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Johnson v. Burger King Corporation8/17/2000
.2d 270 (Tex. App.--Houston [14th Dist.] 1995, no writ), and Smith v. Foodmaker, Inc., 928 S.W.2d 683 (Tex. App.--Fort Worth 1996, no writ). Neither case supports his position. In O'Bryant, the plaintiff alleged the franchisor failed to insure that locks on premises leased by the franchisee were in working condition and failed to warn the franchisee's customer about prior crimes committed on the premises, arguing that in spite of the independent contractor clause in the franchise agreement, the practical effect of the contract and the policy and procedures manual gave the franchisor the right of control over the day-to-day operation of the franchisee. O'Bryant, 899 S.W.2d at 272. The court affirmed the summary judgment because the plaintiff failed to present summary judgment proof that the franchisor had the right of control over the matters complained of in the plaintiff's suit. Id. Smith interpreted California law, but acknowledged that Texas law rejected the liability theory based upon the general right of control over operations. Smith, 928 S.W.2d at 687.
The franchise agreement gave Burger King the right to inspect, and the MOD supplied an extensive list of image standards that included removing damaged furniture. The responsibility for maintaining the restaurant remained at all times with the franchisee, and Johnson's brief acknowledges there is no provision for procedures to be followed to determine whether furniture is damaged. The franchise agreement establishes an independent contractor relationship, not an agency relationship. Johnson produced neither evidence of a right of control nor an actual exercise of control over the matter complained of by Johnson: the broken chair. Issue two is overruled.
Issue three urges the assessment of costs was an abuse of discretion. The trial court awarded costs to the successful parties as authorized by the rules of civil procedure. Tex. R. Civ. P. 131. The trial court is authorized to adjudge costs to the non-prevailing party upon a showing of good cause. Tex. R. Civ. P. 141. Johnson argues he brought his suit against the party most prominently identified with the name of the restaurant where he was injured. While mistakenly suing the wrong party, or merely bringing a suit that is ultimately unsuccessful, will not preclude assessment of costs under Rule 141, it was not an abuse of discretion for the trial court to decline to do so. Jackson v. Houston Independent School Dist., 994 S.W.2d 396, 403 (Tex. App.--Houston [14th Dist.] 1999, no writ). Issue three is overruled.
AFFIRMED.
Submitted on June 26, 2000
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