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Phillips v. Dow Chemical Co.11/30/2005
e the summary judgment on chapter 95 grounds, and, therefore, that we may not consider chapter 95 in our analysis. Relying again on lack of a specific reference to chapter 95, appellants further contend that the trial court rendered summary judgment in Dow's favor under the common law, which, appellants contend, not only remains in effect despite the enactment of chapter 95, but also bars summary judgment in Dow's favor. Appellants emphasize that in rendering summary judgment in Dow's favor on the grounds of absence of duty owed to Stewart, the trial court specified only that Dow did not retain any right of control over the general contractor's or subcontractors' work, but the trial court did not address Dow's contention that it lacked actual knowledge of the dangerous condition that resulted in Stewart's injury.
It is undisputed that Dow's arguments in support of its motion for summary judgment included chapter 95 grounds. Dow thus complied with rule 166a(c), which precludes rendering summary judgment on grounds other than those on which the movant relied in seeking summary judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Cincinnati Life, 927 S.W.2d at 625--26; see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) ("A motion must stand or fall on the grounds expressly presented in the motion."); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) (" summary judgment cannot be affirmed on grounds not expressly set out in the motion . . . ."). Dow's reliance on chapter 95 in moving for summary judgment enabled the trial court to consider chapter 95 principles in ruling on Dow's motion. If chapter 95 principles govern this case, and if the trial court's ruling is consistent with chapter 95 principles, then the trial court's lack of specific reference to chapter 95 is immaterial.
To determine whether chapter 95 applies, we must construe the statute. Issues of statutory construction raise questions of law that we properly review de novo in the summary judgment context. See Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 2002); see also Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 83 (Tex. App.---Houston [1st Dist] 2003, no pet.); Fisher v. Lee & Chang P'ship, 16 S.W.3d 198, 200--02 (Tex. App.---Houston [1st Dist.] 2000, pet. denied) (both analyzing applicability of chapter 95).
The Legislature enacted Chapter 95 of the Civil Practices and Remedies Code in 1996 as part of a broad tort-reform package. Tex. Civ. Prac. & Rem. Code Ann. §§ 95.001--.004 (Vernon 1997); see Francis, 130 S.W.3d at 82. Chapter 95 governs "Property Owner's Liability for Acts of Independent Contractors and Amount of Recovery" and pertains to claims "for damages caused by negligence" against a "property owner." Tex. Civ. Prac. & Rem. Code Ann. § 95.001(1)--(3) (Vernon 1997). Section 95.001(3) defines "property owner" as "a person or entity that owns real property primarily used for commercial or business purposes." Tex. Civ. Prac. & Rem. Code Ann. § 95.001(3).
Chapter 95 specifies that it "applies only to a claim" described as follows:
(1) against a property owner, contractor, or subcontractor for personal injury , death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and
(2) 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.
Tex. Civ. Prac. & Rem. Code Ann. § 95.002(1)--(2) (Vernon 1997) (emphasis added).
From the plain meaning of the statute, chapter 95
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