Opinion filed October 9, 2008




                                             In The


   Eleventh Court of Appeals
                                           __________

                                    No. 11-07-00148-CV
                                        __________

                                DENNIS VERNER, Appellant

                                                V.

PURE RESOURCES, INC., D/B/A TEXAS PURE RESOURCES, INC., AND
            PURE RESOURCES I, INC., Appellees


                           On Appeal from the 385th District Court
                                  Midland County, Texas
                              Trial Court Cause No. CV45953


                            MEMORANDUM OPINION
       This case arises from an on-the-job injury. Dennis Verner appeals from the trial court’s take-
nothing summary judgment in favor of Pure Resources, Inc., d/b/a Texas Pure Resources, Inc., and
Pure Resources I, Inc. on his claims. We affirm.
                                        Background Facts
       On June 4, 2003, Verner was injured in an oilfield accident. He alleged that his injury
resulted from the improper operation of a defective top drive unit. A daywork drilling contract
covered the operations on the subject rig at the time of the accident. In the contract, Pure
Resources, LP, was identified as the operator, and Pure Resources I, Inc. was identified as the
general partner of Pure Resources, LP.
       Following the accident, Verner brought a negligence suit against the following defendants:
(1) National Oilwell, Inc.; (2) Pure Resources, Inc. d/b/a Texas Pure Resources, Inc.; (3) Pure
Resources I, Inc.; (4) Patterson-UTI Energy, Inc.; (5) Patterson-UTI Drilling Company; and
(6) Patterson-UTI Drilling Company West LP, LLLP. He alleged that, at the time of the accident,
he was working for Patterson-UTI Drilling Company West LP, LLLP, and that Patterson West was
conducting drilling operations at Rig No. 488. He also alleged that the defendants committed
negligence in connection with the operation of the top drive unit.
       The Pure Resources defendants filed traditional and no-evidence motions for summary
judgment. They moved for summary judgment on multiple grounds, including the ground that there
was no evidence that they breached a legal duty to Verner. Verner filed a response to the motions
for summary judgment. Following a hearing, the trial court entered an order granting summary
judgment to the Pure Resources defendants. The trial court’s order did not specify the ground or
grounds relied on for its ruling. The trial court severed Verner’s claims against the Pure Resources
defendants from the remainder of the suit, and the summary judgment in favor of the Pure Resources
defendants became final and appealable.
                                          Issues on Appeal
       Verner presents three issues for review. He contends that the trial court erred in granting
summary judgment to the Pure Resources defendants because (1) the trial court improperly shifted
the burden of proof to him to disprove the Pure Resources defendants’ affirmative defense that they
were not proper parties; (2) a fact issue existed as to which Pure Resources entity was the proper
party under the subject drilling contract; and (3) more than a scintilla of evidence existed that the
Pure Resources defendants retained control over the premises and operations under the drilling
contract and that, therefore, a fact question existed on the control issue.
                                         Standard of Review
       Where, as here, a trial court’s order granting summary judgment does not specify the ground
or grounds relied upon for its ruling, summary judgment will be affirmed on appeal if any of the
summary judgment grounds advanced by the movant are meritorious. Dow Chem. Co. v. Francis,


                                                  2
46 S.W.3d 237, 242 (Tex. 2001). We will begin our analysis by reviewing the trial court’s summary
judgment under the standard of review for no-evidence summary judgments. See TEX . R. CIV .
P. 166a(i). When a no-evidence motion for summary judgment is filed, the burden shifts to the
nonmoving party to present evidence raising an issue of material fact as to the elements specified in
the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A trial court must grant
a proper no-evidence motion for summary judgment unless the nonmovant produces more than a
scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements
of the claim. Rule 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Wal-
Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). We review a no-evidence summary
judgment under the same standard as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 750-51 (Tex. 2003). We review 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. Tamez, 206
S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer &
Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002). We may not consider any evidence presented by
the movant unless it creates a fact question. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).
                                       Breach-of-Duty Issue
         The Pure Resources defendants moved for summary judgment on the ground that there was
no evidence they breached a duty to Verner. To establish negligence, the plaintiff must produce
evidence of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages
proximately caused by that breach. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex.
2001).
         For the purposes of our analysis, we assume, without deciding, that the Pure Resources
defendants owed a duty to Verner. To establish a breach of duty, the plaintiff must show either that
the defendant did something an ordinarily prudent person exercising ordinary care would not have
done under those circumstances or that the defendant failed to do that which an ordinarily prudent
person would have done in the exercise of ordinary care. Caldwell v. Curioni, 125 S.W.3d 784, 793
(Tex. App.—Dallas 2004, pet. denied); Lincoln Prop. Co. v. DeShazo, 4 S.W.3d 55, 61 (Tex. App.—
Fort Worth 1999, pet. denied). To defeat a no-evidence motion for summary judgment, Verner was


                                                 3
required to bring forth more than a scintilla of probative evidence to raise a genuine issue of material
fact on the breach-of-duty issue. Rivera v. South Green Ltd. P’ship, 208 S.W.3d 12, 21 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied).
        In response to the motions for summary judgment, Verner presented a one-page excerpt from
his deposition that related to the condition of the top drive unit. He also presented excerpts from
Flint Stults’s deposition testimony. Verner stated in his response to the motions for summary
judgment that he also was relying on the exhibits that were attached to the Pure Resources
defendants’ motions for summary judgment. The Pure Resources defendants attached the following
exhibits, among others, to their motions for summary judgment: (1) the subject daywork drilling
contract, (2) excerpts from Verner’s deposition testimony, and (3) excerpts from Stults’s deposition
testimony.
        In Verner’s response to the motions for summary judgment, he stated that the Pure Resources
defendants breached their duty “in failing to rectify the mechanical problems with the top-drive.”
The following exchange took place during Verner’s deposition:
              Q. [PURE RESOURCES’ COUNSEL] I’m trying to understand. What was
        wrong with it? I understand you’re telling me there was something wrong with it.

              A. [VERNER] Well, that’s what we was trying to understand at the time,
        what was wrong with it.

                Q. And you still to this day have no idea what was wrong with it?

                A. No, ma’am.

                Q. For what period of time do you think there was something wrong with it?

                 A. You know, several weeks before my accident, like I said. You know, they
        kept – you know, it’s not – you’re sitting there drilling with this top drive and all of
        a sudden, you know, it does a 90, you know, each way, then comes back and stops,
        you know. Like I was telling him, you know, there was definitely something wrong
        with it.

Stults was employed by National Oilwell at the time of Verner’s accident. He testified in his
deposition that he examined the top drive unit after the accident. He said that there was nothing
mechanically wrong with the top drive unit and that “[it] was all running perfectly.”

                                                   4
       Verner did not present evidence showing what, if anything, was wrong with the top drive
unit. He also did not present evidence showing how the condition of the top drive unit contributed
to cause the accident. There was no summary judgment evidence showing that the Pure Resources
defendants did something an ordinarily prudent person exercising ordinary care would not have done
under the circumstances or that they failed to do that which an ordinarily prudent person would have
done in the exercise of ordinary care. In light of the absence of evidence showing that the top drive
unit had mechanical problems at the time of his accident, Verner failed to meet his summary
judgment burden of bringing forth more than a scintilla of probative evidence to raise a genuine issue
of material fact on the breach-of-duty issue.
       The trial court did not err in granting no-evidence summary judgments to the Pure Resources
defendants on the breach-of-duty issue. We overrule Verner’s third issue. Based on our ruling on
Verner’s third issue, we need not address his first and second issues. TEX . R. APP . P. 47.1.
                                        This Court’s Ruling
       We affirm the judgment of the trial court.




                                                              TERRY McCALL
                                                              JUSTICE


October 9, 2008
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




                                                  5
