Opinion filed January 26 , 20 2 3



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 2 1

- 00 125

- CV

__________ JOSE TOVALIN , Appellant V. TEXAS GENERATOR POWER SYSTEMS & SERVICES, INC. , Appellee

On Appeal from the 161 st 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 in cident

. Appellant originally filed sui t against Texas Generator Power System s & Services, Inc. ( Texas Generator ) ; Parsl ey Energy, Inc. ; Parsley Energy, LLC ; Parsley Energy, L.P. ; Parsley Energy Operations, LLC ; Parsley Energy Operations II, LLC ; and Parsley2 Veritas Energy Partners, LLC

. In his first a mended p etition, 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 Texa s Generator

. In two issues, Appellant contends on appeal that : (1) the trial court erred when it grant ed Texas Generator’s motion for summary judgment because issue s of material fact exist ; and (2) the trial court erred when it sustain ed 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 equ ipment

. The same day that Appellant was injured, Texas Generator received a call from Johnny Clark , a Pacesetter employee, r equesting Texas Generator’s assistance with the rig move

— specifically, to extend the electric a l 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, t he technician found and repaired a “bad spot” in3 the wire that was connected to the numb er one brake cooling pump . The next day, at the request of Pacesetter, Texas Generator complet ed a “walk

- through” and inspection of the rig’s electrical compo nents

. In doing so, t he Texas Generator technician observ ed 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 d esired theory of recovery to be pursued by Appellant is unclear. I n his second amended petition , Appellant first allege s that Texas Generator’s negligence was the proximate cause of his injuries. Next, Appellant allege s 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 th is equipment. Texas Generator later filed a combined traditional and no

- evidence motion for summary judgment

. Appellant filed a
response , and Texas Generator assert ed four objections to Appellant’s summary judgment evidence. T he trial court held a hearing on Texas Generator’s motions on April 8, 2021. After the hearing, t he 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 grou nds 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. T EX

. R. C IV

. P . 166a(c); Mann Frankfort Stein &4 Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). To defeat a no

evidence 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 1 81 ; 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. S ee 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 nonm ovant 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. T EX

. R. C IV

. 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).5 III. Analysis On appeal , Appellant claims that the trial court erred when it grant ed Texas Generator’s combined motion for summary judgment . Appellant challenges the summary judgment on both no

- evidence and traditional grounds

. Because t he trial court did not specify the grounds on which it granted the se motion s , w e address the

no - evidence ground first. See Merriman , 407 S.W.3d at 248. In its motion for summary judgment, T exas Generator a ssert ed that Appellant could produce no evidence as to t he elements that are required to establish a negligence c ause 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 Appe llant ’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 negligenc e liability exists

. M cNeil 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 di stinct theory of liability, t he “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)).6 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 lia bility 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 estab lished 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 ow ned and controlled the electrical equipment that caused his injur ies

. According to Appellant ’s testimony, Pacesetter ’s “ tool pushers ” are responsible for inspecting and maintaining Pacesetter ’s electric al lines and other rig equipment. Upon detect ing a problem, the tool pusher then is responsible for contacting and retain ing someone to repair any deficiency

. Appellant believed that other Pacesetter employees knew of the dangerous condition of the electri c al cables

— and failed to warn him of such conditions

— b u t Appellant admitted he had no knowledge of whether Texas Generator was aware of the dangerous conditions that caused his injuries

. Despite Appellant ’s a ssertion that Texas Generator should have known th at the electrical equipment on the rig was deficient and potentially dangerous , the7 evidence in the record shows that only Pacesetter may have known about the

ex istence 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 us ed for electrical services , but he also acknowledged that no Texas Generator employee was present at the time he was injur ed and that he had never seen a Texas Generator employee work on t he rig

. Appellant further admitted that he did not know which electric al 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 e mployee , testified that Texas Generator exercised control over the equipment that caused his injuries. Appellant mi sconstru es 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 suppor t this assertion

. Instead, Morris testi fied that (1) Pacesetter owned the equipment, (2) he did not know who sold the equipment to Pacesetter , and (3) h e did not know whether Texas Generator had ever serviced the equipment. Even if we assume d , as Appellant suggest s, 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 Pac esetter

. 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

r esponding to service calls does not support Appellant’s assertion that Texas Generator owned or controlled the equipment, nor does it establish th at it owed a legal duty to Appellant in this case

.8 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 alleg ed, fails. See McNeil , 36 S.W.3d at 250. Accordingly, t he trial court did not err when it granted Texas Generator ’s no

evidence motion for summary judgment. Although we may end our analysis here, b ecause the trial court did not specify the grounds on which it grant ed 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. T EX

. R. C IV

. P . 166a(c)

. Texas Generator argued in its t raditional motion , among other things, th at it owed no legal duty to Appellant in connection with the incident that caus ed his injuries. In support of its motion, Texas Generator s ubmitted summary judgment evidence that it (1) was not involved in or prese nt during the rig move whe n 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, i s

un controverted

. Because the record show s that Texas Generator owed no legal duty to Appellant in connection with t h is incident and his injuries , we conclude that the trial
court did not err when it granted Texas Generator’s tradition al motion for summary judgment. Accordingly, we o verrule Appellant’s first issue.9 Appellant ’s second issue concerns the trial court ’ s rulings on two of Texas Generator ’s objections to Appellant ’ s summary judgment evidence. I n 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 conclud ed 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 T EX

. R. A PP

. P . 47.1

. IV. This Court’s Ruling We affirm the judgment of the trial court.

W. STACY TROTTER JUSTICE

January 26 , 20 2 3 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 sub mitted and considered by the trial court e lsewhere and , as such, should not have been exclud ed in this instance. Further , Appellant does not contend that he was harm ed by the trial court’s ruling s to sustain Texas Generator’s objections to his summary judgment evidence. Because Appellant does not challenge the trial court’s reasoning for its r ulings and because he has failed to articulate any harm that he purportedly su stained as a result of the trial court’s rulings , we need not address his second issue

. See T EX

. R. A PP

. P

. 47.1.