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Abarca v. Scott Morgan Residential, Inc.

In one of five issues, appellants argue the court erred in granting summary judgment because appellees are liable. To be liable under an independent contract, the owner must have the actual or contractual right to control the means, methods, or details of the independent contractor's work to the extent that the independent contractor is not entirely free to do the work his own way. Remanded for this issue. Houston Court of Appeals, No. 01-07-00813-CV, 09-24-2009

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OPINION

Appellants, Bray Abarca and Juan Carlos Sanchez, challenge the summary judgment rendered against them in their suit for negligence, negligence per se, and breach of contract against Scott Morgan Residential, Inc. (“S.M.R.”) and Mauricio Castano, individually and doing business as MCC Construction Services (collectively, “Castano”), appellees. In five issues, Bray Abarca and Sanchez argue that the trial court erred (1) in granting S.M.R.’s motion for summary judgment based on Chapter 95 of the Texas Civil Practice and Remedies Code*fn1 because Chapter 95 was not applicable, or, alternatively, because Bray Abarca and Sanchez raised a fact issue regarding S.M.R.’s retention of control, actual knowledge of a dangerous condition, and failure to warn; (2) in granting S.M.R.’s and Castano’s motions for summary judgment on the breach of contract claims because Bray Abarca and Sanchez were third-party beneficiaries of the agreement between S.M.R. and Castano; (3) in granting S.M.R.’s and Castano’s motions for summary judgment on the common law negligence claims because Bray Abarca and Sanchez raised a fact issue concerning S.M.R.’s and Castano’s liability; (4) in granting S.M.R.’s and Castano’s motions for summary judgment on the negligence per se claims because Bray Abarca and Sanchez raised a fact issue concerning S.M.R.’s and Castano’s liability; and (5) in granting S.M.R.’s no-evidence motion for summary judgment because Bray Abarca and Sanchez raised a fact issue concerning S.M.R.’s negligence and breach of contract.

We affirm in part and reverse and remand in part.

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