                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                             ________________________

                                  No. 07-18-00132-CV
                             ________________________

                             NATHAN JONES, APPELLANT

                                            V.

                     ENERGEN RESOURCES CORPORATION
               AND DIALOG WIRELINE SERVICES, L.L.C., APPELLEES



                          On Appeal from the 385th District Court
                                 Midland County, Texas
             Trial Court No. CV52238; Honorable Robin Malone Darr, Presiding


                                     January 29, 2020

                            MEMORANDUM OPINION
                         Before PIRTLE, PARKER, and DOSS, JJ.


      This is an appeal from a summary judgment granted in favor of Appellees, Energen

Resources Corporation and Dialog Wireline Services, L.L.C., arising out of a personal

injury cause of action filed by Appellant, Nathan Jones, for personal injuries he sustained

while working on an oil rig in Martin County. According to Jones’s live pleadings, his

cause of action against Energen was based on both negligence and premises liability
theories, whereas, his cause of action against Dialog was based on a negligence theory

alone.


         Energen filed an amended traditional and no-evidence motion for summary

judgment contending that it was entitled to summary judgment because there were no

material issues of fact that (1) it did not owe a duty of care to Jones and, therefore, it was

not negligent with respect to his injuries and (2) it was not liable under a premises liability

theory because, under chapter 95 of the Texas Civil Practice and Remedies Code, (a) it

did not exercise or retain some control over the manner in which the work resulting in

Jones’s injuries was performed and (b) it had no actual knowledge of the danger or

condition that resulted in Jones’s injuries. Similarly, Dialog filed an amended traditional

motion for summary judgment maintaining that it was not liable to Jones because (1) it

did not owe him a duty of care and, therefore, it was not negligent with respect to his

injuries and (2) it was not liable under a premises liability theory because, under chapter

95, it neither owned nor controlled the relevant premises or the complained-of equipment

at the time of the accident.1


         Following a ruling on objections to the summary judgment evidence both

supporting and opposing the pending traditional and no-evidence motions for summary

judgment, the trial court entered separate orders granting (1) Energen’s amended

traditional and no-evidence motion for summary judgment, (2) Energen’s motion to modify

its amended traditional and no-evidence motion for summary judgment, and (3) Dialog’s




         1 At the time Dialog filed its traditional motion for summary judgment, Jones was asserting a
premises liability cause of action against it. Jones later filed his First Amended Petition dropping that cause
of action as to Dialog.

                                                      2
amended traditional motion for summary judgment. Jones timely filed his notice of

appeal. By three issues, he contends the trial court erred by (1) granting summary

judgment in favor of Energen and Dialog, (2) sustaining objections to the form of his

summary judgment evidence, and (3) failing to allow him to amend his summary judgment

evidence. We affirm the judgment of the trial court.2


        BACKGROUND

        On July 15, 2014, Jones was an employee of Snubco USA, L.L.C., doing business

as Snubco Pressure Control, Ltd., performing “snubbing operations”3 on an oil rig owned

by Key Energy Services. At that time, Energen was the lease operator and Key Energy

Services and Snubco USA, L.L.C. were independent contractors. Randy Cobble, an

independent contractor of New Prospect Company, another independent contractor, was

the person in the field responsible for the day-to-day operations on the well. Energen

relied on New Prospect Company and its subcontractors to drill, complete, and manage

the well. Energen did not have an employee on sight to oversee operations and it had no

present knowledge of any ongoing activities at the well.4




        2 Originally appealed to the Eleventh Court of Appeals, this appeal was transferred to this court by
the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Eleventh Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court . TEX.
R. APP. P. 41.3.

        3  Snubbing is a type of heavy well intervention performed on oil and gas wells involving the insertion
of drillpipe or tubular into the wellbore when the blowout preventers are closed, and pressure is contained
in the well. See Schulmberger Oilfield Glossary, https://www.glossary.oilfield.slb.com/Terms/s/snubbing.
aspx (last visited January 15, 2020).
        4   New Prospect Company did provide daily progress updates to Energen on the operations and
activities that had taken place the preceding day.

                                                      3
        In addition, Energen employed Dialog as an independent contractor to provide

“wireline services”5 when the snubbing work was complete.                        In connection with its

services, Dialog provided a swivel with a “ball valve/nipple” for use on the rig during the

snubbing operation. Prior to the accident, however, the Dialog ball valve/nipple was

changed out with a Howco/Halco valve/nipple.6 At the time of the accident, Jones was

operating the snubbing unit when the Howco/Halco valve/nipple separated, allegedly due

to faulty installation or operator error, and the pressurized “Kelly hose” 7 was allowed to

fall, striking Jones in the face. In addition to the issue of the valve separation, Jones

contends his injuries were caused by the fact that there was no “whipcheck” installed to

prevent the Kelly hose from falling. At the time of the accident, the Kelly hose, the

whipcheck (if any), the nipple, the swivel, and the drillpipe were all under the supervision

and control of Snubco USA, L.L.C., in the course of performing its snubbing operations.


        SUMMARY JUDGMENT STANDARD OF REVIEW

        We review a trial court's decision to grant summary judgment according to a de

novo standard of review. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).

In our review, we consider as true all evidence favorable to the nonmovant, and we




         5 “Wireline services” relate to any aspect of logging that employs an electrical cable to lower tools

into the wellbore and to transmit data. See Schulmberger Oilfield Glossary, https://www.glossary.oilfield.
slb.com/Terms/w/wireline.aspx (last visited January 15, 2020).

        6The summary judgment evidence is unclear as to whether the swivel portion of the equipment
provided by Dialog continued to be used. For the sake of the arguments presented, we will indulge a
reasonable inference in Jones’s favor that the swivel continued to be used.

        7 A “Kelly hose” is a large-diameter (three-to-five inches, inside diameter), high pressure flexible

line used to connect the standpipe to the swivel. This flexible piping arrangement permits the Kelly hose
to be raised or lowered while drilling fluid is pumped through the drillstring. See Schulmberger Oilfield
Glossary, https://www.glossary.oilfield.slb.com/Terms/k/kelly_hose.aspx (last visited January 15, 2020).


                                                      4
indulge every reasonable inference and resolve any doubts in the nonmovant's favor.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A trial court properly

grants a traditional motion for summary judgment when the movant has established that

there are no genuine issues of material fact and that it is entitled to judgment as a matter

of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257

(Tex. 2017); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.

2003).


         In that regard, a defendant is entitled to summary judgment when, as a matter of

law, it has negated at least one essential element of the plaintiff’s cause of action or it has

conclusively established each element of an affirmative defense. Sci. Spectrum, Inc. v.

Martinez, 941 S.W.2d 910, 911 (Tex. 1997); City of Houston v. Clear Creek Basin Auth.,

589 S.W.2d 671, 678 (Tex. 1979). Evidence is conclusive when reasonable people could

not disagree in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.

2005).


         If the movant initially establishes a right to summary judgment on the issues

expressed in the motion, then the burden shifts to the nonmovant to present to the trial

court any issues or evidence that would preclude summary judgment. City of Houston,

589 S.W.2d at 678-79. When the trial court does not specify the grounds for its summary

judgment, the appellate court must affirm the summary judgment if any of the theories

presented to the trial court and preserved for appellate review are meritorious. Provident

Life & Accident Ins. Co., 128 S.W.3d at 216.




                                              5
       In reviewing a no-evidence summary judgment, we consider all the evidence “in

the light most favorable to the party against whom the summary judgment was rendered,

crediting evidence favorable to that party if reasonable jurors could and disregarding

contrary evidence unless reasonable jurors could not.” Gonzalez v. Ramirez, 463 S.W.3d

499, 504 (Tex. 2015) (per curiam) (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,

582 (Tex. 2006)); City of Keller, 168 S.W.3d at 827. We will affirm a no-evidence

summary judgment based on the negation of an essential element of the plaintiff’s claim

if the record shows one of the following: (1) there is no evidence on the challenged

element, (2) the evidence offered to prove the challenged element is no more than a

scintilla, (3) the evidence establishes the opposite of the challenged element, or (4) the

court is barred by law or the rules of evidence from considering the only evidence offered

to prove the challenged element. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248

(Tex. 2013); City of Keller, 168 S.W.3d at 810.


       APPLICABLE LAW—NEGLIGENCE

       In order to prevail on a negligence cause of action, a plaintiff must establish three

essential elements: (1) a legal duty owed by the defendant to the plaintiff, (2) a breach of

that duty, and (3) damages proximately caused by that breach. Kroger Co. v. Elwood,

197 S.W.3d 793, 794 (Tex. 2006). The threshold inquiry in a negligence case is whether

the defendant owes a legal duty to the plaintiff. Centeq Realty v. Seigler, 899 SW.2d 195,

197 (Tex. 1995); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.

1990). Whether the defendant owed a legal duty to the plaintiff is a question of law for

the court to decide from the facts and circumstances surrounding the occurrence in

question. Golden Spread Council, Inc. No. 562 of the Boy Scouts of Am. v. Akins, 926


                                             6
S.W.2d 287, 289 (Tex. 1995); Centeq Realty, 899 S.W.2d at 197. In order to establish

liability in a negligence cause of action, the plaintiff must establish both the existence and

the violation of a duty owed to the plaintiff by the defendant. Centeq Realty, 899 S.W.2d

at 197.


        APPLICABLE LAW—CHAPTER 95

        Chapter 95 of the Texas Civil Practice and Remedies Code limits “a claim against

a property owner for an independent contractor’s personal injury, death, or property

damage caused by negligence.” Abutahoun v. Dow Chemical Co., 463 S.W.3d 42, 48

(Tex. 2015). Section 95.003 provides as follows:


        A property owner in not liable for personal injury, death, or property damage
        to a contractor, subcontractor, or an employee of a contractor or
        subcontractor who constructs, repairs, renovates, or modifies an
        improvement to real property, including personal injury, death, or property
        damage 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 or 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. PRAC. & REM. CODE ANN. § 95.003 (West 2019).8


        The limiting provisions of section 95.003 apply “only to a claim . . . 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.” See id. at §



        8
            All future references to “§” or “section” are references to the Texas Civil Practice and Remedies
Code.

                                                       7
95.002(2). See also Abutahoun, 463 S.W.3d at 48. The Texas Supreme Court has

interpreted the phrase “arising from,” as used in this statute, to encompass an element of

causation such that the occurrence in question must be “caused by, ‘the condition or use

of an improvement to real property where the contractor or subcontractor . . . modifies the

improvement.’” Id.


        ANALYSIS

        We will address Jones’s issues in a logical rather than sequential order. By his

second and third issues, Jones contends the trial court erred by sustaining objections to

the form of his summary judgment evidence and by failing to allow him an opportunity to

amend his summary judgment evidence.


        Here, the summary judgment evidence offered by Jones in response to Dialog’s

motion for summary judgment consisted of the evidence submitted by Energen and

Dialog, as well as the affidavits of Danny Alexander and Eric Shephard (Snubco USA,

L.L.C. employees), the deposition testimony of Randy Cobble and of Dean Stevens, two

accident reports (Exhibits 53 and 57), and a Railroad Commission Application for Permit

to Drill.   In response to Energen’s traditional and no-evidence motion for summary

judgment, Jones offered the deposition testimony of Boyd Homes, two photos showing

Jones’s injuries, three accident reports (from Dialog, Key Energy Services, and Snubco

USA, L.L.C.), two exhibits regarding Energen’s well procedures (Exhibits 62 and 67),

three emails, and Randy Cobble’s Form 1099, in addition to the summary judgment

offered in response to Dialog’s motion for summary judgment. On November 16, 2017,

the trial court sustained Energen’s objections to (1) the affidavit of Eric Shephard, (2) the

two photographs showing Jones’s injuries, (3) Dialog’s accident report, (4) Key Energy

                                             8
Services’s accident report, and (5) the two exhibits regarding Energen’s well procedures,

as well as Dialog’s objections to (a) Exhibit 59 and (b) any reference to “Dialog’s NON

participation in connecting their equipment is negligence.”


       Assuming for the sake of argument that the trial court did err in granting Energen’s

and Dialog’s objections to the form of Jones’s summary judgment evidence or in denying

Jones’s request for leave to amend, we will review the trial court’s ruling as if all of the

summary judgment evidence submitted by Jones was properly before the trial court. As

such, Jones’s second and third issues are rendered moot.


       By his first and primary issue, Jones contends the trial court erred in granting

Energen’s and Dialog’s respective motions for summary judgment. Both Energen and

Dialog contended that they did not owe Jones a duty alleged to be breached, and as such,

they were not liable for any damages he may have sustained under a general claim of

negligence.


       The existence of a legal duty owed by one party to another is a question of law for

the trial court to determine based on the facts and circumstances of the case. Here, the

summary judgment evidence established that Energen was the owner of an interest in

certain real property being developed for oil and gas production. Towards that goal,

Energen retained New Prospect Company and its independent subcontractor, Randy

Cobble, to oversee day-to-day drilling operations. A drilling rig owned by Key Energy

Services, another independent contractor, was being used by New Prospect Company.

As a part of the drilling process, Snubco USA, L.L.C. was retained to perform snubbing

operations and Dialog was retained to provide wireline services following completion of


                                             9
the snubbing. Jones, an employee of Snubco USA, L.L.C., was working on the rig while

snubbing operations were being performed.       During those operations, a Kelly hose

became disengaged from either the nipple or the swivel connecting it to the drillpipe and

the pressurized hose struck Jones in the face. At the time of the occurrence, there was

either no whipcheck to prevent the Kelly hose from falling or the whipcheck being used

was inadequate. Jones was severely injured as a result of being struck by the Kelly hose.


      Jones contends that a duty was owed to him by Energen because, at the time of

his injury, (1) he was working on property belonging to Energen and (2) he was working

under the supervision and control of Energen. In response, Energen contends chapter

95 of the Texas Civil Practice and Remedies Code prevents it from being liable for any

injuries caused by the condition or use of the oil rig, an improvement to real property,

where Jones and/or Snubco USA, L.L.C. were subcontractors performing services which

modified the improvement. Energen further contends that Jones was not working under

the supervision or control of Energen.


      The summary judgment evidence supports Energen’s position that the persons

and entities working on the well were independent contractors. Conversely, the summary

judgment evidence fails to provide more than a scintilla of evidence establishing a direct

supervisory or agency relationship between Energen and any of the other participants.

Specifically, Jones’s arguments that Energen exercised control over the snubbing

operations finds no support in the summary judgment evidence. Accordingly, Jones has

failed to establish a legal duty owed to him by Energen. Furthermore, because Energen

did not exercise or retain control over the manner in which the snubbing work was to be



                                           10
performed, other than the right to order the work to start or stop or to inspect progress

and receive reports, it was not liable to Jones for the personal injuries he sustained while

working on improvements to Energen’s property as provided by section 95.003. Issue

one is overruled as to Energen.


       By his First Amended Petition, Jones contends that a duty was owed to him by

Dialog because Dialog “provided the parts and equipment that caused the occurrence.”

While there was summary judgment evidence establishing that the nipple connecting the

Kelly hose separated from the swivel and that the nipple being used was not the nipple

provided by Dialog, it does appear that the swivel being used was provided by Dialog.

However, with respect to the swivel, there was no summary judgment evidence indicating

that it failed, was defective, or otherwise caused the nipple to separate. Jones specifically

contends that Dialog “failed to inspect the equipment, failed to assist with the installation

of the equipment, failed to provide suitable or reliable equipment and failed to warn the

relevant people not to use their equipment.” Finally, Jones alleged that Dialog was

negligent for leaving its equipment “unsupervised and available” and for not having

someone on site at the time of the occurrence. Nothing about providing a piece of

equipment establishes any of these duties and Jones has not brought forth any summary

judgment evidence that would give rise to any such duty. Because Dialog did not owe a

duty to Jones, the trial court did not err in granting summary judgment in Dialog’s favor.

Issue one is overruled as to Dialog.




                                             11
CONCLUSION

The trial court’s judgment is affirmed.




                                           Patrick A. Pirtle
                                                Justice




                                      12
