Opinion filed January 26, 2023

In The

Eleventh Court of Appeals __________

No. 11-21-00125-CV

__________

JOSE TOVALIN, Appellant

V.

TEXAS GENERATOR POWER SYSTEMS & SERVICES, INC., 

Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-18-11-1709-CV

M E M O R A N D U M O P I N I O N

This appeal arises from a suit to recover damages for personal injuries 

sustained by Appellant, Jose Tovalin, following an on-the-job incident. Appellant 

originally filed suit against Texas Generator Power Systems & Services, Inc. (Texas 

Generator); Parsley Energy, Inc.; Parsley Energy, LLC; Parsley Energy, L.P.;

Parsley Energy Operations, LLC; Parsley Energy Operations II, LLC; and Parsley 
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Veritas Energy Partners, LLC. In his first amended petition, Appellant abandoned 

his claims against all defendants, except for Texas Generator and Parsley Energy 

Operations, LLC. Appellant and Parsley Energy Operations, LLC eventually settled,

and Parsley was dismissed from the suit. Later, Texas Generator filed a combined 

traditional and no-evidence motion for summary judgment; Appellant filed a 

response. After a hearing, the trial court granted summary judgment in favor of 

Texas Generator.

In two issues, Appellant contends on appeal that: (1) the trial court erred when 

it granted Texas Generator’s motion for summary judgment because issues of 

material fact exist; and (2) the trial court erred when it sustained Texas Generator’s 

objections to Appellant’s summary judgment evidence. We affirm.

I. Factual and Procedural Background

On November 23, 2016, Appellant was injured while working at a Parsley 

Energy well site in Reagan County. Pacesetter Drilling, LLC, Appellant’s employer, 

was retained to move a drilling rig from the well site. At some point, Appellant was 

given the “all clear” signal from the driller on the rig, indicating that the power to 

the rig had been turned off. Appellant was subsequently electrocuted as he attempted 

to tie off an electrical line—a component of the Pacesetter rig equipment. 

The same day that Appellant was injured, Texas Generator received a call 

from Johnny Clark, a Pacesetter employee, requesting Texas Generator’s assistance 

with the rig move—specifically, to extend the electrical cable for the top “doghouse” 

and to splice some wires. While still en route to the well site, Texas Generator 

received a second call from Clark, asking when the technician from Texas Generator 

would arrive because someone had been electrocuted during the rig move. After the

Texas Generator technician arrived at the well site, and in addition to completing the 

work initially requested by Clark, the technician found and repaired a “bad spot” in 
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the wire that was connected to the number one brake cooling pump. The next day, 

at the request of Pacesetter, Texas Generator completed a “walk-through” and 

inspection of the rig’s electrical components. In doing so, the Texas Generator 

technician observed that a breaker door handle was in the “off” position, but the 

breaker was in the “on” position. The technician then traced the circuit from the 

breaker to the receptacle panel, but nothing was plugged into the receptacle. 

The desired theory of recovery to be pursued by Appellant is unclear. In his

second amended petition, Appellant first alleges that Texas Generator’s negligence 

was the proximate cause of his injuries. Next, Appellant alleges that Texas 

Generator knew or should have known that the poor condition of the cables and 

power box posed a danger to the workers on the well site, and that Texas Generator

failed to remedy or maintain this equipment. Texas Generator later filed a combined 

traditional and no-evidence motion for summary judgment. Appellant filed a 

response, and Texas Generator asserted four objections to Appellant’s summary 

judgment evidence. The trial court held a hearing on Texas Generator’s motions on 

April 8, 2021. After the hearing, the trial court sustained two of the evidentiary 

objections and granted summary judgment in favor of Texas Generator. This appeal 

followed.

II. Standard of Review—Summary Judgment

We review a trial court’s grant of summary judgment de novo. Merriman v. 

XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). “When the trial court does not 

specify the grounds for its ruling, a summary judgment must be affirmed if any of 

the grounds on which the judgment is sought are meritorious.” Id.

To prevail under the traditional summary judgment standard, the movant has 

the burden to show that there is no genuine issue of material fact and that it is entitled 

to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & 
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Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To defeat a noevidence motion, the nonmovant must produce at least a scintilla of evidence raising 

a genuine issue of material fact as to the challenged elements. KMS Retail Rowlett, 

LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019); King Ranch, Inc. v. 

Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

In reviewing either a traditional or a no-evidence motion for summary 

judgment, 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. KMS 

Retail, 593 S.W.3d at 181; Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 

211, 215 (Tex. 2003). We credit evidence favorable to the nonmovant if reasonable 

jurors could do so, and we disregard contrary evidence unless reasonable jurors 

could not. Samson Expl., LLC v. T.S. Reed Props., Inc., 521 S.W.3d 766, 774 (Tex. 

2017); Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007).

When a party moves for summary judgment on both no-evidence and 

traditional grounds, we address the no-evidence grounds first. See Merriman, 407 

S.W.3d at 248 (“[I]f the nonmovant fails to produce legally sufficient evidence to 

meet his burden as to the no-evidence motion, there is no need to analyze whether 

the movant satisfied its burden under the traditional motion.”). The nonmovant has 

the burden to produce at least a scintilla of evidence raising a genuine issue of 

material fact as to each challenged element of its cause of action. TEX. R. CIV. P. 

166a(i); Merriam, 407 S.W.3d at 248 (citing Johnson v. Brewer & Pritchard, P.C., 

73 S.W.3d 193, 206 (Tex. 2002)). The evidence is “more than a scintilla” if it rises 

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

conclusions. Ford Motor Co. v. Ridgeway, 135 S.W.3d 598, 601 (Tex. 2004).
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III. Analysis

On appeal, Appellant claims that the trial court erred when it granted Texas 

Generator’s combined motion for summary judgment. Appellant challenges the 

summary judgment on both no-evidence and traditional grounds. Because the trial 

court did not specify the grounds on which it granted these motions, we address the 

no-evidence ground first. See Merriman, 407 S.W.3d at 248. In its motion for 

summary judgment, Texas Generator asserted that Appellant could produce no 

evidence as to the elements that are required to establish a negligence cause of action, 

namely, whether (1) Texas Generator owed a legal duty to Appellant; (2) Texas 

Generator breached that duty; and (3) the breach proximately caused Appellant’s 

injuries. The burden then shifted to Appellant to produce at least a scintilla of 

evidence raising a genuine issue of material fact as to the challenged elements. See

KMS Retail, 593 S.W.3d at 181; King Ranch, 118 S.W.3d at 751.

When ordinary negligence is alleged, the threshold inquiry is whether the 

defendant owes a legal duty to the plaintiff. Boerjan v. Rodriguez, 436 S.W.3d 307, 

310 (Tex. 2014). The absence of a recognized legal duty ends the inquiry as to 

whether negligence liability exists. McNeil v. Nabors Drilling USA, Inc., 36 S.W.3d 

248, 250 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (citing Van Horn v. 

Chambers, 970 S.W.2d 542, 544 (Tex. 1998)). However, in a premises liability 

context, which is a separate and distinct theory of liability, the “duty to make the 

premises safe or warn of dangerous conditions ‘generally runs with the ownership 

or control of the property,’ and a defendant’s liability under [this] theory rests on the 

defendant’s assumption of control of the premises and responsibility for dangerous 

conditions on it.” United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 474 (Tex. 

2017) (quoting Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 

2016)).
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Appellant alleges in his operative pleading, and contends on appeal, that 

Texas Generator owed him a legal duty because Texas Generator had a right to 

control the electrical equipment that allegedly malfunctioned and caused his injuries. 

Although inartful, the theory of liability that Appellant has alleged against Texas 

Generator appears to be more akin to a premises liability cause of action rather than 

one sounding in ordinary negligence. These theories of liability have common 

elements—such as whether a legal duty exists—but the element of control is not one 

of them. The defendant’s control over the instrumentality that caused the plaintiff’s 

injuries is unique to a premises liability theory and must be established in order to 

subject the defendant to a premises liability finding. Nevertheless, under either 

theory or scenario, Appellant’s claim against Texas Generator fails.

Importantly, the evidence that Appellant submitted with his response to Texas 

Generator’s combined motion for summary judgment does not support his assertion, 

irrespective of the liability theory upon which he relies. Appellant’s summary 

judgment evidence shows that he testified it was Pacesetter, not Texas Generator,

who owned and controlled the electrical equipment that caused his injuries. 

According to Appellant’s testimony, Pacesetter’s “tool pushers” are responsible for 

inspecting and maintaining Pacesetter’s electrical lines and other rig equipment. 

Upon detecting a problem, the tool pusher then is responsible for contacting and 

retaining someone to repair any deficiency. Appellant believed that other Pacesetter 

employees knew of the dangerous condition of the electrical cables—and failed to 

warn him of such conditions—but Appellant admitted he had no knowledge of 

whether Texas Generator was aware of the dangerous conditions that caused his 

injuries. 

Despite Appellant’s assertion that Texas Generator should have known that 

the electrical equipment on the rig was deficient and potentially dangerous, the 
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evidence in the record shows that only Pacesetter may have known about the 

existence of these conditions. In this instance, Texas Generator’s only involvement 

with the rig was Pacesetter’s request that Texas Generator provide necessary service 

and repairs to the rig, which, significantly, did not occur until after Appellant was 

electrocuted. Appellant testified that he had been told Texas Generator was the 

company that Pacesetter used for electrical services, but he also acknowledged that

no Texas Generator employee was present at the time he was injured and that he had 

never seen a Texas Generator employee work on the rig. Appellant further admitted 

that he did not know which electrical company had installed the power cables for the 

rig that he was working on when he was injured.

Finally, Appellant claims that Chad Morris, a Texas Generator employee, 

testified that Texas Generator exercised control over the equipment that caused his 

injuries. Appellant misconstrues the evidence. According to Appellant, Morris 

testified that Texas Generator “not only serviced the equipment in question for 

Pacesetter, but [also] sold it to them.” However, the record does not support this 

assertion. Instead, Morris testified that (1) Pacesetter owned the equipment, (2) he 

did not know who sold the equipment to Pacesetter, and (3) he did not know whether 

Texas Generator had ever serviced the equipment. Even if we assumed, as Appellant 

suggests, that Texas Generator did service the equipment, this would only establish 

that Texas Generator had responded to the individual service requests that it received 

from Pacesetter. This does not contradict Appellant’s testimony that only Pacesetter 

owned and maintained their electrical equipment—even if such maintenance

required periodic service requests from an independent company. Simply 

responding to service calls does not support Appellant’s assertion that Texas 

Generator owned or controlled the equipment, nor does it establish that it owed a 

legal duty to Appellant in this case.
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Considering the evidence in the record before us, we conclude that Appellant 

failed to provide even a scintilla of evidence to defeat the elements of Appellant’s 

cause of action that Texas Generator challenged in its no-evidence motion for 

summary judgment. Without the existence of a legal duty, Appellant’s claim against 

Texas Generator, irrespective of the theory alleged, fails. See McNeil, 36 S.W.3d at 

250. Accordingly, the trial court did not err when it granted Texas Generator’s noevidence motion for summary judgment.

Although we may end our analysis here, because the trial court did not specify 

the grounds on which it granted summary judgment in favor of Texas Generator, we 

will also evaluate the merits of Texas Generator’s traditional grounds for summary 

judgment. To prevail under the traditional summary judgment standard, the movant 

has the burden to show that there is no genuine issue of material fact and that it is 

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). Texas Generator

argued in its traditional motion, among other things, that it owed no legal duty to 

Appellant in connection with the incident that caused his injuries. In support of its 

motion, Texas Generator submitted summary judgment evidence that it (1) was not 

involved in or present during the rig move when Appellant was injured, (2) did not 

own or control Pacesetter’s electrical equipment, (3) was not responsible for 

inspecting or maintaining such equipment without a specific request from Pacesetter, 

and (4) had no knowledge of any defects or dangerous conditions on the rig at the 

time Appellant was injured. This, and the evidence outlined above, is 

uncontroverted. 

Because the record shows that Texas Generator owed no legal duty to 

Appellant in connection with this incident and his injuries, we conclude that the trial 

court did not err when it granted Texas Generator’s traditional motion for summary 

judgment. Accordingly, we overrule Appellant’s first issue.
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Appellant’s second issue concerns the trial court’s rulings on two of Texas 

Generator’s objections to Appellant’s summary judgment evidence. In reviewing 

the trial court’s grant of Texas Generator’s no-evidence and traditional motions for 

summary judgment, we have also considered the same summary judgment evidence 

that Appellant claims the trial court erroneously excluded.

1 Because we have 

concluded that Texas Generator was entitled to summary judgment based on the 

summary judgment evidence in the record, including all of the summary judgment 

evidence submitted by Appellant, we need not reach Appellant’s second issue. See

TEX. R. APP. P. 47.1.

IV. This Court’s Ruling

We affirm the judgment of the trial court. 

W. STACY TROTTER

JUSTICE

January 26, 2023

Panel consists of: Bailey, C.J., 

and Trotter, J.

Williams, J., not participating.

1

In addition, Appellant failed to address on appeal the grounds on which the trial court sustained 

Texas Generator’s objections. Instead, Appellant argues that the evidence to which Texas Generator 

objected was submitted and considered by the trial court elsewhere and, as such, should not have been 

excluded in this instance. Further, Appellant does not contend that he was harmed by the trial court’s 

rulings to sustain Texas Generator’s objections to his summary judgment evidence. Because Appellant

does not challenge the trial court’s reasoning for its rulings and because he has failed to articulate any harm 

that he purportedly sustained as a result of the trial court’s rulings, we need not address his second issue. 

See TEX. R. APP. P. 47.1.