Denied and Opinion Filed January 24, 2020




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-19-01171-CV

                  IN RE EAGLERIDGE OPERATING, LLC, RELATOR

                 Original Proceeding from the 192nd Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-18-05402

                             MEMORANDUM OPINION
                  Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                                Opinion by Justice Pedersen, III
       Relator Eagleridge Operating, LLC filed a petition for writ of mandamus in which it asks

this Court to command respondent, the 192nd Judicial District Court of Dallas County, to vacate

its order striking Eagleridge’s designation of Aruba Petroleum, Inc. as a responsible third party.

Based on the Texas Supreme Court’s decision in Occidental Chemical Corp. v. Jenkins, we hold

that respondent did not abuse its discretion in striking Eagleridge’s designation. See 478 S.W.3d

640 (Tex. 2016). We therefore deny relator’s petition.

                                       BACKGROUND

       The underlying lawsuit arose out of a gas line rupture on August 24, 2017, at the Donnell

2H well facility near Bridgeport, Texas. Previously, USG Properties Barnett II, LLC was a

majority interest owner in the facility, and Aruba owned a minority interest. USG also retained

Aruba to serve as the facility’s contract operator. However, effective May 1, 2017, Aruba sold its

ownership interest to USG, and Eagleridge took over as USG’s contract operator at the site. Thus,
Aruba was neither an owner nor a contract operator of the facility on the date of the subject

incident.

       The gas line rupture injured Earmon Lovern, who at the time was working at the Donnell

facility. Lovern and three members of his family sued Eagleridge and USG. The Loverns alleged

claims for negligence and gross negligence, among others. Their negligence claim included

allegations that the defendants: (i) “creat[ed] an unsafe work environment for individuals on the

premises”; (ii) “fail[ed] to provide suitable protection for individuals on the premises controlled

by Defendants”; and (iii) “fail[ed] to provide suitable safe equipment and pipelines on the

premises.” See Occidental, 478 S.W.3d at 644 (“Although premises liability is itself a branch of

negligence law, it is a special form with different elements that define a property owner or

occupant’s duty with respect to those who enter the property.” (citation and internal quotation

marks omitted)).

       Eagleridge designated Aruba as a responsible third party. The Loverns then filed a motion

to strike and summary judgment (referred to hereinafter as the “motion to strike”) as to

Eagleridge’s designation of Aruba. Following a hearing, the district court granted the Loverns’

motion to strike. Eagleridge then filed this petition for writ of mandamus.

                                           ANALYSIS

       Mandamus will issue if the relator establishes a clear abuse of discretion for which there is

no adequate remedy by appeal. In re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009) (orig.

proceeding) (per curiam). Under this standard, we defer to the trial court’s factual determinations

if they are supported by evidence, but we review its legal determinations de novo. In re Labatt

Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding); In re Molina, 575 S.W.3d

76, 80 (Tex. App.—Dallas 2019, orig. proceeding).




                                               –2–
       The Loverns based their motion to strike on the supreme court’s decision in Occidental.

The property owner in that case, Occidental Chemical Corporation, added an acid-addition system

to its plant in 1992. Occidental, 478 S.W.3d at 642. In 1998, Occidental sold the plant to Equistar

Chemicals, L.P. Id. at 643. In 2006, Jason Jenkins, an employee of Equistar, was injured when one

of the system’s valves expelled acid into his face, injuring his eyes. Id. Jenkins sued Occidental,

among others, alleging that its negligent design of the acid-addition system caused his injuries. Id.

Following a jury trial, the trial court rendered judgment that Jenkins take nothing, concluding that

the verdict supported at least one of Occidental’s statute-of-repose defenses. Id.

       Our sister court of appeals disagreed, reasoning that the verdict did not support either of

Occidental’s repose defenses. Id. Apart from repose, the court analyzed Occidental’s duty as two-

pronged: (i) its duty as the owner of the property on which the dangerous condition existed, and

(ii) its duty as the creator or designer of the dangerous condition on the property. Id. at 644.

Although Occidental was no longer responsible for the property’s dangerous condition as owner,

under the court’s dual-role analysis, Occidental remained responsible as a creator or designer. Id.

at 644–45. Accordingly, the court of appeals reversed and remanded for the trial court to render

judgment for Jenkins on the jury’s liability and damages findings. Id. at 644.

       The supreme court reversed the court of appeals’ judgment and rendered judgment that

Jenkins take nothing. Id. at 642. The supreme court noted that, depending on the circumstances, a

person injured on another’s property may have either a negligence claim or a premises-liability

claim against the property owner. Id. at 644. When the injury is the result of the property’s

condition rather than an activity, premises-liability principles apply. Id. Under these principles, a

property owner’s duty to make the premises safe for invitees or to warn of dangerous conditions

generally runs with the ownership or control of the property. Id. In other words, upon a sale of the

property, this duty passes to the new owner, and the seller is not ordinarily liable for injuries to the

                                                  –3–
buyer or to third persons caused by a pre-existing dangerous condition after the buyer takes

possession. Id. (citing, inter alia, RESTATEMENT (SECOND) OF TORTS §§ 351–54 (1965)).

       Notwithstanding the foregoing principles, Jenkins cited prior supreme court precedent,

which held that an independent contractor could be liable in negligence for creating a dangerous

condition on property even after relinquishing control of the property. Id. at 645 (discussing

Strakos v. Gehring, 360 S.W.2d 787, 790 (Tex. 1962)); see also RESTATEMENT (SECOND)               OF

TORTS § 385 (1965) (providing that “[o]ne who on behalf of the possessor of land” creates a

dangerous condition while making improvements to such land is subject to liability, after its work

has been accepted by the possessor, “under the same rules as those determining the liability of one

who as manufacturer or independent contractor makes a chattel for the use of others”). Based on

this precedent, Jenkins urged that the court of appeals’ dual-role analysis merely applied the

supreme court’s decision in Strakos. Id. at 645.

       The Occidental court was not persuaded that the foregoing authorities supported Jenkins’s

position. Specifically, “Strakos speaks only to the actions of third parties,” and “section 385

concerns only the liability of independent contractors and other third parties who create dangerous

conditions while making improvements ‘on behalf of’ property owners.” Id. at 646. The supreme

court observed that no Texas case supported the court of appeals’ dual-role analysis and that “the

weight of authority elsewhere rejects the notion that a property owner acts in multiple capacities

when making an improvement to its property.” Id. at 647–48. The court “similarly reject[ed] the

notion that a property owner acts as both owner and independent contractor when improving its

own property, subjecting itself to either premises-liability or ordinary-negligence principles

depending on the injured party’s pleadings.” Id. at 648. It instead held that (i) “premises-liability

principles apply to a property owner who creates a dangerous condition on its property,” and




                                                –4–
(ii) “the claim of a person injured by the condition remains a premises-liability claim as to the

owner-creator, regardless of how the injured party chooses to plead it.” Id. at 648.

        In this case, the dissent attempts to distinguish Occidental on the basis that Aruba

performed the work at issue in its capacity as an independent contractor for USG, not in its capacity

as an owner. In our view, this purported distinction flies in the face of the supreme court’s holding

in Occidental. In light of the Occidental court’s rejection of a “dual-role analysis,” we conclude

that Aruba, a co-owner of the Donnell facility at the time it made the subject improvements, acted

solely in its capacity as an owner of the property. See id. at 647–48. In short, the Loverns’ claim

against Aruba was a premises-liability claim. Aruba’s duty under premises-liability principles

passed to the new owner of Aruba’s interest in the Donnell facility, USG, upon Aruba’s sale of its

interest prior to the subject incident. See id. at 644. Accordingly, the district court did not abuse its

discretion by striking Eagleridge’s designation of Aruba as a responsible third party.

                                           CONCLUSION

        We deny Eagleridge’s petition for writ of mandamus.



                                                     /Bill Pedersen, III//
                                                     BILL PEDERSEN, III
                                                     JUSTICE

Whitehill, J., dissenting

191171f.p05




                                                  –5–
