                                 Fourth Court of Appeals
                                         San Antonio, Texas

                                    MEMORANDUM OPINION
                                             No. 04-18-00418-CV

 IN RE WOOD GROUP PSN INC., Miller Environmental Services L.L.C., Star Tex Gasoline
  & Oil Distributors Inc., Basic Energy Services Inc., Cameron Inc., Chacho’s Vacuum Service
Inc., Coastal Chemical Co. L.L.C., Flint Energy Services Inc., FTS International Services L.L.C.,
     Helmerich & Payne International Drilling Co., Mission Petroleum Carriers Inc., Murphy
   Exploration & Production Company - USA, Murphy Oil Corporation, Plains All American
                                          Pipeline L.P.

                                      Original Mandamus Proceeding 1

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Irene Rios, Justice

Delivered and Filed: October 3, 2018

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART AND
DENIED IN PART

           Relators are twenty-two of a total twenty-nine oilfield businesses sued by Dimmit County

for damage to County roads allegedly caused by the defendants’ 2 vehicles. These twenty-two

relators moved for dismissal of the County’s claims against them. Twenty of the relators moved

for dismissal under Texas Rule of Civil Procedure 91a; one relator moved for dismissal only on




1
  This proceeding arises out of Cause No. 13-05-11980-DCVAJA, styled County of Dimmit v. Murphy Exploration &
Production Co., et al., pending in the 365th Judicial District Court, Dimmit County, Texas, the Honorable Amado J.
Abascal, III presiding.
2
 As used in this opinion, “defendants” refers to all twenty-nine defendant-companies named in the County’s petition,
unless otherwise specifically identified.
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special exceptions; and one relator joined these motions. The trial court denied the requested relief.

In their petition for writ of mandamus, relators ask this court to compel the trial court to vacate its

denial and dismiss Dimmitt County’s claims against them. We conditionally grant the petition for

writ of mandamus with regard to the Rule 91a motion to dismiss and deny the petition with regard

to the request for dismissal based on special exceptions.

                                              BACKGROUND

        In its third amended petition, Dimmitt County alleged the twenty-nine defendants—all

companies operating in the oil and gas industry—severely damaged or destroyed a Dimmitt

County-owned road commonly referred to as the Diamond H. Ranch Road (the “Road”).

According to Dimmitt County, the defendants access oil and gas leases, and/or drill sites, and/or

oil, gas, and other minerals along the Road, including but not limited to ranches and leases along

and through approximately 6.9 miles of the Road. Dimmitt County alleged the defendants,

beginning in 2011 and thereafter, singularly or jointly, negligently and intentionally used the Road

in a manner that damaged or destroyed the Road. The County alleged claims for negligence,

negligence per se, and gross negligence.

        Twenty relators filed a second amended motion to dismiss under Rule 91a in which they

alleged the County’s “group pleadings” failed to identify specific instances of damage-causing

negligence, failed to attribute any damage or damage-causing negligence to a specific defendant

and were conclusory. 3 Relators also alleged they could not be held liable for “normal” use of the

Road or for ordinary wear and tear of the Road. Finally, relators alleged the County’s allegation

that the defendants each contributed to an indivisible injury for which they are jointly and severally




3
 This motion was filed after the County filed its second amended petition. When the County filed its third amended
petition, these relators elected to stand on their second amended motion to dismiss.

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liable has no basis in law. Relators asked that the County’s claims against them be dismissed with

prejudice.

        Another relator filed a first amended special exceptions and motion to dismiss. 4 This

relator alleged the County’s negligence and gross negligence claims had no basis in law because

it did not owe the County a duty to repair or maintain the Road.

        The twenty-second and last relator filed a joinder in and adoption of the above motions.

        After a May 8, 2018 hearing, the trial court denied the motions, and the twenty-two relators

filed a single petition for writ of mandamus. Dimmitt County filed a response, to which relators

replied.

                                        STANDARD OF REVIEW

        Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623

(Tex. 2007) (orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion

when there is no other adequate remedy at law. See In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.

1992) (orig. proceeding). To satisfy the clear abuse of discretion standard, the relator must show

“that the trial court could reasonably have reached only one decision.” Liberty Nat’l Fire Ins. Co.

v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (orig. proceeding) (quoting Walker, 827 S.W.2d at 840).

The relator has the burden of establishing both prerequisites to mandamus relief, and this burden

is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam).




4
 This motion was filed after the County filed its second amended petition. When the County filed its third amended
petition, this relator elected to stand on its first amended special exceptions and motion to dismiss.

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       The denial of a Rule 91a motion to dismiss is subject to mandamus review. In re Essex

Ins. Co., 450 S.W.3d 524, 526, 528 (Tex. 2014) (orig. proceeding) (per curiam) (reviewing denial

of Rule 91a motion to dismiss and concluding mandamus relief appropriate to spare the parties

and the public the time and money spent on fatally flawed proceedings). Mandamus review of the

denial of a motion to dismiss based on special exceptions may be appropriate “for trial court errors

where the very act of proceeding to trial, regardless of the outcome, would defeat the substantive

right involved.” In re XTO Energy Inc., 471 S.W.3d 126, 136 (Tex. App.—Dallas 2015, no pet.)

(concluding trial court abused its discretion by failing to grant relators’ special exceptions and

dismiss the claims).

                              RULE 91a MOTION TO DISMISS

       Rule 91a provides, in pertinent part, as follows:

       91a.1 Motion and Grounds. Except in a case brought under the Family Code or a
       case governed by Chapter 14 of the Texas Civil Practice and Remedies Code, a
       party may move to dismiss a cause of action on the grounds that it has no basis in
       law or fact. A cause of action has no basis in law if the allegations, taken as true,
       together with inferences reasonably drawn from them, do not entitle the claimant
       to the relief sought. A cause of action has no basis in fact if no reasonable person
       could believe the facts pleaded.

       91a.2 Contents of Motion. A motion to dismiss must state that it is made pursuant
       to this rule, must identify each cause of action to which it is addressed, and must
       state specifically the reasons the cause of action has no basis in law, no basis in
       fact, or both.
                                             ...

       1a.6 Hearing; No Evidence Considered. Each party is entitled to at least 14 days’
       notice of the hearing on the motion to dismiss. The court may, but is not required
       to, conduct an oral hearing on the motion. Except as required by 91a.7, the court
       may not consider evidence in ruling on the motion and must decide the motion
       based solely on the pleading of the cause of action, together with any pleading
       exhibits permitted by Rule 59.

TEX. R. CIV. P. 91a.




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A.     The County’s Allegations

       The relators who filed the Rule 91a motion to dismiss first asserted liability cannot be

premised on normal use of a road or gradual wear-and-tear damage. Relators contend the County’s

allegations show only “normal” use of the Road and the County’s allegations of “abnormal” use

are merely conclusory.

       The County alleged the following:

       1. Since 2011, the defendants used the road “in an abnormal, unreasonable, and
       negligent manner causing substantial, excessive and unnecessary damage to the
       Road far above and beyond normal wear and tear, with each act of negligence
       causing contemporaneous damage to the Road.

       2. The County provided a “non-exclusive list of the approximate dates of nineteen
       severe rain events” during which the defendants “were known to have” “negligently
       and intentionally driven and operated their vehicles and heavy equipment through,
       over, and across the Road” from approximately 2013 to the present. The County
       alleged that during the severe rain events the Road “was drenched by rain and
       particularly susceptible to damage from vehicles of the type driven by” the
       defendants.

       3. Each defendant engaged in the above conduct on one or more of the listed rain
       event dates. The dates were retrieved from documents produced by one of the
       defendants and include gate guard logs reflecting defendants’ use of the Road on
       or around the rain events; specify the date, type of vehicle; and, in many instances,
       specify the license plate of vehicles driven by defendants on the Road from 2013
       to 2015.

       4. Non-asphalt roads—such as the Road—are not designed to accommodate oil
       field traffic, heavy equipment, heavy vehicles, and other “abnormally-used objects”
       during and a reasonable time after rain events. Defendants failed to properly
       consider and evaluate whether the surface of the non-asphalt-paved Road could
       accommodate the vehicles, heavy equipment, and other objects of the size, weight,
       and speed of those that the defendants used on the Road during and a reasonable
       time after rain events. The risk of damage to the Road by the manner and methods
       of the defendants’ use of the Road was “readily foreseeable to a reasonable person.”

       5. Defendants observed that the use of their vehicles caused severe damage to the
       Road, but they continued to use the Road in the same manner without taking any
       precautions, with conscious disregard for the fact that additional severe damage
       would be caused to the Road. Defendants’ “abnormal” use of the Road was
       “negligent, intentional, and contrary to the normal and expected use and means of
       transport of the Road.”
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        The petition also specifically identified twenty-six defendants by name, of whom nineteen

are relators. Regarding these relators, the County alleged that “on several dates but not limited to”

specified dates, the defendant “negligently operated vehicles . . . on the Road during a severe rain

event, and [was] believed to have engaged in additional negligent operations on other dates.”

        Based on these allegations, the County asserted defendants owed the County a duty to not

damage the Road.

B.      Analysis

        When considering a Rule 91a motion to dismiss, the trial court construes the pleadings

liberally in favor of the plaintiff, looks to the plaintiff’s intent, and accepts the plaintiff’s factual

allegations as true. Vasquez v. Legend Nat. Gas III, LP, 492 S.W.3d 448, 450 (Tex. App.—San

Antonio 2016, pet. denied). If necessary, the trial court may draw reasonable inferences from the

factual allegations to determine if the cause of action has a basis in law or fact. Id. at 451.

Although a plaintiff’s factual allegations are taken as true, the same deference is not afforded to a

plaintiff’s legal conclusions or conclusory statements. Id. The determination of whether a cause

of action has any basis in law and in fact are both legal questions that we review de novo, based

on the allegations of the live petition and any attachments. Id.

        Based on the County’s allegations, we take as true that the defendants’ use of the Road

resulted in severe damage to the Road. The only “duty” the County alleges defendants owed was

“to not damage the Road.” The County does not allege defendants had a duty to repair or maintain

the Road or warn of a dangerous condition on the Road.

        The alleged “duty to not damage” is similar to the doctrine of waste, which “reflects the

implicit duty of a tenant to exercise reasonable care to protect the leased premises from injury

other than by ordinary wear and tear. Because the tenant has such a duty, its breach constitutes

waste.” King’s Court Racquetball v. Dawkins, 62 S.W.3d 229, 233 (Tex. App.—Amarillo 2001,
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no pet.). Thus, the dispositive issue in this mandamus proceeding is whether relators had a duty

to exercise reasonable care to protect the County’s Road from injury other than by ordinary wear

and tear.

       Relators rely on this court’s opinion in Vasquez, which involved allegations that the

defendants owed the plaintiff a duty to repair a damaged road or a duty to warn of a dangerous

condition created on the road. The “sole issue on appeal [was] whether [the defendants had] a

legal duty to act to prevent [Jose] Vasquez’s death from the dangerous situation on Krueger Road

that [the defendants] themselves created.” This court took as true appellant’s allegations that the

defendants’ “continuous and allegedly negligent acts created a dangerous condition on the

roadway in question (i.e., a dilapidated road).” Id. at 451-52. Therefore, the issue became whether

appellant’s pleadings sufficiently showed a basis in law that the defendants owed a legal duty to

Jose to repair the road or warn of a potentially dangerous condition on the road. Id. at 452. The

court concluded defendants owed no legal duty to repair the road because that duty remained with

the governmental entity that controlled the road. Id. at 454. The court also concluded defendants

owed no legal duty to warn of a potentially dangerous condition based on an inference that the

road was designed for all forms of traffic, including defendants’ work-related vehicles. Id. at 455.

Therefore, the court affirmed the Rule 91a dismissal.

       The Vasquez court relied on the Texas Supreme Court’s opinion Grapotte v. Adams, 130

Tex. 587, 111 S.W.2d 690 (1938), which involved a duty to exercise ordinary care to maintain a

sidewalk. In that case, a hole or depression was caused by motor vehicles passing over the

sidewalk, and the use of the sidewalk by the defendant in having his customers pass over it had

deepened the hole or depression to some extent. The Supreme Court assumed, for the purposes of

the opinion, that the defendant contributed to cause this depression by inviting his customers to

cross over the sidewalk. Grapotte, 111 S.W.2d at 691. However, the Court concluded no cause
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of action against the defendant existed because the sidewalk was a part of the street and “the duty

to exercise ordinary care to maintain such sidewalk in a reasonably safe condition for the use of

the public rests upon the city, and not upon the abutting property owner.” Id. According to the

Court, the defendant “committed no unusual, wrongful, or unlawful act which caused the hole or

depression here involved.” Id.

        The Vasquez court also cited to Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109, 109

(1942), which considered “whether one who drives over a bridge on a public road and thereafter

discovers that such bridge, because of its defective condition, has broken down under the weight

of his vehicle, without negligence on his part, is under any duty to give warning so as to prevent

other travelers from being injured as a result of the broken bridge.” The Court determined the

driver had no duty

        because the bridge was already in a defective condition. It was insufficient in
        strength to carry a normal load. It merely gave way as the result of the usual and
        legitimate use of the road. It fell as a result of its own inherent defects. Defendant
        was merely the victim of a defective condition that already existed. It would be
        carrying the matter too far to say that one must give notice of every known defect
        in a road naturally resulting from his normal and legitimate use thereof. To so hold
        would make the use of the highways too hazardous from the standpoint of public
        liability.

Id. at 110.

        Although Buchanan, Grapotte, and Vasquez involved different legal duties, we believe the

opinions provide some guidance here because the courts considered how the property was used by

the defendant. In Buchanan, the Court determined the defendant “was merely the victim of a

defective condition that already existed.” Id. In Grapotte, the Supreme Court determined the

“[d]efendant committed no unusual, wrongful, or unlawful act which caused the hole or

depression” and it “was not unusual, wrongful, or unlawful for him to conduct his garage business

in the way that he did.” Grapotte, 111 S.W.2d at 691-92. The Grapotte Court noted “many cars


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passed over this sidewalk as [defendant’s] invitees, but such fact simply shows the degree or

quantity of use—not an unusual use in a legal sense, and not a wrongful or an unlawful use.” Id.

at 692. In Vasquez, the court stated, “[e]ven taking all of [appellant’s] factual allegations as true,

[the defendants’] employees were driving work-related vehicles on a roadway designed for

vehicular traffic. Because there is no allegation the roadway was only intended for a specific

group, for example, passenger vehicles, we infer from the pleadings that Krueger Road was

designed for all forms of traffic, including [the defendants’] work-related vehicles and Jose’s

vehicle.” Vasquez, 492 S.W.3d at 455.

       We believe the County’s contention that relators used the Road in an “abnormal” manner

is conclusory. The County admitted in its petition that the Road is a non-asphalt-paved road “not

designed to accommodate oil field traffic, heavy equipment, heavy vehicles, and other abnormally-

used objects during and a reasonable time after rain events.” However, as in Vasquez, “there is no

allegation the [Road] was only intended for a specific group, for example, passenger vehicles.”

492 S.W.3d at 455 (emphasis added). There also is no allegation the County posted any notice

that heavy vehicles could not use the Road during and a reasonable time after rain events. Even

taking all the County’s factual allegations as true, relators’ employees were merely driving work-

related vehicles on a roadway designed for vehicular traffic.

       As in Grapotte, we conclude relators did not commit any “unusual, wrongful, or unlawful

act which caused the [damage to the Road] here involved.” 111 S.W.2d at 691. “It certainly was

not unusual, wrongful, or unlawful for [relators] to conduct [their business] in the way that [they]

did.” Id. at 691-92. Taking as true the County’s allegations that relators drove their vehicles over

the Road during rain events, “such fact simply shows the degree or quantity of use—not an unusual

use in a legal sense, and not a wrongful or an unlawful use.” Id. at 692; see also Jezek v. City of



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Midland, 605 S.W.2d 544, 548 (Tex. 1980) (“[t]here can be no more ‘normal use’ of a roadway

than to be driven upon by a motor vehicle.”).

       Although relators may have had a moral duty to not damage the Road, we cannot say they

had a legal duty. Therefore, we conclude the County’s pleading failed to show a basis in law that

relators had a legal duty to not damage the Road and the trial court erred in denying the Rule 91a

motion to dismiss.

                                    SPECIAL EXCEPTIONS

       “A special exception shall not only point out the particular pleading excepted to, but it shall

also point out intelligibly and with particularity the defect, omission, obscurity, duplicity,

generality, or other insufficiency in the allegations in the pleading excepted to.” TEX. R. CIV. P.

91. “A special exception is the proper method to determine whether the plaintiff has pled a cause

of action.” Buecher v. Centex Homes, 18 S.W.3d 807, 809 (Tex. App.—San Antonio 2000), aff’d

but criticized on other grounds, 95 S.W.3d 266 (Tex. 2002). A defendant may thus challenge the

sufficiency of plaintiff’s pleadings to state a cause of action by specifically pointing out the defect

or reason the claim is invalid. Ortega v. Trevino, 938 S.W.2d 219, 220 (Tex. App.—Corpus Christi

1997), rev’d on other grounds, 969 S.W.2d 950 (Tex. 1998). A trial court’s decision on the legal

question of whether to dismiss a case upon special exceptions for failure to state a cause of action

is reviewed de novo. Buecher, 18 S.W.3d at 809.

       One of the relators filed a first amended special exceptions and motion to dismiss. This

relator alleged the County’s negligence and gross negligence claims had no basis in law because

it did not owe the County a duty to repair or maintain the Road. As stated above, the only duty

alleged in the County’s petition was a duty to not damage the Road. The County did not assert

any defendant had a duty to repair the Road or maintain the Road. We conclude the special

exceptions lacked the necessary specificity because the defect alleged by this relator—no duty to
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repair or maintain—is not a basis for the County’s claim. Therefore, the trial court did not err in

denying the motion to dismiss based on special exceptions.

                                          CONCLUSION

       For the reasons stated above, we conclude the trial court erred by not granting the Rule 91a

motion to dismiss and the twenty relators who filed the motion, plus the one relator who joined the

motion, should have the County’s claims against them dismissed. Accordingly, we conditionally

grant relators’ petition for writ of mandamus with regard to the Rule 91a motion to dismiss and

direct the trial court to: (1) vacate that portion of its order denying the Rule 91a motion to dismiss;

and (2) grant the Rule 91a motion to dismiss. The writ will issue only in the event the trial court

fails to comply within fifteen days from the date of this opinion.

       We also conclude the trial court did not err in denying the motion to dismiss based on

special exceptions. Therefore, relators’ petition for writ of mandamus with regard to the First

Amended Special Exceptions and Motion to Dismiss is denied. We also deny relators’ request

that they recover costs of this mandamus proceeding from the County.


                                                    Marialyn Barnard, Justice




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