Jeremy Haggard v. Blattner Energy, Inc.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-25-00056-CV
___________________________

JEREMY HAGGARD, Appellant

V.

BLATTNER ENERGY, INC., Appellee

On Appeal from the 415th District Court
Parker County, Texas
Trial Court No. CV25-0034

Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION

Appellant Jeremy Haggard was injured on the job at an Iowa wind farm when a

crane operator struck him with a suspended load, knocking him off an elevated

platform. At the time, Haggard was not wearing any fall-protection equipment. He

sued among others Appellee Blattner Energy, Inc.—which neither employed him nor

contracted with his employer—for negligence and gross negligence. Blattner moved

for both a no-evidence and traditional summary judgment, arguing that it owed

Haggard no duty of care because it neither retained contractual control nor exercised

actual control over his work. The trial court granted the motion, severed Haggard’s

claims against Blattner, and adjudged that he take nothing from it.

On appeal, Haggard maintains that the trial court erred (1) by granting

summary judgment because genuine issues of material fact exist on whether Blattner

owed him a duty of reasonable care and (2) by sanctioning him with merits-preclusive

deemed admissions that Blattner offered as summary-judgment evidence. Because

Haggard did not meet his summary-judgment burden and failed to show harm from

the deemed admissions, we will affirm.

2
I. Background

A. The repowering project

NextEra Energy1 owns the Crystal Lake II wind farm in Iowa. As part of a

large project to retrofit, upgrade, and repower the farm’s wind-turbine generators,

NextEra entered into a “Wind Turbine Generator Repowering Agreement” with

Blattner and a “Master Equipment Supply and Commissioning Agreement” with

General Electric International Inc. (GE). The NextEra–Blattner repowering

agreement is not in the record, so we do not know the exact terms defining the

relationship among NextEra, Blattner, and GE.

But a NextEra corporate representative testified that Blattner and GE had

“independent roles . . . on the project.” Another of its representatives described

NextEra’s having a “contract with the EPC [Blattner] and the OEM [GE] to complete

the project.” Thus, in general terms, Blattner—the EPC—provided engineering,

procurement, and construction services to NextEra, while GE—the original

equipment manufacturer—supplied equipment, removed used parts, and assisted

NextEra in commissioning—that is, restarting—the rebuilt wind turbines.

A NextEra representative broadly summarized Blattner’s mechanical work: it

would isolate a tower from electricity, remove vintage GE components, set them on

the ground, install and rewire new GE components, inspect, and certify that its work

1
Two NextEra Energy entities are mentioned in the record, but we generally
refer to NextEra Energy because it is unclear which owns the wind farm.

3
was done. NextEra would then inspect and issue a certificate of mechanical

completion, and Blattner would go to the next tower.

GE disassembled and removed the used parts that Blattner had placed at each

tower’s base and eventually assisted NextEra in commissioning the refurbished

turbines. Per GE’s contract with NextEra, GE reclaimed ownership of the used parts,

which included the nacelles—the large structures that housed each turbine and

associated equipment. 2 After GE finished scrapping and removing the used parts,

Blattner “reclaimed the area by . . . decompact[ing] the soil or seeding it if need[ed].”

2
This photo shows an intact clipper nacelle on the ground with an arrow to the
panel (lower half) being removed at the time of the accident:

4
Haggard testified that the crane operator “let this load swing out of control and

knocked [him] off of” the nacelle’s platform. Haggard estimated that he fell around

five to eight feet, hitting his abdomen on the crane’s stowage container, before falling

another five or six feet to the ground.

Various persons—including Blattner’s “safetyman”—responded to aid him and

called for an ambulance. Haggard was taken to the hospital where he was treated.

As part of the Iowa OSHA’s accident investigation, a GE representative

explained the following about the relationships among the parties on site:

Next[E]ra is GE’s customer and owner of the Crystal Lake 2 wind farm.

GE’s scope at the Crystal Lake site includes the supply of
replacement components and the removal and transfer of existing
nacelles (Clipper nacelles). Blattner is contracted directly with NextEra
(no contractual tie to GE) for the removal and grounding of existing
nacelles from the towers and installation of the new replacement GE
nacelles.

GE entered into a separate sale agreement for the used
components and associated metal content with Praetorian Holdings
Group, which also includes the disassembly and disposal of the nacelle
components once placed on the ground by others. Pursuant to its
contract with GE, Praetorian purchases and takes title to the nacelle
components before they are removed from site for purposes of disposal
and/or recycling. For the Crystal Lake site, Praetorian directly contracted
with C2 Logistics for the mechanical disassembly and scrap metal
removal and transportation of the used components. It is my
understanding that C2 was uniquely qualified for the disassembly work
on the Clipper equipment as their team included individuals who
supported the installation of the original units. As an independent
contractor, C2 had full control over this scope of work, including all
methods, sequence, procedures[,] and equipment used to fulfill its scope.

OSHA did not contact Blattner during its investigation.

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C. The lawsuit

Haggard initially sued C2—which did not have worker’s compensation

insurance—and another entity for negligence and gross negligence. He later joined

Blattner, a NextEra entity, and a Praetorian entity. The litigation has been

contentious, leading the trial court to at one point deem admitted the following

requests for admission that Blattner had propounded:

22. The Accident could have been prevented had [Haggard] properly
used safety equipment at the Site on July 19, 2019[—the day of the
accident].

23. Blattner was not responsible for [Haggard’s] training in
relation to the work [he] performed at the Site.

24. Blattner was not responsible for [Haggard’s] work performed
at the Site on July 19, 2019.

25. Blattner was not responsible for C2’s work at the Site on July
19, 2019.

26. Blattner’s work on the subject windmill was complete more
than seven days prior to July 19, 2019.

27. Blattner was not working in or around the immediate vicinity
of the subject windmill on July 19, 2019.[3]

3
Haggard’s former counsel made boilerplate objections to these six requests. In
response to a draft motion to compel, he agreed to amend his responses but did not
do so before Haggard’s deposition. Blattner moved to compel and requested
sanctions. As the hearing approached, Haggard’s counsel “parted ways” with his firm,
and another lawyer worked to correct and supplement the discovery responses,
including removing objections and providing qualified denials to the six requests. But
the trial court was unpersuaded, declaring, “I think I’m stuck with the rule on those
admissions.” At a later hearing on Haggard’s motion to withdraw the deemed
admissions, his counsel conceded that the former counsel “was probably a little too

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The trial court denied Haggard’s request to withdraw these deemed admissions.

After discovery had closed, Blattner filed a traditional and no-evidence motion

for summary judgment that primarily focused on whether it owed a legal duty to

Haggard. In support of its arguments, Blattner attached the deemed admissions,

OSHA-investigation documents, deposition excerpts, and an affidavit from Blattner’s

site-safety coordinator. Haggard responded with several deposition transcripts and his

safety expert’s affidavit and report. One of Haggard’s former co-workers and his

safety expert testified that Blattner was the “controlling employer” at the job site.

Both sides referenced the NextEra–Blattner repowering agreement and

indicated that NextEra would separately provide a copy to the trial court for an in

camera inspection based on an Agreed Protective Order, but the record does not

affirmatively indicate whether NextEra did so.4 The parties also objected to each

other’s summary-judgment evidence.

Without stating its reasons, expressly ruling on the evidentiary objections, or

indicating that it had received or reviewed the NextEra–Blattner repowering

agreement, the trial court granted Blattner’s summary-judgment motion. At Blattner’s

aggressive” in making objections, stated that he had paid an attorney’s-fees sanction,
and requested that the trial court allow Haggard to withdraw the deemed admissions.
4
Haggard concedes in his reply brief that “[t]he full document was not filed
with the trial court because of a protective order.” The protective order is also not in
the record.

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request, the trial court severed Haggard’s claims against Blattner and signed a final

judgment that Haggard take nothing from Blattner. Haggard timely appealed.

II. Summary Judgment

Among other summary-judgment grounds, Blattner argued that no evidence

supported its owing a duty to Haggard. Blattner specifically argued that the record

contained no evidence that it had hired or contracted with C2 or Haggard, exercised

control over the manner and methods of C2’s or Haggard’s work, or actually

controlled the accident site or C2’s crane operations. But Haggard contends in his first

issue that he produced sufficient evidence to raise a genuine issue of material fact on

the duty element—by demonstrating either Blattner’s retained contractual control or

its exercising actual control over Haggard’s work. On both theories, we disagree.

A. Standard of Review

When a party moves for both a traditional and no-evidence summary

judgment—as Blattner did—we first review the trial court’s judgment under the

no-evidence standards. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

After an adequate time for discovery, the party without the burden of proof may,

without presenting evidence, move for summary judgment on the ground that no

evidence supports an essential element of the nonmovant’s claim or defense. Tex. R.

Civ. P. 166a(i). The motion must specifically state the elements for which no evidence

exists. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court

must grant the motion unless the nonmovant produces summary-judgment evidence

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that raises a genuine, material fact issue. See Tex. R. Civ. P. 166a(i) & 1997 cmt.; B.C. v.

Steak N Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020).

When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d

291, 292 (Tex. 2006). We consider whether the evidence would enable reasonable and

fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425,

426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). We

credit evidence favorable to the nonmovant if reasonable jurors could, and we

disregard evidence contrary to the nonmovant unless reasonable jurors could not.

Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,

582 (Tex. 2006)).

If the nonmovant brings forward more than a scintilla of probative evidence

that raises a genuine issue of material fact, then a no-evidence summary judgment is

not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003). But we will sustain a no-evidence

challenge when

(a) there is a complete absence of evidence of a vital fact, (b) the court is
barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (c) the evidence offered to prove a
vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact.

10
King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d

706, 711 (Tex. 1997)).

B. Applicable law and analysis

A common-law-negligence claim’s elements are “(1) a legal duty; (2) a breach of

that duty; and (3) damages proximately resulting from the breach.” Elephant Ins. Co. v.

Kenyon, 644 S.W.3d 137, 144 (Tex. 2022) (citing Praesel v. Johnson, 967 S.W.2d 391,

394 (Tex. 1998)). The threshold consideration in a negligence case is whether a

defendant owes a legal duty to the injured party. Id. (citing Greater Hous. Transp. Co. v.

Phillips, 801 S.W.2d 523, 525 (Tex. 1990)).

No general duty exists in Texas to control the conduct of third persons or to

take action to prevent harm to others absent certain special relationships or

circumstances. Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex. 2017);

Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000). But “one who voluntarily

undertakes an affirmative course of action for the benefit of another has a duty to

exercise reasonable care that the other’s person or property will not be injured

thereby.” Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 597 (Tex.

App.—Fort Worth 2008, pet. denied) (quoting Colonial Sav. Ass’n v. Taylor, 544 S.W.2d

116, 119 (Tex. 1976)). “A voluntary undertaking gives rise to liability for physical

harm if the actor fails to exercise reasonable care in performing the undertaking.”

Elephant Ins., 644 S.W.3d at 151. “The critical inquiry concerning the duty element of a

negligent-undertaking theory is whether a defendant acted in a way that requires the

11
imposition of a duty where one otherwise would not exist.” Id. (quoting Nall v.

Plunkett, 404 S.W.3d 552, 555 (Tex. 2013)).

In workplace-safety cases, a “plaintiff must show that the party it asserts had a

duty to provide a safe workplace had actual control or a right of control over the

specific aspect of the safety . . . of the premises that led to the plaintiff’s injury.”

Lippert Components, Inc. v. Williams, No. 01-22-00501-CV, 2025 WL 1256624, at

*11 (Tex. App.—Houston [1st Dist.] May 1, 2025, pet. filed). A premises owner or a

general contractor ordinarily owes no general duty to an independent contractor’s

employees. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). But a duty of care

may arise if the owner or general contractor retains some control over the manner in

which the independent contractor performs its work. Id. (citing Redinger v. Living, Inc.,

689 S.W.2d 415, 418 (Tex. 1985)). Control can be established in two ways: “first, by

evidence of a contractual agreement that explicitly assigns the [party] a right to

control; and second, in the absence of a contractual agreement, by evidence that the

[party] actually exercised control over the manner in which the independent

contractor’s work was performed.” Id.

1. Retaining contractual control

Haggard argues that he produced summary-judgment evidence that Blattner

owed him a duty because it retained contractual control. Blattner responds that

because (1) it had no contractual relationship with Haggard’s employer and (2) the

NextEra–Blattner repowering agreement is not in the summary-judgment record,

12
Haggard did not carry his burden on Blattner’s alleged retained contractual control.

We agree with Blattner.

“A contract may impose control upon a party thereby creating a duty of care.”

Id. (citing Elliott–Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999)). To be liable for

an independent contractor’s acts, a general contractor “must have the right to control

the means, methods, or details of the independent contractor’s work. Further, the

control must relate to the injury the negligence causes, and the contract must grant the

contractor at least the power to direct the order in which work is to be done.” Id.

In analyzing whether a right to control exists, our goal is to determine the

contracting parties’ true intentions as expressed in their written agreement. Dynergy

Midstreams Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009); Coker v.

Coker, 650 S.W.2d 391, 393 (Tex. 1983). Among other construction canons, we focus

on the contract’s words and their plain meaning, unless the contract indicates that the

parties intended a different meaning, as we read the document as a whole and without

isolating any provisions. Coker, 650 S.W.2d at 393.

As we discussed above, Blattner and GE had separate contracts with NextEra,

and C2 Logistics was a GE sub-subcontractor. In fact, Haggard’s summary-judgment

response did not dispute that Blattner had no direct contract with his employer.

Rather, Haggard asked the trial court to focus on the NextEra–Blattner repowering

agreement—an agreement that Haggard did not file but said NextEra would submit

for an in camera inspection based on the contract’s alleged confidentiality. But

13
Haggard’s failure to produce the repowering agreement as summary-judgment

evidence prevented him from raising a genuine issue of material fact that Blattner

retained contractual control. See Tex. R. Civ. P. 166a(i).

Haggard’s summary-judgment response included screenshotted excerpts from

the alleged confidential repowering agreement that he argued demonstrated Blattner’s

“complete control” of the work site:

2.18 Labor and Other Personnel.

2.18.1 Engagement of Labor. Contractor shall provide, supervise,
manage and otherwise have complete control over, and responsibility for,
all Labor and other personnel performing the Work and Contractor’s
other obligations under this Agreement, including a Contractor Project
Manager, a Contractor Site Manager, a Site Safety Coordinator, and an
Electrical Construction Supervisor, and all such Labor and other
personnel shall have had extensive experience performing work similar in
technology, scope and magnitude to the Work that each will be
performing and shall have received formal, documented training and, if
applicable, certification in their respective areas of expertise. To the
extent required by Applicable Law, Contractor shall employ only licensed
personnel in good standing with their respective trades and licensing
authorities to perform the Work. Contractor shall require each
Subcontractor to adhere to the same standards with respect to its Labor
and other personnel performing any of the Work.

2.19 Safety and Emergencies.

2.19.1 Safety. Contractor shall institute and, at all times during the
performance of the Work, maintain in conformity with Applicable Laws
and Applicable Permits safety precautions and programs designed to
prevent injury to all Persons (including members of the general public
and the agents, invitees, representatives and Labor and other personnel
of Owner, Contractor, Other Owner Contractors and Subcontractors
and prevention of injury by local flora and fauna) and all public [and

14
private property . . . that is on or near the Project Site or is otherwise
affected by the performance of the Work.][5]

Haggard also included the following screenshot purportedly from Blattner’s safety

manual that was attached to the repowering agreement:

20. Fall Protection

All employees shall wear a full body safety harness (provided by
Blattner Energy) when working six feet or more above the ground or
when working in a precarious position (with the exception of crane
assembly/disassembly).

The lanyard shall be securely attached to the employee 100% of
the time and shall be rigged as such that the employee can neither free
fall more than 6 feet (1.8m), nor contact any lower level.

Snap hooks are not to be attached:

• Directly to webbing, rope[,] or wire rope

• To each other

• To a D-ring to which another snap hook or other connector is
attached

• To any object which is incompatibly shaped or dimensioned in
relation to the snap hook such that unintentional
disengagement could occur

• On suspended scaffolds or similar work platforms.

5
Regarding Paragraph 2.19, Haggard pointed to Blattner’s corporate
representative’s deposition testimony where Haggard’s counsel read from the
paragraph, and the witness then confirmed, “That’s what it says.” Yet the witness
immediately quibbled over the term “capital W, Work”—repeatedly saying “our
work,” explaining that Blattner’s “scope didn’t include the scrapping or
commissioning of these towers.” Haggard included a more complete screenshot of
Paragraph 2.19 in his safety expert’s report.

15
Notably, instead of attaching to his summary-judgment response the agreement and

its attached safety manual containing these paragraphs, Haggard merely pointed to the

agreement’s future in camera submission. He also attempted to backfill what the

unfiled agreement said by pointing to several deposition excerpts in which witnesses

were asked about selective terms and provisions in the repowering agreement.

A summary-judgment “response itself is not competent summary[-]judgment

evidence,” Robles v. Cox Ins. Group, LLC, No. 02-21-00088-CV, 2022 WL 188377, at

*3 (Tex. App.—Fort Worth Jan. 20, 2022, no pet.) (mem. op.); Rhodes v. Interfirst Bank

Fort Worth, 719 S.W.2d 263, 264 (Tex. App.—Fort Worth 1986, no pet.), so we

question whether it is even appropriate to consider Haggard’s response’s

unauthenticated screenshots without his either attaching the repowering agreement to

his response or pointing out where it was otherwise “on file” in the trial court’s

record, Kuo v. Regions Bank, 722 S.W.3d 15, 16 (Tex. 2025). But even were we to

consider the screenshots of the repowering agreement, or the various pointed-out

deposition excerpts concerning the agreement, we face a more fundamental

contract-construction problem: we are being asked to construe the agreement’s

paragraphs in isolation, including without having the agreement’s defined terms—

notably “Labor,” “the Work,” and “employees.”

For instance, although Paragraph 2.18.1 talks about Blattner’s having

“complete control over, and responsibility for, all Labor and other personnel

performing the Work,” Haggard has not demonstrated that GE and its subcontractors

16
fell within the terms “Labor” or “Work.” Those defined terms are not in the record.

Additionally, the safety-manual excerpt references “employees,” but it does not

provide that employees—beyond Blattner’s own—are included.

Blattner included in the summary-judgment record a paragraph from the

repowering agreement expressly limiting its application to third parties. But we have

nothing to fill in the gaps from the omitted defined terms and other provisions that

could elucidate the extent that Blattner retained any contractual responsibility, if it did,

for the actions of third-party employees—like those from C2—who were working on

GE’s part of the repowering project.6 In fact, based on the record before us, it is

unclear whether it is even correct to classify Blattner as the or a general contractor of

the entire repowering project; the devil is in the contractual details that Haggard did

not produce.

Blattner argues that because Haggard did not produce the repowering

agreement in the summary-judgment record to be included in the appellate record, we

“must presume that the omitted evidence supports the trial court’s judgment.” See

Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 550 (Tex. 2004). We are not

6
Haggard cites Lawson-Avila Constr., Inc. v. Stoutamire, in which the San Antonio
Court of Appeals determined that a general contractor had retained the contractual
right to control the safety of its subcontractors. 791 S.W.2d 584, 590 (Tex. App.—San
Antonio 1990, writ denied). The case is distinguishable because the contract at issue
was before the court of appeals and involved a general contractor and its
subcontractor. Id. Here, Blattner had no contract with C2, and the repowering
agreement between NextEra and Blattner is not in the record.

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sure if the trial court reviewed the repowering agreement in camera, but neither party

has suggested that the trial court did not, nor has either requested that the trial-court

clerk include the unfiled repowering agreement in the appellate record. Under such

circumstances, to the extent that the trial court considered the repowering agreement

to be admissible evidence (which is highly questionable given that NextEra submitted

it in camera instead of filing it), 7 we must presume that the missing repowering

agreement did not raise any fact issues that would have precluded the trial court’s

granting Blattner’s no-evidence summary-judgment motion. See, e.g., Brown v. Cocco,

No. 05-23-01151-CV, 2025 WL 2606627, at *2 n.3 (Tex. App.—Dallas Sept. 8, 2025,

no pet.) (mem. op.) (presuming that missing records that had been submitted in camera

did not preclude summary judgment).

But even assuming that the trial court either (1) never received the agreement

from NextEra or (2) did and concluded that the in-camera-submitted repowering

7
Both parties’ summary-judgment filings assumed that the trial court could
review the repowering agreement in camera upon NextEra’s delivery. Although it is
unclear that this occurred, such a process was procedurally flawed. The
summary-judgment rules require that evidence be “on file,” and in response to a
no-evidence motion, the nonmovant must produce summary-judgment evidence. See
Tex. R. Civ. P. 166a. A nonmovant can either attach evidence to the response or
simply point out evidence that is already “on file.” Kuo, 722 S.W.3d at 16. But other
than as narrowly allowed by statute, see, e.g., Tex. Gov’t Code Ann. § 552.3221; Hart v.
Gossum, 995 S.W.2d 958, 961 (Tex. App.—Fort Worth 1999, no pet.), the rules of civil
procedure do not expressly permit a party to submit summary-judgment evidence in
camera without filing it. See Tex. R. Civ. P. 166a. Rather, to maintain the confidentiality
of filed summary-judgment evidence, the procedural rules permit parties to ask a trial
court to seal court records, see Tex. R. Civ. P. 76a—a process that the parties did not
invoke.

18
agreement constituted no evidence of retained contractual control, Haggard still

cannot prevail. Haggard’s evidence needed to raise a genuine issue of material fact that

Blattner had the contractual right to control the means, methods, or details of C2’s

work related to Haggard’s injury and the power to direct such work. See Bright,

89 S.W.3d at 606. None of Haggard’s repowering-agreement screenshots or the

mostly conclusory deposition snippets about the agreement demonstrate that requisite

level of control over the operative details of C2’s work. Thus, in the absence of his

filing the entire repowering agreement—including all its defined terms—we conclude

that Haggard failed to produce summary-judgment evidence sufficient to raise a

genuine issue of material fact that Blattner owed him a duty as C2’s employee through

retained contractual control. See id. at 607 (citing Elliott–Williams, 9 S.W.3d at 804).

2. Exercising actual control

Haggard alternatively argues that the trial court should not have granted

summary judgment because he produced sufficient evidence to raise a fact issue that

Blattner exercised actual control over C2’s work during the injury-causing event. But

we conclude that Haggard’s summary-judgment evidence did not raise a fact issue that

Blattner exercised actual control over C2.

A party who exercises actual control over a contractor’s work may be subject to

direct liability for negligence. Id. But “the control must relate to the injury the

negligence causes,” id. (quoting Elliott–Williams Co., 9 S.W.3d at 804), and must extend

19
to the “operative details” of the contractor’s work, see Koch Ref. Co. v. Chapa, 11 S.W.3d

153, 156 (Tex. 1999).

“Merely exercising or retaining a general right to recommend a safe manner for

the independent contractor’s employees to perform their work is” not enough to

subject a premises owner or general contractor to liability. Massage Heights Franchising,

LLC v. Hagman, 712 S.W.3d 615, 622 (Tex. 2025) (citing Koch, 11 S.W.3d at 155);

Lippert Components, 2025 WL 1256624, at *12. Similarly,

a general right to order the work stopped or resumed, to inspect its
progress or to receive reports, to make suggestions or recommendations
which need not necessarily be followed, or to prescribe alterations and
deviations . . . does not mean that the independent contractor is
controlled as to his methods of work, or as to operative detail. There
must be such a retention of a right of supervision that the independent
contractor is not entirely free to do the work in his own way.

Gonzalez v. Ramirez, 463 S.W.3d 499, 506 (Tex. 2015) (citation modified). Owners and

general contractors “can direct when and where an independent contractor does the

work and can request information and reports about the work” without assuming

vicarious liability. Id. (citing Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 792 (Tex.

2006)).

Holding otherwise “would deter general contractors from setting even minimal

safety standards.” Bright, 89 S.W.3d at 608. And the Texas Supreme Court has

expressly stated that parties should not “be required to stand idly by while another is

injured or killed in order to avoid liability. Nor do . . . the liability rules contemplate

20
putting those who employ independent contractors in that position.” Id. (citation

modified); see also Fifth Club, 196 S.W.3d at 792.8

For example, in Koch, the mere fact that Koch employed a safety employee to

tell its independent contractor’s employees if Koch observed them doing “something

wrong” and to remind them to be safe was insufficient to establish actual control.

11 S.W.3d at 156. Such evidence was “not evidence that the independent contractor

and its employee were not free to do their work in their own way” or that “Koch

controlled the method of work or its operative details.” Bright, 89 S.W.3d at

608 (discussing Koch, 11 S.W.3d at 156).

For a duty to arise through exercising actual control over a job worksite—what

is essentially a negligent undertaking—an affirmative course of action is required.

Elephant Ins., 644 S.W.3d at 151–52; see also Lippert Components, 2025 WL 1256624, at

*12 (collecting cases). To illustrate, in Lee Lewis, the court recognized a general

The Houston Fourteenth Court of Appeals has noted two other reasons “to
8

question the wisdom of imposing liability” upon a party “for injuries sustained by an
independent contractor[’s employees].” Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d
693, 699 n.6 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). First, the
independent contractor has often been hired for its expertise in the work to be done
and its superior ability to see that the work is done safely. Dyall v. Simpson Pasadena
Paper Co., 152 S.W.3d 688, 698 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)
(op. on reh’g en banc) (citing Lee Lewis Const. v. Harrison, 70 S.W.3d 778, 796 (Tex.
2001) (Hecht, J., concurring)). Second, a party’s liability for accidents should not
increase the harder he tries to ensure that independent contractors work safely and
decrease the less he cares what happens. Id. The rationale of subjecting landowners or
general contractors to liability for injuries sustained by independent contractors is
inconsistent with the modern system of worker’s compensation. Id. at 698–99.

21
contractor’s exercise of actual control because the general contractor not only knew of

a dangerous condition before an injury occurred but then expressly approved the

independent contractor’s dangerous and unsafe acts. 70 S.W.3d at 784 (“There was

testimony that C.L. Lewis ‘definitely did approve’ the lanyard [fall-protection]

system.”).

In contrast, in Bright, the court held that a general contractor had not exercised

actual control when it had neither known of a prior dangerous condition nor

specifically approved of a dangerous act. 89 S.W.3d at 609. Relatedly, in HNMC, Inc.

v. Chan, a landowner who asked its neighbor to make its property safer had not

undertaken that obligation itself simply by requesting changes. 683 S.W.3d 373, 382–

83 (Tex. 2024).

And we have also stated that a party “who requires a subcontractor to use

safety procedures is not responsible for the subcontractor’s failure to use them.” Long

v. Riedel, 710 S.W.3d 381, 393 (Tex. App.—Fort Worth 2025, no pet.) (citing Cent.

Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 652 (Tex. 2007)). Rather, a party “that

promulgates mandatory safety requirements and 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” to

subcontractors’ workers on the job site. JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d

860, 867 (2021).

22
a. Haggard’s testimony

With these principles in mind, we turn to Haggard’s summary-judgment

evidence, starting with his deposition testimony. Haggard testified that C2 employed

him, but as for whether he knew of Blattner’s having hired C2, he had “no knowledge

of how all the uppers attended to everything.” He “assume[d] that they [Blattner] were

the . . . head honchos, basically” but “[did] not know anything as far as specified

paperwork, roles[,] or agreements.” 9 He knew that Blattner was a contractor because

he saw its trucks and employees, but he was not sure whether Blattner was “over the

whole job.”

Haggard testified that Jamie Marcos was C2’s project and site supervisor. When

Haggard arrived on the job, a C2 representative “went over the job site specifics, what

[he] could and couldn’t wear.” Concerning written safety standards, Haggard recalled

C2’s representative giving him “a piece of paper” outlining the rules, including

“making sure [he had his] PPE [personal protective equipment].”

Every day, C2 held a morning safety meeting for its crew at its tool trailer.

Marcos led the daily meeting, “la[ying] out what was going to happen that

day, . . . telling everybody what site they would be working on[, and] . . . mak[ing] sure

everybody had their boots on and . . . their hard hats on.” Haggard testified that on

9
Haggard did not know that GE was involved until after the accident.

23
the day of the accident, Marcos had conducted the morning’s safety meeting and had

instructed him to go to Tower 143.

Regarding Blattner, Haggard testified that it did not provide any instructions on

C2’s crane operations and was not directing C2’s employees when the accident

occurred. Haggard also confirmed that Blattner did not provide him with any training

concerning crane operations or C2’s scrapping work, and he did not see Blattner

provide such training to any other C2 employee.

In fact, Haggard had no direct communication with Blattner’s or NextEra’s

employees. He testified that Blattner’s safetyman rode around in a Blattner truck but

that they never spoke until after the accident.

Haggard did not recall anyone from NextEra, Blattner, or GE being present at

Tower 143 on the day of the accident. Haggard testified that he “never visually laid

eyes” on Blattner working on Tower 143 during his time at the project and did not

know if it was working on adjacent towers. Not until Haggard lay on the ground after

the accident did he see Blattner’s safetyman and other people he thought were

Blattner employees at Tower 143 as they administered first aid to him before the

ambulance arrived.

Haggard testified that he and his C2 coworkers did not wear fall protection,

and he testified about Blattner’s safetyman stopping C2’s work once, weeks before the

accident:

24
Two weeks before this happened, the safety guy on the job site, that was
there in a Blattner truck, stopped and shut my job[]site down. John
Rhodes and -- I’m wanting to say it was Marcos, Jim [C2’s owner] may
have possibly been on the job site and it was him that day. But two of
them went over and spoke with the safety guy. About 20 minutes or so
later they came back to me and told me I could resume. Later on I found
out that they were discussing the fact that we were not able to harness to
anything because everything we were actually to harness to was the very
pieces that were actually taken apart.

Haggard did not participate in the conversation, but he said that “the safety guy

okayed the way [they] were doing it and allowed [him] to go back to work.” When

asked to clarify what he knew of the conversation, Haggard said that when Rhodes

returned to C2’s worksite, he said “they were wanting to know why [Haggard] was not

harnessed to something. And that they had explained to him that there is nothing to

harness to . . . [a]nd if we was to harness to any of these parts, we can’t reach the

other parts to be taken apart.” Nobody told Haggard that if there had been something

to harness to, that he needed to do so because “there was nothing there specifically to

harness to.”10 Haggard acknowledged that C2 had harnesses in its trailer and if they

could have been used, “then [he was] sure they would have been.”

10
NextEra’s corporate representative testified that “[s]ee something, say
something is a general industry philosophy” that it encouraged of its contractors.
Blattner’s site-safety coordinator confirmed that NextEra’s
see-something-say-something “rule” led him to talk with GE’s subcontractor about
the work stoppage Haggard described. He averred that he referred the issue to GE’s
site-safety representative but “did not direct the subcontractor to continue working
without fall protection.”

25
b. Rhodes’s testimony

Haggard’s summary-judgment response also relied on his co-worker John

Rhodes’s testimony. Rhodes was a crane operator. Near the start of Rhodes’s

deposition, Haggard’s lawyer asked him whether he had worked on sites with multiple

contracting parties and whether one party “kind of takes the lead as the controlling

[entity], so to speak, and then there’s other entities on site as well.” Rhodes agreed,

“Yes, sir. Just about every site I -- I go to has multiple contractors[,] but there’s always

a main.” Haggard’s counsel then asked Rhodes who he understood to be “the

controlling employer under OSHA” at the Iowa wind farm, and Rhodes said Blattner.

Throughout the deposition, Rhodes continually referred to Blattner as the

“controlling entity,” which Blattner contested as being conclusory, but toward the end

of Rhodes’s deposition, he conceded, “Honestly, I don’t know who [wa]s in control.”

Rhodes testified that he had “assumed that they [Blattner] were in control” because its

“safety guys” had conducted an orientation in Blattner’s trailer providing safety

training when C2 arrived on the job site: “When we got there, . . . we were directed to

Blattner to do safety training with them, and they were in charge or saying they were

the controlling entity on site.”11 He explained that “they would tell us where

we . . . were allowed to go and what to do”; “our instructions came from Blattner to

Blattner’s own corporate representative confirmed that under its agreement
11

with NextEra, Blattner conducted safety meetings for not only its employees but also
its subcontractors, NextEra’s representatives, and GE’s representatives.

26
where we could go, to what towers, and work on those towers throughout the job.”

“It was [Rhodes’s] understanding that they were the big dogs.”

But although Rhodes testified to Blattner’s control of C2’s work

“progression”—meaning Blattner’s control of where C2 went and what it worked

on—he did not offer testimony that Blattner controlled the details of C2’s

disassembling and scrapping work at each tower. He acknowledged that Blattner was

removing old nacelles, repowering new ones, and “doing site clean-ups”; “they did

everything except for dismantl[ing] the old nacelle, which is what [C2] did.” Rhodes

testified that he had written C2’s nacelle “disassembly procedure” in C2’s training

manual. He further testified that he, Haggard, and another C2 employee had trained

C2’s employees on the procedure.

Concerning safety, Rhodes confirmed that C2 had a safety meeting every

morning. Marcos conducted the meetings and then told the C2 crew where C2 had

been instructed to work. Blattner never spoke with C2’s employees about fall

protection other than the day Blattner stopped C2’s work as Haggard had described.

And about that incident, Rhodes testified that Blattner’s “safety guys” had

stopped C2’s work and asked if they had harnesses, and C2’s employees had

responded: “[N]o. What, are we going to hook to the sky? We’re standing on top of a

nacelle and it’s not legal to hook to the crane.”

So Blattner stopped C2’s work, and they had a meeting to discuss the potential

for mitigation. Rhodes said that he waited in a conference room while Marcos and

27
Blattner met in the safety room. Rhodes estimated that “after 30 minutes of them

yapping about it and trying to figure it out,” “they come out and said, ‘Go back to

work.’ So, we just went back to work.” “[S]o they wasted 30 minutes of our workday

and sent us back to work with no -- no real mitigation from them. And they -- you

know, they didn’t have harnesses for us.”

Rhodes further testified that he “did not ask anybody about what came out of

that or what the big deal was, but . . . we didn’t know what conclusion they reached

except go back to work.” During his deposition, Rhodes suggested that someone

could have erected a scaffold with a retracing yo-yo system to prevent workers from

falling to the ground, but he testified that “[t]he Blattner safety guys sent us back to

work without any mitigation.”

Rhodes also testified that Blattner had three “safety guys” in the general area

where C2 was working every day. But he admitted that he was not present during

Haggard’s accident and had no personal knowledge of Blattner’s presence at Tower

143 when the accident occurred. He arrived on the accident scene about 90 minutes

later, observed Blattner’s presence at the accident scene, 12 and concluded “[i]t was

their puppy”: “They were out there taking pictures, writing reports[;] [i]t would seem

12
Rhodes said he observed the same Blattner employee “that gave us our little
stand down for the safety harness crap.”

28
to me that for somebody that’s not supposed to be involved, they were pretty damn

involved.”13

c. Haggard’s safety expert’s testimony

Haggard’s summary-judgment response also cited his safety expert, who

opined—despite OSHA’s not investigating or citing Blattner—that “Blattner would

be considered the controlling employer of the project site, as is defined by the OSHA

multi-employer citation policy.” He opined that Blattner met OSHA’s “controlling

employer” definition: “the employer with general supervisory authority over the

worksite, and having the power to correct health and safety violations, or required

others to do so.”14 Haggard’s expert had concluded that “Blattner had control in

practice at this site” and safety responsibilities “beyond just Blattner’s own

employees.”

The expert based his opinions primarily on his interpretation of the

NextEra-Blattner agreement and

[f]rom the testimony of Mr. John Rhodes and·Mr. Haggard, yes,
that they were taking direction from Blattner as to where to go and what
to work. They’re working -- the project schedule looks to be Blattner’s
schedule and coordination management. But as far -- I’m not saying

13
Rhodes suggested that if Blattner was not involved, “they should have minded
their own business like . . . NextEra[’s employee], stayed their ass in their trailer.”
14
See McClure v. Denham, 162 S.W.3d 346, 353 (Tex. App.—Fort Worth 2005, no
pet.) (discussing OSHA, U.S. Dep’t of Labor, Directive Number CPL 2–0.124,
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIV
ES&p_id=2024#MULTI [https://perma.cc/KZB4-EATL]).

29
directing the crane controls or the lift. That’s more to the project
location and coordination.

Freely conceding that “Blattner was not directing or controlling the crane use of C2,”

Haggard’s safety expert testified “that they [Blattner] have the general supervisory

authority at this work site, period.” The expert cited “Blattner[’s] Site Specific Safety

Program” calling for the use of fall-protection equipment—the Paragraph

20 concerning “Fall Protection” quoted above that is not in the record. And the

expert focused on the “prior discussion [during the work stoppage], a recognition that

there’s not fall protection in use and that work was still allowed to resume in this

manner, even after that hazard was identified.”

d. Application of the law to Haggard’s evidence

Haggard argues in his reply brief that the opposing appellate briefs discussing

this evidence “read like two different cases.” He posits that Blattner “wants the

[c]ourt to ignore Rhodes[’s] deposition testimony and accept the evidence in the light

most favorable to Blattner,” and he asserts that “the record supports that Blattner

exercised actual control.” But applying the Texas Supreme Court’s workplace-safety

jurisprudence to the evidence under the no-evidence standard of review, we cannot

agree that Haggard raised a fact issue on Blattner’s alleged exercise of actual control.

Both Rhodes and Haggard testified to what entity controlled their disassembly

work at each tower: C2. Rhodes wrote the training manual, and both employees

trained other C2 employees in how to perform their work. Haggard worked as a rigger

30
on a C2 crane crew and directed the crew as its foreman: “I knew what had to be

done[,] and I was the one that pointed fingers and got everybody . . . into position.”

In contrast, Blattner gave no instructions and had no direct control over C2’s

disassembling operations. Rather, Blattner told C2 where to go on the work site.

Then, C2—during its daily safety meeting—communicated which tower Blattner had

told C2 to work on.

What is wholly lacking in the summary-judgment record is any indication that

Blattner controlled the “operative details” of C2’s scrapping and disassembling work.

The evidence shows the opposite—C2 controlled those details. 15 See JLB Builders,

622 S.W.3d at 866 (“The control exercised must extend to the timing and sequence of

the particular independent contractor’s work, such as which of the subcontractor’s

employees should perform what task and at what point in time.” (citation modified));

Bright, 89 S.W.3d at 607; Koch, 11 S.W.3d at 156.

Haggard attempts to avoid this evidentiary problem by broadly arguing that

“Blattner actually controlled the work site.” From this foundational assertion,

Haggard points to the evidence that Blattner held a safety-orientation meeting for

15
Neither Rhodes nor Haggard actually knew the relationship of Blattner to C2.
So their speculative testimony about Blattner’s being the “big dogs” or “head
honchos” based on their assumptions is not evidence of Blattner’s exercise of actual
control over C2. See 1701 Com. Acquisition, LLC v. Macquarie US Trading, LLC,
No. 02-21-00333-CV, 2022 WL 3904976, at *11 (Tex. App.—Fort Worth Aug. 31,
2022, no pet.) (mem. op.) (“A person’s subjective beliefs are not competent summary-
judgment evidence.”).

31
persons coming to the wind farm, that it had safety employees on site, and that they

had the right to stop—and did on at least one occasion stop—C2’s work. None of

this evidence is enough to subject Blattner, who was not shown to be C2’s general

contractor to liability. See Massage Heights Franchising, 712 S.W.3d at 622. Blattner was

free to direct C2 on when and where it worked and to set minimal safety standards

without becoming C2’s insurer for its negligent acts. See Bright, 89 S.W.3d at 608.

Concerning Blattner’s stopping C2’s work and then allowing it to continue

weeks before Haggard’s accident, Blattner had no contractual relationship with C2,

and Haggard presented no evidence that Blattner was a general contractor over

GE’s—and its subcontractors’—scope of work. Additionally, the record contains no

evidence about what Blattner said to Marcos in the work-stoppage meeting because

neither Rhodes nor Haggard attended that meeting. And Rhodes did not testify that

Blattner gave a specific directive to C2 or affirmatively approved C2’s work. Rhodes

testified that he “didn’t know what conclusion they reached except to go to work.” So

this case is unlike Lee Lewis, in which a proven general contractor explicitly approved a

fall-protection system. See 70 S.W.3d at 784.16

16
In his reply brief, Haggard quotes JLB Builder for the proposition that
“evidence showing a general contractor personally observed a safety hazard and
nonetheless approved of continuing the work raises a fact issue as to actual control.”
622 S.W.3d at 868 (citing Lee Lewis, 70 S.W.3d at 783–84). But that quote is
inapplicable because Haggard has not shown that Blattner was a general contractor
concerning GE’s or C2’s work and because in Lee Lewis, the general contractor
specifically approved its contractor’s fall-protection system. 70 S.W.3d at 784. Here,
Haggard did not produce evidence of what Blattner (or anyone else) actually said in

32
But even if we were to assume that Blattner promulgated safety requirements

or procedures concerning fall protection that C2 did not follow before or after

Blattner stopped C2’s work, Blattner “owe[d] only a narrow duty to ensure that those

requirements and procedures generally [did] not unreasonably increase, rather than

decrease, the probability and severity of injury” to C2’s employees.17 See JLB Builders,

622 S.W.3d at 867 (quoting Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 358 (Tex.

1998)). Blattner was not responsible for C2’s failure to use fall protection, and

Haggard does not suggest that Blattner was liable under the narrow duty to not

unreasonably increase the probability and severity of injury. See id.; see also Cent. Ready

Mix Concrete Co., 228 S.W.3d at 652; Long, 710 S.W.3d at 393.

the work-stoppage meeting or of Blattner’s affirmative requirement or directive to
C2 to work without fall-protection equipment. The supreme court allows a party to
have the general right to stop work, to order it to resume, and even to “make
suggestions or recommendations which need not necessarily be followed” and not
have such conduct constitute an exercise of actual control. See Gonzalez, 463 S.W.3d at
506 (quoting Koch, 11 S.W.3d at 155). Here, Haggard failed to offer any evidence that
Blattner made any affirmative directives to C2; at best, the evidence showed that
Blattner allowed C2 to continue working knowing that C2 itself was not requiring its
workers to wear fall protection.
17
Haggard has also not demonstrated that the repowering agreement’s safety
provisions—which are not in the record—established Blattner’s affirmative right to
control C2’s work. See Bright, 89 S.W.3d at 609 (no duty imposed on premises owner
where premises owner “had a Safety Incentive Program that rewarded contractors
who had achieved certain safety milestones”); Brazos Contractors Dev., Inc. v. Jefferson,
596 S.W.3d 291, 303–04 (Tex. App.—Houston [14th Dist.] 2019, pet. denied)
(distinguishing between contractual provisions addressing affirmative rights
concerning completing an underlying project and those “merely addressing safety”).

33
We also reject Haggard’s attempt to point to the evidence of Blattner’s

employees’ responding to the accident, rendering emergency medical aid, and calling

an ambulance—while NextEra’s employees sat in the trailer. That evidence does not

show Blattner’s control over what caused Haggard’s injury, and it is evidence only that

after Blattner learned of the accident, its employees tried to help Haggard. Haggard

has cited no authority—nor have we found any—suggesting that a court can or

should infer a party’s liability from the mere fact of its responding to a work-site

accident. Such a conclusion would fly in the face of the supreme court’s concern over

a contractor’s “stand[ing] idly by while another is injured or killed in order to avoid

liability.” Bright, 89 S.W.3d at 608 (quoting Mendez, 967 S.W.2d at 358); cf. Tex. R.

Evid. 409 (stating that evidence of furnishing, promising to pay, or offering to pay

certain medical expenses resulting from an injury “is not admissible to prove liability

for the injury”). 18 Thus, Blattner’s responding to render emergency aid to Haggard

and calling 911 is not evidence that it exercised actual control over C2’s work that

caused the accident.

Finally, Haggard cannot point to his safety expert’s opinions, which were

largely premised on (1) his legal interpretation of the NextEra–Blattner repowering

18
See also Mark B. Greenlee, Echoes of the Love Command in the Halls of Justice,
12 J.L. & Religion 255, 263 (1996) (“[C]ourts protect Good Samaritans from the
inference of liability from acts of kindness by excluding such acts from evidence. Not
to do so would penalize the Good Samaritan and . . . encourage the heartless to pass
by on the other side.” (citation modified)).

34
agreement that is not in the record, see 1701 Com. Acquisition, 2022 WL 3904976, at

*11–12 (stating that legal conclusions are not competent summary-judgment

evidence); and (2) Haggard’s and Rhodes’s testimonies, which as we have discussed

constituted no evidence of Blattner’s exercise of actual control. Nor does Haggard

raise a fact issue by relying on his safety expert’s opinion about OSHA’s

muti-employer directive concerning who is a “controlling entity.” See Grant v. Wind

Turbine & Energy Cables Corp., No. 02-21-00036-CV, 2022 WL 2840142, at

*9 n.22 (Tex. App.—Fort Worth July 21, 2022, no pet.) (mem. op.). Indeed, “Texas

courts have held that the common[-]law duties imposed by state law are not expanded

by OSHA regulations”—“either a [defendant] owes a duty based upon our

common[-]law principles, or it does not.” Id. (first citing Hill v. Consol. Concepts, Inc.,

No. 14-05-00345-CV, 2006 WL 2506403, at *4 (Tex. App.—Houston [14th Dist.]

Aug. 31, 2006, pet. denied) (mem. op.); and then citing McClure, 162 S.W.3d at 353).

Here, Haggard needed to produce evidence raising a genuine issue of material

fact that Blattner actually controlled the manner, method, or details of C2’s

injury-causing activity. And he did not. Haggard produced no evidence that Blattner

retained “such . . . a right of supervision that [C2 was] not entirely free to do the work

in [its] own way.” Gonzalez, 463 S.W.3d at 506 (quoting Koch, 11 S.W.3d at 155). Thus,

we conclude that Haggard failed to produce evidence raising a genuine issue of

material fact that Blattner exercised actual control over C2’s crane operations that led

to Haggard’s injuries necessary to impose a duty on Blattner. See id.

35
Accordingly, the trial court properly granted Blattner’s no-evidence summary

judgment on Haggard’s negligence claim. And we further conclude that the trial court

properly granted summary judgment on Haggard’s gross-negligence claim. See Taylor v.

Baylor Scott & White Med. Ctr.-Frisco, No. 05-20-00352-CV, 2022 WL 405896, at

*9 (Tex. App.—Dallas Feb. 10, 2022, no pet.) (mem. op.) (first citing Sonic Sys. Int’l,

Inc. v. Croix, 278 S.W.3d 377, 394–95 (Tex. App.—Houston [14th Dist.] 2008, pet.

denied); and then citing Seaway Prod. Pipeline Co. v. Hanley, 153 S.W.3d 643, 659 (Tex.

App.—Fort Worth 2004, no pet.)). We overrule Haggard’s first issue.

III. Deemed Admissions

In his second issue, Haggard complains that the trial court abused its discretion

by deeming admitted the six requests for admission cited above and by denying his

request to withdraw them. Assuming that the trial court abused its discretion, Haggard

has not shown harm.

Requests for admission are intended to simplify trials by eliminating

“uncontroverted matters or evidentiary ones like the authenticity or admissibility of

documents.” In re Euless Pizza, LP, 702 S.W.3d 543, 546 (Tex. 2024) (orig. proceeding)

(citation modified). They “should be used as a tool, not a trapdoor.” Id. (citation

modified). So while trial courts have “broad discretion” to permit or deny a request to

change an admission, Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011); Wheeler v. Green,

157 S.W.3d 439, 443 (Tex. 2005), that is not unlimited, and a court’s discretion is

narrowest when denying permission to make the change would “compromise

36
presentation of the merits,” Wheeler, 157 S.W.3d at 443; see also AKT Invs., Inc. v. T

Jordan Towing, Inc., No. 02-24-00413-CV, 2025 WL 1536389, at *21–22 (Tex. App.—

Fort Worth May 29, 2025, pet. denied) (mem. op.).

That said, to obtain reversal of a judgment based on an error in the trial court,

the appellant must show not only that the error occurred but also that it probably

caused rendition of an improper judgment or probably prevented the appellant from

properly presenting the case to this court. Tex. R. App. P. 44.1(a); Romero v. KPH

Consol., Inc., 166 S.W.3d 212, 225 (Tex. 2005).

Here, Haggard complains that the trial court should not have deemed admitted

Blattner’s six requests cited above because its doing so prevented his defending

himself and precluded the trial court from deciding the case on the merits. But in

deciding Haggard’s first issue, we did not factor in those deemed admissions.

Thus, even if we were to agree that the trial court abused its discretion by

deeming and then refusing to withdraw the six deemed admissions, Haggard can show

no harm. This is so because in response to Blattner’s summary-judgment motion,

Haggard offered no evidence creating a fact question on whether it owed him any

duty. See Tex. R. App. P. 44.1(a); Morris v. Hughes, No. 11-08-00224-CV,

2010 WL 252283, at *1 (Tex. App.—Eastland Jan. 21, 2010, pet. denied) (mem. op.)

(per curiam) (concluding that an appellant had identified no harm from deemed

admissions when she had not otherwise created a fact question in response to a

no-evidence summary-judgment motion); see also Allison v. Post-Newsweek Stations Hou.

37
LP, Nos. 01-10-00775-CV, 01-11-00767-CV, 2011 WL 13362661, at *4 (Tex. App.—

Houston [1st Dist.] Dec. 22, 2011, no pets.) (mem. op.) (holding that any error from

merits-preclusive deemed admissions was harmless when other evidence supported

the trial court’s granting summary judgment). Accordingly, we overrule Haggard’s

second issue.

IV. Conclusion

Having overruled Haggard’s two issues, we affirm the trial court’s judgment

that Haggard take nothing from Blattner.

/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Delivered: February 26, 2026

38