IN THE

TENTH COURT OF APPEALS

No. 10-19-00399-CV

NATIVE OILFIELD SERVICES, LLC,

Appellant

v.

TEXAS CHROME TRANSPORT, INC., 

HEADWATERS RESOURCES, INC., 

MJR TRUCK LINES, INC., 

AND WILLIAM "WILLIE" GRIFFIN,

Appellees

From the 85th District Court

Brazos County, Texas

Trial Court No. 17-002182-CV-85

MEMORANDUM OPINION

By one issue, appellant Native Oilfield Services, LLC (“Native”), challenges a 

summary judgment granted in favor of appellees, Texas Chrome Transport, Inc. (“TCT”), 

Headwaters Resources, Inc. (“Headwaters”), MJR Truck Lines, Inc. (“MJR”), and William 

“Willie” Griffin. Specifically, Native complains that the trial court erred by granting 

appellees’ traditional summary judgment based on standing. We reverse and remand.
Native Oilfield Servs., LLC, et al. v. Tex. Chrome Transp., Inc., et al. Page 2

Background

This case involves a commercial negligence claim among service providers in the 

oil and gas industry. On December 16, 2015, Native received a purchase order from C&J 

Energy Services, LLC, a contractor for Juneau Energy, LLC, to pick-up an order for “100 

white mesh sand” from Superior Silica Sands, LLC (“Superior”) and deliver the sand to 

two oil wells—the Arhopulis -Caldwell 1-H and the Arhopulis-Wade 1-H—operated by 

Juneau. Native contracted with TCT to pick-up, deliver, and off-load the sand to the

wells. TCT hired MJR, who enlisted Griffin to pick up the sand and deliver it to the wells.

Rather than pick-up the sand from Superior’s facility, Griffin went to 

Headwaters’s place of business. Native asserted that Headwaters ignored the specifics 

of the purchase order and loaded Griffin’s truck with 48,000 pounds of fly ash, rather 

than sand. Headwaters did not sell, supply, or carry “100 white mesh sand.” Griffin 

transported and unloaded the fly ash into a silo of one of Juneau’s wells that contained 

“100 white mesh sand.” The fly ash contaminated the mesh sand and caused significant 

damage to the well, which severely impeded the operation of the well.

In response to this incident, Juneau sought indemnification from C&J for $1.1 

million. C&J, in turn, sought indemnification from Native for the same amount. After 

making the indemnification demand, C&J withheld funds it owed Native on other 

invoices as an offset for the damages caused by the fly ash mis-delivery.
Native Oilfield Servs., LLC, et al. v. Tex. Chrome Transp., Inc., et al. Page 3

Shortly thereafter, C&J filed for bankruptcy. Native filed a proof of claim in C&J’s 

bankruptcy proceeding in the amount of $1,160,841. On December 19, 2016, Native 

assigned its bankruptcy claim against C&J to Cherokee Debt Acquisition, LLC 

(“Cherokee”) for $210,069.62.

Native then filed an original petition in this matter, alleging that each appellee was 

negligent in the mis-delivery of fly ash. Each of the appellees filed original answers 

denying the allegations made by Native in its original petition.

Headwaters filed traditional and no-evidence motions for summary judgment. In 

particular, in its traditional motion for summary judgment, Headwaters contended that 

Native lacked standing to sue in this matter because Native assigned its claims to 

Cherokee. TCT, MJR, and Griffin later joined Headwaters’s motions for summary 

judgment. Native responded to the motions for summary judgment, and appellees filed 

a reply to Native’s response.

After a hearing, the trial court granted appellees’ traditional motion for summary 

judgment on the ground of standing. Native filed its notice of appeal, and this appeal 

followed.

Standard of Review

A defendant can challenge the plaintiff’s standing in a motion for summary 

judgment. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (“The absence of 

subject-matter jurisdiction may be raised by a plea to the jurisdiction, as well as by other 
Native Oilfield Servs., LLC, et al. v. Tex. Chrome Transp., Inc., et al. Page 4

procedural vehicles, such as a motion for summary judgment.” (internal citation 

omitted)). Because standing implicates the trial court’s jurisdiction, we review standing 

issues as we would a plea to the jurisdiction. Vernco Constr. Co. v. Nelson, 460 S.W.3d 145, 

149 (Tex. 2015) (per curiam) (citing Brown v. Todd, 53 S.W.3d 297, 3056 n.3 (Tex. 2001)). 

“A jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts, 

or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). Here, 

appellees challenge Native’s pleadings. We therefore examine Native’s pleadings to 

determine if there are facts alleged that affirmatively demonstrate Native’s standing to 

bring each of its claims. See id. We construe the pleadings liberally in favor of jurisdiction, 

take all factual assertions as true, and look to the pleader’s intent. Heckman v. Williamson 

County, 369 S.W.3d 137, 150 (Tex. 2012); see Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 

503 (Tex. 2010) (“A court may presume the truth of allegations supportive of standing to 

determine standing and dispose of litigation through summary judgment.”). Whether 

the plaintiff’s pleaded facts demonstrate standing is a question of law reviewed de novo. 

Sneed v. Webre, 465 S.W.3d 169, 180 (Tex. 2015).

Analysis

In its sole issue on appeal, Native contends that the trial court erred by granting 

summary judgment in favor of appellees on the ground of standing. In particular, Native 

argues that the assignment relied upon by the trial court only assigned its claims against 

C&J, not against appellees, and that Native retained its claims against appellees.
Native Oilfield Servs., LLC, et al. v. Tex. Chrome Transp., Inc., et al. Page 5

APPLICABLE LAW

Standing “focuses on whether a party has a sufficient relationship with the lawsuit 

so as to have a ‘justiciable interest’ in its outcome.” Austin Nursing Ctr., Inc. v. Lovato, 171 

S.W.3d 845, 848 (Tex. 2005). “Standing is a threshold requirement to maintaining a 

lawsuit.” See Heckman, 369 S.W.3d at 150 (citations omitted) (“Standing is a constitutional 

prerequisite to suit. A court has no jurisdiction over a claim made by a plaintiff who lacks 

standing to assert it.”). The standing inquiry consists of three elements (1) the plaintiff 

must have personally suffered a “concrete and particularized . . . actual or imminent” 

injury, (2) that is fairly traceable to the challenged action of the defendant, and (3) there 

is a substantial likelihood the requested relief will remedy the alleged injury. Meyers v. 

JDC/Firethorne, Ltd., 548 S.W.3d 477, 485 (Tex. 2018) (internal citations omitted). The

plaintiff must allege a threatened or actual injury—it may not be hypothetical. Farmers 

Tex. Co. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 241 (Tex. 2020) (citing Allstate Indem. Co. 

v. Forth, 204 S.W.3d 795, 796 (Tex. 2006) (per curiam)). Further, each party must establish 

standing to bring each of its claims, meaning courts assess standing “claim by claim.” 

Heckman, 369 S.W.3d at 150.

“In determining whether a plaintiff has alleged a concrete injury sufficient to meet 

the standing requirement, courts look to the plaintiff’s pleadings.” Beasley, 598 S.W.3d at 

241 (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) 

(citations omitted) (“A review of only the pleadings to determine subject matter 
Native Oilfield Servs., LLC, et al. v. Tex. Chrome Transp., Inc., et al. Page 6

jurisdiction is sufficient in the trial court because a litigant has a right to amend to attempt 

to cure pleading defects if jurisdictional facts are not alleged. Failing that, the suit is 

dismissed.”)). “Because the standing determination is made by looking to the plaintiff’s 

pleadings, the mere fact that a plaintiff may ultimately not prevail on the merits of the 

lawsuit does not deprive the plaintiff of standing.” Id. (citing DaimlerChrysler Corp. v. 

Inman, 252 S.W.3d 299, 305 (Tex. 2008) (“A plaintiff does not lack standing simply because 

he cannot prevail on the merits of his claim; he lacks standing because his claim of injury 

is too slight for a court to afford redress.”)); see Data Foundry, Inc. v. City of Austin, 620 

S.W.3d 692, 696 (Tex. 2021) (same).

DISCUSSION

In their traditional motion for summary judgment, appellees asserted that Native’s 

assignment of its bankruptcy claim against C&J deprived Native of standing in this case. 

Specifically, appellees contended that: 

Plaintiff’s own pleadings state that its claim for damages against 

Defendants flows directly from any amounts deducted or withheld by 

Juneau and C&J from Native’s claim for work performed. . . . By selling its 

claim against C&J to Cherokee in December 2016, Plaintiff sold Cherokee 

the basis of its claim for damages against Defendants and relinquished any 

justiciable interest in the controversy against Defendants.

In its live pleading, Native alleged negligence claims against each appellee. In 

particular, Native’s negligence claims were based on the following:

• TCT allegedly failed to provide adequate and clear instructions to Griffin, 

failed to hire/retain/train drivers capable of performing the tasks assigned, 

failed to obtain the correct material ordered by Native, failed to deliver the 
Native Oilfield Servs., LLC, et al. v. Tex. Chrome Transp., Inc., et al. Page 7

correct material ordered by Native, failed to exercise due care in completing 

the assigned duties, and failed to advise Native and C&J that the fly ash 

had been substituted for the ordered white mesh sand.

• Headwaters allegedly issued a new purchase order to TCT/Griffin that did 

not comport with the purchase order provided by Native, failed to provide 

white mesh sand to TCT/Griffin as ordered in the purchase order provided 

to TCT/Griffin by Native, failed to exercise due care in the completion of 

the duties assigned to it, failed to advise Native and C&J that fly ash had 

been substituted for the ordered white mesh sand.

• Griffin allegedly failed to obtain the correct material ordered by Native, 

failed to deliver the correct material ordered by Native, failed to exercise 

due care in completing the duties assigned to him by Native, and failed to 

advise Native and C&J that fly ash had been substituted for the ordered 

white mesh sand.

• MJR allegedly failed to provide adequate and clear instructions to Griffin, 

failed to hire/retain/train drivers capable of performing tasks assigned to 

them, failed to obtain the correct material ordered by Native, failed to 

deliver the correct material ordered by Native, failed to exercise due care in 

the completion of the duties assigned to it by Native, and failed to advise 

Native and C&J that fly ash had been substituted for the ordered white 

mesh sand.

Based on these allegations, Native pleaded for damages for “[p]ecuniary loss sustained 

by Plaintiff [Native] in the past by way of amounts withheld by Juneau for the improperly 

delivered fly ash”; and “[p]ecuniary loss sustained by Plaintiff in the past and reasonably 

expected to be sustained the future by way of damage to Plaintiff’s business resulting 

from the negligence of the Defendants.”

Additionally, in its response to appellees’ summary-judgment motions, Native 

included an affidavit executed by John Barclay, President of Native. In his affidavit, 

Barclay referenced Exhibit 3, which is C&J’s letter demanding indemnification from 
Native Oilfield Servs., LLC, et al. v. Tex. Chrome Transp., Inc., et al. Page 8

Native for the $1.1 million in losses suffered by Juneau as a result of the mis-delivery of 

fly ash. Barclay also described Native’s damages to “include the amount of the fly ash 

load that was billed to Native, the cost of removing the fly ash from the silo containing 

sand, the cost of the sand already in the silo when it was contaminated with fly ash, and 

damage to the well as a result of using the fly ash in place of white sand.” Exhibit 3, C&J’s 

demand for indemnification from Native, was also attached to Native’s response. The 

pleadings and evidence outlined above satisfy the three elements in the standing inquiry. 

See Meyers, 548 S.W.3d at 485.

However, despite the foregoing, appellees contend that Native is divested of any 

justiciable interest in the claims against appellees because, by operation of the assignment 

to Cherokee, Native no longer “owns” the claims. We disagree.

By its express language, the assignment covers the following:

By this Assignment of Claim (“Assignment”), Seller [“Native”], its 

successors and assigns, for good and valuable consideration as set forth on 

Exhibit A hereto, . . . absolutely and unconditionally sells, transfers and 

assigns unto Buyer [“Cherokee”], its successors and assigns, all rights, title 

and interest in and to the claim(s) and any reclamation claim(s) as more 

fully defined below (the “Claim”) of Seller against CJ HOLDING CO., ET 

AL. (“Debtor”), the debtor-in-possession in the Chapter 11 reorganization 

case, Case No. 16-33590 (the “Case”), in the United States Bankruptcy Court 

for the Southern District of Texas (the “Bankruptcy Court”). . . . The Claim 

is defined as, without limitation, all of Seller’s right, title and interest in and 

to: a) the Minimum Claim Amount (defined below); b) any amount in 

excess of the Minimum Claim Amount (defined below); and c) any Proof of 

Claim (defined below) if filed, or claims listed on the Schedule (defined 

below) if no proofs of claim have been filed. The Claim is defined to also 

include all agreements, instruments, invoices, purchase orders, proofs of 

delivery and other documents evidencing, or referred to in, such claim(s) of 
Native Oilfield Servs., LLC, et al. v. Tex. Chrome Transp., Inc., et al. Page 9

the Proofs of Claim; all cure amounts paid by Debtor in connection with the 

assumption of contracts relating to such claim(s) or the Proofs of Claim; all 

rights to receive principal, interest, all rights of stoppage in transit, replevin 

and reclamation, fees, expenses, damages, penalties and other amounts in 

respect of or in connection with any of the foregoing, including, without 

limitation, all of Seller’s rights to receive cash, securities, instruments 

and/or other property or distributions issued in connection with any of the 

foregoing or the Case.

Native then represented and warranted that the agreement covered the $1,160,841.50 

proof of claim it filed in C&J’s bankruptcy proceedings. 

We conclude that the assignment does not divest Native of all personal stake in 

the controversy. See River Consulting, Inc. v. Sullivan, 848 S.W.2d 165, 169 (Tex. App.—

Houston [1st Dist.] 1992, writ denied), disapproved of on other grounds by Formosa Plastics 

Corp. USA v. Presidio Eng’grs & Contractors, Inc., 960 S.W.2d 41, 46 (Tex. 1998) (noting that, 

even in the instance of assignment, the assignor may still bring suit if it “has retained 

some right or interest” in the claim); see also Vertical N. Am., Inc. v. Vopak Terminal Deer 

Park, Inc., 2017 Tex. App. LEXIS 8944, at **7-8 (Tex. App.—Houston [14th Dist.] Sept. 21, 

2017, pet. denied) (holding that an entity that retained some interest in a claim, which 

purportedly has been sold to a third party, had standing to sue). The plain language of 

the assignment indicates that Native only assigned to Cherokee its claims against C&J, 

meaning Native is barred from suing C&J. However, the assignment does not mention 

appellees, nor does it assign Native’s causes of action associated with this incident. As 

such, Native may still sue appellees. See River Consulting, Inc., 848 S.W.2d at 169; see also 

Comcast Corp. v. Houston Baseball Partners LLC, No. 14-20-00043-CV, 2021 Tex. App. LEXIS 
Native Oilfield Servs., LLC, et al. v. Tex. Chrome Transp., Inc., et al. Page 10

4800, at **14, 20-21 (Tex. App.—Houston [14th Dist.] June 17, 2021, pet. filed) (noting that 

“HBP has standing to assert the claims against appellants unless the record shows that 

HBP was completely divested of any justiciable interest” and concluding that HBP has 

standing to sue because, among other things, the assignment did not unequivocally 

transfer HBP’s claims, and because HBP retained indemnity rights under the purchase 

and sale agreement); Vertical N. Am., Inc., 2017 Tex. App. LEXIS 8944, at **7-8.

Because the assignment only transferred Native’s claims against C&J and did not 

unequivocally transfer Native’s claims against appellees, we hold that Native has 

standing to assert its claims against appellees. Accordingly, we conclude that the trial 

court erred by granting summary judgment in favor appellees on the basis of standing. 

We sustain Native’s sole issue on appeal.

Conclusion

Based on the foregoing, we reverse the judgment of the trial court and remand 

for proceedings consistent with this opinion.

MATT JOHNSON

Justice
Native Oilfield Servs., LLC, et al. v. Tex. Chrome Transp., Inc., et al. Page 11

Before Chief Justice Gray,

Justice Johnson,

and Visiting Justice Davis1

Reversed and remanded

Opinion delivered and filed August 31, 2021

[CV06]

1 The Honorable Rex Davis, Senior Justice of the Tenth Court of Appeals, sitting by assignment of 

the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.