Opinion issued August 31, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00620-CV
ANGEL MENDOZA, Appellant
V.
HACIENDA SERVICES, INC. D/B/A CENSEO HOMES, Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2022-12390
MEMORANDUM OPINION
Chapter 95 of the Texas Civil Practice and Remedies Code protects property
owners against liability to contractors, subcontractors, and their employees under
certain circumstances, unless the property owner exercises or retains control over
the manner in which the work is performed, had actual knowledge of the danger or condition that caused the plaintiff’s injury, and failed to adequately warn him. TEX.
CIV. PRAC. & REM. CODE § 95.003. Angel Mendoza sued for injuries he suffered
when he fell while working as a contractor for Hacienda Services, Inc. d/b/a
Censeo Homes (“Censeo”). The trial court granted take-nothing summary
judgment in Censeo’s favor, and Mendoza appealed.
On appeal, Mendoza argues that the trial court erred by granting summary
judgment because Censeo did not conclusively prove that Chapter 95 applies and
because the summary judgment evidence created a question of fact about the
applicability of the statutory exception. We conclude that the statute applies. In
addition, we conclude that Mendoza failed to produce evidence relating to control
or actual knowledge in response to Censeo’s no evidence motion for summary
judgment.
Accordingly, we affirm.
Background
Hacienda Services, Inc. is a residential homebuilder that has done business
as Fronterra Homes and Censeo Homes. Censeo built a number of houses in a new
development in Angleton, Texas. Mendoza, who referred to himself as a
“subcontractor,” owned a business called “Domingo’s Painting,” and employed
2
multiple people.1 Mendoza primarily did interior and exterior painting for
homebuilders like Censeo and Lennar Homes, but Mendoza was also “kind of a
handyman.” In addition to painting, Mendoza had “learned to do a bunch of other
stuff” including sheetrock, carpentry, and pressure washing, and he had done a
variety of other tasks on Censeo projects on an ad hoc basis. Cortez described
walking through building projects with Mendoza, pointing out miscellaneous tasks
that needed to be completed (including sheetrock repairs, carpentry, pressure
washing, and trash removal), and Mendoza telling him what he could do and how
much each task would cost. Censeo would then pay Mendoza for those services by
issuing a variance purchase order.2
Mendoza, through Domingo’s Painting, painted houses for Censeo in its
Angleton development. On May 10, 2021, he and one of his employees arrived to
work on two houses: one at 753 Rosewood Lane and the other next door. The onestory house at 753 Rosewood Lane had been sold, and the sale was scheduled to
close several days later. Mendoza was engaged to help with final “punch list”
1
Because Mendoza’s injuries limit his ability to speak, Mendoza testified by
deposition through an interpreter and the use of hand signals.
2
In his deposition, Jeff Cortez, who had worked for Censeo in both warranty issues
and construction, spoke highly of Mendoza. Cortez said he used Mendoza for
warranty work for Censeo before he became a construction superintendent. He
testified that Censeo called on Mendoza for “almost every warranty call that
needed paint. He was—he was our best guy.” When asked if Mendoza was a good
worker, Cortez said: “He was the best worker we had. . . . [H]e was just awesome
with customers. You could send him to somebody’s house and not be worried
about anything. He was great with customers. He was a great painter.”
3
items to make the one-story house ready for closing, and his employee was tasked
to do “little stuff” on the interior of the two-story house next door.
Jeff Cortez, who was Censeo’s construction superintendent for those two
houses, testified about the communications he had with Mendoza regarding the
final punch list. Cortez did not use a formal punch list for the interior of the house.
He said: “The inside doesn’t really require [a written punch list], because the inside
we blue tape. So me and [Mendoza] had worked together so—long enough that I
didn’t need to point to anything. If there was something on the ceiling, I would
mark it on the floor and he would know. Everything on the walls was marked. I
would write on the tape on the inside of the house like, ‘Whatever this is.’ And so
really, the punch list on the inside was just blue tape, and we walked the outside . .
. .”
As for the exterior, Cortez explained: “There was a little paint touch-up, a
little caulking. It’s just when the house—it’s just sitting outside, so you’re going to
get paint things messed up. Caulking is going to crack. And it’s the first thing you
see when you pull into the driveway, so . . . you notice it.” Cortez was asked: “[S]o
basically you were, like, ‘Fix this,’ pointed to the dormer?” Cortez said: “Yeah. I
was like, ‘Just make sure the caulking is good. Touch up the paint. Wipe down the
window.’”
4
In his deposition, Mendoza denied that he was given instructions regarding
the work to be done on the dormer of the house.3 Miguel Garcia, a Censeo project
manager who testified as the corporate representative, said nobody at Censeo told
Mendoza how to do his job because “[h]e’s a professional . . . an expert in his
field.” Garcia also said that Censeo did not provide Mendoza with safety training
“[b]ecause it’s his responsibility.”
Mendoza had his own equipment, including ladders, that he brought with
him and used for interior and exterior painting jobs.4 Mendoza set up his extension
ladder at the one-story house. Mendoza had worked on roofs two or three times
without incident before his fall. But he did not know whether he wore fall
protection on the day of his accident.
Cortez was upstairs in the house next door with a plumber, Mendoza’s
employee was painting downstairs, and Mendoza was working alone at the one3
At his deposition, Mendoza was asked:
Q: On May 10th, 2021, did Jeff Cortez give you instructions
regarding work to be done on the dormer, which is on the
roof, of a home in Angleton, Texas?
A: No (indicating).
Mendoza recalled working “on the roof” of the house on May 10, 2021, but he did
not remember working at the house before the accident.
4
Cortez said that “all the trades” bring their own equipment because “[w]e don’t
provide anything.”
5
story house.5 Cortez heard Mendoza’s employee screaming, ran downstairs, and
found Mendoza unconscious on top of his ladder in the driveway of the one-story
house. Although he did not witness the accident, Cortez said it looked like the
ladder tipped backwards because Mendoza was face up on the ladder with his head
toward the street. Cortez said: “[I]t looked like . . . his head went between the two
rungs and hit concrete . . . . Imagine in your head if you were using a ladder as,
like, a gurney to pick somebody up, that’s what it looked like.” Cortez stayed with
Mendoza until an ambulance arrived, and he later ensured that Mendoza’s wife
was notified about the accident.6
Cortez testified that Censeo “really didn’t” manage fall protection at the
jobsites because it was up to each subcontractor to train their workers. He said:
“[W]e didn’t have, like, a safety meeting and protocols or training or anything like
that. . . . I mean, we had a binder . . . they printed out and gave us to keep in our
cars in case anybody asked for it; but it wasn’t like hammered home or anything.”
According to Cortez and Garcia, Censeo did not provide any fall protection, and it
was up to the individual contractors to provide it. Cortez said that Mendoza had
5
A Censeo Homes salesperson was inside the one-story house at the time of the
accident, and she came outside after Mendoza fell.
6
Cortez testified that he emailed a statement about the incident to Deidre Foster,
who was investigating the accident internally. Although he did not see what
happened to Mendoza, Cortez wrote: “Suspected fall from roof or ladder slipped
when leaving roof.” Cortez did not believe the ladder slipped due to Mendoza’s
position on the ground when Cortez reached him.
6
been on roofs, and “he wasn’t unsure of his footing.” Cortez also said that he had
“never seen anybody use fall protection.” However, Garcia said that was not
consistent with his experience at Censeo, and he suggested that, due to his relative
inexperience, Cortez might not have known what fall protections to look for.
According to Garcia, Censeo screens contractors for quality and safety, and
he said that contractors can be terminated if it is “blatantly obvious” that they are
“not being safe,” including violating OSHA regulations. He said that Censeo
should not hire, and should fire, a contractor who acts unsafely. He agreed that
Censeo’s project managers should be trained to identify a contractor’s unsafe acts
and that contractors should follow applicable federal regulations pertaining to
safety. He also agreed that Censeo “should not knowingly keep having a contractor
do an unsafe thing,” and that “assign[ing] a contractor to do a job on a second story
roof” when Censeo “know[s] that they’re not going to be using fall protection”
endangers the contractor. But he emphasized that it was up to the contractors to
follow their own safety rules.
Garcia repeatedly testified that fall protection was not needed where
Mendoza was working because it was a one-story house, with the roof at nine feet.
He said that considering that it was less than ten feet high and accounting for the
7
slope of the roof, Censeo’s safety manual did not require fall protection.7 Garcia
also relied on “toolbox talks,” which were employee talks about “some of the
things that we see out there in the field,” in reaching his conclusion that no fall
protection was needed at an elevation less than ten feet.
Garcia was asked about an OSHA (Occupational Safety and Health
Administration) regulation that requires fall protection such as guardrails with
toeboards, safety net systems, or personal fall arrest systems when an “employee
[is] on a steep roof with unprotected sides and edges 6 feet or more above lower
levels.” Garcia emphasized that the rule was for employees, and Mendoza was not
an employee. He acknowledged that Censeo’s safety manual did not address work
on roofs and that Garcia was a painter. Garcia said that Censeo did not consider
fall protection for heights under ten feet: “I’m just telling you that it’s not
something we look for because we know that it’s under 10 foot. Anything outside
of that, cornice guys, framers, roofers, they all have fall protection for those
purposes.” Garcia agreed that a contractor should abide by applicable regulations,
including those specifying when fall protection is needed, and that Censeo should
7
Garcia’s deposition indicates that Censeo’s safety manual was an exhibit, but the
manual does not appear in the appellate record, and it was not offered as
summary-judgment evidence. Garcia testified that on page 15, the manual stated:
“Use fall arrest systems when working on ladder jacks that are more than 10 feet
above the ground.”
8
not continue to employ contractors that fail to use fall protection when needed
because it endangers the contractor.
Garcia explained that Censeo’s safety manual came from the Texas
Association of Builders, and he read the following from the safety manual:
This program is not meant to replace the safety plans of our
independent contractors. Our independent contractors are responsible
for developing and maintaining their own safety plans specific to their
respective trade or occupation. These standards are simply to
emphasize some of the common hazards and safety practices that may
be found on company jobsites.
Garcia said that Censeo’s safety manual applied to employees, and that as a
contractor, Mendoza was responsible for determining whether he needed fall
protection and providing it:
Now if Mr. Mendoza felt like he needed fall protection, our manual
states that he is responsible to supply his own fall protection, whether
it’s equipment, what it is to do that. And so if we misjudged as a
builder that he—that he didn’t need fall equipment, at the end of the
day, we rely on his expertise and his competence to identify that.
Mendoza’s injuries from the fall were severe, disabling, and included a
traumatic brain injury that limits his ability to speak. Mendoza sued Censeo along
with the manufacturer and the installer of the roofing shingles. The statement of
facts consisted of the following four numbered paragraphs:
10. On May 10, 2021, Plaintiff [Mendoza] was performing work as
a painter at a one-story house located on the 700 block of Rosewood
Lane in Angleton, Texas 77515.
9
11. Plaintiff was performing the work under his trade name,
Domingo’s Painting, and had been hired by Defendant Censeo Homes
to do the work.
12. The roof of the house, which had just been installed by
Defendant Dalco Roofing, was loose and granular. Defendant Dalco
Roofing installed Tamko Heritage Shingles, manufactured by
Defendant Tamko, on the roof in question.
13. Plaintiff was on the roof doing touch-up work on the roof jacks
when, suddenly and without warning, he fell to the ground below,
causing severe trauma to his brain that resulted in permanent injuries.
Mendoza alleged causes of action for negligence and premises liability. As
to his negligence claim, Mendoza alleged that Censeo “proximately caused” the
incident in the following ways:8
a) Failing to use reasonable care in performing and/or overseeing
work at the property where the incident occurred;
b) Failing to provide a safe workplace;
c) Failing to provide adequate training;
d) Placing Plaintiff in a dangerous position and failing to act as a
reasonable person in preventing harm;
e) Failing to provide appropriate equipment for Plaintiff’s use;
f) Failing to warn Plaintiff of the dangers associated with the task;
g) Failing to warn Plaintiff of the dangers associated with the roof;
8
Mendoza’s negligence claim is technically a negligent activity claim and will be
treated as such here. Mendoza also sued the manufacturer and the installer of the
roofing shingles, and he nonsuited his claims against them before the trial court
rendered the summary judgment from which he now appeals.
10
h) Failing to warn Plaintiff of dangers associated with the
equipment provided by Defendants.
i) In failing to remove, eliminate or abate the dangerous
conditions which existed at all times material hereto; and
j) Other acts deemed negligent and grossly negligent.
As to his premises liability claim, Mendoza alleged that he was an invitee on
the premises because he was performing work for Censeo’s benefit. Mendoza
pleaded that Censeo owed him “a duty to not create dangerous conditions on the
premises and to warn of dangerous conditions that it knew or reasonably should
have known about.” Mendoza alleged that Censeo breached its duties by:
a) Failing to use reasonable care to protect Plaintiff against
unreasonable risk of harm;
b) Failing to properly inspect the premises for dangerous
conditions;
c) Creating a dangerous condition on the premises and failing to
remedy the dangerous condition;
d) Failing to warn of a dangerous condition that Defendants
created on the premises;
e) Failing to warn of or cure a dangerous condition that
Defendants knew or should have known existed on the
premises; and
f) Other acts deemed negligent.
Censeo filed a traditional and no evidence motion for summary judgment.
Censeo’s summary judgment evidence consisted of the transcripts of the
depositions of Mendoza, Cortez, and Garcia. In its traditional motion for summary
11
judgment, Censeo argued that Chapter 95 of the Texas Civil Practice and Remedies
Code applied, that the exception did not apply because Censeo did not retain
control over the manner in which Mendoza performed his work, and that Censeo
had no duty to warn or make safe the open and obvious condition (the height of the
roof). Censeo also argued that there was no evidence of control or actual
knowledge. Thus, Censeo sought summary judgment on traditional grounds on the
question of applicability and the first element of the exception, and it sought
summary judgment on no evidence grounds on both elements of the exception.
Mendoza responded, attaching as summary judgment evidence the same
transcripts of his and Cortez’s depositions and a purchase order for interior and
exterior painting of the house where Mendoza fell. The purchase order was dated
October 28, 2020. He also claimed that he was engaged in maintenance activities
outside the scope of the statute and that Censeo sent him to work on the roof
despite knowing that he would not use fall protection.
The trial court initially denied the summary judgment motion because
Censeo had not proven that it was a property owner. Censeo then filed a
supplemental motion for summary judgment, attaching evidence that it owned the
property on the day of the fall. The trial court granted final summary judgment in
favor of Censeo, and Mendoza appealed.
12
Analysis
On appeal, Mendoza argues that the trial court erred by granting Censeo’s
summary judgment motion.
I. Standards of Review
A. Traditional Motion for Summary Judgment
To prevail on a traditional motion for summary judgment, the moving party
must prove there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law on the issues expressly set out in the
motion. TEX. R. CIV. P. 166a (former); see Lujan v. Navistar, Inc., 555 S.W.3d 79,
84 (Tex. 2018). “To establish entitlement to summary judgment based on an
affirmative defense . . . the defendant must conclusively establish each element of
its affirmative defense.” First Sabrepoint Cap. Mgmt, L.P. v. Farmland Partners
Inc., 712 S.W.3d 75, 84 (Tex. 2025); De La Rosa v. Miracle Farm, Inc., No. 01-23-00579-CV, 2025 WL 2832218, at *3 (Tex. App.—Houston [1st Dist.] Oct. 7,
2025, no pet.) (mem. op.). We review summary judgments de novo. Weekley
Homes, LLC v. Paniagua, 691 S.W.3d 911, 915 (Tex. 2024). In doing so, we
“examine the entire record in the light most favorable to the nonmovant, indulging
every reasonable inference and resolving any doubts against the motion.” City of
Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). And when, as here, the trial
court does not specify the grounds on which it granted a summary judgment, we
13
must uphold the trial court’s judgment if any of the grounds properly presented are
meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013);
Pertolanitz v. Waldroup, 722 S.W.3d 168, 172 (Tex. App.—Houston [1st Dist.]
2025, no pet.).
B. No Evidence Motion for Summary Judgment
After an adequate time for discovery, a party may move for summary
judgment contending that there is no evidence of one or more essential elements of
the nonmovant’s claims, upon which the nonmovant would have the burden of
proof at trial. See TEX. R. CIV. P. 166a(i) (former); see Lozada v. Posada, 718
S.W.3d 262, 266 (Tex. 2025). The motion must state the elements as to which
there is no evidence. TEX. R. CIV. P. 166a(i) (former). Once the movant files a
proper motion, the burden then shifts to the nonmovant to present evidence raising
a genuine issue of material fact as to each of the elements specified in the motion.
See id.; JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021). To
defeat a no-evidence motion for summary judgment, the nonmovant is not required
to marshal its proof; his response need only point to evidence that raises a fact
issue on the challenged element. State v. $3,774.28 in U.S. Currency, 713 S.W.3d
381, 388 (Tex. 2025).
A no-evidence motion “will be sustained when (a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or of
14
evidence from giving weight to the only evidence offered to prove a vital fact,
(c) the evidence offered to prove a vital fact is no more than a mere scintilla, or
(d) the evidence conclusively establishes the opposite of the vital fact.” Lozada,
718 S.W.3d at 266 (quotations omitted). “Less than a scintilla of evidence exists
when the evidence is so weak as to do no more than create a mere surmise or
suspicion of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003) (quotation omitted). “More than a scintilla of evidence exists when the
evidence rises to a level that would enable reasonable and fair-minded people to
differ in their conclusions.” Id (quotation omitted).
On appeal, we consider the evidence in the light most favorable to the
nonmovant, crediting evidence a reasonable jury could credit and disregarding
contrary evidence and inferences unless a reasonable jury could not. Merriman,
407 S.W.3d at 248.
II. Chapter 95
A. Limitation on Liability and Applicability of Statute
Chapter 95 of the Texas Civil Practices and Remedies Code was enacted 30
years ago as part of a sweeping tort-reform package. Francis v. Coastal Oil & Gas
Corp., 130 S.W.3d 76, 82 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The
statute applies “when an independent contractor or its employee, who was hired to
‘construct[t], repai[r], renovat[e], or modif[y]’ an improvement to the owner’s
15
property, brings a ‘claim for damages caused by negligence’ that ‘arises from the
condition or use’ of that improvement.” CenterPoint Energy Houston Elec., LLC v.
Wilder, —S.W.3d—, No. 01-22-00853-CV, 2025 WL 2248569, at *13 (Tex.
App.—Houston [1st Dist.] Aug. 7, 2025, pet. denied) (quoting TEX. CIV. PRAC. &
REM. CODE §§ 95.001, 95.002).
Chapter 95 applies “to all negligence claims that arise from either a premises
defect or the negligent activity of a property owner or its employees.” Abutahoun
v. Dow Chem. Co., 463 S.W.3d 42, 50 (Tex. 2015). In a premises liability case, it
limits liability “for injuries to contractors and their employees . . . [when] . . .
landowners exercise control over the work and possess actual knowledge of the
injury-causing condition, and then only if the owner fails to provide an adequate
warning.” SandRidge Energy, Inc. v. Barfield, 642 S.W.3d 560, 566 (Tex. 2022).9
Chapter 95 applies only “when the injury results from a condition or use of
the same improvement on which the contractor (or its employee) is working when
the injury occurs.” Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016).
A “condition” is “an intentional or an inadvertent state of being.” Los Compadres 9
“In contrast, at common law, a premises owner may be liable for failing to warn of
a dangerous condition of which the owner did not know, but should have
discovered by exercising reasonable care.” SandRidge Energy, Inc. v. Barfield,
642 S.W.3d 560, 566 n.22 (Tex. 2022). Compare, e.g., CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (“[T]he elements of a premises claim are:
(1) Actual or constructive knowledge of a condition on the premises by the owner
or occupier . . . .”), with TEX. CIV. PRAC. & REM. CODE § 95.003 (“A property
owner is not liable . . . unless . . . the property owner had actual knowledge of the
danger or condition . . . .”).
16
Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 785 (Tex. 2021) (citing Abutahoun,
463 S.W.3d at 49). “An improvement is any addition to real property, other than
fixtures, that can be removed without causing injury to the real property.” Id. at
784; see Ineos, 505 S.W.3d at 568 (construing improvement to consist of entire
system of furnaces stemming from common header as opposed to single part of
individual furnace plaintiff worked on).
We construe “improvement” narrowly to adhere to the statute’s requirement
that “the injury arise from the condition or use of the improvement that the
contractor or subcontractor ‘constructs, repairs, renovates, or modifies.’” Los
Compadres Pescadores, 622 S.W.3d at 784 (quoting TEX. CIV. PRAC. & REM.
CODE § 95.002(2)) (declining to consider whether power lines were dangerous
condition of workplace generally and focusing on condition of improvement, i.e.,
foundation pilings). However, “[i]f a dangerous condition, by reason of its
proximity to an improvement, creates a probability of harm to one who ‘constructs,
repairs, renovates, or modifies’ the improvement in an ordinary manner, it
constitutes a condition of the improvement itself.” Id. at 785–86 (quoting TEX. CIV.
PRAC. & REM. CODE § 95.002(2)); see Weekley Homes, 691 S.W.3d at 915 (stating
in premises liability cases “contractor does not need to be injured by the
improvement itself if the claim arises from a ‘condition’ of the improvement”).
17
The defendant property owner has the burden of establishing the
applicability of Chapter 95 by conclusively proving that the plaintiff has brought a
claim: (1) for damages caused by negligence resulting in personal injury, death, or
property damage, (2) asserted against a person or entity that owns real property
primarily used for commercial or business purposes, (3) asserted by an owner,
contractor, or subcontractor or an employee of a contractor or subcontractor, and
(4) that arises from the condition or use of an improvement to real property where
the contractor or subcontractor constructs, repairs, renovates, or modifies the
improvement. Los Compadres Pescadores, 622 S.W.3d at 782; CenterPoint
Energy Houston Elec., 2025 WL 2248569, at *14; see TEX. CIV. PRAC. & REM.
CODE §§ 95.001, 95.002. A defendant property owner may rely on a plaintiff’s
factual allegations, not pleaded in the alternative, to define the issues and
determine whether Chapter 95 applies. See Weekley Homes, 691 S.W.3d at 916;
see also Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (observing that
plaintiff’s petition “is the best and all-sufficient evidence of the nature of the
action.”). Whether Chapter 95 applies is a question of statutory construction that
we review de novo. Abutahoun, 463 S.W.3d at 46; Phillips v. Dow Chem. Co., 186
S.W.3d 121, 130 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
18
B. Claimant’s Burden Under Chapter 95
“Under the common law, an independent contractor or its employee can
recover against a property owner for premises liability or negligence if the owner
exercised some control over the relevant work and either knew or reasonably
should have known of the risk or danger.” Ineos, 505 S.W.3d at 561. But if
Chapter 95 applies to the plaintiff’s claim, it is the plaintiff’s “sole means of
recovery.” Abutahoun, 463 S.W.3d at 51. And the plaintiff must meet the more
onerous evidentiary burden imposed by the statute. CenterPoint Energy Houston
Elec., 2025 WL 2248569, at *13.
If the owner meets its burden to conclusively establish the statutory
elements, a plaintiff cannot recover on his negligence claim against a property
owner unless he shows that:
(1) the property owner exercised or retain[ed] some control over
the manner in which the work [was] performed, other than the
right to order the work to start or stop or to inspect progress or
receive reports; and
(2) the property owner had actual knowledge of the danger or
condition resulting in the personal injury, death, or property
damage and failed to adequately warn.
TEX. CIV. PRAC. & REM. CODE § 95.003 (emphasis added).
III. Censeo Conclusively Proved Applicability of Chapter 95
In its traditional motion for summary judgment and supplemental motion for
summary judgment, Censeo argued that Chapter 95 applied to Mendoza’s claims.
19
A. First Element: Claim for Damages Caused By Negligence
Resulting in Personal Injury
In his live pleading, Mendoza alleged that he was on the roof “doing touchup work on the roof jacks” when he fell to the ground, suffering “severe trauma to
his brain that resulted in permanent injuries.” Thus, Mendoza’s live pleading
established that he brought a claim for damages caused by negligence resulting in
personal injury, conclusively establishing the first of the four elements Censeo had
the burden to prove. See Los Compadres Pescadores, 622 S.W.3d at 782 (stating
four elements property owner must prove to demonstrate applicability of Chapter
95); Weekly Homes, 691 S.W.3d 916 (stating defendant property owner can rely on
plaintiff’s factual allegations).
B. Second Element: Real Property Ownership
The second element Censeo had to prove was that it was an entity that owns
real property primarily used for commercial or business purposes. See Los
Compadres, 622 S.W.3d at 782. Censeo attached an affidavit and business records
to its supplemental motion for summary judgment. The affidavit from Censeo’s
accountant, Deidre Foster, stated: “On May 10, 2021, the date of the accident
involving Mr. Mendoza, Hacienda Service Inc. was the owner of the home being
constructed at 753 Rosewood Lane in Angleton, Texas. The property was
subsequently transferred to the new owners on May 14, 2021.” The deed of trust
transferring the home to the purchasers was also attached. In addition, Censeo’s
20
corporate representative testified that Censeo built new residential homes for sale.
This summary judgment evidence conclusively establishes the second element. See
Los Compadres, 622 S.W.3d at 782.
C. Third Element: Claimant is Contractor
The third element Censeo had to prove was that the claim was brought by an
owner, contractor, or subcontractor or an employee of a contractor or
subcontractor. See id. In his deposition, Mendoza indicated that he was a
subcontractor and that he owned the subcontracting business, Domingo Painting.
Both Cortez and Garcia also testified that Mendoza was a contractor. This evidence
conclusively establishes the third element. See id.
D. Fourth Element: Claim Arises from Condition or Use of
Improvement to Real Property When Claimant Constructs,
Repairs, Renovates, or Modifies Improvement
The fourth element that Censeo had to prove was that Mendoza’s claim
arose from the condition or use of an improvement to real property where Mendoza
constructed, repaired, renovated, or modified the improvement. See id. In his live
pleading, Mendoza alleged that the roof “was loose and granular,” and that he was
on the roof “doing touch-up work on the roof jacks” when he fell. Both Mendoza
and Censeo have maintained that the relevant improvement to the real property at
issue in this case was the dormer. Mendoza’s allegations implicate a dangerous
condition of the roof, in close proximity to the dormer. See Weekley Homes, 691
21
S.W.3d at 916 (holding that property owner may rely on plaintiff’s factual
allegations). Thus, Mendoza has alleged that his injuries arose from a condition of
an improvement to real property. See Los Compadres Pescadores, 622 S.W.3d at
785–86 (“If a dangerous condition, by reason of its proximity to an improvement,
creates a probability of harm to one who ‘constructs, repairs, renovates, or
modifies’ the improvement in an ordinary manner, it constitutes a condition of the
improvement itself.”).
Where the parties disagree is on the second part: whether Mendoza was
constructing, repairing, renovating, or modifying the improvement that allegedly
caused his accident. Mendoza argues that he was not because his “tiny touch ups”
to the house did not constitute “constructing, repairing, renovating, or modifying”
an improvement. In the trial court, Censeo argued that Mendoza’s allegations of
negligence all stem from his “work on a condition of an improvement to real
property.” On appeal, Censeo responds that the work Mendoza was doing
constituted a modification because he was changing the form of the dormer’s paint
from flawed to unflawed and changing the state of the window from unsealed to
sealed by applying caulk to seal gaps and cracks in the existing caulking in
anticipation of the house sale closing.
Chapter 95 does not define the terms “constructs, repairs, renovates, or
modifies.” See, e.g., Priority Artificial Lift Servs., LLC v. Chiles, 698 S.W.3d 1, 14
22
(Tex. App.—Houston [14th Dist.] 2024, no pet.); Vela v. Murphy Expl. & Prod.
Co.-USA, No. 04-18-00830-CV, 2019 WL 7196603, at *4 (Tex. App.—San
Antonio Dec. 27, 2019, no pet.) (mem. op.). Because this is a matter of statutory
construction, we review the matter de novo and look to the terms’ common
meanings. See Ineos, 505 S.W.3d at 563. In determining the common, ordinary
meanings of these words, we may look to dictionaries and other sources. E.g.,
Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563 & n.10 (Tex. 2014).
Chapter 95 was enacted in 1995, and it has not been amended. At that time,
these words had the following common definitions:
1. construct: build, make;
2. repair: to restore to good condition, fix;
3. renovate: to make like new again, put in good condition, repair;
4. modify: change, alter.
WEBSTER’S NEW COMPLETE DICTIONARY 113, 333, 443 (1995). Similarly, several
of our sister courts of appeals have already considered the meaning of these terms
as used in Chapter 95, using a dictionary definition to guide their understanding of
their ordinary, common meaning.
1. construct—to build or form by putting together parts; frame;
devise.
2. repair—to restore to a good or sound condition after decay or
damage; mend: to repair a motor; to restore or renew by any
23
process of making good, strengthening, etc.: to repair one’s
health by resting.
3. renovate—to restore to good condition; make new or as if new
again; repair.
4. modify—to change somewhat the form or qualities of; alter
partially.
Montoya v. Nichirin-Flex, U.S.A., Inc., 417 S.W.3d 507, 512 (Tex. App.—El Paso
2013, no pet.) (quoting WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY
436, 1236, 1632 (2003)); accord Priority Artificial Lift Servs., 698 S.W.3d at 14;
Vela, 2019 WL 7196603, at *4; Morales v. Alcoa World Alumina L.L.C., No. 13-17-00101-CV, 2018 WL 2252901, at *7 (Tex. App.—Corpus Christi May 17,
2018, pet. denied) (mem. op.). The Fourteenth Court of Appeals concluded that
“these definitions illustrate [that] Chapter 95 is intended to encompass actions that
effect some change upon an improvement’s condition, form, or qualities.” Priority
Artificial Lift Servs., 698 S.W.3d at 14.
Censeo’s summary-judgment evidence showed that Mendoza was engaged
to perform touch-up painting, corrective caulking as needed, and basic cleaning
(wiping down) on the dormer window. Cortez explained that just by virtue of being
outside, the paint can get “messed up” and “[c]aulking is going to crack.” Because
the dormer faces the front of the house, these defects are noticeable “when you pull
into the driveway,” so Cortez told Mendoza to “fix” it. Mendoza’s activities
constitute repair or renovation because he was acting to restore the window to good
24
condition or to make it like new again and put it in good condition. See WEBSTER’S
NEW COMPLETE DICTIONARY 443 (1995); see also Priority Artificial Lift Servs.,
698 S.W.3d at 14; Vela, 2019 WL 7196603, at *4; Morales, 2018 WL 2252901, at
*7; Montoya, 417 S.W.3d at 512.
We conclude that the summary-judgment evidence satisfies the fourth
element. See Los Compadres Pescadores, 622 S.W.3d at 782. Because Mendoza
did not produce any summary judgment evidence creating a genuine question of
material fact on this element, we hold that Censeo conclusively proved that
Chapter 95 applies. See id.
IV. The Exception to the Applicability of Chapter 95
Censeo moved for traditional summary judgment as to the element of control
and for no-evidence summary judgment as to both prongs of the statutory
exception. Because Mendoza has the burden of proof to show that the exception
applies, to defeat summary judgment, he had to produce evidence that creates a
fact issue as to whether Censeo “exercised or retain[ed] some control over the
manner in which the work [was] performed,” that Censeo “had actual knowledge
of the danger or condition” that caused his injuries, and that Censeo “failed to
adequately warn” him. See TEX. CIV. PRAC. & REM. CODE § 95.003.
25
Mendoza argues that he did produce more than a scintilla of evidence
showing that the exception to Chapter 95 applies in this case. Censeo argues that
he did not.
As pleaded and litigated by the parties, Mendoza had primarily two theories
about the danger or condition that caused his injuries. First, he pleaded that there
was a defect in the roof itself, which he described as “loose and granular.” Second,
he argued that Censeo told him to work on the roof, knew that he had not used
personal fall protection in the past, and had safety policies that controverted federal
regulations about when such fall protection was needed. Mendoza argues that
Censeo exercised “some control” over the manner in which he performed his work
generally by giving instructions and by its “knowledge and approval of unsafe
conditions and by promulgating incorrect safety rules about fall protection.”
A. Retention of Control
Under common law, “[a]s a general rule, one who employs an independent
contractor has no duty to ensure that the contractor performs its work in a safe
manner.” AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 295 (Tex. 2020)
(citing Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006)). However,
the Texas Supreme Court has recognized an exception to this rule when “the
employer retains some control over the manner in which the contractor performs
the work that causes the damage.” AEP Tex. Cent., 612 S.W.3d at 295 (quoting
26
Fifth Club, 196 S.W.3d at 791). The Texas Supreme Court has adopted section 414
of the Restatement (Second) of Torts, which states:
One who entrusts work to an independent contractor, but who retains
the control of any part of the work, is subject to liability for physical
harm to others for whose safety the employer owes a duty to exercise
reasonable care, which is caused by his failure to exercise his control
with reasonable care.
Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985) (quoting Restatement
(Second) of Torts § 414 (1977)).
What actions constitute retention of control for this purpose has often been
the subject of litigation because of the necessity for an employer to communicate
with contractors. See Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 156 (Tex. 1999).
“Every premises owner must have some latitude to tell its independent contractors
what to do, in general terms, and may do so without becoming subject to liability.”
Id. To establish the exception to the general rule, however, the premises owner or
employer or must have control over the means, methods, or details of the
independent contractor’s work. See AEP Tex. Cent., 612 S.W.3d at 295. Comment
(c) to section 414 of the Restatement explains what it means for someone to retain
control of any part of the work of an independent contractor in a way that will
subject him to liability:
In order for the rule stated in this Section to apply, the employer must
have retained at least some degree of control over the manner in
which the work is done. It is not enough that he has merely a general
right to order the work stopped or resumed, to inspect its progress or
27
to receive reports, to make suggestions or recommendations which
need not necessarily be followed, or to prescribe alterations and
deviations. Such a general right is usually reserved to employers, but
it does not mean that the contractor is controlled as to his methods of
work, or as to operative detail. There must be such a retention of a
right of supervision that the contractor is not entirely free to do the
work in his own way.
RESTATEMENT (SECOND) OF TORTS § 414 (1965).
The first element to the exception to Chapter 95’s limitation on liability
echoes these comments and requires the claimant to prove that “the property owner
exercise[ed] or retain[ed] some control over the manner in which the work [was]
performed, other than the right to order the work to start or stop or to inspect
progress or receive reports.” TEX. CIV. PRAC. & REM. CODE § 95.003; see Johnston
v. Oiltanking Houston, L.P., 367 S.W.3d 412, 416 (Tex. App.—Houston [14th
Dist.] 2012, no pet.).
Texas courts routinely look to non-chapter 95 cases when analyzing the
control element in section 95.003. See TEX. CIV. PRAC. & REM. CODE § 95.003. For
example, in Energen Resources Corp. v. Wallace, 642 S.W.3d 502, 515 (Tex.
2022), the Supreme Court of Texas relied on two common-law cases involving the
question of control over a subcontractor in construing the control element under
section 95.003, saying:
To establish ‘control’ under section 95.003(1), evidence of a property
owner’s ‘right to order the work to start or stop or to inspect progress
or receive reports’ is insufficient.’ TEX. CIV. PRAC. & REM. CODE
§ 95.003(1). Control may be shown with evidence that (1) a contract
28
assigned control to the property owner or (2) the property owner
‘actually exercised control’ over the manner in which the work was
performed. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.
2002). This control must extend to ‘the means, methods, or details of
the independent contractor’s work . . . such that the [independent]
contractor is not entirely free to do the work in his own way.’ AEP
Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 295 (Tex. 2020)
(cleaned up).
Id.
Bright is a common-law case in which the Supreme Court looked to
Redinger and section 414 of the Restatement. AEP Texas Central Co. is also a
common-law case in which the Supreme Court looked to Redinger, section 414 of
the Restatement, and Bright. In a footnote in Energen Resources Corp., the
Supreme Court expressly acknowledged that common-law cases can inform the
analysis of section 95.003 issues. Energen Res. Corp., 642 S.W.3d at 515 n.13.
The Court said:
Bright is not a Chapter 95 case. But in analyzing the control prong of
section 95.003, we have consulted our decisions regarding a property
owner’s duties to independent contractors over whose work the
property owner has ‘some control.’ See Ineos, 505 S.W.3d at 561
(citing Redinger, 689 S.W.2d at 418). One court of appeals has
suggested that section 95.003(1) is a codification of our holding in
Redinger. See Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d
688, 699 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).
Id.
Likewise, this Court has also relied on non-chapter 95 cases when applying
or analyzing section 95.003. In Phillips v. Dow Chemical Co., 186 S.W.3d 121,
29
134 (Tex. App.—Houston [1st Dist.] 2005, no pet.), this Court noted that although
Bright “construes the common law of premises liability for injuries at a worksite,
its holdings are relevant because section 95.003(1), the first of the two elements
that must be established for a premises owner to be liable under chapter 95,
codifies the common law.” 186 S.W.3d at 134 (citing Dyall, 152 S.W.3d at 699 &
n.13 (citing George C. Hanks, Jr., When Sticks and Stones May Break Your Bones:
An Overview of Texas Premises Liability Law for Business Owners, 60 TEX. B.J.
1010, 1021 (1997))). While a plaintiff may prove control based on a contractual
right to control or evidence of actual control, in this case, Mendoza only raises the
question of actual control. See Energen Res. Corp., 642 S.W.3d at 515; Bright, 89
S.W.3d at 606.
B. Means, Methods, and Details of Mendoza’s Work
Mendoza argues that Censeo exercised control by providing explicit and
detailed instructions regarding the performance of various tasks, some of which
went beyond the original scope of the paint work order. He also asserts that Censeo
controlled the order and priority of his work by using a detailed punch list system.
Finally, he argues that Censeo exercised control by pointing to the dormer and
asking him to work on the window on the roof.
In the trial court, Mendoza argued that Censeo exercised control by directing
him to perform tasks from a specific list that included more than just painting
30
services. He pointed to Garcia’s testimony that these tasks included moving trash
and materials, caulking, pressure washing, and cleaning. He also relied on Cortez’s
testimony that he asked Mendoza to touch up the paint, ensure the caulking around
the dormer was good, and wipe down the window. Mendoza argued that because
Censeo’s instructions went beyond “paint the house,” Censeo exercised control
over the operative details of his work.
Cortez testified that because the purchase of the house was scheduled to
close within days, the work that remained to be done consisted of punch list and
touch-up items. “A punch list is a document created in connection with a walkthrough by the owner or architect and contractor. The punch list may include clean
up and touch up work, as well as work that is unacceptable in quality to the owner,
contractor, or architect.” Sw. Progressive Enters., Inc. v. R.L. Harkins, Inc., No.
08-00-00294-CV, 2002 WL 358830, at *5 (Tex. App.—El Paso Mar. 7, 2002, no
pet.) (mem. op.). Yet Cortez testified that there was no written punch list for touchup painting inside the house. Instead, he identified areas that needed touching up
by affixing blue tape to the area, and then he pointed out to Mendoza where those
areas were in the house. As for the exterior, Cortez pointed to the dormer and told
Mendoza to touch up the paint, check and correct the caulking as needed, and wipe
down the window.
31
There is no evidence, however, that Cortez or Censeo directed the manner in
which Mendoza was to accomplish any of those tasks, such as by dictating what
equipment to use, how to use it, or the order in which to complete the tasks. Garcia
said nobody at Censeo told Mendoza how to do his job because “[h]e’s a
professional . . . an expert in his field.” Cortez testified that Censeo did not provide
any equipment, and both he and Mendoza agreed that Mendoza used his own
ladder to access the dormer. Cortez did not supervise the order in which Mendoza
performed the tasks, and he did not even know what order in which Mendoza
worked on the tasks. Finally, Mendoza himself denied that he was given
instructions regarding the work to be done on the dormer of the house. In short,
Mendoza produced no evidence showing that he was not entirely free to do the
work in his own way.10
10
In his brief, Mendoza refers to variance work orders dated October 25, 2021,
which were included in the appendix to his brief. He argues that these represent a
departure from the original scope of his painting work and that this is somehow
evidence of Censeo’s control. While we note that there was some testimony from
Garcia about the variance work orders, we cannot consider the documents in the
appendix as a basis for reversal because they were not presented to the trial court
and are not in the appellate record. See J.R. Richard Enters., Inc. v. Niz, No. 01-20-00124-CV, 2020 WL 7391710, at *3 (Tex. App.—Houston [1st Dist.] Dec. 17,
2020, no pet.) (mem. op.) (“On appeal from a summary judgment, we can only
consider such matters as were presented to the trial court.”); see also TEX. R. CIV.
P. 166a(c) (former) (“Issues not expressly presented to the trial court by written
motion, answer or other response shall not be considered on appeal as grounds for
reversal.”). Because the variance work orders and safety standards were not
presented to the trial court as summary-judgment evidence, we do not consider
them on appeal. See Marburger v. Guest, No. 01-23-00628-CV, 2025 WL
1710289, at *7 (Tex. App.—Houston [1st Dist.] June 19, 2025, no pet.) (mem.
32
Here, the evidence showed that Cortez communicated the scope of the work
to Mendoza but did not instruct him on the methods, manner, or means of
accomplishing the results. See Koch Ref. Co., 11 S.W.3d at 156 (holding premises
owner has latitude to tell independent contractors what to do without becoming
subject to liability). Mendoza did not produce summary judgment evidence
creating a genuine question of material fact on this point. See AEP Tex. Cent., 612
S.W.3d at 295 (holding that contract requiring restoration of premises informed
scope of work but did not confer “a right of control as to the means, methods, and
details of that work” when it provided “no indication of how [the contractor]
should accomplish that result, such as by using a particular type of fill, equipment,
or technique”).
C. Control Over Safety
Relying on Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex.
2001), Mendoza also argues that he produced evidence creating a fact issue on the
“some control” element of Chapter 95, because Censeo exercised control over the
safety aspect of his work. Mendoza maintains that Censeo knew of a dangerous
condition (his past practice of working on roofs without fall protection) and
nevertheless directed him to perform work on the roof. We conclude that Mendoza
did not produce evidence raising a question of fact as to section 95.003(1).
op.) (stating that appellate courts cannot consider documents attached as
appendices to appellate brief but not included in record on appeal).
33
Assuming without deciding that Mendoza’s claims could be or should be assessed
via the standard in Lee Lewis Construction, we conclude such assessment does not
raise a fact issue.
In Lee Lewis Construction, a case involving a fatal fall injury, the Supreme
Court held that a general contractor was liable to a subcontractor’s employee
because there was evidence it controlled a safety aspect of the work to be
performed. Lee Lewis Constr., 70 S.W.3d at 783. Lee Lewis Construction (“LLC”)
was hired as general contractor on a project to add ninth and tenth floors to a
hospital tower. Id. at 782. Jimmy Harrison worked for a glass-glazing
subcontractor. Id. While working on the tower’s tenth floor, he fell and suffered
fatal injuries. Id. A jury found that LLC had retained the right to control safety at
the construction site. Id.
On appeal, LLC challenged the legal sufficiency of the evidence to support
the jury’s finding. Id. at 783. The Supreme Court found that the following evidence
supported the finding. Id. at 784. First, the owner of LLC testified that he had
assigned LLC’s job superintendent to routinely inspect the addition to the tower
and “see to it that the subcontractors and their employees properly utilized fall
protection equipment.” Id. Next, other testimony showed that the job
superintendent “personally witnessed and approved of the specific fall-protection
systems” used by the subcontractor. Id. Finally, testimony showed that the job
34
superintendent “knew of and did not object” to the subcontractor’s “employees
using a bosun’s chair without an independent lifeline.” Id. The Supreme Court
concluded that this was “more than a scintilla of evidence that LLC retained the
right to control fall-protection systems on the jobsite.”11 Id.
The holding of Lee Lewis does not, however, stand alone. See JMI
Contractors, LLC v. Medellin, 738 S.W.3d 775, 783 (Tex. 2026) (calling Lee Lewis
a “doctrinal wrinkle” and surveying cases that have refined its application). In
Bright, the Supreme Court held that the property owner had not retained control
over an independent contractor, who had asserted a premises liability claim,
through its safe work permit systems, safety manuals, and safety representatives.
89 S.W.3d at 607–11. The Court held that “mere promulgation of safety policies
does not establish actual control.” Id. at 611 (citing Hoechst-Celanese Corp. v.
Mendez, 967 S.W.2d 354, 357–58 (Tex. 1998) (requiring an independent
contractor to “observe and promote compliance with federal laws, general safety
guidelines, and other standard safety precautions [does] not impose an unqualified
duty of care on [a premises owner] to ensure that [an independent contractor’s]
employees [do] nothing unsafe”)).
11
The Amarillo Court of Appeals detailed even more evidence of both contractual
and actual right of control retained and exercised by LLC over its subcontractor,
including testimony from LLC’s president “conced[ing] that LLC retained the
right to control safety on that job site.” Lee Lewis Constr., Inc. v. Harrison, 64
S.W.3d 1, 8–9 (Tex. App.—Amarillo 1999), aff’d, 70 S.W.3d 778 (Tex. 2001).
35
In General Electric Co. v. Moritz, an employee of an independent contractor
was injured when he fell off a loading-dock ramp and sued asserting negligent
activity and premises liability claims. 257 S.W.3d 211, 213–14 (Tex. 2008). The
Supreme Court held that the property owner had not exercised or retained control
of the independent contractor’s activities by requiring the loading of trucks at a
loading dock, distinguishing between control over where the trucks were loaded
and how they were loaded. Id. at 214–15. The Court held that a control over one
aspect of an independent contractor’s working conditions did not demonstrate
retention of control when the plaintiff’s injury arose from a different aspect of his
activities. Id. at 214.
Most recently, in JMI Contractors, the Supreme Court cabined the holding
of Lee Lewis Construction, holding that “[a]ny reliance on Lee Lewis must
necessarily be informed by the analysis in [Bright] and Moritz.” JMI Contractors,
738 S.W.3d at 784. The Court said that Lee Lewis Construction “is best understood
to apply in the narrow set of circumstances present in that case. . . . [which] include
the general contractor’s decision to fully control the particular plaintiff’s activity in
a way that creates a heightened danger that in turn causes the plaintiff’s injury.” Id.
(noting that LLC “required the use of a bosun’s chair without an independent
lifeline—a dangerous device that led to the decedent’s death”). Thus, “to fall
within the control framework presented in Lee Lewis, as clarified by Dow
36
Chemical and Moritz, a plaintiff must establish that the defendant retained full
control over the plaintiff’s activity and increased the risk of injury by creating a
danger.” Id. That is: when “a general contractor’s [or owner’s] decision to fully
control the particular plaintiff’s activity in a way that creates a heightened danger
that in turn causes that plaintiff’s injury . . . that [control] independently gives rise
to liability notwithstanding a dangerous condition of the premises.” Id.
In the trial court, Mendoza argued that Censeo exercised “some control” by
instructing him to work on the roof while knowing that he “would not use fall
protection,” a circumstance that would endanger him. For this argument, he relied
on Garcia’s testimony that he did not believe that Mendoza needed fall protection
while working on the roof, his agreement that (hypothetically) assigning a
contractor to “do a job on a second story roof . . . [when] you know that they’re not
going to be using fall protection” endangers the contractor, and Cortez’s testimony
that he never saw anyone use fall protection. This evidence does not bring
Mendoza’s claims within the limited circumstances of Lee Lewis Construction
because it does not show that Censeo “fully control[led] [Mendoza’s] activity in a
way that create[d] a heightened danger that in turn cause[d] [Mendoza’s] injury.”
JMI Contractors, 738 S.W.3d at 784.
On appeal, Mendoza further relies on Censeo’s promulgation of Safety
Program and Field Safety Standards, and its direction for him to work on a roof
37
despite Cortez knowing that he had previously worked on a roof without fall
protection. As with the variance purchase orders, see supra section IV.B., the
safety standards, which Mendoza attached as an appendix to his brief, were not
submitted to the trial court as summary judgment evidence and are not part of the
appellate record. Thus, we cannot consider them in our review of the trial court’s
summary judgment. See J.R. Richard Enters., Inc. v. Niz, No. 01-20-00124-CV,
2020 WL 7391710, at *3 (Tex. App.—Houston [1st Dist.] Dec. 17, 2020, no pet.)
(mem. op.).
On appeal, Mendoza also relies on Garcia’s testimony that it was important
to know when fall protection is required, that no fall protection was needed
because Mendoza was at a height of less than ten feet, and that Censeo had a
general responsibility to “look around and make sure things are being done in a
safe way.” Mendoza further asserts that Censeo promoted incorrect safety
standards by communicating to workers through toolbox talks that fall protection
was not needed for work on a one-story house and below ten feet. He maintains
that this increased rather than decreased the possibility of injury.
Again, unlike in Lee Lewis Construction, Mendoza did not produce any
evidence that Censeo required Mendoza’s action of working on the roof without
fall protection. See JMI Contractors, 738 S.W.3d at 784 (noting that LLC
“required the use of a bosun’s chair without an independent lifeline—a dangerous
38
device that led to the decedent’s death”). Id. Mendoza’s evidence fails to raise a
question of fact about whether Censeo exercised the kind of control necessary
under Lee Lewis Construction.
We therefore hold that the trial court did not err by granting no evidence
summary judgment in Censeo’s favor.
D. No Evidence of Actual Knowledge
Because the two elements necessary to demonstrate the applicability of the
exception to Chapter 95 are conjunctive, Mendoza had to produce evidence raising
a genuine question of material fact on both elements to avoid summary judgment.
See TEX. CIV. PRAC. & REM. CODE § 95.003. The trial court’s summary judgment
can be upheld solely based on our conclusion that Mendoza failed to raise a
genuine question of material fact about control. However, Mendoza also maintains
on appeal that he raised a genuine question of material fact about actual knowledge
and whether Censeo failed to provide an adequate warning. We find that he did
not.
“Actual knowledge requires knowledge that the dangerous condition existed
at the time of the accident[.]” City of Corsicana v. Stewart, 249 S.W.3d 412, 414–
15 (Tex. 2008). “Actual knowledge of a dangerous condition is what a person
actually knows, as distinguished from constructive or imputed knowledge, or what
a reasonably prudent person should have known or should have foreseen.” Rawson
39
v. Oxea Corp., 557 S.W.3d 17, 29–30 (Tex. App.—Houston [1st Dist.] 2016, pet.
dism’d) (citing Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 70 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied)). “[S]ection 95.003(2) elevated the alternative,
common law, ‘should have known’ test of the premises owner’s knowledge of a
dangerous condition to an ‘actual knowledge’ requirement.” Phillips, 186 S.W.3d
at 133.
Despite pleading that there was a defect in the roof itself, Mendoza has made
no argument in the trial court or on appeal that Censeo had actual knowledge of a
defect in the roof. He has, however, argued that Censeo had actual knowledge that
he would work without fall protection because he had worked without fall
protection in the past. At most, however, this evidence demonstrates constructive
knowledge that Mendoza was likely to work without fall protection. To raise a
genuine a question of material fact about actual knowledge of a dangerous
condition, Mendoza would have needed to produce some evidence that Censeo
actually knew he was working without fall protection when it was required on the
day of his fall. See City of Corsicana, 249 S.W.3d at 414–15. Mendoza produced
no such evidence, nor does the evidence in the appellate record show that any
Censeo employee saw him on the roof that day. Accordingly, we hold that the trial
court could have properly granted Censeo’s no evidence summary judgment as to
the second element of the exception to Chapter 95.
40
Conclusion
We affirm the judgment of the trial court.
Susanna Dokupil
Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.
41