Opinion issued December 5, 2019




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-17-00913-CV
                         ———————————
                     REFUGIO SANCHEZ, Appellant
                                     V.
            PRECISION DRILLING COMPANY, LP, Appellee


                  On Appeal from the 151st District Court
                           Harris County, Texas
                     Trial Court Case No. 2015-77477


                       MEMORANDUM OPINION

     Appellant, Refugio Sanchez, has filed a motion for rehearing of our August

20, 2019 opinion and judgment. See TEX. R. APP. P. 49.1. We deny Sanchez’s
motion for rehearing but withdraw the previous opinion and substitute this opinion

in its place to clarify the basis for our conclusions regarding causation.1

      Refugio Sanchez was injured on a jobsite while working for independent

contractor Precision Drilling Holdings Company (Holdings). He sued Precision

Drilling Company, LP (Precision), another independent contractor working at the

jobsite, for negligence in failing to ensure a safe work environment. In one issue,

Sanchez challenges the trial court’s rendition of summary judgment in favor of

Precision on both matter-of-law and no-evidence grounds.

      We affirm.

                                    Background

      COG Operating LLC, an exploration and production company, contracted

with Precision to drill several oil and gas wells. As part of the contract, COG

agreed to pay Precision for “mobilization,” which included “move in, rig up, [and]

rig down.”

      COG contracted separately with Holdings to transport oil and gas rigs at its

well sites. Sanchez worked as a “swamper” for Holdings, mainly assisting

Holdings’ truck drivers in moving the rigs.

      On April 30, 2013, Sanchez and fellow Holdings employees Ivan Torres and

Austin Matejowsky were working to transport Precision’s Rig 105 to a COG well


1
      We also vacate our prior judgment and issue separately a new judgment.
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site. As part of this project, the three men were tasked with loading a portable

generator onto a pole truck and moving it to another position at the site.

      Pursuant to Torres’s instructions, Sanchez used chains and rope to secure the

generator to the truck. Once the generator was loaded, Torres got behind the wheel

of the pole truck. Sanchez and Matejowsky remained outside the truck, and

Matejowsky began flagging Torres to back it up. While he was directing Torres,

Matejowsky radioed Precision’s rig manager, Ricky Menard—the only Precision

employee involved in the accident—to ask him where they should place the

generator. At that moment, the generator began to swing to the driver’s side,

causing Torres to lose control of it. In an effort to gain control of the generator,

Sanchez held onto the tag line with two hands and followed it to the rear of the

truck. Matejowsky saw neither the load begin to swing nor Sanchez’s position

behind the truck, and he continued flagging Torres to back up. As Sanchez stepped

between the generator and the pole truck, the pole truck ran over his right foot and

leg. Sanchez suffered severe injuries, and as a result, had his leg amputated.

      Sanchez sued Precision for negligence, alleging that it breached its duty to

maintain a safe work environment for the mobilization work he was performing

when he was injured.




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      Precision moved for both traditional and no-evidence summary judgment.

The trial court granted both motions without specifying its grounds and dismissed

Sanchez’s suit.

                              Summary Judgment

A.    Standard of Review

      We review a trial court’s summary judgment de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take

as true all evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Valence Operating,

164 S.W.3d at 661; Provident Life, 128 S.W.3d at 215.

      Following an adequate time for discovery, a party may move for summary

judgment on the basis that there is no evidence of one or more essential elements

of a claim on which the adverse party would have the burden of proof at trial. TEX.

R. CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (per

curiam). To defeat a no-evidence motion, the nonmovant must produce at least a

scintilla of evidence raising a genuine issue of material fact as to the challenged

elements. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45

(Tex. 2017). “More than a scintilla of evidence exists if the evidence ‘rises to a

level that would enable reasonable and fair-minded people to differ in their


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conclusions.’” Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 376 (Tex.

App.—Houston [1st Dist.] 2012, pet denied) (quoting Merrell Dow Pharms., Inc.

v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). We consider the evidence in the

light most favorable to the nonmovant and indulge every reasonable inference from

the evidence in the nonmovant’s favor. Lightning Oil, 520 S.W.3d at 45.

      A party moving for traditional summary judgment bears the burden of

proving that no genuine issues of material fact exist on at least one essential

element of the cause of action asserted and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Lightning Oil, 520 S.W.3d at 45. A matter

is conclusively established if reasonable people could not differ as to the

conclusions to be drawn from the evidence. See City of Keller v. Wilson, 168

S.W.3d 802, 816 (Tex. 2005). If the movant meets its burden, the burden then

shifts to the nonmovant to raise a fact issue precluding summary judgment. See

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

      When, as here, the summary judgment order does not specify the grounds on

which it was granted, the appealing party must demonstrate that none of the

proposed grounds supports the judgment. West v. SMG, 318 S.W.3d 430, 437 (Tex.

App.—Houston [1st Dist.] 2010, no pet.). We will affirm a summary judgment

ruling if any of the grounds asserted in the motion is meritorious. Lightning Oil,




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520 S.W.3d at 45; Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied).

B.    Analysis

      In his sole issue on appeal, Sanchez argues that the trial court erred by

granting Precision’s summary-judgment motion on both traditional and no-

evidence grounds. We begin with the no-evidence motion. See Lightning Oil, 520

S.W.3d at 45 (“If a party moves for summary judgment on both traditional and no-

evidence grounds, as the parties did here, we first consider the no-evidence

motion.”).

      In its no-evidence motion, Precision challenged each of the elements of

Sanchez’s negligence claim, including duty, breach, and damages proximately

caused by the breach. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006)

(per curiam). If the trial court could have properly granted summary judgment

based on a lack of evidence of proximate cause, we must affirm. See Doe v.

Messina, 349 S.W.3d 797, 804 & n.6 (Tex. App.—Houston [14th Dist.] 2011, pet.

denied) (upholding summary judgment based on proximate cause without reaching

question of duty). Accordingly, we consider whether Sanchez produced at least a

scintilla of evidence raising a genuine issue of material fact as to whether Precision

proximately caused his injuries. See Lightning Oil, 520 S.W.3d at 45 (“When a

trial court does not specify the grounds it relied upon in making its determination,


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reviewing courts must affirm summary judgment if any of the grounds asserted are

meritorious.”).

      The components of proximate cause are cause-in-fact and foreseeability.

HMC Hotel Props. II Ltd. P’ship v. Keystone-Tex. Prop. Holding Corp., 439

S.W.3d 910, 913 (Tex. 2014); Rampersad v. CenterPoint Energy Hous. Elec.,

LLC, 554 S.W.3d 29, 33 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

      On this record, we begin and end with cause-in-fact, which asks whether

Precision’s (allegedly) negligent act or omission was “a substantial factor in

bringing about” the injury, without which the harm would not have occurred. See

HMC Hotel Props., 439 S.W.3d at 913 (“The cause-in-fact element is satisfied by

proof that (1) the act was a substantial factor in bringing about the harm at issue,

and (2) absent the act (‘but for’ the act), the harm would not have occurred.”).

“These elements cannot be established by mere conjecture, guess, or speculation.”

Id.

      Sanchez contends that Precision, through Menard, caused his injuries by

(1) distracting Matejowski and thus preventing him from seeing that Sanchez was

behind the pole truck as he continued to direct Torres to back up, and (2) failing

“to identify and correct multiple hazards” at the worksite. As evidence, he relies on

the report of his expert, Douglas W. Smith, which concludes that Precision failed

to (1) require Holdings “to implement and/or otherwise ensure adequate


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procedures were in place during the rig move operation involved in the subject

incident,” and (2) ensure a safe worksite through Menard’s having “wholly failed

to identify and correct multiple hazards that led to” Sanchez’s injuries.

      Smith’s report does not identify any procedure that Precision failed to

require Holdings to implement, much less state that such procedure would have

prevented the accident. Therefore, Smith’s first conclusion does not constitute

evidence of cause-in-fact. See Excel Corp. v. Apodaca, 81 S.W.3d 817, 822 (Tex.

2002) (holding that plaintiff failed to present legally sufficient evidence to support

jury finding that defendant’s negligence was cause-in-fact of his injuries because

he failed to establish that “had [defendant] employed . . . other practices, [plaintiff]

would not have been injured”); see also HMC Hotel Props., 439 S.W.3d at 917

(holding that there was no evidence of cause-in-fact where plaintiff’s witnesses

“never testified there was a possibility of a different outcome had [defendant] not

[acted negligently]”).

      Nor does Smith’s second conclusion—that Menard failed to identify and

correct “multiple hazards” that caused Sanchez’s injuries—constitute evidence of

cause-in-fact. Under the heading “Contributing Factors,” Smith identifies nine

factors, taken almost verbatim from Holdings’ Serious Incident Investigation

Report, that he opines contributed to causing Sanchez’s injuries:




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         (1) the height of the pole truck would not have allowed Torres to
             see Sanchez when he was within three feet of the rear of the
             truck;

         (2) Sanchez failed to attend a pre-job safety meeting or job safety
             review;

         (3) the manner in which Sanchez installed the tag line to the tongue
             end of the generator, together with the direction of the rotation,
             drew Sanchez closer to the truck and rear tires;

         (4) Sanchez had no means to contact Torres when the load began to
             shift;

         (5) Matejowsky was distracted from directing Torres by his
             communication with Menard concerning where to place the
             load;

         (6) Matejowsky failed to observe both the load rotate and
             Sanchez’s position behind the pole truck;

         (7) Sanchez was “too close to” the moving pole truck;

         (8) Sanchez was distracted by his efforts to control the load while
             the pole truck was moving; and

         (9) Torres did not see that Sanchez had moved behind the pole
             truck.

      Smith does not indicate which of these nine factors are attributable to

Menard. See HMC Hotel Props., 439 S.W.3d at 913 (holding that cause-in-fact

“cannot be established by mere conjecture, guess, or speculation”); Akin, Gump,

Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106,

122 (Tex. 2009) (“Causation must be proved, and conjecture, guess, or speculation

will not suffice as that proof.”). For example, he does not assign responsibility for


                                         9
Sanchez’s nonattendance at the safety meeting, placement behind and too close to

the pole truck, or attempt to control the load when the pole truck was moving.

Similarly, Smith does not indicate that Menard caused Matejowsky’s distraction.

Indeed,   Holdings’   Serious   Incident     Investigation   Report   indicates   that

Matejowsky—not Menard—initiated the contact that Sanchez claims caused

Matejowsky to be distracted: “[Matejowsky] asked [Menard] where to put the

generator and at the same time . . . [Matejowsky] was flagging [Torres].” Nor does

Smith’s report identify which of the nine factors contributed “substantially” to

bringing about Sanchez’s injuries. See HMC Hotel Props., 439 S.W.3d at 913

(holding that cause-in-fact requires showing that negligent act or omission “was a

substantial factor in bringing about the harm at issue”). Thus, Smith’s second

conclusion also falls short of what is required to demonstrate cause-in-fact. See

Christus St. Mary Hosp. v. O’Banion, 227 S.W.3d 868, 874–75 (Tex. App.—

Beaumont 2007, pet. denied) (holding that testimony that event “contributed to”

patient’s death and decreased his “likelihood of surviving” was no evidence of

proximate cause and thus evidence was legally insufficient to support jury finding);

Sisters of St. Joseph of Tex., Inc. v. Cheek, 61 S.W.3d 32, 36–37 (Tex. App.—

Amarillo 2001, pet. denied) (holding that testimony that nurses’ negligence

“caused or contributed to” patient’s death was legally insufficient to support jury

finding of proximate cause).


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      We conclude that because Sanchez failed to provide more than a scintilla of

evidence to show that any act or omission attributable to Precision was a

cause-in-fact of his injuries, the trial court did not err in granting Precision’s no-

evidence motion for summary judgment. See Lightning Oil Co., 520 S.W.3d at 45

(holding that nonmovant must produce at least scintilla of evidence raising genuine

issue of material fact as to challenged elements to defeat no-evidence summary

judgment). Our conclusion makes it unnecessary to address whether Sanchez

presented evidence of duty or breach.2

      We overrule Sanchez’s sole issue.

                                      Conclusion

      We affirm the judgment of the trial court.




                                                Peter Kelly
                                                Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




2
      Because we hold that Precision is entitled to summary judgment on its no-
      evidence motion, we do not address its traditional motion. See Beverick v. Koch
      Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.
      denied) (“When a trial court does not state the basis for its decision in its summary
      judgment order, as in this case, we must uphold the order if any of the theories
      advanced in the motion is meritorious.”).

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