                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                   December 15, 2004

                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 04-20463
                         Summary Calendar


                  GERALD CREDEUR; LINDA CREDEUR,

                                            Plaintiffs-Appellants,

                              versus

  MJ OIL INC., doing business as TransTexas Gas Corp., ET AL.;

                                                        Defendants,

         NABORS DRILLING USA, INC.; TRANS TEXAS GAS CORP.

                                             Defendants-Appellees.


           Appeal from the United States District Court
                for the Southern District of Texas
                          (4:01-CV-1377)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Gerald and Linda Credeur (Credeur) appeal the summary judgment

against their claims against TransTexas Gas Corporation and Nabors

Drilling U.S.A., Inc.   Credeur contends TransTexas and Nabors do

not fall within the protections of Chapter 95 of the Texas Civil

Practices and Remedies Code (Chapter 95) and are liable under

theories of common law premises liability and gross negligence for



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Mr. Credeur’s injuries.      Alternatively, Credeur maintains that, if

TransTexas and Nabors are eligible for Chapter 95 protection,

Credeur   nonetheless   meets     the    requirements      for   imposition   of

liability under that statute.

     TransTexas owned and operated an oil and gas well in Texas; it

contracted   with   Nabors   to   drill     the    well.     TransTexas   also

contracted with Newpark Drilling Fluids to perform certain services

on the well, including mud filtration.         Mr. Credeur was employed by

Newpark and was responsible for operating and maintaining the

Newpark equipment on the well.          That equipment was located next to

mud tanks owned by Nabors.              Mr. Credeur was injured when he

partially fell through a grating hatch accessing Nabors’ mud tank,

after stepping from a mud cleaner located above the mud tanks onto

a step positioned on top of the hatch.            Credeur claims the grating

hatch hinges failed. Credeur brought claims against TransTexas and

Nabors to recover for personal injuries.

     TransTexas and Nabors moved for summary judgment, claiming:

Chapter 95 provides Credeur’s exclusive remedy and precludes his

common-law negligence claims; Credeur cannot meet the statutory

elements of premises liability under Chapter 95; Credeur cannot

establish a common law premises liability claim; and Credeur’s

gross negligence claim fails because there is no evidence of

conscious disregard for Mr. Credeur’s safety.              In granting summary

judgment, the district court ruled:         Chapter 95 provides Credeur’s



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exclusive remedy; and Credeur did not establish TransTexas’ and

Nabors’ liability under that statute.

     Credeur filed a motion for relief from judgment within ten

days after judgment.    See FED. R. CIV. P. 59(b).      The original

filing was stricken from the record, however, because it did not

conform to local filing rules.        The corrected motion was filed

outside the ten-day window, and is therefore treated as a motion

under FED. R. CIV. P. 60.   The district court denied the motion.

The district court’s striking the nonconforming motion was a final

action for purposes of FED. R. APP. P. 4(a)(4)(A)(v) and (vi), so

that the time to file a notice of appeal began on the date the non-

conforming motion was stricken.   We have jurisdiction because the

notice of appeal was timely filed from that final action.

     “This court reviews grants or denials of summary judgment de

novo, applying the same legal standards as the district court.”

Mayo v. Hartford Life Ins. Co., 354 F.3d 400, 403 (5th Cir. 2004).

Summary judgment is proper when “there is no genuine issue as to

any material fact and . . . the moving party is entitled to a

judgment as a matter of law”.     FED. R. CIV. P. 56(c).   The court

views the evidence in the light most favorable to the nonmovant,

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.

1997), but conclusory allegations unsupported by specific facts

will not prevent summary judgment, Doe v. Dallas Indep. Sch. Dist.,




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153 F.3d 211, 215 (5th Cir. 1998), cert. denied, 531 U.S. 1073

(2001).

     Chapter 95 applies to a claim against a property owner,

contractor, or subcontractor for personal injuries, when that claim

arises    from   the   condition   or    use    of    an   improvement   to   real

property,    where     the   contractor        or    subcontractor’s     employee

constructs, repairs, renovates, or modifies the improvement.                  TEX.

CIV. PRAC. & REM. CODE § 95.002.        Liability is imposed under Chapter

95 only if: (1) the property owner exercises or retains some

control over the manner in which the plaintiff’s work is performed;

and (2) the property owner had actual knowledge of the danger or

condition resulting in the personal injury and failed to adequately

warn.    TEX. CIV. PRAC. & REM. CODE § 95.003; Francis v. Coastal Oil &

Gas Corp., 130 S.W.3d 76, 83 (Tex. App. Houston 1 Dist. 2003); see

also Kelly v. LIN Television, 27 S.W.3d 564, 567 (Tex.App.-Eastland

2000, pet. denied).

     For the first time on appeal, Credeur contends Chapter 95 does

not apply to his claims against Nabors because it is not a property

owner under Chapter 95.       “Although on summary judgment the record

is reviewed de novo, this court, for obvious reasons, will not

consider evidence or arguments that were not presented to the

district court for its consideration in ruling on the motion.”

Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 (5th Cir.),

cert. denied, 506 U.S. 832 (1992).


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     Credeur also maintains Chapter 95 does not apply because Mr.

Credeur’s work on the rig for Newpark was not construction, repair,

renovation, or modification.          Although the district court noted

that neither party specified what Mr. Credeur’s actual duties

entailed, the district court decided that Mr. Credeur’s activity

fit within this requirement of Chapter 95, because Newpark was

hired to filter mud, which was in turn used in drilling.                 For

purposes of     §   95.003,   Texas   courts   have   found   that   activity

facilitating a well’s performance is construction, renovation, or

modification.       See Francis, 130 S.W.3d at 85.            Mr. Credeur’s

actions qualify to invoke Chapter 95.

     As discussed, for liability under Chapter 95, the property

owner must retain some control over the injured party’s work and

must have actual knowledge of the conditions causing the injury.

Credeur contends that TransTexas controlled Mr. Credeur’s work when

its employee ordered him to change equipment owned by Newpark;

directed him to change the type and density of filters used; and

scheduled mud-removal from the drill site.            Viewing the facts in

the requisite light most favorable to Credeur, the district court

found Credeur could prove TransTexas had control over Mr. Credeur’s

actions.   We agree.

     For TransTexas and Nabors to incur liability under Chapter 95,

however, they must also have had actual knowledge of the danger or

condition resulting in Mr. Credeur’s injuries.           See TEX. CIV. PRAC.


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& REM. CODE § 95.003(2).    Based on our review of the record, we find

no evidence to support such knowledge. Accordingly, TransTexas and

Nabors are protected from liability under Chapter 95. This statute

is   the   sole   basis   for   liability   under   these   circumstances;

therefore, Credeur’s common law claims must fail.



                                                               AFFIRMED




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