Tracy J. Mason v. Southwest G.C., Inc A/K/A Southwest General Contractors

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00287-CV

TRACY J. MASON, APPELLANT

V.

SOUTHWEST G.C., INC. A/K/A SOUTHWEST
GENERAL CONTRACTORS, APPELLEE

On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 112087-E-CV, Honorable Timothy G. Pirtle, Presiding

May 28, 2026
OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.

Appellant, Tracy J. Mason, appeals the trial court’s grant of summary judgment in

favor of Appellee, Southwest G.C., Inc., a/k/a Southwest General Contractors. We affirm

the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Southwest was the general contractor on a commercial building project in

Plainview. Southwest subcontracted the stonework on the project to an independent
contractor, Ochoa Masonry, LLC. Mason was a member of the work crew under Ochoa’s

supervision. As Mason was walking across a 20-foot-tall scaffold, the walk boards slipped

through the sidearms causing him to fall. He sustained serious injuries. Under the

subcontract, Ochoa was responsible for providing the scaffolding equipment and ensuring

its safe use by its employees. Ochoa’s crew erected the scaffold about ten days before

Mason fell. At the time he fell, Mason was not utilizing any fall-protection equipment.

Mason sued Southwest and Ochoa for negligence and damages arising out of the

accident. Ochoa was served but never filed an answer. Subsequently, Southwest filed

its traditional and no-evidence motion for summary judgment contending, inter alia, that

there was no evidence of duty, breach, or proximate cause to support Mason’s negligence

claim. Mason filed a continuance and cited the need for taking “at least one” deposition

to properly respond to the traditional motion for summary judgment. The trial court

granted Mason’s motion for continuance and reset the hearing for thirty days. Mason

filed his opposition to the motion for summary judgment. Following the summary

judgment hearing, the trial court entered an order granting Southwest’s summary

judgment motion without specifying the grounds on which it granted the motion. Mason

nonsuited claims against Ochoa, and the trial court severed a crossclaim asserted by

Southwest against Ochoa, making the summary judgment a final judgment. Mason timely

filed this appeal.

By his appeal, Mason presents two issues. Mason contends, by his first issue,

that the trial court erred in setting and hearing the no-evidence motion for summary

judgment before the end of the discovery period. Mason’s second issue contends that

the trial court erred in rendering the summary judgment.
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ISSUE ONE: ADEQUACY OF TIME FOR DISCOVERY

By his first issue, Mason contends that the trial court erred in setting and hearing

the no-evidence motion for summary judgment almost two-and-one-half months before

the end of the discovery period.

Texas Rule of Civil Procedure 166a(i) requires that an “adequate time for

discovery” pass before a no-evidence summary judgment may be granted. TEX. R. CIV.

P. 166a(i). A discovery period set by a pretrial order is presumed to be an adequate time

for discovery unless there is a showing to the contrary, and a motion for no-evidence

summary judgment will ordinarily only be permitted after the discovery period ends. TEX.

R. CIV. P. 166a cmt. In determining whether an adequate time for discovery has passed

before considering a no-evidence summary judgment motion, a trial court should consider

(1) the nature of the case, (2) the nature of the evidence necessary to controvert the

motion, (3) the length of time the case has been active, (4) the amount of time the no-

evidence motion has been on file, (5) whether the movant has requested stricter

guidelines for discovery, (6) the amount of discovery that has already taken place, and

(7) whether the discovery deadline is specific or vague. McInnis v. Mallia, 261 S.W.3d

197, 201 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

But “[w]hen a party contends that it has not had an adequate opportunity for

discovery before a summary judgment hearing, it must file either an affidavit explaining

the need for further discovery or a verified motion for continuance.” Tenneco Inc. v. Enter.

Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). A reviewing court will not consider any

reason for continuance that was not expressly presented to the trial court. See D.R.

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Horton − Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 223 n.5 (Tex.

App.—Fort Worth 2013, no pet.) (citing TEX. R. CIV. P. 251 and 252; TEX. R. APP. P.

33.1(a)). When the basis for continuance is the need for additional discovery, the movant

must show how the evidence sought by discovery is material to its claims. Perrotta v.

Farmers Ins. Exch., 47 S.W.3d 569, 576 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

In the present case, the trial court granted Mason’s motion for continuance and

reset the summary judgment hearing to May 21, 2025, approximately two months before

the discovery deadline of August 1. In his summary judgment response, Mason

requested the trial court deny the motion for summary judgment because there had not

been adequate time for discovery. However, Mason did not seek a second continuance

or file an affidavit explaining the need for further discovery before the summary judgment

hearing. Tenneco Inc., 925 S.W.2d at 647. Moreover, he did not identify the evidence

sought or explain how the evidence is material to his claims. Perrotta, 47 S.W.3d at 576.

Consequently, Mason has waived any argument that the summary judgment was

premature. Tenneco Inc., 925 S.W.2d at 647; McClure v. Attebury, 20 S.W.3d 722, 729–

30 (Tex. App.—Amarillo 1999, no pet.). We overrule issue one.

ISSUE TWO: SUMMARY JUDGMENT
By his second issue, Mason contends that the trial court erred in granting the

motion for summary judgment.

We review grants of summary judgment de novo. Cantey Hanger, LLP v. Byrd,

467 S.W.3d 477, 481 (Tex. 2015). In our review, we take as true all evidence favorable

to the non-movant, indulge every reasonable inference in favor of the non-movant, and

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resolve any doubts in the non-movant’s favor. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005). When, as here, a party moves for both traditional and no-

evidence summary judgments, we first consider the no-evidence motion. Ford Motor Co.

v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the non-movant fails to meet its burden

under the no-evidence standard, there is no need to consider the traditional motion.

Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).

To defeat a no-evidence motion, the non-movant must produce evidence raising a

genuine issue of material fact as to the challenged elements. Ridgway, 135 S.W.3d at

600. A genuine issue of material fact exists if the evidence “rises to a level that would

enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome

Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). Evidence does not create an issue of

material fact if it is “so weak as to do no more than create a mere surmise or suspicion”

as to the existence of the fact. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex.

2014) (quoting Ridgway, 135 S.W.3d at 601). Under the traditional summary judgment

standard, the movant meets its burden if it proves that there is no genuine issue of

material fact and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c).

To prevail on a negligence claim, a plaintiff must establish a duty owed to the

plaintiff by the defendant, a breach of that duty, and damages proximately caused by the

breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam). Whether

a duty exists is a threshold inquiry and a question of law for the court. Id. A general

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

ensure that the employee safely performs his work. Dow Chem. Co. v. Bright, 89 S.W.3d
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602, 606 (Tex. 2002); Koch Refin. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999) (per

curiam). However, a duty of care may arise if the general contractor retains some control

over the manner in which the independent contractor performs its work that causes the

damage. AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 295 (Tex. 2020); Bright, 89

S.W.3d at 606. Control can be established in two ways: by evidence establishing that the

general contractor had a contractual right to control the manner in which the subcontractor

performed its work or by evidence of actual control. JLB Builders, L.L.C. v. Hernandez,

622 S.W.3d 860, 865 (Tex. 2021); Bright, 89 S.W.3d at 606. In either case, the “control

must relate to the condition or activity that caused the injury.” Clayton W. Williams, Jr.,

Ins. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997). Further, the control retained or exercised

by the general contractor must “extend[] to ‘the means, methods, or details of the

independent contractor’s work.’” Arredondo, 612 S.W.3d at 295; see Chapa, 11 S.W.3d

at 156 (general contractor “must have some latitude to tell its independent contractors

what to do, in general terms, . . . without becoming subject to liability”).

In its motion for summary judgment, Southwest argued it did not owe a duty to

Mason because he was an employee of an independent contractor, and it did not exercise

control over Mason or have a contractual right to control Mason’s work. In support of its

motion, Southwest provided the subcontractor agreement and excerpts of Mason’s

deposition. Southwest points to Mason’s testimony that he had been working at the

construction site for three to four months laying stone and that Ochoa’s employees were

responsible for setting up the scaffolding. Southwest’s superintendent told the stone

layers where to start work and discussed the consistency of the mortar but did not

otherwise control their work.

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In the subcontract, Ochoa was an independent contractor and required to furnish

all labor, supervision, and safety protection necessary to accomplish its work.

Additionally, the contract requires Ochoa to do the following:

(i) take all reasonable safety precautions with respect to the Work;
(j) comply with (i) all safety measures initiated by [Southwest] and (ii) all
applicable laws, ordinances, rules, regulations, and orders of any public
authority for the safety of persons or property;
(k) furnish safety tools and equipment to all employees of [Ochoa] and make
certain that the employees properly use the safety tools and equipment;
(l) comply with the Occupational Safety and Health Act; [and]
(m) remain fully responsible for the health and safety of [Ochoa], all
[Ochoa’s] employees, and all [Ochoa’s] sub-contractors . . . .

Mason filed a response to Southwest’s motion for summary judgment in which he

argued Southwest had a duty as the “controlling employer” under the Occupational Safety

and Health Administration’s (OSHA) multi-employer worksite laws to provide a safe work

environment. He further argued that the contract required Ochoa to comply with safety

and health requirements, Southwest had the right to take various actions against Ochoa

if it failed to comply, and Southwest retained the right to control the safety of the

scaffolding from which Mason fell. We address each argument in turn.

OSHA Regulations

We first address Mason’s contention that OSHA regulations impose a duty on

Southwest to provide for safety at the worksite including an overall supervisory

responsibility for fall protection and scaffold safety requirements, and the power to correct

safety and health violations or require others to correct them. Specifically, Mason argues

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that Southwest, as a controlling employer, owed a duty to Mason to ensure that OSHA

scaffolding fall-protection regulations were followed by Ochoa employees. Mason relies

on Acosta v. Hensel Phelps Constr. Co., 909 F. 3d 723, 743 (5th Cir. 2018) (holding

Secretary of Labor has authority under OSHA to issue citations to controlling employers

at multi-employer worksites for violations of the Act’s standards). We disagree with

Mason’s contention. Texas courts have consistently held that OSHA regulations do not

expand common law duties imposed by state law and do not create an implied cause of

action. See Haggard v. Blattner Energy, Inc., No. 02-25-00056-CV, 2026 Tex. App.

LEXIS 1906, at *35 (Tex. App.—Fort Worth Feb. 26, 2026, no pet.) (mem. op.); McClure

v. Denham, 162 S.W.3d 346, 353 (Tex. App.—Fort Worth 2005, no pet.); Richard v.

Cornerstone Constrs., Inc., 921 S.W.2d 465, 468 (Tex. App.—Houston [1st Dist.] 1996,

writ denied) (op. on reh’g); see also 29 U.S.C.A. § 653(b)(4) (establishing that nothing in

the OSHA statute “shall be construed to enlarge or diminish or affect in any other manner

the common law or statutory rights, duties, or liabilities of employers and employees

under any law . . .”).

Contract Provisions

We next address Mason’s argument that the contract requires Ochoa to comply

with safety and health requirements and gives Southwest the right to take various actions

against Ochoa for failing to meet contract requirements, including the right to have non-

compliance corrected by using other workers and charging Ochoa for that work. Mason

points to the contract terms that require Ochoa to “take all reasonable safety precautions,”

“comply with . . . all applicable laws,” and “comply with the Occupational Safety and Health

Act.” If Ochoa failed to comply, it would be in “default,” and the remedy would be that
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Southwest could “take over or cause others to take over the Work,” “hire other

subcontractors to complete the Work,” and “recover from [Ochoa] all costs, expenses,

losses, damages, reasonable attorney’s fees, and all costs of collection incurred by

[Southwest].” According to Mason, these contract terms demonstrate that Southwest had

contractual control over Ochoa for the safety of the work being done on the scaffolding.

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

Bright, 89 S.W.3d at 606. 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[,] . . . 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 this case, the contract does not give Southwest the right to control the means

and methods of Mason’s masonry work or his use of the scaffolding on the construction

site. Consequently, the contract does not impose on Southwest any duty of care to

Mason. The summary judgment evidence established that it was Ochoa, not Southwest,

that had the responsibility to ensure that Mason’s work was performed safely. The

contract delegated OSHA compliance to Ochoa, provided that Ochoa “furnish safety tools

and equipment” to all of its employees, and “make certain that the employees properly

use the safety tools and equipment.” Other provisions required that job safety is the

responsibility of Ochoa, including furnishing “Personal Protective Equipment” (PPE) [to]

be worn at all times while employees are on the job-site.” The contract places all

responsibility for Mason’s work on Ochoa. These provisions do not confer a right to

control on Southwest. See Hernandez, 622 S.W.3d at 869 (contract requiring
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subcontractor furnish all supervision of its employees and designating subcontractor

solely responsible for acts and omissions of its employees did not confer right to control);

Chapa, 11 S.W.3d at 156 (no contractual right to control existed where contract provided

that subcontractor “would furnish any and all supervision over its employees and . . . ‘shall

perform as an independent contractor’”).

In his second amended petition, Mason alleges that a scaffold that “was not

properly constructed, secured, and planked” caused his fall. However, there is no

contractual provision giving Southwest control over the scaffolding that Mason alleges

was the cause of his fall. The testimony is undisputed that Ochoa’s crew was responsible

for, and did, in fact, set up the scaffolding. Consequently, Mason has not shown that

Southwest had contractual control over the activity that caused his injury. Olivo, 952

S.W.2d at 528.

Further, the contract does not provide Southwest with the right to control the

means, methods, or details of Ochoa’s work, nor does it grant Southwest the authority to

direct the order in which Ochoa’s work should be accomplished. “[M]erely exercising or

retaining a general right to recommend a safe manner for the independent contractor’s

employees to perform their work” is insufficient to impose a duty. Chapa, 11 S.W.3d at

155.

Mason’s argument that Southwest’s right to have Ochoa’s non-compliance

corrected is equally unavailing. An unexercised contractual right does not give rise to a

legal duty. While Southwest retained the right to stop performance of work it considered

unsafe, this does not mean it retained the right to control the means, methods, or details

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of Mason’s or Ochoa’s work. In Koch Refining Co., the Texas Supreme Court held that

a duty of care does not arise from

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. Such
a general right is usually reserved to employers, but it does not mean that
the contractor is controlled as to the methods of his work, or as to operative
detail. There must be such a retention of a right of supervision that the
contractor is not entirely free to do the work in his own way.
11 S.W.3d at 155.

Having reviewed the evidence in the light most favorable to Mason, we conclude,

as a matter of law, that Southwest did not retain the degree of contractual control

necessary to create a duty.

Actual Control

In its summary judgment motion, Southwest cited Mason’s testimony that the

scaffolding was provided by Ochoa and Ochoa’s crew set up the scaffolding, including

the walk boards. Mason also testified that Southwest did not instruct him how to perform

his work, and he was not aware of any of Southwest’s employees giving instructions

regarding the scaffolding.

Mason responded with evidence that Southwest’s superintendent was on site

every day, coordinated the subcontractor’s work schedules, decided what time of day to

start and stop work, and held weekly safety meetings. Mason further argued that it would

have been obvious to the superintendent whether there were guardrails, whether the walk

boards were weathered and secure, and whether fall protection equipment was being

used. Specifically, Mason argues that Southwest’s awareness of Ochoa’s failure to use
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fall protection created a duty to Mason. According to Mason, Southwest was aware that

Ochoa routinely ignored applicable federal regulations and standard company policies

related to safety and therefore had a duty to Mason to require corrective measures to be

taken or to cancel the contract. See Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d

354, 357 (Tex. 1998) (per curiam) (identifying “narrow duty of care” when general

contractor was aware of routine or specific safety violations). Mason points to evidence

that he had been trained to “tie off” when working at heights, but there was nothing to “tie

off“ to on the day of the accident. Ochoa had “tie off” equipment, but it was not used on

this job site. Southwest’s superintendent admitted that Southwest was responsible to

ensure that its subcontractors follow safe practices “to a certain extent,” and that

Southwest expects its subcontractors to follow OSHA safety regulations, which he

considered proper guidelines for safety on the job.

Southwest is not subject to liability merely because its superintendent was present

at the job site, exercised general supervisory authority over the scheduling and results of

the subcontractor’s work, or made an effort to ensure that the subcontractors performed

their work safely. Chapa, 11 S.W.3d at 156. There was no evidence that Southwest

instructed Ochoa’s employees on how to lay the stone or controlled the use of fall-

protection systems, including the use of guard rails or walk boards. See Lee Lewis

Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001) (holding general contractor

retained control when it directed employee to ensure subcontractor properly utilized fall-

protection equipment and expressly approved of fall-protection systems used by

subcontractor). Mason testified that he could not tell that there was a problem with the

scaffold’s walk board before he fell, and he presented no evidence that Southwest had

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actual control of the defective scaffold that resulted in his injury. See Chapa, 11 S.W.3d

at 156 (independent contractor’s employee did not present any evidence that general

contractor instructed employee in how to lift pipe leading to employee’s injury). There

must be a nexus between a general contractor’s retained supervisory control and the

activity that caused the injury. See Lee Lewis Constr., 70 S.W.3d at 784; see also

Mendez, 967 S.W.2d at 357 (general contractor’s insistence that independent contractor’s

employees observe compliance with federal laws, general safety guidelines, and other

standard safety precautions did not impose unqualified duty of care on general contractor

to ensure independent contractor’s employees did nothing unsafe; rather, duty owed is

that any safety requirements it promulgated did not unreasonably increase the probability

and severity of injury).

As to Mason’s argument that Southwest held mandatory weekly safety meetings,

Mason offers no evidence of what was presented during those safety meetings that would

give rise to a duty.

Mason also argues that Southwest had a duty arising out of its awareness that

Ochoa failed to use fall protection. Mason relies on the following language of Mendez:

“[A]n employer who is aware that its contractor routinely ignores applicable federal

guidelines and standard company policies related to safety may owe a duty to require

corrective measures to be taken or to cancel the contract.” Mendez, 967 S.W.2d at 357.

Thus, according to Mason, Southwest’s knowledge that Ochoa routinely ignored OSHA

requirements for fall protection imposed a duty on Southwest to require corrective

measures to be taken or cancel the contract. However, there is no proof that this narrow

duty of care was breached. Southwest’s superintendent testified that Ochoa’s crew had
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been using scaffolding at the job site for only a week and a half. There was no reason

for anyone on behalf of Southwest to inspect the scaffolding because Ochoa’s crew was

responsible for erecting it. Mason testified that he was not aware of any problems with

the walk boards before he fell. While the superintendent was on site when Mason fell, he

did not witness him falling. When the superintendent was asked if Mason was wearing

any kind of fall-protection equipment at the time of the accident, the superintendent

testified, “hardhats are mandatory on the site, work boots, jeans. So [Mason] was

compliant every day with those things.” There was no evidence demonstrating how many

times safety guidelines were ignored, when the violation occurred in reference to the date

of the accident, to whom the violation was reported, and what resulted from the observed

violations. This evidence is insufficient to raise a fact issue as to actual control. See

Hernandez, 622 S.W.3d at 868 (“[A]bsent a specific contractual requirement to do so, a

general contractor has no affirmative duty to take action upon learning of an independent

contractor’s employee’s unsafe conduct.”); see also Chapa, 11 S.W.3d at 157.

We conclude that Mason failed to produce summary judgment evidence sufficient

to raise a genuine issue of material fact that Southwest owed him a duty as Ochoa’s

employee through actual control.

Because Mason failed to meet his burden under the no-evidence standard, we

need not consider Southwest’s traditional motion. Merriman, 407 S.W.3d at 248. We

hold there is no evidence that Southwest owed Mason any duty and the trial court did not

err in granting the motion for summary judgment on Mason’s negligence claim. We

overrule Mason’s second issue.

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CONCLUSION

Having considered both issues raised by Mason, we affirm the trial court’s

judgment.

Judy C. Parker
Chief Justice

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