for the Acostas in El Paso and in Marc h 2005, he asked her to help him find work. Mejia s u gges t ed t h at h e ask the Acostas if he could do y ard work for them. Saucedo went to the
Acostas home and Mrs. Acosta initially told him that t h ey d i d n o t h av e any work for him to do. After Mejia vouched for him and Saucedo told Mrs. Acosta that he neede d money to eat, she hiredhim to clea n the y ard that day

. Saucedo did not return until approximately mid-April beca use it was

ear ly in the g rowing season and there was no y ard work for him to do. Saucedo called the Acostas about two wee ks afte r Easter and they hired him to cut the lawn. Saucedo did not rec all how many times he worke d for the Acostas betwee n Marc h and Aug ust 2005, but he believed it was more than five times. Saucedo also did minor elec trical and plumbing work for them during this time period and he g ener ally worke d at the house one or two day s a wee k depending on what jobs the y had for him to do. Saucedo repe atedly asked Mr. Acosta to ref er him to other people for work. A n ex t door neig hbor, Carly le Rabe, had died in Fe bruar y 2005 and the y ard was o v er grown. Mr. Acosta mentioned to Mrs. Rabe, who lived out of town, that her y ard neede d to be clea ned and that Saucedo perf ormed y ard work for him. Acc ording to Mr. Acosta, Mrs. Rabe ag ree d to reimburse Mr. Acosta if he would pay Saucedo to cut the lawn and clea n up the y ard. Mr. Acosta su b sequently told

1
Saucedo that Mrs. Rabe wanted him to clea n up the y ard. On the day of the acc ident, Au gu s t 2, 2005, Saucedo arr ived at the Rabe house an d b ega n wo rki ng . Whil e attempting to fix one of the

mowers, Saucedo put his hand under the blades while priming the motor. The motor started and the blade hit Sa u cedo’s left thumb and cause d an injury

. Saucedo ran to the Acosta’ s home for 2
assistance

. Saucedo had medical benef its as a result of his employ ment with the Ciudad J uare z. Mr. Acosta asked Saucedo wher e he rec eived medical trea tment and Saucedo told him at the city hospital in J uare z. Mr. Acosta drove him to that hospital’s emer g ency room. Mr. Acosta paid Saucedo for

M r s . R a b e d i d n o t r e c a l l g i v i n g M r . A c o s t a a n y m o n e y f o r t h e y a r d w o r k

. 1

T h e d e g r e e o f i n

j u r y i s i n d i s p u t e . S a u c e d o t e s t i f i e d t h a t t h e t h u m b w a s s e v e r e d , b u t M r . A c o s t a r e c a l l e d t h a t 2

w h e n h e s a w t h e t h u m b i t w a s “ m a n g l e d ” b u t n o p o r t i o n o f i t h a d b e e n a m p u t a t e d

.that day ’s work a nd g ave him an a dditional 500 pesos before leaving the hospital. 3
S au ce d o fi led suit ag ainst the Acostas and ag ainst Mrs. Rabe, individually and as the administratrix of the es t at e o f Carly le J

. Rabe. The petition alleg ed non-subscribe r neg lige nce, intentional infliction of emotional distress, and brea ch of the duty of g ood faith and fair dealing

. The
Acostas moved for summary judgme nt on no-evide nce and traditional summary judgme nt g rounds.
Mrs. Rabe filed simil ar motions. The trial court enter ed separ ate order s g ranting summary judgme nt without specify ing the basis for the c ourt’s ruling

. STANDARDS OF REVIEW
A no-evide nce summary judgme nt is essentially a pretria l direc ted verdic t, and we apply the

same leg al sufficie ncy standard of revie w. Viasana v. W ard County , 296 S.W .3d 652 (Tex.App.--El
Paso 2009, no pet.); Martinez v. Leeds , 218 S.W .3d 845, 848 (Tex.App.--El Paso 2007, no pet.). The party moving for no-evide nce summary judgme nt must asser t that there is no evid en ce of one or

more essential elements of a claim or defe nse on which the non-movant would have the burden of proof at trial. Viasana , 296 S.W .3d at 654; Martinez , 218 S.W .3d at 848; see T E X .R.C I V .P. 166a(i). The burden then shifts to the non-movant to produce evidenc e raising a fac t issue on the challeng ed elements. Viasana , 296 S.W .3d at 654; Martinez , 218 S.W .3d at 848. To raise a g enuine issue of materia l fac t, the non-movan t m u s t set forth more than a scintilla of probative evidenc e as to an essential element of his claim or defe nse. Viasana , 296 S.W .3d at 654; Martinez , 2 1 8 S

. W

. 3 d at 848. The standard of rev ie w f o r tr a d itional summary judgme nt under T E X .R.C I V .P. 166a(c ) is well established. Nixon v. Mr. Property Managem ent Company, Inc. , 690 S.W .2d 546, 548 (Tex. 1985).

A c c o r d i n g t o S a u c e d o , M r . A c o s t a s i m p l y d r o p p e d h i m o f f a t t h e e m e r g e n c y r o o m , b u t M r . A c o s t a t e s t i f i e d 3 t h a t h e w a i t e d a t t h e h o s p i t a l f o r a b o u t a n h o u r u n t i l t h e d o c t o r t o l d h i m t h a t t h e y w e r e g o i n g t o k e e p S a u c e d o o v e r n i g h t

.The moving party car ries the bur den of showing there is no ge nuine issue of mate rial fa ct and it is

en t i tled to judgme nt as a matter of law. Diversicare Gene ral Partner, Inc. v. Rubio , 185 S

. W

. 3 d 842, 846 (Tex. 2005); Browning v. Prostok , 165 S.W .3d 336, 344 (Tex. 2005). Evidence favor able
to the non-movant will be taken as true in deciding whether there is a disputed issue of materia l fac t.
Fort W orth Osteopathic Hospital, Inc. v. Ree se , 148 S.W .3d 94, 99 (Tex. 2004). Al l rea sonable infere nces, including any doubts, must be resolved in favor of the non-movant. Id

. A defe ndant is

en titled to summary judgme nt if the evidence disproves as a matter of law at least one elemen t o f

eac h of the plaintiff’s cause s of action or if it conclusively establishes all elements of an aff irmative defe nse. D. Houston, Inc. v. Love , 92 S.W .3d 450, 454 (Tex. 2002); Randall’s Food Marke ts, Inc.

v. Johnson , 891 S.W .2d 640, 644 (Tex. 1995). Once the defe ndant establishes a rig ht to summary judgme nt as a matter of law, the burden shifts to the plaintiff to pr esent evidenc e raising a g enuine i s s u e of materia l fac t. City of Houston v. Clear Creek Basin Authority , 589 S.W .2d 671, 67 8 -7 9 (Tex. 1979); Scown v. Neie , 225 S.W .3d 303, 307 (Tex.App.--El Paso 2006, pet. de nied).
SAUCEDO’S CAUSES O F ACTION Saucedo’ s non-subscribe r neg lige nce claim is purportedly based on Section 406.092(a) of the Texas L abor Code which provides that a resident or nonresident alien employ ee is entitled to
compensa tion under the Workers’ Compensation Act. T E X .L A B .C O D E AN N
. § 406.092(a) (Ve rnon 2006). He alleg ed that the Acostas, individually or as ag ents for Mrs. Rabe and the estate of Carly le Rabe, wer e neg lige nt by failing to provide rea sonably safe equipment to perf orm the y ard work, by providing an unsafe piece of equipment, by failing to perf orm nece ssary repa irs o n t h e p i ece of equipment provided to Saucedo, and by failing to proper ly instruct him in the safe servicing and use of the e quipment. Saucedo’ s suit also claimed that Mr. Acosta intentionally inflicted emotional d i s t re s s bytransporting him to J u ar ez wi t hout seeking or obtaining medical trea tment for his serious injury

.

Saucedo sued for brea ch of the duty of g ood faith and fair d ea ling arising from an employ eremploy ee rela

tionship. The brea ch of d u t y claim rela ted to Mr. Acosta’ s conduct in transporting Saucedo to J uare z and intentionally abandoning him without obtaining medical car e for his injury

. Finally , Saucedo claimed to be the borrowe d serva nt of Mrs. Rabe such that Mr. Acosta bore liability as her ag ent. THE ACOS TAS Negligence The Ac ostas contende d that they owed no duty to pr ovide Sauce do with safe e quipment or to instruct him in t he use of the lawnmowe r bec ause he was an independe nt contrac tor rathe r than

an employ ee. I n a rela ted g round, the Acostas rea soned that if Saucedo was an independe nt
contra ctor rathe r than an employ ee, he could not be a borrowe d serva nt. Saucedo has challen ged both gr ounds in sub-parts (A) and (B ) of I ssue One. 4
Th e el em en t s o f a neg lige nce cause of action are a leg al duty , a brea ch of that duty , and damag es p roxi mately resulting from that brea ch. Van Horn v. Chambers , 970 S.W .2d 542, 544 (Tex. 1998). The exis tence of du t y i s a t h re shold question of law. Id. The nonexis tence of duty ends the inquiry into whether neg lige nce liability may be imposed. Id

. I f the Acostas conclusively established that Saucedo was an independe nt contra ctor and not an employ ee, it woul d defe at the duty element of

his non-subscriber

neg lige nce c laim.
T h e t es t to deter

mine whether a worke r is an employ ee or an independe nt contra ctor i s whether the employ er has the rig ht to control the prog ress, details, and methods of opera tion of the

S a u c e d o h a s c h a l l e n g e d t h e s u m m a r y j u d g m e n t s g r a n t e d i n f a v o r o f b o t h t h e A c o s t a s a n d M r s . R a b e i n a 4
s i n g l e i s s u e o n a p p e a l c o n t a i n i n g e i g h t s u b

- p a r t s ( A ) t h r o u g h ( H )

.employ ee’ s work. Thompson v. Travelers Inde mnity Company of Rhode Island , 789 S.W .2d 277,

278 (Tex. 1990); Newspapers , Inc. v. Love , 380 S.W .2d 582, 585-90 (Tex

. 1964). This same test applies whether the claim arises at common law or under worke rs’ compensa tion. Thompson , 789
S.W .2d at 278. The employ er must control not mere ly the end soug ht to be acc omplished, but also the means and details of its acc omplishm ent. Id. Ex amples of the ty pe of control normally exercised by an employ er include when and wher e to beg in and stop work, the reg ularity of hours, the amount of time spe nt on particula r aspec ts of the work, the tools a nd appliance s used to pe rfor m the work, and the phy sical method or manne r of a ccomplishing the end r esult. Id. at 278-79. The Acostas’ summary judgme nt evidenc e established that Mr. Acosta is a semi-re tired attorney who is lice nsed to prac tice law in Me x ico and ha s an off ice in Ciudad Juarez. N either he

nor Mrs. Acosta opera

te any k i nd of business at their home. Saucedo perf ormed y ard work, and minor plumbing and elec trical repa irs for them. He also painted a portion of the home’s exterior. The Acostas did not consider Saucedo to be their employ ee. Saucedo specified the day s he could work and he “alwa

y s” worke d from approximately 10 a.m. to about 6 p.m. Although Saucedo arg ues

on appea l that the Acostas deter mined his hours of work, there is no evidenc e to support this claim. Saucedo testified that he chose to arr ive at 10 beca use he would be questioned by immigra tion and
customs officia ls if he crosse d the border ear lier in the day

. Saucedo did not have a set lunch time but Mrs. Acosta provided him with lunch on Monday s and M ej i a gave him lunch on Tuesday s. S au ce do testified that he worke d on a projec t basis and the Acostas paid him when he complet ed

eac h projec t. Mr. Acosta told Saucedo the projec ts he wanted him to perf orm, but he did not tell him how t o do any of t he work or set a ti me l imit for it to be done. Saucedo ex p l ai n ed t hat at 6:00 he would tell the Acostas he was finished with that day ’s work and they would pay him $40 for his labor and g ive him an additional dollar for the bus. Saucedo used the Acostas’ mower and edg er tocut the lawn but he provided his own tools for the plumbing and elec trical projec ts. The Acostas

provided the pa int for the painting projec t. Be cause the summary judgme nt e vidence conclusively established that the Acostas did not have the rig ht to control the prog ress, details, and methods of opera tion of Saucedo’ s work, they established that Saucedo was an independe nt contra ctor. Saucedo failed to raise a fac t issue rela ted
to this g round for summary judgme nt. Moreove r, since Saucedo was an independe nt contra ctor, the borrowe d servan t d o ct ri n e is inapplicable. Be cause the court did not err by g ranting summary judgme nt in favor of the Acostas on the non-subscribe r neg lige nce cause of action, we overr ule subparts (A ) and ( B) of I ssue One a s the issue perta ins to the Acostas. Intentional Infliction of Emotional Distress The Ac ostas moved for summary judgme nt under Rule 166a(i) assertingthat there was no evidenc e that Saucedo’ s emotional distress was sever e or that the Acostas’ conduct was extreme and outrag eous. To preva il on his c laim of intentional inf liction of emotional distress, Saucedo would be require d to prove: (1) the Acostas acte d intentionally or rec klessly ; (2) their conduct was extreme and outra g eous; (3) their actions ca used Sauce do emotional distress; and (4) Sauc edo’s e motional distress was sever e. Texas Farm Bureau Mutual Insurance Companies v. Sears , 84 S.W .3d 604, 610 (Tex. 2002). I n his response to the summary judgme nt motion, Saucedo addre ssed the extreme and outrag eous conduct element but he failed to addre ss the sever ity of his emotional distress. Sub-part (E) of his brief on a

ppeal mirror s his summ ary judgme nt response. When there are multipl e g rounds for summary judgme nt a nd the order does not specify the
g round upon which the summary j u d gm ent was rende red, the appea ling party must neg ate all
g rounds on appea l. State Farm Fire & Casualty Company v. S.S. , 858 S.W .2d 374, 381 (Tex. 1993); Ellis v. Precision Engine Rebuilders, Inc. , 68 S.W .3d 894, 898 (Tex.App.--Houston [1st Dist.] 2002,no pet.). I f sum mary judgme nt may have been render ed, properly or i mprop er l y , o n a ground not

challeng ed, the judgme nt must be aff irmed. Star-Telegram, Inc. v. Doe , 915 S.W .2d 471, 473 (Tex. 1995). Be cause Saucedo has failed to ad d re s s o n e o f t he challeng ed elements, we are require d to

overr ule sub-par

t (E) of I ssue One a s it relates to the Ac ostas.

Duty of Good Faith and Fair Dealing
I n sub-par

t s (C ) an d (D) of I ssue One, Saucedo contends that the trial err ed in g ranting
summary judgmen t o n h i s cl aim that the Acostas brea ched a duty of g ood faith and fair dealing arising out of a specia l employ er- em p l o y ee relationship. The Acostas moved for traditional
summary judgme nt on the g round they did not have a duty

to act in g ood faith.
A claim for brea ch of duty of g ood faith and f

air de aling is a tort action that ar ises from an underly ing contra ct. Cole v. Hall , 864 S.W .2d 563, 568 (Tex.App.--Da llas 1993, writ dism’d w.o.j.) (en banc)

. Whether a duty exis ts betwee n the parties is initially a question of law which we revie w de novo . Cole , 864 S.W .2d at 56 8

. Texas courts have rec og nized that not ever y contra ctual rela tionship cr eate s a duty of g ood faith and f air de aling

. City of Midland v. O’Bry ant , 18 S.W .3d 209, 215 (Tex. 2000); GTE Mobilnet of South Texas Ltd. Partnership v. Telece ll Cellular, Inc. , 955
S.W .2d 286, 295 (Tex.App.--Houston [1st Dist.] 1997, writ denied) ; Cole , 864 S.W .2d at 568. The
Texas Supreme Court has spe cifically reje cted the implication of a g ener al dut y of good faith and fair dealing in all contra cts. City of Midland , 18 S.W .3d at 215; English v. Fischer , 660 S.W .2d 521,
522 (Tex. 1983). An actionable duty has been imposed only when there i s a specia l rela tionship, such as that betwee n an insured and his or her insurance car rier. City of

Midland , 18 S.W .3d at 215.
A specia l rela tionship has been found to exis t in the insurance co n t ex t beca use of “the parties’ unequal barg aining p o we r an d the nature of i nsuranc e contracts which would allow uns crupulous insurers to take advanta g e of their insure ds’ misfortunes in bar g aining for se ttlement or resolutionof clai m s . ” Id., quot ing Arnold v. N ational County Mutual Fire Insurance Company , 725 S.W .2d 165, 167 (Tex. 1987). I n City of Midland v. O’Bry ant , the Supreme Court f ound that the elements which rende r the rela tionship betwee n an insurer and an i n s u red a specia l one are absent in the rela tionship between a

n employ er a

nd employ er. Id.
We have alre ady deter

mined that Saucedo was an independe n t co n t ra ctor rathe r than an employ ee. Saucedo does not argue that a specia l rela tionship can exis t betwee n an independe nt
contra ctor and the person who employ ed him. Even assuming for the sake o f ar gu ment that an employ er- employ ee rela tionship exis ted in this case , it is not a specia l rela tionship which would g ive rise to a duty of g ood faith and fair dealing

. City of Midland , 18 S.W .3d at 215. Consequently , the trial court proper ly g rante d summary judgme nt in favor of the Acostas on this c laim. We ove rrule sub-par ts (C) and (D ) of I ssue One a s they rela te to the Acosta s. MRS. RABE Negligence and Intentional Infliction of Emotional Distress
Mrs. Rabe moved for summary judgme nt under Rule 1 6 6 a( i ) asser ting that there was no evidenc e of any of the elements of the neg lige nce cause of action or the intentional infliction of emotional distress claim. On appea l, Saucedo has addre ssed only the duty element of the neg lige nce claim and the outrag eous conduct element of the intentional infliction of emotional distress claim.
Be cause Saucedo has failed to addre ss eac h of the challeng ed elements of these claims, we overr ule sub-par ts (A), (B ), and (E) of I ssue One as they rela te to Mrs. Rabe. See Star-Telegram , 915 S.W .2d

at 473 (if summary judgme nt may have been rende red, proper ly or improperly , on a g round not challeng ed, the judg ment must be aff irmed). Duty of Good Faith and Fair Dealing Wit h respe ct to the rema ining cause of action asse rt ed aga i nst her, Mrs. Rabe moved fortraditional summary judgme nt on the g round that she did not have a duty to act in g ood faith. As we

have alre ady noted, the Texas Supreme Court has held that the employ er- employ ee rela tionship does not give rise to a specia l r elationship which would impose a duty of g ood faith and f

air de aling on the employ er. See City of Midland , 18 S.W .3d at 2 15. Even assuming an employ er- employ ee rela tionship exis ted betwee n Mrs. Rabe and Saucedo, Mrs. Rabe did not have a duty to act in g ood faith. The trial court did not err in g ranting summary judgme nt in favor of Mrs. Rabe on this g round.
Acc ording ly , we ove rrule sub- parts (C) a nd (D) a s they

rela te to Mrs. Rabe.
Be cause we ha

ve found tha t the trial court proper ly g rante d summary judgme nt in f avor of the Acostas and Mrs. Rabe on all three cause s of ac t i o n as serted by Saucedo ag ainst them, it is

unnece ssary to addre ss sub-par ts (F ), (G) and (H) of I ssue One which rela te to Saucedo’ s alleg ation that Mr. Acosta acte d as the ag ent for Mrs. Rabe. Consequently , we aff irm the summary judgme nts.

Aug ust 31, 2010 ANN CRAWFORD McCL URE, J ustice
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.