by Eleanor Mason, Staff Attorney for Justice Hassan, Fourteenth Court of Appeals

Bandin v. Free & Sovereign State of Veracruz de Ignacio de la Llava, __ S.W.3d __ , 2019 WL 6000580 (Tex. App.—Houston [14th Dist.] Nov. 14, 2019, no pet. h.) (Bourliot, J.).

In Bandin, the Court limited the reach of the Texas Citizens Participation Act (the TCPA), concluding that the TCPA does not apply to communications made to further a conspiracy to convert or unlawfully appropriate property.

The plaintiffs in Bandin sued Veracruz’s governor, two other individuals, and four Texas companies, claiming the defendants conspired to steal millions of dollars from the state of Veracruz. Alleging that the defendants created shell companies to launder the pilfered funds, the plaintiffs asserted claims for conversion, theft, and civil conspiracy. The defendants filed TCPA motions to dismiss, which were denied by the trial court.

The TCPA establishes a mechanism for the expedited summary dismissal of suits that inhibit citizens’ exercise of their constitutional rights to free speech, of association, and to petition. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003. Pointing out that the TCPA broadly defines the rights to free speech and of association as “involving communications,” the defendants argued the TCPA mandated dismissal of the plaintiffs’ claims because “conspiracies necessarily involve communications.” Bandin, 2019 WL 6000580, at *2.

Rejecting the defendants’ argument, the Court reasoned that the defendants’ interpretation of the Act “would thwart a meritorious lawsuit any time a plaintiff alleges two or more persons engaged in conspiracy to commit theft or conversion.” Id. at *4. This interpretation, the Court stated, would hinge the TCPA’s application on whether the alleged actions involved a single tortfeasor or multiple tortfeasors — an “arbitrary” interpretation that would “lead[] to absurd results.”  Id. at *4, *5. Dismissing the defendants’ appeal for lack of jurisdiction, the court concluded the TCPA did not apply to claims of conspiracy to convert or unlawfully appropriate property belonging to others.

Brazos Contractors Development, Inc. v. Jefferson, __ S.W.3d __ , 2019 WL 6974969 (Tex. App.—Houston [14th Dist.] Dec. 19, 2019, no pet. h.) (Hassan, J., majority, and Christopher, J., dissenting).

In Brazos Contractors Development, Inc., Court concluded that certain contractual language obligated a general contractor to exercise a duty of reasonable care with respect to its independent contractor’s employee.

Appellant Brazos Contractors Development, Inc. was the general contractor on a construction site and hired T&T Hoisting as an independent contractor to erect steel cross braces. Appellee Henry Jefferson, a T&T Hoisting employee, was injured while working on the project. Jefferson sued Brazos and the parties proceeded to a jury trial. The jury was instructed with respect to several theories of liability and responded “Yes” to one liability question: whether Brazos negligently breached a duty of care arising from a contractual duty of control. The jury assessed $2.15 million in damages. An appeal, among other issues, Brazos challenged the submission of this liability question.

Under Texas law, a general contractor generally does not owe a duty of reasonable care to an independent contractor’s employee. But a duty of reasonable care may arise if the general contractor maintains some control over the manner in which the independent contractor performs its work; control can be established by a contractual agreement that explicitly assigns the general contractor a right to control. Asserting that it did not owe a duty of reasonable care to Jefferson, Brazos argued that its contract with T&T Hoisting did not give Brazos a contractual right of control over the manner in which T&T performed its work.

The majority focused its analysis on the following provision in the Brazos-T&T Hoisting contract:

DESCRIPTION OF WORK: In accordance with the project specifications and drawings, [T&T Hoisting] will furnish and pay for all necessary: . . . Labor, tools, insurances, taxes, and equipment to complete the construction in a timely, professional, and workmanlike manner. Labor only for the erection of all steel as per plans and under the direction of [Brazos’s project manager] David Kaszak.

Id. at *6 (emphasis in original). Focusing on the provision’s use of the word “direction,” the majority opinion stated that the provision granted Brazos “the right to guide, order, and instruct T&T with respect to its work.” Id. Therefore, the majority concluded, the Brazos-T&T Hoisting contract gave rise to a contractual right of control that obligated Brazos to exercise a duty of reasonable care to Jefferson.

Dissenting from the majority’s conclusion on this point, Justice Christopher emphasized that a contractual duty of control arises only if the agreement at issue “explicitly assigns” the general contractor a right to control the manner in which the individual contractor’s work was performed. Reasoning that a “general contractor can have such broad general rights of direction without also assuming control over the operative details of the work,” Justice Christopher concluded that the contractual language was insufficient to give rise to a duty of reasonable care.