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

NO. 03-12-00004- CV

Chris Carpenter , Appellan t

v. F irst Texas Bancorp d/b /a F irst Texas Bank, Ap pellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 277 TH JUDICI AL DISTRICT

NO. 10- 078- C277, HO NORAB LE K EN ANDERSON, JUDGE P RESIDING

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

C h ri s Carpente r appea ls the trial court’s summary judgme nt in favor of appelle e First Texas Ba

nk (the Ba

nk), disposing of his neg lige nce and premises-liability claims ag ainst the 1
Ba nk arising from his falling off an alleg edly unsafe ladder on the Ba nk’s premises. The parties are familiar with the fac ts, proce dural history , and applicable standards of revie w. Acc ording ly , we will
not rec ite them here except as nec essar y to a dvise the par

ties of the Court’s dec ision and the basic

Although the defe ndant was sty led below as First Texas Ba ncorp d/b/a First Texas Ba nk, 1 there wer e ac tually

two separ ate de fenda

nts, First Texas Ba

ncorp ( Ba ncorp) and First Te x as B ank (t he Ba nk), which pleading defe ct Ba ncorp and the Ba

nk raised in their separ ately filed m o t i o n s for summary judgme nt and response to Carpente r’s motion for new trial. Appellant eff ectively tried this issue of separ ate defe ndants by consent when he acknow ledg ed them as separ ate defe ndants in his summary -judg ment response and motion for new trial. See Roark v. Stallw orth Oil & Gas, Inc. , 813 S.W .2d 492, 495 (Tex. 1991) (non-movant who does not object to varia nce betwee n motion for summary judgme nt and movant’s pleading s may not raise pleading defic iency on appea l). Be cause appellant’ s briefs wholly

fail to raise any

issues, arg uments, or citations to the record with respe ct to the trial court’ s summary judgme nt in favor of Ba

ncorp, he has waived err or as to the judgme nt in favor of

that defe ndant. See Tex. R. App. P . 38.1(f) , (i).rea sons f

or it. See Tex. R. App. P. 47.4. For the following rea sons, we re verse the district court’s
summary j u d g ment in favor of the Ba nk and rema

nd the cause for further proce eding s consistent with this opi nion.

The Ba nk’s traditional and no-evide nce summary -judg ment motions wer e entirely supported by its asser

tion that all of Carpente r’s claims wer e subject to the provisions of Chapter 95 of the Civil Practice and Remedies Code and that b ec au s e t h er e was no evidenc e that the Ba nk either (1) exercised or reta ined control over the manner in which Carpente r’s work was perf ormed

or (2) had actua l knowledg e of the dang er or condition resul t i n g i n his injury , Carpente r’s claims

wer e barr ed. See Tex. Civ. Prac. & Rem. Code § 95.003. Carpente r responds that Chapter 95 does
not apply to the fac ts here beca use neither was he a “contractor” nor did his claims arise from the “condition or use of an improvement to rea l p ro p er t y wher e the contra ctor or subcontrac tor constructs, re pairs, re novates, or modifie s the improvement.” Id. § 95.002. Carpente r cla ims that althoug h he had acte d as a contra ctor in the past with respe ct to work projec ts for the Ba nk, on this
p ar t i cu lar occa sion he was on the Ba nk’s premises as a business invitee mere ly to point out hail damag e to the Ba

nk’s insurance adjuster when he used the Ba nk’s unsafe ladder to climb down from the roof, an action that did not involve his repa iring any improvement but only his use of the Ba nk’s
persona l property

(the ladde r). Chapter 95 opera tes to limit a proper ty owner ’s liability for the acts of independe nt
contra ctors only under cer tain circ umstances. See id. §§ 95.001-.00 4

. T h e fi rst require ment for the chapte r’s applicability i s t h at t h e plaintiff be a proper ty owner , contra ctor, subcontrac tor, or employ ee of

a contr actor

or subcontra ctor: This chapter

applies only

to a claim:
2(1) ag ainst a proper ty owner , contra ctor, or subcontrac tor for persona l inj ury , death, or proper ty damag e to an owner , a contra ctor, or a subcontrac tor or an employ ee of a contra ctor or subcontra ctor.

Id. § 95.002(1) ; s ee a l

s o i d. § 95.001 (“c laim” means claim for damag es cause d by neg lige nce, and “prope rty owner ” means person or entity that owns rea l proper ty primarily used for commerc ial or busi ness purposes). C arpe nter arg ues t hat he was not a contractor, while the Bank arg ues t hat 2
he wa s. We conclude that the trial court err ed in deter mining that C hapter 95 applies to Carpente r’s claims agai n st the Ba nk beca use Carpente r was not a “contr actor ” as contemplated by the statute. See State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006) (statut o ry const ruction is
q u es tion of law, which we revie w de novo). Whil e the term “contr actor ” is not defined i n t h e chapte r, we note that the ordinary meaning of “contr actor ” require s that there be an actua l c ontrac t under which one party (the contra ctor) has ag ree d to perf orm a specific kind of work or task and be
compen s at ed there for by another party

. See W ebster’s Third New Int’l Dictionary 1138 (2002) (contra ctor define d as “one who contra cts on prede termined terms to provide labor and materia ls and
to be responsible for the perf ormanc e o f a co n struction job in acc ordanc e with established specific ations or plans—also called a building contra ctor” ); Black’ s Law Dictionary 375 (9th ed. 2009) (c ontrac tor define d as “a party to a contra ct” a

nd “more specific [ally ], one w ho contra cts to do work or provide supplies for another ”); see also Monsanto Co. v. Cornerstones Mun. Util. Dist. , 865 S.W .2d 937, 939 (Tex. 1993) (whe re L eg islature fails to define specific word in statute, courts

The parties do not dispute that the Ba nk is a “prope rty owner ” under Chapter 95. See 2 Tex. P rop. Code § 95.001. 3must ap ply its ordinary meaning ). Be cause construing the t erm “contrac tor” to include C arpe nter

would pree mpt his common-law neg lige nce and premises-liability claims and provide his exclusive

reme dy ag ainst the Ba

nk, we are espec ially retice nt to extend the plain meaning of “contr actor ” bey ond its ordinary meaning and must construe the statute strictly

. See Smith v. Sewell , 858 S.W .2d 3 350, 354 (Tex. 1993) (if st atute depr ives person of common-law r ight, it will be strictly construed and not extended bey ond plain meaning or applied to c ases not cle arly within its purview)

. Appellee has failed to identify summary - ju d g me n t e v id e n c e c o n c lu s iv e ly e s ta b li s hing that appellant was a “contr actor ” under Chapter 95. There was no summary -judg ment evidenc e of a written contra ct betwee n the parties for any repa ir work to be perf ormed by Carpente r. Whil e Carpente r had submitt ed two bids to the Bank t he mont h prior to the i ncident—one to repla ce the lower roof and one to repla ce both the lower and upper roofs—ther e is no evidenc e that the Ba nk and Carpente r m utually ag ree d (ver bally or ot herw ise) to either proposal or t o a diff er en t s co pe of the work or compensa tion ther efor

. Among the limit ed evidenc e appellee s have identified as cre ating
a contr act is Carpe nter’s e quivocal deposition testimony :
Q: And it was y our understanding y ou wer e go ing to be the g uy to be making those repa irs. That’s why they had y ou up there , corr ect?
A: That made sense, y es, sir.

To the extent the Ba

nk asser ts that Carp en t er i s a “subcontra ctor” or “employ ee of a 3 contra ctor or subcontrac tor,” our analy sis and dispositi on rema in the same beca use of the lack of evidenc e of a contra ct betwee n the parties. See W ebster’s Third New Int’l Dictionary 2274 (2002) (subcontra ctor is one who is “ awa rded a portion of an exis ting contra ct”) ; Black’ s Law Dictionary 1560 (9th ed. 2009) (subcontra ctor is one who “contracts to perf orm part or all of another ’s contra ct”)

. 4Appellee additionally ci t es Carpente r’s deposition testimony that he considere d

himself t h e Bank’s “roof ing contra ctor” and its “g o-to g uy ” for repa iring the Ba nk’s roof and providing other maintenanc e service s. Howeve r, Carpente r’s char acte rization of himself as the bank’s “roof

ing contra ctor” as well as the Ba nk’s identify ing him as its “contr actor ” in an email with
i ts insurance adjuster to schedule an appointment is not rele vant with respe ct to whet h er h e wa s leg ally a “c ontrac tor” unde r the statute, a bsent fac ts suppor

ting the prese nce of a contra ct betwee n the parties. See LMB, Ltd. v. Moreno , 20 1 S

. W

. 3 d 6 8 6 , 689 (Tex. 2006) (bar e leg al conclusions without supporting fa cts do not constitute competent summary -judg ment evidenc e).

The rec ord does not establish as a matter of law that the p ar t i es h ad enter ed into a
contra ct for Carpente r t o make any particula r repairs or perf

orm any work on t h e roof, whether to
repa ir the leak Carpente r initially identified or to repa ir the hail damag e Carpente r discovere d while investiga ting the le ak. I n fac t, Carpente r t estified that in di scussing with Ba nk personne l a “plan”
to file an insurance claim to fund the roof repa irs, it was left undeter mined whether the roof would be completely redone , depending on the amount of ins u r a n c e p r o c e e ds rec eived. Although Carpente r testified that he believed he would be the person t o m ak e whateve r repa irs the Ba nk decide d to underta ke, the parties had not yet g otten to the point of specify ing what those repa irs would entail, whether Carpente r would indeed be the person to do them, and what the terms of compensa tion would be. I n other words, the parties had not enter ed into a contra ct and, it follows, Carpente r could
not be a p ar t y to that non-existent contra ct and, there fore , he was not a “contr actor ” as the term is ordinarily

used. At best, the e vidence shows that the B ank and Carpenter had an “ag ree ment to
ag ree ,” both with respe ct to the scope of the work and pay ment there for. See T.O. Stanley Boot Co.

v. Bank of E l P aso , 847 S.W .2d 218, 221 (Tex. 1992) (par ties must have ag ree d on essential terms
5for contra ct to be enfor cea ble, and when essential terms are left open for future neg otiation, parties have nothing more than une nforc eable ag ree ment to ag ree ).

The summary -judg ment rec ord is insufficient to establish the applicabilit y of Chapter 95 as a matter of law, and the trial court err ed in g ranting the Ba nk summary judgme nt on that basis. Acc ording ly , we rever se t he trial court’s summary judgme nt in favor of t he Bank and

4

rema nd Carpente r’s c laims for fur ther proc eeding s consistent with this opinion. We note t hat our judgme nt reve rses the summary judgme nt g rante d in favor of First Texas Ba nk only and aff

irms the summary judgme nt in favor of First Texas Ba ncorp, as Carpente r waived any err or as to t h at defe ndant.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Goodwin, and F ield
Affir med in part; Rever sed and Rema nded in par

t Filed: June 5, 2014

Be cause the s ummary -judg ment evidenc e i s i n sufficie nt to support the first require ment 4 of Chapter 9 5 ’s applicability , we need not rea ch Carpente r’s other arg uments, including whether Chapter 95’s second applicability re q u i re m en t was met, requiring his claim to “ar ise[] from the condition or use of an improvement to rea l proper ty wher e the contra ctor or subcontrac tor constructs, repa irs, renova tes, or modifies the improvement,” m uch less the Bank’s arg uments about whethe r the evidenc e cre ates a fac t issue on its contr ol over the work and knowledg e of the dang erous condition. See Tex. R. App. P. 47.1 (cour t of appea ls must h an d d o wn written opinion that is as brief as prac ticable but that addre sses ever y issue raised and nece ssary to final dispositi on of appea l). 6