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Click here for the full text of this decision The summary judgment evidence shows that DIW established as a matter of law that it did not exercise sufficient contractual or actual control over SAHI to subject it to liability. FACTS:As he crossed the driveway of a Days Inn hotel in San Antonio, Bryon Fitz was hit by a tractor trailer that was turning into the hotel parking lot, and his leg had to be amputated. Fitz filed a personal-injury lawsuit against the truck owner, the hotel franchisee and DIW, the hotel franchiser. DIW moved for summary judgment, claiming its franchiser-franchisee relationship was not a principal-agent relationship that would subject it to liability. The trial court granted the motion and severed the case against DIW from the rest. Fitz has appealed that order. Fitz later settled with the trucking company and its driver. Fitz’s case against the franchisee went to trial, where he won a $1.9 million verdict. The jury found the franchisee and Fitz each 10 percent negligent, and the trucking company and its driver 80 percent negligent. The hotel franchisee had elected a dollar-for-dollar credit for the settlement, so the trial court entered a take-nothing judgment in favor of the franchisee. DIW’s appeal was pending during the progress of the other claims. After the settlement and judgment, DIW filed a motion in appellate court to dismiss for want of jurisdiction. HOLDING:Motion to dismiss denied; judgment affirmed. The court first holds that collateral estoppel does not bar appellate review because that doctrine cannot be raised for the first time on appeal. The court then reviews whether DIW, as the franchiser, could be held liable for the franchisee’s negligence. DIW did not exercise control the safety of its franchisee’s driveway. There was not a contractual agreement explicitly assigning DIW the right of control. The franchise agreement that did govern the parties provides that the franchisee is an independent contractor. Additionally, the section of the System Standards Manual dealing with traffic direction signs set only minimum standards for the franchisee; it did not reserve for DIW the right to control either the means, methods or details of the franchisee’s maintenance or operation of the parking lot. Nor were DIW’s annual “no notice” inspections of the premises, including the property grounds and parking areas, evidence of DIW’s actual control over the area. OPINION:Speedlin, J.; Lopez, C.J., Angelini and Speedlin, JJ.

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