Painter v. Momentum Energy Corp.

• Decision Date: 20 November 2008
• Docket Number: No. 08-07-00112-CV.,08-07-00112-CV.
• Citation: 271 S.W.3d 388
• Parties: Dusty Ray PAINTER, Individually and as Next Friend of Dezaray Nicole Speer and Summer Dawn Painter, Minors, and Tina Perkins, Individually and as Representative of the Estate of Jesse Perkins, Deceased, Appellants, v. MOMENTUM ENERGY CORPORATION, McGuire Industries, Inc., and Xact Technologies, Inc., Appellees.
• Court: Texas Court of Appeals

271 S.W.3d 388

Dusty Ray PAINTER, Individually and as Next Friend of Dezaray Nicole Speer and Summer Dawn Painter, Minors, and Tina Perkins, Individually and as Representative of the Estate of Jesse Perkins, Deceased, Appellants, v. MOMENTUM ENERGY CORPORATION, McGuire Industries, Inc., and Xact Technologies, Inc., Appellees.

No. 08-07-00112-CV.

Court of Appeals of Texas, El Paso.

November 20, 2008.

Ken Slavin, Kemp Smith, P.C., El Paso, TX, for Appellants.

Harper Estes, Lynch, Chappell & Alsup, Midland, TX, for Appellees Momentum Energy Corporation.

Gary M. Bellair, Craig, Terrill & Hale, L.L.P., Lubbock, TX, for Appellees Xact Technologies, Inc.

Nathan M. Rymer, Rymer, Moore, Jackson & Echols, P.C., Houston, TX, for Appellees McQuire Industries, Inc.

Before CHEW, C.J., McCLURE, and CARR, JJ.

OPINION

KENNETH R. CARR, Justice.

Appellants, Dusty Ray Painter, Individually and as next friend of minors Dezaray Nicole Speer and Summer Dawn Painter and Tina Perkins, individually and as representative of the Estate of Jesse Perkins, deceased, appeal the trial court's grant of summary judgment in favor of Momentum Energy Corporation, McGuire Industries, Inc. ("McGuire"), and Xact Technologies, Inc. We affirm the judgment of the trial court.

I. BACKGROUND

On August 7, 2004, Jesse Perkins and Dusty Painter were employees of Robinson Drilling of Texas, Ltd. ("Robinson"), when Perkins was killed and Painter paralyzed after having been struck by a rotating head that fell from the top of a blowout preventer during disassembly of a drilling rig at the Lindsey No. 1 well site in Upton County. Robinson had been hired by Momentum, the operator, to drill a well, pursuant to an IADC Drilling Bid Proposal and Footage Drilling Contract (the "Drilling Contract").

Momentum, the 100 percent owner of the leasehold working interest of the relevant mineral property, hired Xact to provide a contract representative to oversee certain aspects of the operation, including the running of casings, cementing the casings, setting the slips, electric logging, and drill-stem testing. Xact hired Melvin Fesler to serve as the contract representative for itself and Momentum.

On the date of the accident, the well had reached total depth and Robinson employees were in the process of rigging down the drilling rig. As part of the process, Robinson employees had to remove the casing from the blowout preventer stack and lay the blowout preventer on the ground. The blowout preventer is a large, heavy piece of equipment. The rotating head, a separate piece of equipment that weighs approximately 2,000 pounds, was bolted to the top of the blowout preventer. The blowout preventer was owned by Robinson, while the rotating head was rented from McGuire. Painter and Perkins worked on the daylight tour, which ran from 6 a.m. until 2 p.m.

Robinson employees on the previous shift had removed or loosened some of the bolts securing the rotating head to the top of the blowout preventer in anticipation of hoisting it off of the blowout preventer, before laying the preventer on the ground. At the time of the accident, there remained two bolts securing the rotating head to the preventer, and the nuts attached to the bolts were only hand-tightened. The fact that some of the bolts had been removed and others loosened was not communicated to the members of the daylight tour.

The daylight tour employees sought to remove the blowout preventer from the rig by removing it with the rotating head still attached. The daylight crew attached the draw works towards the top of the blowout preventer in order to lift it, and attached an air hoist to the bottom of the blowout preventer to pull the lower portion of preventer out and tilt it. The crew then lifted the blowout preventer, pulled the bottom aside, and began to lay it over. When they did so, the rotating head fell from the top of the preventer, killing Perkins and severely injuring Painter.

Painter and Perkins brought suit against Momentum and Xact, based on premises liability,¹ and against McGuire, based on strict liability, negligence, and breach of warranty. Momentum and Xact both filed traditional and no-evidence motions for summary judgment. They argued that chapter 95² of the Texas Civil Practices and Remedies Code applied to the claims against them and that they were entitled to summary judgment, because there was no evidence that either exercised control over Robinson and its employees and no evidence that either had actual knowledge of the danger. Momentum and Xact also filed for summary judgment on common law negligence claims, in the event that chapter 95 was deemed inapplicable. McGuire moved for traditional and no-evidence summary judgments on all of the claims against it. After a hearing on the various motions, the trial court granted summary judgment in favor of Momentum, Xact, and McGuire. The trial court did not specify the grounds for its judgment.³

II. DISCUSSION

A. Standard of Review

The standard of review for a traditional summary judgment asks whether the movant carried the burden of showing that there is no genuine issue of material fact, so that judgment should be granted as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005); De Santiago v. West Tex. Cmty. Supervision & Corr. Dep't, 203 S.W.3d 387, 398 (Tex.App.-El Paso 2006, no pet.). Summary judgment is proper if the defendant disproves at least one element of each of the plaintiff's causes of action, D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002), or establishes all elements of an affirmative defense to each claim, Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001). Once the movant establishes a right to judgment as a matter of law, the burden shifts to the non-movant to produce evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). When reviewing a summary judgment, we take as true all competent evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002) (citing Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).

The Texas Rules of Civil Procedure also permit a party to move for a no-evidence summary judgment "without presenting summary judgment evidence," but they require the moving party to "state the elements as to which there is no evidence." TEX. R. CIV. P. 166a(i); Aguilar v. Morales, 162 S.W.3d 825, 834 (Tex.App.-El Paso 2005, pet. denied). The burden then shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged in the motion. Aguilar, 162 S.W.3d at 834.

A no-evidence motion for summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742 750-51 (Tex.2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004). We view the evidence in the light most favorable to the non-movant, and we must disregard all contrary evidence and inferences. Id. at 751. A genuine issue of material fact is raised if the non-movant produces more than a scintilla of evidence regarding the challenged element. Id. There is not a scintilla of evidence when the evidence is so weak as to do no more than create a mere surmise or suspicion of material fact. Ianni v. Loram Maint. of Way, Inc., 16 S.W.3d 508, 513 (Tex.App.-El Paso 2000, pet. denied). Evidence that fails to constitute more than a mere scintilla is, in legal effect, no evidence at all. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001).

B. Momentum's Traditional and No-Evidence Motions for Summary Judgment

In its no-evidence motion for summary judgment, Momentum argued that chapter 95 of the Civil Practice and Remedies Code applies to the negligence claims against it and that there was no evidence that Momentum exercised or retained control over the manner in which Robinson (including Perkins and Painter) performed their work.⁴ Momentum also argued that there was no evidence that it had actual knowledge of the danger or condition resulting in Perkins' death and Painter's injury. Momentum argued that, even if chapter 95 were inapplicable, there was no evidence under a common-law negligence claim that Momentum owed a duty to Perkins and Painter, and no evidence of any breach of duty by Momentum that proximately caused their injuries.

Momentum asserted the same grounds with regard to chapter 95 in its traditional motion for summary judgment. With regard to the negligence claims against it, Momentum argued that it did not owe a duty to Perkins and Painter, because it did not exercise control, or have contractual control, over Robinson and its employees.

As evidence in support of its traditional motion, Momentum attached the affidavit of Melvin Fesler. In his affidavit, Fesler stated that he was retained as an independent contractor by Xact Technologies to serve as a contract representative for Momentum on the Lindsey No. 1 Well for the sole purposes of overseeing the running of the casings, cementing the casings, setting the slips, electric logging, and drill-stem testing. Fesler stated that, at the time of the accident, Robinson's employees were in the process of laying down Robinson's blowout preventer and that he was not retained to oversee or supervise this process. Fesler further stated that he did not, at any time, exercise or retain control over the manner in which the work was performed by Robinson's employees in laying down the blowout preventer, including the removal of the bolts or studs that secured the rotating head. Fesler also stated that, prior to the accident, he was unaware of the method that Robinson used to remove the rotating head and that he had no actual knowledge of the danger or condition that resulted in...