text:
    Jeff and Robyn SHKOLNICK, Appellants, v. COASTAL FUMIGATORS, INC., d/b/a End-O-Pest, Appellee.
    No. 01-04-00405-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 23, 2005.

      Evin G. Dugas, Dugas & Inselmann, Austin, TX, for Appellants.
    Margaret Horton, Smith, Underwood & Perkins, LeAnn Wainscott Diamond, Friedman & Feiger, L.L.P., Dallas, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

SHERRY RADACK, Chief Justice.

This is an appeal from a summary judgment rendered in favor of appellee, Coastal Fumigators, Inc. d/b/a End-O-Pest (“Coastal”). Appellants, Jeff and Robyn Shkolnick (“the Shkolnicks”), filed a suit for damages arising out of an inspection by Coastal of a house that they were, at the time, in the process of purchasing. Coastal filed a traditional and no-evidence motion for summary judgment, which the court granted. In two issues, the Shkol-nicks contend that the trial court erred in (1) entering final judgment disposing of all their claims because one of their claims brought under the Deceptive Trade Practices Act (“DTPA”) was not presented in Coastal’s motion for summary judgment and (2) granting summary judgment because there was an issue of material fact as to Coastal’s alleged representations concerning the characteristics and quality of its services. We affirm.

BACKGROUND

On May 4, 2000, the Shkolnicks entered into an earnest money contract to purchase a house located at 411 Trails Court, Houston, Texas. On May 9, 2000, Coastal sent an employee, Chuck Domel, to perform a Real Estate Transaction Inspection to inspect the house for wood-destroying insects. According to Jeff Shkolnick, after the inspection, Domel told him that he did not see any problems, he thought everything was good, and there was nothing to be concerned about. Coastal provided the Shkolnicks with a Texas Official Wood Destroying Insect Report' (‘WDIR”), which stated that the scope of the inspection was limited to “those parts of the structure(s) that are visible and accessible at the time of the inspection.” The report found no visible evidence of drywood termite infestation. Shortly thereafter, the Shkolnicks completed their purchase of the house.

In the spring of 2002, a handyman, hired by the Shkolnicks, discovered termites upon removing wood from a windowsill. In May 2002, a pest control company confirmed the presence of drywood termites.

The Shkolnicks sued Coastal for violations of the DTPA. The Shkolnicks alleged that Coastal violated the DTPA. when it “represented that its services had characteristics and qualities it did not.” Coastal moved for a traditional and a no-evidence summary judgment on all of the Shkolnicks’ claims. In its motion, Coastal claimed that there was no material fact issue as to whether Coastal made any false representations to the Shkolnicks. The trial court granted Coastal’s motion for summary judgment. On February' 20, 2004, the trial court rendered a take-nothing judgment against the Shkolnicks. This appeal followed.

SUMMARY JUDGMENT

In their first issue, the Shkolnicks contend that the trial court erred in entering a final judgment against them because one of their DTPA claims was not presented in Coastal’s motion for summary judgment. The Shkolnicks assert that their claim, under section 17.46(b) of the DTPA, consists of two claims: the first under section 17.46(b)(5) regarding characteristics of Coastal’s services, and the second under section 17.46(b)(7) regarding the particular quality of Coastal’s services. See Tex. Bus. & Com.Code Ann. § 17.46(b) (Vernon Supp.2004-2005). In their second amended petition, the Shkolnicks alleged, “END-O-PEST has violated the Texas Deceptive Trade Practices Act and said violations are the producing cause of damages to JEFF and ROBYN SHKOLNICK. Specifically, END-O-PEST represented that its services had characteristics and qualities it did not....” Appellants assert the one reference to “characteristics” in their petition provided sufficient notice to Coastal that a 17.46(b)(5) claim was asserted as well. The Shkolnicks separate these claims in their briefs on appeal and argue that Coastal, in its motion for summary judgment, never challenged the Shkol-nicks’ DTPA claim under 17.46(b)(5) regarding Coastal’s representations that their services had characteristics that they did not have.

In support of them summary judgment motion, Coastal alleged

[tjhere is no evidence and Plaintiffs have produced no evidence that Coastal committed a tvrongful act. There is no evidence and Plaintiffs have produced no evidence that Coastal made any false representations to Plaintiffs regarding the quality of their services in violation of Tex. Bus. & Com.Code § 17.46(b)(7) as alleged above. Further, there is no evidence and Plaintiffs have produced no evidence that Coastal’s inspection violated the implied warranty of good and workmanlike service by failing to perform to industry standards.

(emphasis added).

The issue we are thus presented with is whether Coastal’s reference to “a wrongful act” sufficiently challenged the Shkolnick’s claim under section 17.46(b)(5) that Coastal’s services had characteristics that it did not. In the summary judgment motion, Coastal listed the elements that the Shkol-nicks had to prove to prevail on their DTPA claims. One element Coastal listed was that “the defendant committed a wrongful act, which consisted of the following: (a) a false, misleading, or deceptive act or practice that is specifically enumerated in the ‘laundry list’ of Business & Commerce Code section 17.46(b) and that was relied on by the plaintiffs to the plaintiffs detriment....” Coastal’s use of the phrase “a wrongful act” encompassed any “act or practice that is specifically enumerated” as a laundry list violation. When Coastal asserted in their motion that “[tjhere is no evidence and Plaintiffs have produced no evidence that Coastal committed a wrongful act” and that the “claims faü as a matter of law because Coastal can disprove the element that defendant committed a wrongful act,” these challenged both the section 17.46(b)(5) and section 17.46(b)(7) claims.

We next consider whether these statements sufficiently stated the grounds upon which summary judgment may be granted. The term “grounds” refers to the reasons entitling the movant to summary judgment. McConnell v. Southside Inde-p. Sch. Dist., 858 S.W.2d 337, 339 n. 2 (Tex.1993). Grounds for summary judgment may be stated concisely, without detail and argument. Molina v. Kelco Tool & Die, Inc., 904 S.W.2d 857, 861 (Tex.App.-Houston [1st Dist.] 1995, writ denied). Here, Coastal stated concisely that they were entitled to summary judgment because they did not commit a wrongful act, that is they did not violate any laundry list provisions of the DTPA. Because we conclude that Coastal addressed both the section 17.46(b)(5) and section 17.46(b)(7) claims in the motion for summary judgment, we overrule the Shkolnick’s first issue.

SUMMARY JUDGMENT EVIDENCE

In their second issue, the Shkolnicks contend that the trial court erred in granting summary judgment because there was an issue of material fact regarding the section 17.46(b)(5) and section 17.46(b)(7) claims. Specifically, the Shkolnicks argue that Coastal represented that its services had characteristics and qualifies it did not, including (1) that it could locate an active infestation; (2) that there was no active infestation; (3) that its inspection would use industry tools; (4) that its inspection would use industry standards; (5) that its inspection would meet industry standards; and (6) that its inspection would be complete.

Standard of Review

A party moving for a traditional summary judgment has the burden of proving that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr.' Prop. Mgmt., 690 S.W.2d 546, 548 (Tex.1985); Farah v. Mafrige & KormaniJc, P.C., 927 S.W.2d 663, 670 (Tex.App.-Houston [1st Dist.] 1996, no writ). When deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d. at 548-49. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved, in its favor. Id. at 549.

In a no-evidence motion for summary judgment, the'movant must specifically state the elements as to which there is no evidence. Tex.R. Civ. P. 166a(i). The burden then shifts to the non-movant to produce evidence that raises a fact issue on the challenged elements. Id. When reviewing the grant of a no-evidence summary judgment, we assume all evidence favorable to the non-movant is true and indulge every reasonable inference and resolve all doubts in favor of the non-movant. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). A no-evidence summary judgment may not be properly granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact. Tex.R. Civ. P. 166a(i). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (quoting Kindred v. Con/Chem. Inc., 650 S.W.2d 61, 63 (Tex.1983)). More than a scintilla of evidence exists if. it would allow reasonable and fair minded people to differ in their conclusions. Id.

The elements of a DTPA claim are (1) the plaintiff is a consumer; (2) the defendant engaged in a false, misleading, or deceptive act; (3) the consumer relied on that act to the consumer’s detriment; and (4) the act constituted a producing cause of the plaintiffs damages. See Tex. Bus. & Com.Code Ann. §§ 17.46, .50 (Vernon 2002 & Supp.2004-2005); see Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995). A mere representation that services are of a particular quality is not enough for a statement to be actionable under the DTPA. See Tex. Bus. & Com.Code Ann. § 17.46 (Vernon Supp. 2004-2005). Rather, the act must be false, misleading, or deceptive. Id. For a representation regarding the characteristics or quality of a defendant’s services to be actionable under section 17.46(b)(5) and section 17.46(b)(7), the defendant’s representation that its services have characteristics or a particular quality must be shown that they are not of that characteristic or quality. Id. §§ 17.46(b)(5), (7). Because Coastal challenged the false, misleading, or deceptive act in its motion for summary judgment, the Shkolnicks had to create a fact issue that there was a representation which was false, misleading, or deceptive. See id.

Coastal’s Alleged Representation

We first address whether Coastal made any representations to the Shkolnicks. Coastal argues that (1) the Shkolnicks admitted that they had no memory of any oral representations made by Coastal; (2) any comments made by Coastal inspectors were merely opinions; and (8) the only written representation made by Coastal, the WDIR, was not reviewed by the Shkol-nicks until after they closed on their house, thereby precluding their ability to rely on the WDIR to their detriment.

However, the Shkolnicks point to the Coastal inspector’s statements made to Jeff Shkolnick on the day of the inspection. Jeff Shkolnick testified during his deposition that the Coastal inspector made express oral representations to him that (a) he didn’t see any problems, (b) he thought everything was good, and (c) there was nothing for Shkolnick to be concerned about. The Shkolnicks also allege that Coastal impliedly represented that Coastal was “competent and capable of inspecting a home for termites.” Based on the deposition testimony of Jeff Shkolnick regarding statements by the Coastal inspector, we conclude that there was some evidence to create a fact issue on whether representations were made to the Shkolnicks.

False, Misleading or Deceptive Representation

We next address whether Coastal’s representations were false, misleading, or deceptive. The Shkolnicks complain that Coastal represented (1) that it could locate an active infestation; (2) that there was no active infestation; (8) that its inspection would use industry tools; (4) that its inspection would use industry standards; (5) that its inspection would meet industry standards; and (6) that its inspection would be complete. To create a fact issue on whether these representations are false, misleading, or deceptive, the Shkolnicks must first create a fact issue that termites were present when Coastal inspected the house, and secondly that Coastal’s inspection failed to meet the industry standards.

To create a fact issue regarding the existence of termites in May 2000 during Coastal’s inspection, the Shkolnicks offer the affidavit of Dr. Ted Granovsky, Ph.D., B.C.E. Dr. Granovsky received his Ph.D. in entomology and is a certified urban and industrial entomologist. Dr. Granovsky states that “[d]rywood termites normally require 3 to 5 years of time to develop their colonies to the point where they can cause damage evident in a structure.” He then summarily concludes that' “[i]n consideration of the known biology of drywood termites, the extended time needed to develop their colonies, the slowness with which damages are caused by drywood termites, it is both scientifically reasonable and highly probable that the drywood termites in the Shkolnicks home were both present and evident at the time of the inspection by Coastal Fumigators, Inc. d/b/a END-O-PEST, and could have been encountered.” Given Dr. Granovsky’s educational background and experience, we conclude this was sufficient to create a fact issue that termites were present at the Shkolnicks in May 2000.

We next address whether Coastal adhered to the industry standards during the inspection of the Shkolnick’s house. The Shkolnicks list multiple points in their brief as evidence to raise a fact issue on whether Coastal failed to adhere, to the industry standard: (1) Structural Pest Control Board Rule section 599.5(a); (2) Structural Pest Control Board Rule section 599.5(c) states, “The inspector shall describe structure(s) inspected and include the following ... inaccessible or obstructed areas;” (3) the deposition testimony of Chuck Domel, an inspector for Coastal, indicating that sounding- the wood is part of the procedure for inspecting drywood termites; (4) Domel’s testimony on inspecting only accessible areas unless he thinks there’s a problem in an area out of his reach; (5) Domel’s testimony on not identifying everything above 8 feet as an inaccessible area on the WDIR; (6) Theodore Granovsky’s conclusion in his affidavit that Domel’s lack of use of a ladder in his inspection of the Shkolnicks’ house indicated the lack of proper equipment and effective procedures for a thorough and professional inspection for termites; (7) Domel’s testimony that he never had a ladder; (8) Domel’s testimony that he does not need a ladder; (9) Domel’s testimony that dry-wood termite infestations do not only occur below eight feet on every structure; (10) Domel’s testimony that the eaves on the Shkolnicks’ house were visually accessible, but that eaves above eight feet and out of the reach of his mallet are inaccessible; and (11) WDIR indicated that the eaves were not marked as an “inaccessible” area by Domel.

Structural Pest Control Board Regulation section 599.5(a) states the applicable industry standard regarding inspections. It provides that the “inspection must be conducted so as to ensure examination of visible accessible areas in accordance with accepted procedures.” The only evidence offered by the Shkolnicks to suggest Coastal did not adhere to this standard is the affidavit of Dr. Granovsky. Dr. Gra-novsky states “the inspector DID NOT utilize a ladder during his inspection of the property in question directly indicates the lack of proper equipment and effective procedures needed for a complete, thorough and professional inspection of the structure for termites.” No where does Dr. Granovsky indicate the inspection failed to meet industry standards. Structural Pest Control Board Regulation section'599.5(a) requires the inspection to examine “visible accessible areas in accordance with accepted procedures.” Dr. Granovsky did not state that having a ladder during a termite inspection constitutes “accepted procedures,” nor did he explain how having the ladder would lead to a discovery of termites concealed under a windowsill after an examination of the “visible accessible areas.” We conclude that the Shkolnicks fall short of providing more than a scintilla of evidence that Coastal failed to adhere to industry standards.

Assuming without deciding that Coastal had not performed their inspection in accordance with industry standards, the Shkolnicks did not present evidence that even if the termites that were found in their home in the spring of 2002 were present in May 2000 when Coastal performed its inspection, the termites would have been discovered by Coastal had it conducted its investigation in accordance with industry standards. The Shkolnicks discovered the termite damage only after wood was removed from a windowsill. Without evidence indicating that Coastal should have known of the presence of the termites in May 2000 by an examination of visible and accessible areas, the Coastal inspector’s comments that “he didn’t see any problems,” “he thought everything was good,” and “there was nothing to be concerned about,” do not support the element of a wrongful act by Coastal, that is a false, misleading, or deceptive act.

Considering the evidence in the light most favorable to the Shkolnicks, we hold that there is no evidence to raise an issue of fact that Coastal made false, misleading or deceptive representations that its services had characteristics and qualities that they did not. Because the Shkolnicks would carry the burden of proving these misrepresentations at trial, but failed to produce more than a scintilla of evidence on that element in response to Coastal’s traditional and no-evidence motion for summary judgment, the trial court properly granted Coastal’s motion for summary judgment. Accordingly, we overrule the Shkolnicks’ second issue.

CONCLUSION

We affirm the judgment of the trial court.

      .Structural Pest Control Board Regulation section 599.5 states, in pertinent part, "[F]or purposes of a Real Estate Transaction Inspection (§ 599.6) only, there must be visible evidence of active infestation in the structure or visible evidence of a previous infestation in the structure with no evidence of prior treatment to recommend a corrective treatment. The inspection must be conducted so as to ensure examination of visible accessible areas in accordance with accepted procedures. While such an examination may reveal Wood Destroying Insects, there are instances when concealed infestations and/or damage may not be discovered. Examinations of inaccessible or obstructed areas are not required.”

      . Although the Shkolnicks’ petition initially included a negligence theory of recovery, this cause of action was later nonsuited.

      . The Shkolnicks alleged that these representations included: "that they could locate an active infestation; that there was no active infestation; that the inspection would use industry tools; that the inspection would use industry standards; and that the inspection would be complete.”

      . Coastal filed a "Supplemental Briefing” to their motion for summary judgment clarifying that they challenged both laundry list violations. However, the Texas Supreme Court has made it clear that "a motion for summary judgment must itself expressly present the grounds upon which it is made. A motion must stand or fall on the grounds expressly presented in the motion. In determining whether grounds are expressly presented, reliance may not be placed on briefs or summary judgment evidence.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993). Thus, this Court is limited to reviewing the grounds presented in Coastal’s motion for summary judgment.

      . Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. Tex.R. Civ. P. 166a(c). Because Coastal did not raise the reliance element as a ground in its motion for summary judgment, we do not address this argument on appeal. McConnell, 858 S.W.2d at 341 (stating that a "motion must stand or fall on the grounds expressly presented in the motion”); Roberts v. Southwest Tex. Methodist Hosp., 811 S.W.2d 141, 146 (Tex.App.-San Antonio 1991, writ denied) ("When a motion for summary judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which were not asserted, even if the summary judgment proof supports them and the responding party did not except to the motion.”). Coastal only challenged the false, misleading or deceptive act in its motion for summary judgment.


source: Caselaw Access Project

author: EVELYN V. KEYES, Justice.

license: Public Domain

text:
    WACHOVIA SECURITIES, LLC & Roderick Chisholm, Appellants, v. Rocky EMERY, Appellee. In re Wachovia Securities, LLC and Roderick Chisholm, Relators.
    Nos. 01-05-00305-CV, 01-05-00448-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 23, 2005.

      S. Jonathan Silverman, Gardner, Carton & Douglas LLP, Chicago, IL, Daniel K. Hedges, Porter & Hedges, L.L.P., Susan K. Hellinger, Houston, TX, for Appellants.
    Neal S. Manne, Brian Douglas Melton, Susman Godfrey L.L.P., Houston, TX, Ap-pellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

In dual proceedings, appellants/relators, Wachovia Securities, LLC and Roderick Chisholm (“relators”), challenge the trial court’s order that denied their motion to compel arbitration against appellee/real party in interest, Rocky Emery (“Emery”). In one issue, relators contend that the trial court erroneously denied their motion to compel arbitration. We dismiss the interlocutory appeal for want of jurisdiction and conditionally grant the petition for writ of mandamus.

Background

Rocky Emery began his career in the securities industry as a registered representative of PaineWebber in 1993. Before starting his employment with Paine-Webber, Emery was required to execute a Uniform Application for Securities Industry Registration or Transfer (“U-4”) which contained an arbitration provision. On July 13, 2001, Emery resigned from Paine-Webber and began working for First Union, Wachovia’s predecessor. Emery then signed a second U-4 which contained essentially the same arbitration provision. Pursuant to the arbitration provisions, Emery agreed “to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions or by-laws of the SROs indicated in Item 11 [i.e., the National Association of Securities Dealers (NASD) and the New York Stock Exchange (NYSE)] as may be amended from time to time.”

After Wachovia terminated Emery’s employment on September 21, 2004, Emery filed a breach-of-contract claim against Wachovia and a negligent misrepresentation claim against Chisholm, his branch manager at Wachovia. A little over a week later, relators filed a motion to compel arbitration. On January 10, 2005, Emery amended his petition by dropping the breach-of-contract claim and adding a fraud and negligent misrepresentation claim against Wachovia and Chisholm and a statutory libel and business-disparagement claim against Chisholm.

In his amended petition, Emery alleged that the defendants had made “false, material misrepresentations” to induce him to leave his prior employment at Paine-Webber and join Wachovia. Specifically, Emery claimed that he had been promised a computer platform for a Stock Option Financing (SOF) business he had developed while at PaineWebber in order to induce him to leave PaineWebber and bring other employees in the SOF group with him to Wachovia, but that Wachovia had not kept its promises to get the SOF Platform up and running. Emery further alleged that Chisholm had misrepresented to the NYSE and NASD in 2003 that Emery had engaged in unauthorized business activities while employed by Wacho-via, that Wachovia was investigating these activities, and that Emery had been terminated by Wachovia. Emery also filed a response to the motion to compel arbitration in which he argued that the agreement to arbitrate did not apply to his claims because his claims were based on conduct that occurred before he signed the second U-4.

Following a hearing, the trial court denied relators’ motion to compel. Relators now challenge the trial court’s order via an interlocutory appeal and a petition for writ of mandamus.

Appeal

The Texas Arbitration Act (“TAA”) and the Federal Arbitration Act (“FAA”) provide alternative procedural vehicles for relief. In re Educ. Mgmt. Corp., Inc., 14 S.W.3d 418, 425 (Tex.App.-Houston [14th Disk] 2000, orig. proceeding). If the trial court denies arbitration based on the TAA, the order is subject to interlocutory appeal. Tex. Civ. Prac. & Rem.Code Ann. § 171.098(a)(1) (Vernon 2005). Relief from a denial of arbitration under the FAA, however, must be pursued by mandamus. EZ Pawn Corp. v. Mandas, 934 S.W.2d 87, 91 (Tex.1996).

The trial court did not expressly determine whether the FAA or the TAA applies. See 9 U.S.C. §§ 1-16 (2000); Tex. Civ. Peac. & Rem.Code Ann. §§ 171.001-.098 (Vernon 2005). In addition, the U-4 does not state whether arbitration is governed by the FAA or the TAA. As a threshold matter, we first determine which act applies.

The FAA governs a written arbitration clause in any contract “evidencing a transaction involving commerce.... ” See 9 U.S.C. § 2. This provision extends to all transactions affecting commerce and is coextensive with the reach of the Commerce Clause of the United States Constitution. Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 271-81, 115 S.Ct. 834, 838-43, 130 L.Ed.2d 753 (1995); see In re L & L Kempwood Assocs., 9 S.W.3d 125, 127 (Tex.1999). A contract “evidences] a transaction involving commerce” if it in fact tons out to involve interstate commerce. Allied-Bruce, 513 U.S. at 277-81,115 S.Ct. at 841-13.

The FAA displaces state law only to the extent the state law conflicts with the FAA’s purpose of enforcing the parties’ contractual obligation to arbitrate. Volt Info. Sciences, Inc. v. Bd. of Trustees, 489 U.S. 468, 477-78, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989); In re H.E. Butt Grocery Co., 17 S.W.3d 360, 378 (Tex.App.-Houston [14th Dist.] 2000, orig. proceeding). Thus, if the arbitration clause is enforceable under the FAA, an analysis of enforceability under the TAA is unnecessary. See In re Anaheim Angels Baseball Club, Inc., 993 S.W.2d 875, 877 n. 1 (Tex.App.-El Paso 1999, orig. proceeding [mand. denied]).

The sale of securities has been held to involve interstate commerce. See Eurocapital Group, Ltd. v. Goldman Sachs & Co., 17 S.W.3d 426, 430 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (recognizing that account agreement concerning sale of securities involved interstate commerce); Thomas James Assocs., Inc. v. Owens, 1 S.W.3d 315, 319 (Tex.App.-Dallas 1999, no pet.) (same); see also Williams v. Cigna Fin. Advisors, Inc., 56 F.3d 656, 659 (5th Cir.1995) (reasoning that U-4 registration involved interstate commerce because it was contract involving sale of securities).

The underlying proceedings in this case involve an employment dispute in the securities industry which is partially governed by an arbitration agreement in a U-4. Cases that involve U-4 arbitration agreements are consistently construed as affecting interstate commerce. See In re Merrill Lynch, Pierce, Fenner & Smith Inc., 131 S.W.3d 709, 712 (Tex.App.-Dallas 2004, orig. proceeding); In re Scott, 100 S.W.3d 575, 579 (Tex.App.-Fort Worth 2003, orig. proceeding); Williams, 56 F.3d at 659 (reasoning that U-4 registration involves interstate commerce because it is contract involving sale of securities); see also BWI Cos. v. Beck, 910 S.W.2d 620, 622-23 (Tex.App.-Austin 1995, orig. proceeding [leave denied]) (arbitration agreement between employer and employee involved interstate commerce, even though employee worked and made deliveries only in Texas, because employer had facilities in Texas and other states). Thus, we conclude that the transaction between Emery and the relators affected interstate commerce and that the FAA applies.

Because the FAA applies, mandamus, and not interlocutory appeal, is the procedural vehicle for the relief that relators request. Accordingly, we dismiss the rela-tors’ interlocutory appeal and consider the merits of the petition for writ of mandamus.

Mandamus

Standard of Review

Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or the violation of a legal duty when there is no adequate appellate remedy at law. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999). When a trial court erroneously grants a party’s motion to compel arbitration, the movant has no adequate remedy at law and is entitled to a writ of mandamus. See In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex.2001). We review the trial court’s order for abuse of discretion. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex.1992); Trico Marine Servs., Inc. v. Stewart & Stevenson Technical Sens., Inc., 73 S.W.3d 545, 548 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (combined appeal & orig. proceeding). A trial court abuses its discretion when it errs in determining what the law is or in applying the law to the facts. In re Bruce Terminix Co., 988 S.W.2d 702, 703 (Tex.1998); Trico Marine Sens., 73 S.W.3d at 548. The trial court’s order does not state its grounds for denying the relators’ motion to compel arbitration. Thus, we review the grounds stated in the relators’ motion and reverse the trial court’s order if any of the grounds are meritorious. See In re H.E. Butt Grocery, 17 S.W.3d at 367.

Enforceability of 2001 Agreement to Arbitrate

In their mandamus petition, relators argue that the trial court erred in denying their motion to compel arbitration because they submitted an agreement to arbitrate and Emery’s claims were within the scope of the agreement.

Whether an enforceable agreement to arbitrate exists is a legal question subject to de novo review. In re Kellogg Brown & Root, 80 S.W.3d 611, 615 (Tex.App.-Houston [1st Dist.] 2002, orig. proceeding). Although an arbitration agreement does not have to assume any particular form, the language of the agreement must clearly indicate the intent to arbitrate. See Massey v. Galvan, 822 S.W.2d 309, 316 (Tex.App.-Houston [14th Dist.] 1992, writ denied). Without an agreement to arbitrate, arbitration cannot be compelled. Freís v. Canales, 877 S.W.2d 283, 284 (Tex.1994) (orig. proceeding). In deciding whether to compel arbitration, the trial court is entitled to rely on affidavits, pleadings, discovery, and stipulations. Jack B. Anglin, 842 S.W.2d at 269.

Under both the TAA and the FAA, a party seeking to compel arbitration has the initial burden to establish the arbitration agreement’s existence and to show that the claims asserted fall within the agreement’s scope. See Tex. Civ. PRAC. & Rem.Code Ann. § 171.021(a) (Vernon 2005); In re Kellogg Brown & Root, 80 S.W.3d at 615. If the party seeking arbitration carries its initial burden, the burden then shifts to the party resisting arbitration to present evidence on its defenses to the arbitration agreement. See In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999); Mohamed v. Auto Nation USA Corp., 89 S.W.3d 830, 835 (Tex.App.-Houston [1st Dist.] 2002, orig. proceeding).

To support their motion to compel arbitration, relators relied on the arbitration clause found within the 2001 U-4 that Emery signed. The U-4 provides,

5. I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the SROs indicated in Item 11 as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgment in any court of competent jurisdiction.

Emery neither disputes that this clause mandates arbitration, nor disputes that he is a signatory to this clause. We conclude that relators presented a valid arbitration agreement. Thus, we turn to whether Emery’s claims fall within the scope of the arbitration agreement.

Scope of2001 Arbitration Agreement

Both federal and state law strongly favor arbitration. Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex.1996) (orig. proceeding); Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 898 (Tex.1995) (orig. proceeding). Under the FAA, any doubts as to whether a plaintiffs claims fall within the scope of the arbitration agreement must be resolved in favor of arbitration. Cantella, 924 S.W.2d at 944; Prudential Sec., 909 S.W.2d at 899. “[A] court should not deny arbitration ‘unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue.’ ” Prudential Sec., 909 S.W.2d at 899 (quoting Neal v. Hardee’s Food Sys., Inc., 918 F.2d 34, 37 (5th Cir.1990)). In determining whether a claim falls within the scope of an arbitration clause, we must focus on the factual allegations of the complaint, rather than the legal causes of action asserted. Id. at 900; AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 195 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding).

The arbitration clause in the 2001 U-4 requires that Emery arbitrate “any dispute, claim or controversy that may arise between me and my firm ... or any other person, that is required to be arbitrated under the rules” of the NYSE or NASD. Emery argues (1) that his claims against Wachovia arose before he signed the July 13, 2001 arbitration agreement and are therefore outside its scope and (2) that claims by a registered representative, like himself, against another registered representative, like Chisholm, are not arbitrable under NASD or NYSE rules of arbitration.

Accrual of Emery’s Claims

Emery first argues that his pre-July 13, 2001 conduct is not arbitrable. To support his contention, he relies on Hendrick v. Brown & Root, Inc. 50 F.Supp.2d 527 (E.D.Va.1999). Hendrick worked for Brown & Root at four different time periods. Id. at 528. In his third period of employment, October 19, 1988 through May 20, 1993, and before he was terminated on May 20,1993, Brown & Root notified Hendrick that a dispute resolution plan would take effect on June 15, 1993. Id. at 529. After his fourth period of employment had ended, Hendrick discovered that Brown & Root had used his name unlawfully during his third period of employment, and he filed suit. Id. at 530. Brown & Root moved for arbitration, claiming that Hendrick’s cause of action was subject to arbitration pursuant to his employment contract during his fourth period of employment, which contained the dispute resolution plan. Id. at 531. The court of appeals stated that the threshold issue was whether the fourth contract and the incorporated dispute resolution plan evinced an intent to arbitrate an employee’s claims that had accrued before execution of the fourth contract. Id. at 533. The court found that at the time of the accrual of Hendrick’s cause of action the employment contract contained no agreement to arbitrate. Id. at 533-34.

The facts of this case are entirely different. Unlike Hendrick, Emery had an arbitration agreement with Wachovia throughout the time of his employment there. The plain language of the agreement requires Emery to arbitrate “any dispute, claim or controversy that may arise between me and my firm ... or any other person, that is required to be arbitrated under the rules” of the NYSE or NASD. (Emphasis added.) Emery’s petition alleges claims arising out of a controversy between himself as an employee of Wachovia and his employer and branch manager. There is no time limit in the arbitration clause as to when the claims must have accrued. Thus, Emery’s claims, by their terms, fall within the scope of his July 13, 2001 arbitration agreement with Wachovia.

We also observe that none of Emery’s claims accrued until after he was employed by Wachovia and had signed the arbitration agreement. Emery’s claims arise out of Wachovia’s alleged failure to keep promises made to induce him to leave Paine-Webber and out of Chisholm’s and Wacho-via’s alleged misrepresentations to the NYSE, NASD, and SEC relative to Emery’s outside business activities during his employment at Wachovia and his termination by Wachovia. Emery does not allege any injury prior to Wachovia’s alleged failure to carry through on its promises to provide him an SOF Platform while he was employed by Wachovia. Accordingly, Hendrick does not apply to the case at bar.

We conclude that Emery’s claims fall squarely within the scope of the July 13, 2001 U-4s arbitration clause, assuming that those claims are indeed arbitrable under the rules of the NASD or NYSE. See Prudential Sec., 909 S.W.2d at 900; AutoNation, 105 S.W.3d at 195.

Arbitrability of Claims Among Associated Persons

Emery also argues that his claims against Chisholm are not subject to arbitration under NASD or NYSE rules. The arbitration agreement in the U-4 incorporates by reference the rules of the SROs referred to in Item 11 of the U-4. Item 11 of the U-4 indicates that Emery is registered with the NASD and the NYSE. The rules of these two organizations govern which disputes must be resolved by arbitration. See Metropolitan Life Ins. Co. v. Lindsay, 920 S.W.2d 720, 722 (Tex.App.Houston [1st Dist.] 1996, no writ); Smith Barney Shearson, Inc. v. Finstad, 888 S.W.2d 111, 115 (Tex.App.-Houston [1st Dist.] 1994, no writ).

The NASD Code of Arbitration Procedure provides in relevant part:

10101 Matters Eligible for Submission
This Code of Arbitration Procedure is prescribed and adopted ... for the arbitration of any dispute, claim, or controversy arising out of or in connection with the business of any member of the Association, or arising out of the employment or termination of employment of associated person(s) with any member, with the exception of disputes involving the insurance business of any member which is also an insurance company;
(a) between or among members;
(b) between or among members and associated persons;
(c) between or among members or associated persons and public customers, or others; and
(d) between or among members, registered clearing agencies with which the Association has entered into an agreement to utilize the Association’s arbitration facilities and procedures, and participants, pledgees, or other persons using the facilities of a registered clearing agency, as these terms are defined under the rules of such a registered clearing agency.
10201 Required Submission
(a) Except as provided in paragraph (b) or Rule 10216, a dispute, claim, or controversy eligible for submission under the Rule 10100 Series between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated persons(s), or arising out of the employment or termination of employment of such associated person(s) with such member, shall be arbitrated under this Code, at the instance of:
(1) a member against another member;
(2) a member against a person associated with a member or a person associated with a member against a member; and
(3) a person associated with a member against a person associated with a member.

It is undisputed that Wachovia is a member of the NASD and that, as registered representatives of a member firm, Emery and Chisholm are both persons “associated with a member.”

Wachovia argues that the plain language of Rule 10101(b) provides for arbitration between Emery, an associated person, and Chisholm, another associated person. Emery argues that the arbitration agreement does not cover disputes solely between associated persons. We agree with Wachovia.

Emery relies on Wojcik v. Aetna Life Ins. and Annuities Co., 916 F.Supp. 729, 733 (N.D.Ill.1996). In Wojcik, the federal district court held that a 'prior version of the NASD rules did not encompass disputes solely between associated persons. 916 F.Supp. at 733. The current version plainly does encompass such disputes. See NASD Code of Aeb. PROC. 10201(a)(3); see also In re Scott, 100 S.W.3d 575, 579-82 (Tex.App.-Fort Worth 2003, orig. proceeding) (compelling arbitration of claims by one associated person against another pursuant to NASD rules 10101 and 10201); Williams v. Imhoff, 203 F.3d 758, 764-65 (10th Cir.2000) (holding that plaintiffs’ claims were subject to arbitration because plaintiffs were associated persons and that defendants, as trustees of member’s stock plan, were either associated persons or “others” under rule 10101(c)); Singer v. Gaines, 896 So.2d 851, 853-54 (Fla.Dist.Ct. App.2005) (holding that NASD rules contemplate arbitration among associated persons).

Once a party seeking to compel arbitration establishes that an agreement exists under the FAA and that the claims raised are within the agreement’s scope, the trial court “has no discretion but to compel arbitration and stay its proceedings pending arbitration.” Cantella, 924 S.W.2d at 944. Accordingly, the trial court erred by denying relators’ motion to compel arbitration pursuant to the FAA.

Conclusion

We conclude that the trial court improperly denied relators’ motion to compel arbitration. A party who is erroneously denied the right to arbitrate under the FAA has no adequate remedy at law, and mandamus relief is appropriate. Id. at 945. Thus, we conditionally grant the writ of mandamus in cause no. 01-05-00448-CV and direct the trial court to order that relators’ claims proceed to arbitration under the FAA. We dismiss the appeal in cause no. 01-05-00305-CV for want of jurisdiction.

      .The underlying lawsuit is Rocky Emery v. First Union Securities, Inc., Wachovia Securities, LLC and Roderick Chisholm Individually, No. 2004-64094 (165th Dist. Ct., Harris County, Texas).

      . First Union was acquired by Wachovia in September 2001.

      . SRO is an acronym for Self-Regulatory Organization.


text:
    Walter F. CROWDER, Appellant, v. W. Russell SCHEIRMAN & Jolyn W. Scheirman, Appellees.
    No. 01-04-00173-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 23, 2005.

      James R. Watkins, Royston, Rayzor, Vickery & Williams, L.L.P., Galveston, TX, Kathleen Buchanan and Nathan Wesely, Royston, Rayzor, Vickery & Williams, L.L.P., Houston, TX, for Appellant.
    Robert A. Axelrad, Zimmerman, Axel-rad, Meyer, Stern & Wise, P.C., Houston, TX, for Appellees.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Walter F. Crowder, appeals from a no-evidence summary judgment rendered in favor of appellees, W. Russell Scheirman & Jolyn W. Scheirman (the Scheirmans). In his sole issue on appeal, Crowder asserts that the trial court erred in granting the no-evidence summary judgment on his breach of contract claim.

We affirm.

Background

In November 1999, the Scheirmans signed a stock-purchase agreement with Crowder to sell him their home healthcare business, Ultrastaff Home Health Services, Inc. (Ultrastaff). Ultrastaff is a Medicare provider that receives reimbursement from Medicare. The stock purchase agreement between the Scheirmans and Crowder contained an indemnity clause that provided, “[The Scheirmans] hereby indemnify [Crowder] ... [for] any third party claims ... relating to any act or omission by [the Scheirman’s] relating to the Company prior to the Effective Date that results in a civil or criminal false claim or fraud determination.”

Six months after the sale and pursuant to federal regulations, Ultrastaff prepared and submitted a cost report to the Center for Medicare Services (CMS), the administrator for Medicare. Palmetto GBA, a fiscal intermediary for the Health Care Financing Administration (HCFA), audited Ultrastaffs cost report. Based on that audit, CMS determined that Medicare had overpaid Ultrastaff by $361,681 and issued a Notice of Program Reimbursement, seeking the overpayment from Ultrastaff. Ultrastaff agreed to pay CMS over time, and Crowder demanded indemnity from the Scheirmans.

When the Scheirmans refused to indemnify him, Crowder filed a breach of contract claim against them based on the indemnity provision. On December 8, 2003, the Scheirmans filed a no-evidence motion for partial summary judgment on Crow-der’s indemnification claim. The Scheir-mans argued that Crowder had presented (1) no evidence that three different conditions precedent to invoking the contractual indemnification provisions were satisfied; (2) no evidence that the limited trigger for the contractual indemnification, namely a “civil or criminal false claim or fraud determination,” occurred; and (3) no evidence that an act by the Scheirmans resulted in any such determination.

On December 30, 2003, the trial court signed an order that granted the Scheir-mans’ partial summary judgment without stating its reasons. The parties nonsuited all remaining claims, thus making the judgment final. Crowder appeals from this order.

Analysis

In one broad issue on appeal, Crowder argues that the trial court erred in granting the Scheirmans’ no-evidence motion for summary judgment.

Standard of Review

A no-evidence summary judgment is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex.App.-Austin 1998, no pet.). In general, a party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the nonmov-ant’s claims on which it would have the burden of proof at trial. Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex.App.-Austin 2000, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on the challenged elements. Tex.R. Civ. P. 166a(i). A no-evidence summary judgment will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751. We view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).

A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. King Ranch, 118 S.W.3d at 751. When the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, more than a scintilla of evidence exists. See Hamer, 953 S.W.2d at 711. A defendant who moves for summary judgment need negate only one element of the plaintiffs cause of action. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

Indemnity Agreement

Crowder filed suit against the Scheirmans for breach of contract, specifically, breach of the indemnity agreement. The elements of breach of contract include (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. Valero Mktg. & Supply Co. v. Kalama InCl, L.L.C., 51 S.W.3d 345, 351 (Tex.App.Houston [1st Dist.] 2001, pet. denied). The supreme court requires that indemnity agreements be strictly construed to give effect to the parties’ intent as expressed in the agreement. Ideal Lease Serv. v. Amoco Prod. Co., 662 S.W.2d 951, 953 (Tex. 1984). The interpretation of an unambiguous contract is a question of law, which is reviewed de novo. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650-51 (Tex.1999).

The contract’s indemnity provision is found in Paragraph 4.2. The provision provides:

(a) Sellers hereby indemnify Purchaser and his Affiliates against and agree to hold each of them harmless from any and all damage, loss, liability, Tax and expense (including, without limitation, reasonable expenses of investigation and reasonably attorneys’ fees and expenses in connection with any action, suit or proceeding) (collectively “Losses”) incurred or suffered by Purchaser or any of his Affiliates arising out of (i) any misrepresentation (whether or not intentional) or breach of warranty, covenant or agreement made or to be performed by Sellers pursuant to this Agreement, and (ii) any third party claims, whether asserted before or after the Effective Date, relating to any act or omission by Sellers relating to the Company prior to the Effective Date that results in a civil or criminal false claim or fraud determination; provided, that Sellers’ liability for such indemnification in respect of Losses arising under clause (i) of this paragraph shall not exceed Twenty Four Thousand and No/Dollars ($24,000.00).

(Emphasis added).

The Scheirmans argued to the trial court and on appeal that Crowder presented no evidence that a civil or criminal false claim or fraud determination occurred-a necessary prerequisite to Crowder’s recovery of indemnification from the Scheir-mans. Crowder provided a one paragraph response. In that paragraph, Crowder failed to provide any evidence that a false claim or fraud determination occurred. Rather, he contended,

The indemnification language is expansive-civil and criminal liability does not exclude administrative decisions. Indeed, if the parties intended to limit civil liability to claims under the False Claims Act, the Agreement could have been so written. Instead, the common sense, plain language, reading of the Agreement is that a civil finding of fraud triggers the indemnification provision. If the facts at hand — submission of expenses to Medicare for which the Scheirmans were paid but as to which the fiscal intermediary found no substantiation — do not trigger the indemnification provision, it is difficult to imagine conduct that would trigger the indemnification provision. The Scheir-mans’ interpretation of the indemnification provision would render it a nullity.

Crowder’s interpretation of the indemnification provision is not evidence. The provision clearly requires an act by the Scheirmans that results in a civil or criminal false claim or fraud determination.

A determination that someone has submitted a false claim is not the same as a notice seeking reimbursement for overpayment. The False Claims Act is a federal statute that applies to the submission of claims for payment under various federal statutes, including Medicare. See 31 U.S.C. § 3729 (2000). It provides liability for any person who (1) “[kjnowingly presents, or causes to be presented, to ... the United States Government ... a false or fraudulent claim for payment or approval” or who (2) “[kjnowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government.” Id. § 3729(a)-(b). Actions may be brought either by the United States Attorney General or a private citizen in the name of the United States through a qui tarn action. 31 U.S.C. § 3730(a)-(c). The United States must prove all essential elements of the cause of action by a preponderance of the evidence. See id. § 3731(c). Here, Crowder presented no evidence that any such action was brought, much less decided against Ultrastaff, as a result of any act or omission of the Scheirmans. Crowder does not refer us to any other evidence that shows that a false claim or fraud determination occurred. In fact, in his response to the Scheirmans’ motion for summary judgment, Crowder admits that the facts are generally undisputed.

We also note that, on appeal, Crowder and the Scheirmans cite to a number of regulations that govern CMS and Medicare reimbursements. One section, in particular, bolsters our conclusion that Crow-der did not produce any evidence of a false claim or fraud determination. Section 401.601(f) of the regulations, which discusses fraud in claims collections, states,

The regulations in this subpart do not apply to claims in which there is an indication of fraud, the presentation of a false claim, or misrepresentation on the part of a debtor or any other party having an interest in the claim. CMS forwards these claims to the Department of Justice for disposition under 4 CFR 105.1.

42 C.F.R. § 401.601(f). Under this section, if CMS had determined that there was an indication of a false claim or fraud, the claim would have been forwarded to the Department of Justice for disposition. See id. There is no evidence that this happened. Rather, the evidence supports the Scheirmans’ contention that CMS sought only administrative recoupment, and not that Ultrastaff was found liable for making a false or fraudulent claim as result of the Scherimans’ act or omission.

Accordingly, we conclude that Crowder has failed to present more than a scintilla of evidence of any third party claim relating to any act or omission by the Scheir-mans “that resulted] in a civil or criminal false claim or fraud determination,” as required to trigger the indemnification clause.

We overrule Crowder’s sole issue.

Conclusion

We affirm the judgment of the trial court.

      . The evidence in the record that comes closest to providing more than a scintilla of evidence that a false claim or fraud determination occurred is in the affidavit of Kirby Bubenik, Crowder’s chief financial officer. In paragraph six of his affidavit, Bubenik stated that “[CMS] determined that certain expenses filed in connection with the Scheir-mans' operation of Ultrastaff were false claims, and recoupment of such expenses by the CMS was required.” However, the Scheirmans objected to paragraph six of Bu-benik’s affidavit. By order dated December 30, 2003, the trial court sustained most of the Scheirmans’ objections to Bubenik’s affidavit, including paragraph six. The trial court also sustained an objection to the entirety of Bubenik's affidavit because his personal knowledge was not established. Not until Crowder's reply brief, did he assign error to the trial court’s action in granting the Scheirmans’ objections to Bubenik's affidavit. A party may not raise new issues for the first time on appeal in a reply brief. See Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex.App.-Houston [1st Dist.] 2003, pet. denied).

      . In his reply brief, Crowder asks us to consider whether the trial court abused its discretion or committed clear error in a number of evidentiary and procedural grounds should we determine that we could not consider his sole issue on appeal. We decline to address these arguments because we have considered Crowder’s issue, and Crowder cannot raise new issues for the first time on appeal in his reply brief. See Zamarron, 125 S.W.3d at 139.


author: ELSA ALCALA, Justice.

text:
    Charles PHILLIPS, Individually and as Administrator of the Estate of Angelia Stewart, Deceased; Jim Stewart; and Randy and Teresa Stephens, as Guardians for Sharlotte Marie Stewart, A Minor Child, Appellants, v. THE DOW CHEMICAL COMPANY, Appellee. Charles Phillips, Individually, Appellant, v. Sulzer Chemtech USA, Industrial Specialists, Inc., and Altair Strickland, L.L.P., f/k/a Altair Strickland, Inc., Appellees.
    Nos. 01-03-00107-CV, 01-03-00451-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 30, 2005.

      Darrin M. Walker, Law Offices of Darrin Walker, Kingwood, TX, for Appellants.
    John R. Gilbert, Gilbert & Gilbert, An-gleton, TX, for Appellee in No. 1-03-00107-CV.
    Joseph W. Gagnon, Russell Ramsey, Kathryn P. Anderson, Norman Edward Snyder Jr., Houston, TX, Jerry Ewing, Dallas, TX, appellees in No. 01-03-00451-CV.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

ELSA ALCALA, Justice.

Angelia Stewart (Stewart) died when she fell from scaffolding on a worksite. Charles Phillips, who contended that he was Stewart’s husband, asserted wrongful-death claims on his own behalf and a survival claim on behalf of Stewart’s estate. Jim Stewart, Stewart’s father, also sought recovery for wrongful death and as a bystander, due to his presence when she was injured. Randy and Teresa Stephens, guardians of Stewart’s minor daughter, also asserted wrongful-death claims.

The appeal in Cause No. 01-03-00107-CV challenges the summary judgment rendered against all appellants in favor of Dow Chemical Company (Dow), the owner of the premises where Stewart was working. Dow prevailed on its claim that it owed no duty to Stewart as a matter of law because Dow neither retained nor exercised a right of control over her work.

The remaining appeals concern Phillips’s standing to assert claims against any of the defendants. Phillips challenges the summary judgments rendered against him on the grounds that, as a matter of law, he was not Stewart’s surviving spouse and therefore lacked standing to assert wrongful-death claims. Summary judgment was rendered in favor of Dow in Cause No. 01-03-00107-CV, and in favor of Sulzer Chemtech USA (Sulzer), the general contractor for the project at the worksite, Industrial Specialists, Inc. (ISI), which erected the scaffolding and connecting ladders used for the project, and Altair Strickland, LLP, f/k/a Altair Strickland, Inc. (Altair), Stewart’s employer, in Cause No. 01-03-00451-CV. We affirm.

Factual Background

Stewart and her father, Jim Stewart, both worked for Altair and were members of a crew working on a large, repair project on a seven-level vessel at Dow’s plant in Freeport. Stewart and her father worked in the 7100 block of a unit referred to as Styrene 2, which was being repaired. Steward was assigned to a “manway” located on the fourth level of Styrene 2. Stewart’s job was to sign workers in and out of a confined space known as “the hole,” and to observe the hole for fire danger. Scaffolding had been erected around the sides of the vessel, and ladders connected the different levels of the scaffolding. At the close of the workday on March 8, 2000, Stewart climbed down the scaffolding to the second level, where she stopped to speak with her father. After she started back down the ladder from the second level, she fell about 20 feet to the ground below, sustaining serious injuries. Stewart died, intestate, on August 19, 2000.

Procedural History

Appellants alleged negligence and gross negligence claims against Dow, Sulzer, and ISI, and a constitutional, gross-negligence claim against Altair. Dow and other defendants sought summary judgment in the trial court. Dow filed traditional and no-evidence motions for summary judgment, asserting that chapter 95 of the Civil Practice and Remedies Code controlled and negated any duty that Dow owed to Stewart. In a signed order granting both motions, the trial court stated its conclusion that Dow owed no duty to Stewart because Dow lacked sufficient control over either Sulzer or Altair on which to base a duty of care. Dow also sought traditional summary judgment contending that Phillips lacked standing, either as a surviving spouse or as an individual, because he was not Stewart’s husband as a matter of law. ISI, Altair, and, later, Sulzer, filed traditional motions for summary judgment asserting similar challenges to Phillips’s standing to sue on his own behalf. The trial court granted these motions and dismissed all claims asserted by Phillips, but specifically reserved the claims by the estate pending appointment of a new administrator.

The trial court severed all claims against Dow into a separate cause, from which all plaintiffs perfected an appeal, in Cause No. 01-03-00107-CV, to challenge the summary judgment rendered in favor of Dow on the issue of its lack of retained or exercised control. The trial court granted an additional severance for the claims resolved by the second series of summary judgments, rendered on the issue of Phillips’s standing, from which Phillips perfected an appeal in Cause No. 01-03-00451-CV. The trial court’s orders specify that all claims asserted by the estate in the main cause were not severed and remain to be tried in the main case, pending appointment of a representative who would replace Phillips.

Standard of Review

We review summary judgments de novo, under well-settled standards that require the movant to prove that no material issues of fact remain and that the movant was entitled to judgment as a matter of law. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A defendant may prevail on a traditional motion for summary judgment by conclusively proving that no genuine issue of material fact exists as to any element of a defendant’s affirmative defense, and that the defendant is therefore entitled to prevail as a matter of law. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). A “no evidence” motion for summary judgment is proper if, after adequate time for discovery, the movant shows that the nonmovant has produced no evidence on at least one essential element of the nonmovant’s theory of recovery. See Tex.R. Civ. P. 166a(i); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.Houston [1st Dist.] 1999, no pet.). In conducting our review, we resolve all doubts in favor of the nonmovant. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003).

We may affirm the trial court’s summary judgment if any of the theories presented to the trial court are meritorious, preserved for appellate review, and necessary for final disposition of the appeal, in addition to other grounds preserved for review on which the trial court did not rule. See Provident Life & Accident, 128 S.W.3d at 216; see also Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).

Phillips’s Void Marriage

Phillips’s single issue in Cause No. 01-03-00451-CV and appellants’ second, third, and fourth issues in Cause No. 01-03-00107-CV challenge rendition of summary judgment in favor of appellees on the grounds that Phillips lacked standing under the wrongful death and survival statutes because he was not Stewart’s surviving spouse as a matter of law. A surviving spouse has standing to pursue a survival action and a wrongful-death claim. Tex. Civ. PRAC. & Rem.Code Ann. §§ 71.0001-.0021 (Vernon 1997). Standing is a prerequisite to the trial court’s exercise of subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). A challenge to standing presents a question of law, Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), and is therefore appropriate for resolution by summary judgment.

Appellees’ motions for summary judgment challenged the standing of Phillips as a surviving spouse under section 6.202(a) of the Family Code. Section 6.202(a) states that “[a] marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse.” Tex. Fam. Code Ann. § 6.202(a) (Vernon 1998). Thus, a marriage entered into while one party is married to another person is void from the outset as a matter of law. Dodd v. Dodd, 17 S.W.3d 714, 716 (Tex.App.-Houston [1st Dist.] 2000), disapproved on other grounds, 124 S.W.3d 163 (Tex.2003); Villegas v. Griffin Indus., 975 S.W.2d 745, 749-50 (Tex.App.-Corpus Christi 1998, pet. denied).

A man and a woman may agree to become husband and wife, live together as husband and wife, publicly profess to be husband and wife, and thus establish the elements of a common-law marriage relationship. See Villegas at 749-50. But, if either the husband or the wife is impeded by a prior marriage, their relationship does not constitute a common-law marriage. Id. at 750. Texas recognizes common-law marriage, but does not recognize common-law divorce or annulment. Id.; see Claveria’s Estate v. Clavena, 615 S.W.2d 164, 167 (Tex.1981). In Texas, whether established ceremonially or at common law, a marriage can terminate only by death, divorce, or court-decreed annulment. Villegas, 975 S.W.2d at 750. Proof that a prior marriage was not terminated, by either death or a court decree, overcomes any presumption that a later marriage is valid. See id. at 750.

The summary judgment record establishes that Phillips filed an application for letters of administration on September 13, 2000 and obtained letters of administration on October 20, 2001. Phillips filed an application to determine heirship in mid-February 2001. In both of these applications, Phillips claimed that he was Stewart’s husband. The Galveston County Probate Court’s November 1, 2001 judgment declaring heirship included a finding that Phillips was married to Stewart when she died.

It is undisputed that Phillips was not ceremonially married to Stewart. Phillips’s sworn testimony, however, asserted that his common-law marriage to Stewart began in 1994 or 1995. Phillips’s sworn affidavit also acknowledged that he had been married before, although he claimed that he and his former wife “separated” in “approximately 1992” and “were divorced sometime thereafter and before 1998.”

On June 7, 2001, however, Phillips’s spouse from that marriage sued for divorce in the Circuit Court of Escambia County, Alabama. In her sworn petition in that lawsuit, the former spouse sought to dissolve “the bonds of matrimony” between her and Phillips. In his sworn answer to that petition, filed on June 7, 2001, 10 months after Stewart died, Phillips admitted the fact of the marriage, as alleged in the Alabama petition, and referred to the petitioner as “my wife.” The Alabama court issued a decree of divorce on July 9, 2001. Nothing in that decree indicates that it replaced an earlier decree that, Phillips claimed, neither he nor his former spouse was able to locate.

The record thus demonstrates that Phillips mistakenly believed that he was divorced in 1994, when he entered into what he contends that both he and Stewart understood to be, and desired to be, a common-law marriage relationship. But, because Phillips’s prior marriage had not been terminated before his relationship with Stewart began and did not terminate until July 9, 2001, almost one year after Stewart died on August 19, 2000, their relationship could not, as a matter of law, constitute a common-law marriage between 1994 and August 19, 2000. Tex. Fam.Code Ann. § 6.202(a); Dodd, 17 S.W.3d at 716; Villegas, 975 S.W.2d at 750.

Phillips nevertheless presents several theories to support his contention that his summary judgment evidence, principally his affidavit, raised sufficient fact issues to create a triable issue for a jury’s determination concerning whether he was Stewart’s common-law husband. Phillips asserts that he presented abundant evidence of the three elements necessary to establish a common-law marriage, specifically, living together as husband and wife, agreeing to be married, and representing to others that a marriage relationship existed. See Villegas, 975 S.W.2d at 749. He refers to Stewart’s death certificate, which lists Phillips as her spouse, their income-tax records, and evidence that he received worker’s compensation benefits as her spouse. As Villegas recognizes, however, the parties to an allegedly common-law marriage are impeded from establishing that relationship, as Phillips is here, by proof of an existing marriage that has not been terminated by death, divorce, or annulment. See id. at 749-50.

Phillips also contends that his belief that his prior marriage had ended by divorce gives rise to triable issues for a jury’s determination. Although Phillips cites no authority to support his contention, this Court held, in Dodd, that a mistaken belief that a marriage had ended does not present a factual dispute on the issue whether a common-law marriage exists. 17 S.W.3d at 716.

Phillips also asserts that he is a putative spouse, whose most recent “marriage,” to Stewart, is presumptively valid under the Family Code. Phillips relies on the presumption stated in Family Code section 1.102. “When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriageTex. Fam.Code Ann. § 1.102 (Vernon 1998). Phillips’s arguments ignore that proof that a prior marriage is valid destroys the presumption. See id. Appellees defeated the presumption that Phillips’s alleged marriage to Stewart was valid through the sworn answer that Phillips filed in the Alabama divorce action. As addressed above, Phillips’s sworn answer in that action admitted the fact of the prior marriage and referred to the former spouse who filed that action as his wife.

Phillips also defends his status as Stewart’s surviving spouse by relying on the decrees of the Galveston County Probate Court, which declared that he is Stewart’s husband and heir. Phillips argues that appellees are collaterally es-topped from contesting that determination. We begin by noting that the trial court properly addressed the spousal issue because standing is a prerequisite to subject-matter jurisdiction. See Tex. Ass’n of Bus., 852 S.W.2d at 443. It is well-settled that the standing of claimants who assert survivor or wrongful-death rights is determined by the statutes governing those claims. See Garza v. Maverick Market, Inc., 768 S.W.2d 273, 275-276 (Tex.1989); Buster v. Metro. Trans. Autk, 835 S.W.2d 236, 237 (Tex.App.-Houston [14th Dist.] 1992, no writ).

Although the record shows that the probate court declared that Phillips is Stewart’s husband and heir, neither the trial court nor appellees is bound by that determination. Collateral estoppel principles did not apply to preclude appellees’ challenge to Phillips’s standing, because no appellee was a party to the probate-court proceeding. See State & County Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex.2001) (noting that party to second lawsuit may invoke collateral estoppel to bar second lawsuit on grounds of party’s involvement in first lawsuit that actually litigated issue that was essential to judgment in first lawsuit and identical to issue in second lawsuit). But, conversely, because Phillips was a party to the Alabama court decree that dissolved his earlier marriage, see id., collateral estoppel principles preclude his contesting the dissolution of his prior marriage by that decree.

Phillips also asserts that the affirmative defense of laches bars all challenges to his status as Stewart’s surviving spouse because the challenges came too late. Laches is generally available as an affirmative defense solely in suits in equity and therefore does not apply to statutory challenges. See Houston Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 638 (Tex.App.-Houston [1st Dist] 2003, pet. denied). Moreover, because lack of standing defeats subject-matter jurisdiction and cannot be waived, a challenge to standing may properly be raised at any time and may even be raised for the first time on appeal. See West Orange-Cove Consol. Indep. Sch. Dist. v. Alanis, 107 S.W.3d 558, 583 (Tex.2003). Laches did not bar appellees, therefore, from contesting Phillips’s standing as Stewart’s husband and, thus, from challenging the trial court’s jurisdiction to consider his claims.

We conclude that appellees established the absence of any genuine issues of material fact concerning Phillips’s lack of standing to pursue a remedy under the wrongful-death statute and conclusively established that Phillips was not Stewart’s husband as a matter of law. Accordingly, they were entitled to summary judgment on that claim as to Phillips, both individually and as administrator of Stewart’s estate.

We overrule Phillips’s single issue in Cause No. 01-03-00451-CV and appellants’ second, third, and fourth issues in Cause No. 01-03-00107-CV, in which they challenge rendition of summary judgment on the grounds that Phillips lacked standing under the wrongful death and survival statutes.

Survivor and Wrongful-Death Claims against Dow

In Cause No. 01-03-00107-CV, all appellants assert that the trial court erred by granting Dow’s traditional and no-evidence motions for summary judgment. The order rendering summary judgment in favor of Dow recites the trial court’s conclusion that Dow “did not retain any right of control over the general contractor’s or the subcontractors’ work sufficient to impose any duty of care.” In rendering summary judgment on this basis, the trial court granted Dow’s motion for traditional summary judgment.

Appellants contend that the trial court did not render summary judgment under chapter 95, that chapter 95 is inapplicable to this ease, and that if Chapter 95 is applicable, their summary-judgment evidence raised fact issues that made summary judgment improper. Dow responds that it relied on chapter 95 principles in moving for summary judgment, that chapter 95 provides the exclusive remedy for claims like those presented here, and that the trial court properly rendered summary judgment in Dow’s favor because appellants did not raise material fact issues.

A. Whether Chapter 95 Applies

Appellants assert that chapter 95 “played no role” in the trial court’s decision to render summary judgment in Dow’s favor and that chapter 95 does not apply to this case at all. Appellants are correct that the trial court’s order does not specifically mention Chapter 95 by stating simply that Dow “did not retain any right of control over the general contractor’s or the subcontractors’ work sufficient to impose any duty of care.” Appellants contend that the decision in Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 624 (Tex.1996), precludes our addressing any other basis on which Dow relied in seeking summary judgment. To the contrary, Cincinnati Life holds that, in addition to reviewing all summary-judgment grounds on which the trial court expressly ruled, the reviewing court may, in the 'interests of justice, address other grounds that the movant preserved for appellate review, but on which the trial court did not rule. Id. at 625.

Appellants further contend that, because the trial court’s order does not refer specifically to chapter 95, the trial court did not resolve the summary judgment on chapter 95 grounds, and, therefore, that we may not consider chapter 95 in our analysis. Relying again on lack of a specific reference to chapter 95, appellants further contend that the trial court rendered summary judgment in Dow’s favor under the common law, which, appellants contend, not only remains in effect despite the enactment of chapter 95, but also bars summary judgment in Dow’s favor. Appellants emphasize that in rendering summary judgment in Dow’s favor on the grounds of absence of duty owed to Stewart, the trial court specified only that Dow did not retain any right of control over the general contractor’s or subcontractors’ work, but the trial court did not address Dow’s contention that it lacked , actual knowledge of the dangerous condition that resulted in Stewart’s injury.

It is undisputed that Dow’s arguments in support of its motion for summary judgment included chapter 95 grounds. Dow thus complied with rule 166a(c), which precludes rendering summary judgment on grounds other than those on which the movant relied in seeking summary judgment as a matter of law. See Tex.R. Crv. P. 166a(c); Cincinnati Life, 927 S.W.2d at 625-26; see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (“A motion must stand or fall on the grounds expressly presented in the motion.”); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993) (“[A] summary judgment cannot be affirmed on grounds not expressly set out in the motion... .”).■ Dow’s reb-anee on chapter 95 in moving for summary judgment enabled the trial court to consider chapter 95 principles in ruling on Dow’s motion. If chapter 95 principles govern this case, and if the trial court’s rubng is consistent with chapter 95 principles, then the trial court’s lack of specific reference to chapter 95 is immaterial.

To determine whether chapter 95 applies, we must construe the statute. Issues of statutory construction raise questions of law that we properly review de novo in the summary judgment context. See Subaru of Am,., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex.2002); see also Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 83 (Tex.App.Houston [1st Dist] 2003, no pet.); Fisher v. Lee & Chang P’ship, 16 S.W.3d 198, 200-02 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (both analyzing applicability of chapter 95).

The Legislature enacted Chapter 95 of the Civil Practices and Remedies Code in 1996 as part of a broad tort-reform package. Tex. Civ. PRAC. & Rem.Code Ann. §§ 95.001-004 (Vernon 1997); see Francis, 130 S.W.3d at 82. Chapter 95 governs “Property Owner’s Liability for Acts of Independent Contractors and Amount of Recovery” and pertains to claims “for damages caused by negligence” against a “property owner.” Tex. Crv. PRAC. & Rem. Code Ann. § 95.001(l)-(3) (Vernon 1997). Section 95.001(3) defines “property owner” as “a person or entity that owns real property primarily used for commercial or business purposes.” Tex. Crv. PRAC. & Rem. Code Ann. § 95.001(3).

Chapter 95 specifies that it “applies only to a claim” described as follows:

(1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and
(2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.

Tex. Civ. Prac. & Rem.Code Ann. § 95.002(l)-(2) (Vernon 1997) (emphasis added).

From the plain meaning of the statute, chapter 95 applies to appellants’ claims. Appellants’ pleadings allege that Stewart was injured while on the job at a worksite defined as Dow’s Freeport plant. It is undisputed that Dow owns this premises, that this premises is real property, that Dow uses this premises for commercial or business purposes, and that Dow was sued in those capacities. See Tex. Civ. PRAC. & Rem.Code Ann. § 95.001(3). Appellants further alleged that Dow was “charged with the duty of reasonable, or ordinary, care in being sure that the premises upon which Angelia Stewart was working and the equipment Plaintiff [sic] was using were reasonably safe.” Similarly, appellants claim “damages,” for Stewart’s “personal injuries]” and “death,” allegedly caused by negligence (and gross negligence) “arising from” Dow’s “failure to provide a safe workplace.” See Tex. Crv. PRAC. & Rem.Code Ann. §§ 95.002(1), 95.003.

Appellants summarize their numerous, specific allegations of misconduct or lack of conduct by Dow as “constit[ing] negligence as that term is defined at law.” See Francis, 130 S.W.3d at 88 (holding that trial court’s recognizing “some evidence” of negligence of premises owner that proximately caused alleged injuries did not give rise to common-law duty beyond scope of chapter 95); Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 710 (Tex.App.-Houston [14th Dist.] 2004, pet. filed) (majority opinion on en banc reconsideration) (•recognizing that chapter 95 encompasses all common-law negligence claims); Kelly v. LIN Television, 27 S.W.3d 564, 569-70 (Tex.App.-Eastland 2000, pet. denied) (,holding that chapter 95 encompassed assertions of negligence, negligence per se, res ipsa loquitur, and negligent misrepresentation). Chapter 95 specifically pertains to claims for “damages caused by negligence” alleged against a “property owner” like Dow. See Tex. Civ. Prac. & Rem.Code Ann. § 95.001(l)-(3).

Lastly, appellants challenge the applicability of chapter 95 on the grounds that their claims do not arise from a “condition or use of real property,” as required by section 95.002(2), because Stewart’s injuries arose from her fall from scaffolding and not from any work she was performing on Dow’s styrene unit. See Tex. Crv. Prac. & Rem.Code Ann. § 95.002(2). But, as Dow stressed in moving for summary judgment, “failure to provide a safe workplace” under section 95.003, means that, although the injuries alleged must relate to work being done by the injured party, the statute does not require that the injury-producing defect must be the object of the injured party’s work. See Francis, 130 S.W.3d at 83; see also Fisher, 16 S.W.3d at 202 (construing legislative history and holding that injury resulting from defective ladder contractor used to access air-conditioning unit contractor was hired to repair was injury within scope of section 95.002(2)). Stewart worked as holewatch and firewatch for cleanup, or “repair” or “renovation” work that her employer, Altair, was performing as a subcontractor to the general contractor, Sulzer. See Tex. Civ. PRAC. & Rem.Code Ann. § 95.002(2). Stewart was working on the manway located on the fourth level of Dow’s unit and could access that level only by the scaffolding erected by ISI. The scaffolding from which she fell was an “improvement to real property” owned by Dow. See id. Accordingly, the scaffolding from which Stewart fell was sufficiently related to Stewart’s injuries to bring Dow within the protections of chapter 95.

We hold that appellants alleged claims within chapter 95, which preempted their common-law claims, that Dow relied on chapter 95 in seeking summary judgment, and that the trial court’s ruling is premised on chapter 95.

B. General Rule of Chapter 95: Property Owner Not Liable

Appellants alternatively contend that if chapter 95 applies, their summary-judgment evidence raised fact issues concerning Dow’s actual knowledge of the dangerousness of the scaffolding equipment and, in addition, concerning Dow’s control over both scaffolding and fall restraints at the worksite. Dow responds that the trial court properly rendered summary judgment in Dow’s favor because appellants did not raise material fact issues concerning whether Dow (1) had a right to control how the work was performed and (2) had actual knowledge of the dangerous condition that resulted in Stewart’s injury.

When, as here, chapter 95 applies, a property owner will not be liable for negligence claims arising from the failure to provide a safe workplace unless:

(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress and receive reports; and
(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.

Tex. Civ. Peac. & Rem.Code Ann. § 95.003(l)-(2) (Vernon 2005) (emphasis added). The first condition of section 95.003 codifies the common-law holding of Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985), which adopted section 414 and accompanying comments of the Restatement (Second) of Torts; the second condition requires actual, rather than merely constructive, knowledge by the premises owner concerning the allegedly dangerous condition. See Dyall, 152 S.W.3d at 699 & n. 13 (citing GeoRGE C. Hanks, ⅞., When Sticks and Stones May Break Your Bones: An Overview of Texas Premises Liability Law for Business Owners, 60 Tex. B.J. 1010, 1021 (1997) (Hanks)). Both conditions of section 95.003 must be met before Chapter 95’s exception to the general rule of nonliability for a premises owner will be imposed. See Rueda v. Paschal, 178 S.W.3d 107, 110 (Tex.App.-Houston [1st Dist.] 2005, no pet. h.); Francis, 130 S.W.3d at 83; Dyall, 152 S.W.3d at 699; Kelly, 27 S.W.3d at 567. As Dow emphasized in moving for traditional summary judgment, section 95.003(2) elevated the alternative, common law, “should have known” test of the premises owner’s knowledge of a dangerous condition, to an “actual knowledge” requirement. Compare Tex. Civ. PRAC. & Rem.Code Ann. § 95.003(2) (requiring actual knowledge) with Williams v. Olivo, 952 S.W.2d 523, 527 (Tex.1997) (recognizing that duty to warn of dangerous conditions could be based on constructive knowledge of that condition, as well as actual knowledge) (citing Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746 (Tex.1973)).

Because Dow’s motion for summary judgment established that chapter 95 applies to appellants’ claims, appellants had to present evidence demonstrating triable issues of fact concerning both required elements of section 95.003 to overcome that statute’s general rule of nonlia-bility. See Tex. Civ. Peac. & Rem.Code Ann. § 95.003; Rueda, 178 S.W.3d at 110; Fisher, 16 S.W.3d at 203; Dyall, 152 S.W.3d at 699, 709-10; Kelly, 27 S.W.3d at 567 (all addressing nonmovant’s burden under section 95.003 in summary judgment context); see also Francis, 130 S.W.3d at 83 (analyzing plaintiffs failure to meet evidentiary burden under section 95.003 in context of judgment notwithstanding verdict).

C. Dow’s Motion for Traditional Summary Judgment

Dow’s motion for traditional summary judgment pursuant to rule 166a(c) relied on both requirements of the exception to the general rule of nonliability for premises owners created by section 95.003, but emphasized, in particular, subsection (1), the requirement of a showing that Dow had exercised or retained some control, beyond the right to order work to start or stop, to inspect progress, or to receive reports. See Tex. Civ. Prac. & Rem.Code Ann. § 95.003(1).

Dow first demonstrated that its hold-harmless agreement with Sulzer, the general contractor for the cleanup project for Styrene 2, expressly disclaimed control over the project. Paragraph 2 of the hold-harmless agreement in favor of Dow, which delineated contractor responsibilities, stated that Sulzer was an independent contractor for the project and required to “assume all of the rights, obligations, and liabilities” applicable to Sulzer as an independent contractor. The same paragraph expressly disclaimed any right of Dow to direct the cleanup project by further stating that

Any provisions in this Contract or in any contract or purchase order to which this Contract applies which may appear to give DOW the right to direct [Sulzer] as to the details of doing the work covered by that contract or purchase order or to exercise a measure of control over the work shall be deemed to mean that [Sulzer] shall follow DOW’s desires in the result of the work only. Neither [Sulzer] nor any its employees or agents shall be considered an employee or agent of DOW, nor shall any partnership, co-venture, or joint-employer relationship be created by virtue of this Contract, any contract or purchase order to which this Contract is applicable, or the performance of any of them. All persons engaged by [Sulzer], either as employees or agents, to assist [Sulzer] in the performance of this Contract or any contract or purchase order to which this Contract applies shall be of [Sulzer’s] own selection, for its own account, at its own expense, and under its supervision.

(Emphasis added.) The summary judgment record shows that ISI and Altair representatives executed hold-harmless agreements in favor of Dow containing the same provision.

In addition to precluding Dow from controlling or directing the repair work on its Styrene 2 unit, except as to its “desires” for the results of the work, this provision of the hold-harmless agreements negated, in advance, any contractor’s doubts about whether Dow had control over the repair work, a right to control it, or any responsibility for it, whether arising from Dow’s contracts with Sulzer, ISI, or Altair, or any other contract or purchase order derived from those contracts. Construing virtually identical terms in Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606-07 (Tex. 2002), the supreme court ruled that the premises owner had no right of control over its subcontractor and therefore owed no duty to the injured plaintiff.

Concerning the scaffolding from which Stewart fell, Dow’s motion demonstrated, through deposition testimony attached to the motion for summary judgment, that ISI had responsibility for erecting the scaffolding around the styrene unit and for inspecting it at the end of every shift. Dow’s summary-judgment evidence further demonstrated that Dow took no part in those inspections.

Dow’s motion for traditional summary judgment argued that, pursuant to the express provisions of its hold-harmless agreements with Sulzer, ISI, and Altair, therefore, any minimal control that Dow might have had over the project did not extend beyond the end result requested. Accordingly, Dow contended the hold-harmless agreement precluded extending to Dow control over the cleanup project or the power to direct the operative details of the work performed by Sulzer, the general contractor; or the work performed by the subcontractor, ISI, which was responsible for constructing and for inspecting daily the scaffolding from which Stewart fell, or the work performed by Stewart’s employer, Altair.

D. Appellants’ Response to Dow’s Motion for Traditional Summary Judgment

Appellants’ response presented multiple grounds in opposition to Dow’s motion. These included the legal challenges to the applicability of chapter 95 that we have addressed and rejected above. Appellants’ remaining legal challenge assumed, but did not concede, that chapter 95 applied, which would, therefore, require proof to meet section 95.003(2)’s requirement that Dow had actual knowledge of the allegedly dangerous condition giving rise to Stewart’s injuries. Appellants then argued that Dow’s conduct amounted to “negligent ignorance,” which, appellants maintained, is the same as “actual knowledge.”

On reviewing appellants’ contention, we conclude that it attempts to reinstate the now rejected common-law principle that not only actual knowledge, but also constructive knowledge of a dangerous condition by a premises owner suffices to impose liability on the premises owner. See Williams, 952 S.W.2d at 527. As addressed above, in enacting chapter 95, the Legislature did not include constructive knowledge as a basis for imposing liability on a premises owner; instead, the Legislature expressly required that the premises owner have actual knowledge of the allegedly dangerous condition. Compare id. with Tex. Civ. Prac. & Rem.Code Ann. § 95.003(2); see Hanks, 60 Tex. B.J. at 1021. Accordingly, we reject appellants’ contention that “negligent ignorance” equates to actual knowledge under chapter 95.

E. Lack of Actual Control by Dow

Appellants also presented summary judgment evidence in opposition to Dow’s motion for summary judgment, which, they argued in the trial court and on appeal, raised sufficiently triable issues of fact concerning Dow’s control to preclude summary judgment in Dow’s favor.

As addressed above, Dow’s motion for traditional summary judgment demonstrated that its hold-harmless agreements with Sulzer, ISI, and Altair did not give rise to a duty owed to Stewart because the agreements did not confer, but rather precluded, any right of retained control in Dow. It is undisputed that Dow’s safety supervisor had the right to order work stopped for safety violations or concerns and had done so on occasion in the past. But, this right does not suffice as a fact issue that could trigger section 95.003(l)’s first condition for nonliability, because section 95.003(1) explicitly requires that the premises owner exercise or retain more control over the manner in which work is performed than the right to order it stopped. See Tex. Civ. Prac. & Rem.Code Ann. § 95.003; Dow Chem. Co., 89 S.W.3d at 608. Moreover, although it is also undisputed that Dow engaged independent safety personnel to supervise the cleanup project, mere presence of the premises owner’s safety personnel at a worksite is likewise insufficient to demonstrate that the owner actually exercised control over the work. See Dow Chem. Co., 89 S.W.3d at 608.

Appellants further contend that Dow exercised actual control by promulgating Safety Standard No. — 71 concerning “Fall Restraint System Use.” Paragraph 1 of this standard required that a “fall restraint system with continuous attachment” be used by personnel in “work areas not protected by guardrails where there is a danger of employees falling from a distance of six feet or greater.” Because Stewart had to perform her work at a level above six feet and fell approximately 20 feet, appellants argued that Dow’s regulation was evidence that Dow exercised actual control by enacting a regulation that applied to Stewart and therefore triggered a duty to her. Dow countered that Stewart was injured as she was descending the ladder and that Dow’s fall-restraint requirements did not apply to workers who were descending ladders. We agree.

Paragraph 7 of the fall-restraint safety standards specifies that a fall-restraint device must be used when “personnel are working off ladders and the work require[s] them to be outside the ‘confines of the ladder.’ ” (Emphasis added.) Taken together, paragraphs 1 and 7 of the safety standards compelled use of fall-restraints when workers are not protected by guardrails, when they are working off, as opposed to on, ladders, or when their work location went beyond the confines of ladders. Moreover, proof that the premises owner promulgated safety standards and regulations is insufficient evidence of actual control unless there is also proof that they increased, rather than decreased, the possibility of severe injury. See id. Although appellants contend, on appeal, that Dow’s safety standards and regulations increased the possibility of severe injury, their pleadings lack this claim, and no summary-judgment evidence supports this contention.

To avoid section 95.003’s general rule of nonliability of the premises owner, appellants had to present triable issues of fact on both elements of the statute. See Tex. Civ. Peac. & Rem.Code Ann. § 95.003. Having examined the summary judgment record de novo, we conclude that Dow conclusively established, as a matter of law, that it neither exercised nor retained control over the manner in which the cleanup of Styrene 2 was performed to a sufficient degree to give rise to a triable issue of fact concerning the first condition of section 95.003(1). We further conclude that appellants did not present summary-judgment evidence sufficient to defeat Dow’s motion.

Because both elements of section 95.003 must be present for potential premises-owner liability, id., and because Dow negated the “control” element of section 95.003(1), Dow also negated any exception to section 95.003’s general rule of nonliability and was, therefore, entitled to prevail as a matter of law on appellants’ survival and death claims against Dow.

We overrule appellants’ first issue in Cause No. 01-03-00107-CV.

Conclusion

We affirm the judgments of the trial court.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 71.001-.012 (Vernon 1997 & Supp.2004-2005) (wrongful death action); Tex. Civ. Prac. & Rem. Code Ann. § 71.021 (Vernon 1997) (survival action).

      . We refer to Dow, Sulzer, ISI, and Sulzer collectively as appellees.

      . See Tex. Const. Art. XVI, § 26; Tex. Lab.Code Ann. § 408.001 (Vernon 1996).

      . Because section 95.003(1) codifies the common law of Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985), it follows that prechapter 95 case law construing the control requirement has relevance in interpreting the control requirement of section 95.003(1).

      . Although Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex.2002), construes the common law of premises liability for injuries at a worksite, its holdings are relevant because section 95.003(1), the first of the two elements that must be established for a premises owner to be liable under chapter 95, codifies the common law. See Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 699 & n. 13 (Tex.App.-Houston [14th Dist.] 2004, pet. filed) (citing George C. Hanks, Jr., When Sticks and Stones May Break Your Bones: An Overview of Texas Premises Liability Law for Business Owners, 60 Tex. B.J. 1010, 1021 (1997)).