                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-265-CV


KIMBERLY EISEN, INDIVIDUALLY                                    APPELLANTS
AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF W. PAUL EISEN, MARANDA
EISEN, MARLENE EISEN, AND
WERNER HERMAN EISEN

                                       V.

FOUR SEVENS OPERATING CO.                                          APPELLEE
LTD.
                                   ------------

          FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                               I. INTRODUCTION

     Appellants Kimberly Eisen, individually and as personal representative of

the estate of W. Paul Eisen, Maranda Eisen, Marlene Eisen, and Werner Herman


     1
         … See Tex. R. App. P. 47.4.
Eisen appeal the trial court’s grant of summary judgment in favor of Appellee

Four Sevens Operating Co. Ltd. (“FSOC”). In two issues, Appellants argue that

the trial court erred by granting FSOC’s traditional and no-evidence motions for

summary judgment because genuine issues of material fact exist on each

challenged element of Appellants’ claims asserted against FSOC.         We will

affirm.

                  II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      FSOC owned and operated a natural gas wellsite located in Fort Worth.

FSOC contracted with Frac Tech Services, Ltd. to perform a “fracturing job” to

develop the gas resources at the site.2

      On September 14, 2005, a problem arose that required pump six to be

disabled and taken “off line.” A Frac Tech crew member “blocked in” pump six

so that its piping was shut off from the rest of the operation, and a leak was

discovered at the wellhead. Paul Eisen, a Frac Tech employee, set out to repair

the leak. At some point after the wellhead leak had been discovered but before

Paul had completed repairing the leak, Frank Autry, a part owner of Frac Tech,




      2
       … Fracturing operations involve the injection of water, sand, and
chemicals into the ground through a series of pipes using diesel engines as
pumps to create a high pressure environment. Fracturing cracks the rock, and
sand is inserted to hold the cracks open, which allows gas to escape to the
surface.

                                       2
arrived at the site and ordered that the pumps, including pump six, be brought

back on line. When pump six became pressurized, it exploded; Paul was struck

with piping, fluid under extreme pressure, or both, and he died. At the time of

the incident, Hunter Enis, the FSOC “company man,” and a few Frac Tech

employees, including Autry, were in Frac Tech’s technical control vehicle, or

“TCV.” 3

      Appellants brought a wrongful death and survival action against FSOC

and other entities, alleging that FSOC’s negligence proximately caused Paul’s

death.4 FSOC filed a traditional motion for summary judgment arguing that it

was entitled to judgment as a matter of law on Appellants’ claims because

FSOC did not exercise control over the manner in which Frac Tech performed

its work and because FSOC did not have actual knowledge of the blocked-in

valve that led to the accident.   FSOC also filed a no-evidence motion for

summary judgment in which it contested the existence of any evidence proving


      3
       … The TCV, which is a “large motor home,” contains equipment used to
monitor ongoing fracturing operations. Members of the Frac Tech crew inside
of the TCV communicate with members of the crew outside of the TCV by
using “headsets.”
      4
        … According to Appellants’ third amended original petition, FSOC was
“aware of the hazards associated with the fracturing operations it conducted,”
but it “failed to take proper precautions and corrective measures necessary to
provide a safe work place,” failed “to properly inspect, advise, correct[,] and
warn of hazards involved,” and failed “to provide for the safety of workers
involved in these operations.”

                                      3
that it had actual knowledge of the danger or condition that caused Paul’s

death, which Appellants must demonstrate as required by section 95.003(2) of

the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code

Ann. § 95.003(2) (Vernon 2005). FSOC specifically claimed that there was no

evidence that Enis “was aware of the blocked valve in the pipe before it was

pressurized, or that Frac Tech instructed its workers to pressurize a pipe that

had a blocked valve.”    The trial court granted both motions for summary

judgment.   Appellants filed a motion for new trial that was overruled by

operation of law before bringing this appeal. See Tex. R. Civ. P. 329b(a), (c).

    III. N O-E VIDENCE M OTION FOR S UMMARY J UDGMENT—A CTUAL K NOWLEDGE

      In their second issue, Appellants argue that the trial court erred by

granting FSOC’s no-evidence motion for summary judgment on the ground that

FSOC had no actual knowledge of the danger or condition that resulted in

Paul’s death.

      A.    Standard of Review

      When a party moves for summary judgment under both rules of civil

procedure 166a(c) and 166a(i), we will first review the trial court’s judgment

under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d

598, 600 (Tex. 2004). If the appellants failed to produce more than a scintilla

of evidence under that burden, then there is no need to analyze whether

                                      4
appellee’s summary judgment proof satisfied the less stringent rule 166a(c)

burden. Id.

      After an adequate time for discovery, the party without the burden of

proof may, without presenting evidence, move for summary judgment on the

ground that there is no evidence to support an essential element of the

nonmovant’s claim or defense.      Tex. R. Civ. P. 166a(i).    The motion must

specifically state the elements for which there is no evidence. Id.; Johnson v.

Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court

must grant the motion unless the nonmovant produces summary judgment

evidence that raises a genuine issue of material fact.      See Tex. R. Civ. P.

166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002).

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a

scintilla of probative evidence that raises a genuine issue of material fact, then

a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981

S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied). Less than a

scintilla of evidence exists when the evidence is so weak that it does nothing

                                        5
more than create a mere surmise or suspicion of a fact. Kindred v. Con/Chem,

Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists

when the evidence would enable reasonable and fair-minded people to reach

different conclusions. Ridgway, 135 S.W.3d at 601; Merrell Dow Pharm., Inc.

v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A genuine issue of material fact

is raised by presenting evidence on which a reasonable jury could return a

verdict in the nonmovant’s favor.    Moore, 981 S.W.2d at 266; see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255–56, 106 S. Ct. 2505,

2513–14 (1986) (interpreting Fed. R. Civ. P. 56). Accordingly, we review a

no-evidence summary judgment for evidence that would enable reasonable and

fair-minded jurors to differ in their conclusions.   Hamilton v. Wilson, 249

S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802,

822 (Tex. 2005)).

      B.    No Evidence of FSOC’s Actual Knowledge

      Chapter 95 of the Texas Civil Practice and Remedies Code applies to a

claim (1) against a property owner, contractor, or subcontractor for personal

injury, death, or property damage to an owner, a contractor, a subcontractor,

or an employee of a contractor or subcontractor (2) 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.

                                      6
Tex. Civ. Prac. & Rem. Code Ann. § 95.002.         “Property owner” means a

person or entity that owns real property primarily used for commercial or

business purposes. Id. § 95.001(3). Here, it is undisputed that Appellants’

action against FSOC is governed by chapter 95. Thus, it is undisputed that

FSOC is a property owner within the meaning of section 95.001(3), that

FSOC’s natural gas well is an improvement to real property within the meaning

of section 95.002(2), and that Frac Tech’s operations on the natural gas well

constituted construction, repair, renovation, or modification of the well within

the meaning of section 95.002(2). See id. § 95.001(3), 95.002(2); see also

Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 84–85 (Tex.

App.—Houston [1st Dist.] 2003, no pet.).

      A property owner is liable under chapter 95 if (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. As is evident from the statute’s plain language, the legislature did

not include constructive knowledge as a basis for imposing liability on a

premises owner; instead, the legislature expressly required that the premises

                                       7
owner have actual knowledge of the allegedly dangerous condition. See id.;

Phillips v. The Dow Chem. Co., 186 S.W.3d 121, 135 (Tex. App.—Houston

[1st Dist.] 2005, no pet.). Actual knowledge of a dangerous condition is what

a person actually knows, as distinguished from constructive knowledge, or

what a person should have known. See, e.g., City of Corsicana v. Stewart,

249 S.W.3d 412, 414–15 (Tex. 2008) (“Actual knowledge requires knowledge

that the dangerous condition existed at the time of the accident . . . .”); Tex.

S. Univ. v. Gilford, 277 S.W.3d 65, 70 (Tex. App.—Houston [1st Dist.] 2009,

no pet. h.) (addressing distinction between actual knowledge and constructive

or imputed knowledge); Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 30

(Tex. App.—Tyler 2003, pet. denied) (same).           Circumstantial evidence

establishes actual knowledge only when it either directly or by reasonable

inference supports that conclusion. Stewart, 249 S.W.3d at 415.

      In this case, FSOC moved for summary judgment on the ground that there

was no evidence that it had actual knowledge of the danger or condition that

gave rise to Paul’s death. The danger or condition giving rise to Paul’s death

was that pump six had been shut down and blocked in before it was

pressurized or that Autry had ordered a pump with a blocked-in valve to be

brought back on line. Appellants were thus required to come forward with

summary judgment evidence raising a genuine issue of material fact that FSOC

                                       8
had actual knowledge that pump six had been shut down and blocked in or that

Autry had ordered a pump with a blocked-in valve to be brought back on line.

See Tex. R. Civ. P. 166a(i); Tex. Civ. Prac. & Rem. Code Ann. § 95.003(2).

      Appellants’ summary judgment evidence includes excerpts from the

deposition testimony of Enis and Brady Borden, Ruben Castillo, and Brian

Allen—Frac Tech employees at the time of the incident. Appellants’ summary

judgment evidence also includes the affidavit of Lewis C. Barbe, P.E., a

“Weekly Time Summary” for Frac Tech employees, and the “Frac Tech Services

Accident, Injury and Incident Report.”

      Appellants argue that their summary judgment evidence raises a genuine

issue of material fact regarding FSOC’s actual knowledge because Enis was

present in the TCV when pump six was taken off line and blocked in and when

Autry issued the command to bring pump six back on line. Appellants contend

that anyone in the TCV would have been able to hear what was occurring and

that everything that was occurring through the headsets was amplified in the

TCV. According to Appellants, considering Enis’s “location and involvement,

[Enis] could not possibly have been unaware of what was occurring in the

control room.” We disagree.

      Appellants’ argument and supporting relevant summary judgment

evidence arguably implicate three means by which Enis had actual knowledge

                                         9
that pump six had been shut down and blocked in and that Autry had ordered

a pump with a blocked-in valve to be brought back on line: (1) Enis wore a

headset in the TCV; (2) Enis heard the order to shut down pump six over the

“open mic” option inside of the TCV or by merely being present in the TCV; and

(3) Enis heard the order to bring pump six back on line when Autry, who was

also inside of the TCV, gave the order in a loud, clear voice.

      The deposition testimony demonstrates that Frac Tech crew members

inside of the TCV had the ability to communicate with crew members outside

of the TCV through the use of headsets.         Borden, who was the “pump

operator,” testified that he geared down pump six after he heard the call over

his headset to shut down the pump. Borden was located at a table outside of

the TCV, and he testified that Paul—not Enis—had a headset on the day of the

incident. Indeed, Allen testified that Enis “wasn’t on the headset. Didn’t say

a word.” There is no evidence from anyone who was located inside of the TCV

that Enis had a headset on when the order was given to shut down pump six.

Accordingly, there is no evidence raising a genuine issue of material fact that

Enis acquired actual knowledge that pump six had been taken off line through

his use of a headset.

      The deposition testimony evidence also demonstrates that the TCV had

an “open mic” option that amplified into the TCV the communications between

                                      10
the Frac Tech crew members over their headsets. According to Allen, “If it’s

open mic, anybody in that TCV can hear what you’re saying at any given time.”

There is no evidence, however, that the amplification option was utilized when

the order to shut down pump six was given. Thus, there is no evidence that

the order to shut down pump six was amplified throughout the TCV. To the

extent Appellants argue that Enis had actual knowledge regarding pump six’s

blocked-in valve merely because he was inside of the TCV when the Frac Tech

crew members in the TCV gave the initial order to shut down pump six, this

evidence, if anything, merely demonstrates that Enis should have known—not

that he actually knew—that pump six had been taken off line and blocked in.

That Enis had constructive knowledge that pump six had been taken off line

and blocked in is not evidence that he had actual knowledge that pump six had

been taken off line and blocked in, which is what section 95.003(2) expressly

demands. See Tex. Civ. Prac. & Rem. Code Ann. § 95.003(2); Phillips, 186

S.W.3d at 135.

      There is further deposition testimony evidence that Autry ordered in a

loud, clear voice over his headset to bring the pumps, including pump six, back

on line and that, given the tone and volume of Autry’s voice, those persons

inside of the TCV would have heard the order and known what was “going on.”

Although the evidence that Autry gave the order to bring pump six back on line

                                      11
in a loud, clear voice raises an inference that Enis, who was inside the TCV at

the time, heard Autry give the order to bring pump six back on line, the

evidence does not raise a genuine issue of material fact that Enis knew Autry

gave an order to bring back on line a pump that had been blocked in.

      Appellants’ retained expert witness, Barbe, sets forth in his affidavit the

documents and materials that he reviewed and relied upon to arrive at his

opinions. In summarizing the information contained within these materials, he

opines that Enis “had actual knowledge of the dangers and conditions which

resulted in the death of Paul Eisen.” Considering the evidence relied upon by

Barbe, however, this is a conclusory statement that does nothing more than

create a mere surmise or suspicion of fact; it is not evidence on which a

reasonable jury could return a verdict in Appellants’ favor. See Moore, 981

S.W.2d at 266; Kindred, 650 S.W.2d at 63.

      Appellants’ summary judgment evidence of Frac Tech’s “Weekly Time

Summary” and the “Frac Tech Services Accident, Injury and Incident Report”

do not set forth any evidence raising a genuine issue of material fact that FSOC

had actual knowledge of the danger or condition that resulted in Paul’s death.

      The dissent states that “the majority discusses only whether Appellants

conclusively proved that Hunter Enis had actual knowledge that the pump had

been shut down and blocked in and that Autry had ordered a pump with a

                                       12
blocked-in valve to be brought back on line.” It seems to suggest that we also

should have examined the multitude of other ways in which Appellants alleged

that FSOC was grossly negligent, including lack of adequate communication,

forcing employees to work long hours, forcing employees to speed up

operations, and the failure of management to ascertain the status of operations.

The dissent, however, ignores section 95.003(2), which requires that FSOC

must have had actual knowledge of the danger or condition resulting in the

personal injury, death, or property damage. It is undisputed that the danger or

condition giving rise to Paul’s death was that pump six had been shut down and

blocked in before it was pressurized or that Autry had ordered a pump with a

blocked-in valve to be brought back on line. FSOC’s alleged lack of adequate

communication, forcing its employees to work long hours, forcing its employees

to speed up operations, and failure to ascertain the status of operations were

not dangers or conditions that gave rise to Paul’s death. The other evidence

relied upon by the dissent simply fails to raise a genuine issue of material fact

regarding FSOC’s actual knowledge; it shows FSOC’s constructive knowledge

of the dangerous condition or it is so weak that it does nothing more than

create a mere surmise or suspicion of a fact.

      Having examined the entire record in the light most favorable to

Appellants, indulging every reasonable inference and resolving any doubts

                                       13
against FSOC’s motion, we hold that Appellants failed to produce summary

judgment evidence raising a genuine issue of material fact that FSOC had actual

knowledge of the danger or condition that resulted in Paul’s death. See Tex.

R. Civ. P. 166a(i); Tex. Civ. Prac. & Rem. Code Ann. § 95.003(2).

Accordingly, we hold that the trial court did not err by granting FSOC’s no-

evidence motion for summary judgment. We overrule Appellants’ second issue.

      Appellants’ second issue is dispositive of this appeal. Having overruled

it, we need not address Appellants’ first issue complaining that the trial court

erred by granting FSOC’s traditional motion for summary judgment. See Tex.

R. App. P. 47.1.

                               IV. C ONCLUSION

      Having overruled Appellants’ dispositive second issue, we affirm the trial

court’s judgment.




                                           BILL MEIER
                                           JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

DELIVERED: May 28, 2009




                                      14
                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH


                            NO. 2-08-265-CV


KIMBERLY EISEN, INDIVIDUALLY                                   APPELLANTS
AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF W. PAUL EISEN, MARANDA
EISEN, MARLENE EISEN, AND
WERNER HERMAN EISEN

                                     V.

FOUR SEVENS OPERATING CO.                                         APPELLEE
LTD.

                                 ------------

        FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                 ------------

                        DISSENTING OPINION

                                 ------------

     Because I believe there is an issue of fact, I must respectfully dissent

from the majority opinion. At issue are whether FSOC exercised control over

the manner in which Frac Tech performed its work and whether FSOC had

actual knowledge of the danger or condition that caused Paul Eisen’s death.
The majority limits the issue of knowledge to knowledge of the blocked-in valve

that led to the explosion when the well went back on line.          Appellants,

however, did not limit their theories of recovery to knowledge of the blocked-in

valve, but also pled that defendants, including FSOC, were grossly negligent in

certain respects and that such conduct was a proximate cause of the explosion

resulting in Paul Eisen’s injuries and death.      Appellants enumerated the

following ways, among others, in which the defendants were grossly negligent,

thereby creating the section 95.003(2) danger or condition giving rise to Paul

Eisen’s death 1 :

            g. Lack of adequate communication between co-workers
      and/or between workers and management at the work site;

              ...

              j. Forcing employees to work exhaustingly long hours with
      little or no rent [sic] so they were no longer mentally sharp and
      capable of understanding the consequences of their actions;

            k. Forcing the employees to speed up operations in a
      dangerous work environment in order to meet cost and profit
      objections [sic] without regard for the value of human life; and

            l. The failure of management to ascertain the status of
      operations and the condition of equipment before attempting to
      operate the system under potentially dangerous conditions.




      1
          … Tex. Civ. Prac. & Rem. Code Ann. § 95.003(2) (Vernon 2005).

                                       2
Rather than considering whether there is an issue of fact, the majority discusses

only whether Appellants conclusively proved that Hunter Enis had actual

knowledge that the pump had been shut down and blocked in and that Autry

had ordered a pump with a blocked-in valve to be brought back on line. The

proper question is whether Appellants have raised an issue of fact. Another

appropriate question is whether the consecutive grueling twenty- to twenty-

three-hour work days created a dangerous condition.

      Enis testified in his deposition that he was in the trailer watching a

monitor, and it showed drops in pressure that indicated that something had

gone wrong. Brian Allen referred to Enis as the company man. He testified

that Enis came driving up just as “the job was going off” at 7:00 a.m. Autry

arrived a little later, and things were not going well, so Autry grabbed the

headset and started screaming. Allen testified that Enis was inside the TCV

and that he was “fully aware of what [was] going on.” Autry was outside on

the headset, screaming orders. Allen testified that “inside that TCV, you know,

it’s amplified. . . . Everything that’s said on the headset is amplified through a

speaker.”

      Allen also testified that even if the open mic is not turned on, “you can

understand what’s going on. I mean I’ve been around people and I’ve – hadn’t

had a headset before and—and just by listening to them talk, you know, you

                                        3
can tell what’s going on. . . . Somebody that’s experienced would know.” He

also testified, “But they had to have heard something because Joe Bueno was

asking if it could—if it had to be turned off line. So he’s visual—he’s physically

talking into the headset with whoever’s around him [in the TCV], next to him.”

It was agreed that you could see the wellhead from inside the TCV.

      Barbe stated in his affidavit that, based on the documents and materials

he reviewed, he concluded that Enis had actual knowledge of the dangers and

conditions which resulted in the death of Paul Eisen.

      There was deposition testimony that Enis determined the speed of the

work and had to approve the long work hours. There was some evidence that

Enis knew that the pump had been shut down and that it was being brought

back on line while the pump valve was still blocked in.

      Considering the record before this court, genuine issues of material fact

exist concerning whether FSOC had actual knowledge of the dangers or

conditions that resulted in Paul Eisen’s death, including Enis’s role in requiring

consecutive twenty- to twenty-three-hour work days that affected judgment

and safety and his role in the actions that resulted in the explosion that killed

Paul Eisen.

      Appellants were not required to conclusively prove their case to defeat

FSOC’s motion for summary judgment.          Their only burden was to raise a

                                        4
genuine issue of material fact. Based on the record before us, I would hold that

Appellants have met that burden.      Because the majority does not, I must

respectfully dissent.




                                           LEE ANN DAUPHINOT
                                           JUSTICE

DELIVERED: May 28, 2009




                                       5
