Category Archives: Summary Judgment Practice

Not a fact issue after all

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In JLB Builders LLC v. Hernandez, the Texas Supreme Court reversed an en banc Fifth Court opinion about a construction-site accident. The issue was the general contractor’s right of control over the workplace, and the supreme court reached these conclusions about key aspects of that issue (all emphasis added):

  • Direction. “Hernandez references his additional testimony that he had previously seen JLB supervisors talking to [the subcontractor’s] foremen and that the supervisors ‘appear[ed] to be giving instructions as to how our jobs were to be done.’ Without more, evidence of what JLB generally ‘appeared’ to be doing is no evidence that it was exercising actual control over the details of the injury-causing work.”
  • Safety requirements. “A general contractor that promulgates mandatory safety requirementsand procedures owes only a narrow duty to ensure that those requirements and procedures generally do not ‘unreasonably increase, rather than decrease, the probability and severity of injury.'”
  • Direction. “[T]here is no indication that JLB was aware that the wind posed a particular danger that day, and the testimony that JLB employees ‘could watch’ the supports being secured is not evidence that they did so or that they were aware the supports were improperly secured.”

(In my three-part system for categorizing Texas intermediate-court en banc opinions, JLB Builders would be a “successful failure,” in that it drew supreme court attention but for the purpose of reversal.)

Shakeup of Steak & Shake

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In B.C. v. Steak & Shake, the supreme court reversed a Dallas case case that declined to consider a late-filed summary judgment submission, holding: “We . . . conclude that the trial court’s recital that it considered the ‘evidence and arguments of counsel,’ without any limitation, is an ‘affirmative indication’ that the trial court considered B.C.’s response and the evidence attached to it. The court of appeals concluded this reference ‘indicates nothing more than the trial court considered [Steak N Shake’s evidence] in conjunction with the traditional motion.’ But a court’s recital that it generally considered ‘evidence’—especially when one party objected to the timeliness of all of the opposing party’s evidence—overcomes the presumption that the court did not consider it.” No. 17-1008 (March 27, 2020) (per curiam).

No jurisdiction? No-evidence MSJ

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“Because jurisdiction may be challenged on evidentiary grounds and the burden to establish jurisdiction, including waiver of a government defendant’s immunity from suit, is on the plaintiff, we see no reason to allow jurisdictional challenges via traditional motions for summary judgment but to foreclose such challenges via no-evidence motions.” Town of Shady Shores v. Swanson, No. 18-0413 (Dec. 13, 2019). The Court observed: “[W]]hen jurisdiction is intertwined with the merits, the evidence supporting jurisdiction and the merits is necessarily intertwined as well.”