In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-17-00107-CV

BANTA OILFIELD SERVICES, INC., Appellant

V.

MEWBOURNE OIL COMPANY, Appellee

On Appeal from the 114th District Court

Smith County, Texas

Trial Court No. 16-0719-C/B

Before Morriss, C.J., Moseley and Burgess, JJ.

Opinion by Justice Moseley
2

OPINION

In 2014, Mewbourne Oil Company (Mewbourne), a Tyler, Texas, based entity,1 was 

operating in the State of New Mexico, drilling for and producing oil and/or natural gas. 

Mewbourne decided to install a 300-gallon battery tank at a well site there and retained Banta 

Oilfield Services, Inc. (Banta) to assist in its installation. Mewbourne and Banta entered into a 

Master Services Agreement (MSA) drafted by Mewbourne, which they both concur governed their 

relationship.

Mewbourne also contracted with Steve Kent Trucking NM, LLC (Kent Trucking) to be a 

contractor at the well site in New Mexico. It also entered into an agreement with C&M Services, 

LLC (C&M) wherein C&M would provide services at the site. An individual named Daniel 

Vargas worked for Kent Trucking and/or C&M Services as either a direct employee, an agent, or 

a contractor. Vargas was injured at the New Mexico site when a chain slipped off a tank that was 

being moved by a Banta-owned-and-operated pole truck. Vargas’ wife brought suit against Banta 

in New Mexico for Vargas’ personal injuries.2 Banta sent a demand letter to Mewbourne seeking 

 1

Originally appealed to the Twelfth Court of Appeals in Tyler, this case was transferred to the Sixth Court of Appeals

by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 

2013). Because this is a transfer case, we apply the precedent of the Tyler Court of Appeals to the extent it differs 

from our own. See TEX. R. APP. P. 41.3.

2

Vargas’ pleadings alleged that while lifting a 500-gallon tank “[d]uring [an] improvised procedure,” the tank shifted 

and fell, causing a nearby riser to break loose and fall towards both the Banta and C&M crews. Vargas pushed a 

Banta crew member out of the way of a falling riser, and in the process, he “suffered serious, debilitating and lifethreatening personal injuries.” Vargas alleged negligence and sought compensatory and punitive damages, as well as 

damages for loss of consortium and loss of services. Vargas claimed Banta was vicariously liable for his damages by 

virtue of the negligent conduct of its employees. 
3

defense and indemnity from Mewbourne.3 Mewbourne refused Banta’s demand, informing Banta 

that Mewbourne was only a pass-through for defense and indemnification and that Banta should 

demand a defense and indemnity from Kent Trucking.4 

Banta brought suit against Mewbourne seeking a judicial declaration that: (1) Texas 

substantive law applied to the interpretation of the MSA; (2) Mewbourne breached the agreement; 

(3) Mewbourne was obligated to defend and indemnify Banta in regard to Vargas’ personal injury 

lawsuit; and (4) Mewbourne was responsible to Banta for court costs and attorney fees. In 

response, Mewbourne argued that New Mexico law applied and that (under it and the MSA) Banta 

would be responsible for its own actions. Although the parties agreed that their respective liability 

would be governed by the terms of the MSA, they disagreed as to the interpretation of the contract. 

 3

In its letter, Banta referenced paragraph 5C of the MSA, which stated,

[MEWBOURNE OIL COMPANY] SHALL RELEASE, INDEMNIFY, DEFEND, AND

HOLD CONTRACTOR GROUP [BANTA OILFIELD SERVICES, INC.] HARMLESS 

FROM AND AGAINST ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO 

(I) PERSONAL OR BODILY INJURY, ILLNESS, SICKNESS, DISEASE, OR DEATH OF 

ANY MEMBER OF THE COMPANY GROUP [VARGAS], AND (II) LOSS, DAMAGE OR 

DESTRUCTION OF REAL OR PERSONAL PROPERTY (WHETHER OWNED OR 

LEASED) OR ANY MEMBER OF COMPANY GROUP.

4

Banta points out that the MSA contained no pass-through language and, in fact, contained language to the contrary 

in section 5D:

THE ASSUMPTIONS OF LIABILITY, RELEASES, AND INDEMNITIES SET FORTH IN 

THIS ARTICLE 5 SHALL APPLY TO ANY CLAIMS WITHOUT REGARD TO THE 

CAUSES THEREOF, INCLUDING, WITHOUT LIMITATION, PRE-EXISTING 

CONDITIONS, WHETHER SUCH CONDITIONS BE PATENT OR LATENT, 

ULTRAHAZORDOUS ACTIVITY, STRICT LIABILITY, TORT, BREACH OF 

CONTRACT, BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF ANY 

SAFETY REQUIREMENT OR REGULATION, OR THE NEGLIGENCE OF ANY 

PERSON OR PARTY, INCLUDING THE INDEMNIFIED PARTY OR PARTIES, 

WHETHER SUCH FORM OF NEGLIGENCE BE SOLE, JOINT AND/OR 

CONCURRENT, ACTIVE OR PASSIVE, OR ANY OTHER THEORY OF LEGAL 

LIABILITY. 
4

In doing so, they disagreed as to whether Texas law applied to the controversy or whether it would 

be governed by New Mexico law. After the parties filed cross-motions for summary judgment, 

the trial court denied Banta’s motion and entered judgment in favor of Mewbourne, finding that 

New Mexico law applied to the parties’ MSA and that Banta was estopped from arguing otherwise. 

On appeal, Banta maintains (1) that Mewbourne’s grounds for summary judgment were its 

affirmative defenses of judicial estoppel and quasi-estoppel, neither of which apply to the facts of 

this case, and (2) that Banta proved as a matter of law its own entitlement to summary judgment. 

For the reasons below, we reverse the trial court’s order granting summary judgment in favor of 

Mewbourne, render judgment for Banta on its motion for summary judgment, and remand this 

case to the trial court for further determination. 

I. Pleadings at Trial Court

As previously stated, Banta sued Mewbourne in the 114th Judicial District Court of Smith 

County for breach of contract. It also sought a declaratory judgment regarding the enforceability 

of the asserted defense and indemnity obligations.5 In addition, Banta requested an award of 

attorney fees. Banta’s position rested in large part on a provision in the MSA that stated (1) that 

any suit shall be brought exclusively in the state or federal courts located in Tyler, Smith County, 

 5

Banta sought a judicial declaration regarding the interpretation of the MSA pursuant to Section 37.001 of the Texas 

Civil Practice and Remedies Code. Specifically, Banta sought an order declaring that

A. Texas substantive law applied to the interpretation of the MSA;

B. Mewbourne was in breach of the MSA;

C. Mewbourne had an obligation to defend and to indemnify Banta in the Vargas lawsuit; and

D. Mewbourne owed Banta the costs of court and attorney fees. 
5

Texas, and (2) that “[a]ll disputes, controversies, or claims arising out of or relating to this 

Agreement . . . shall be governed and controlled by the substantive laws of the State of Texas, 

excluding any conflict of law or choice of law principles.” 

Shortly after filing suit, Banta moved for summary judgment on the enforceability of the 

indemnity provision under Texas law.6 Mewbourne also moved for summary judgment, arguing 

that New Mexico law applied and that the principles of judicial estoppel and quasi-estoppel were 

applicable based on Banta’s indemnity agreement in a case that involved a different contract, work 

site, and parties.7 See Pina v. Gruy Petroleum Mgmt. Co., 136 P.3d 1029 (N.M. Ct. App. 2016). 

 6

Specifically, Banta argued that summary judgment should be granted in its favor and against Mewbourne on the 

following issues:

(1) Mewbourne had an obligation under the Master Service Agreement to defend and to indemnify 

Banta in the pending Vargas lawsuit;

(2) Mewbourne was in breach of the MSA;

(3) Texas substantive law applied to the interpretation of the MSA; and

(4) Banta was entitled to recover its attorney fees as a result of Mewbourne’s breach of the MSA. 

Mewbourne responded to Banta’s summary judgment motion, arguing that Banta was attempting to use a Texas 

choice-of-law provision to obtain indemnity when, in the past, it had used the New Mexico Oilfield Anti-Indemnity 

Statute (NMOAIS) to void indemnity obligations and to “thwart” a similar choice-of-law provision. According to 

Mewbourne, Banta is estopped from taking a contrary position in this case. 

7

Mewbourne filed a supplement to its motion for summary judgment, continuing to argue that Banta was attempting 

to use a Texas choice-of-law provision in the underlying litigation in order to obtain indemnity when, in the past, it 

had used the NMOAIS to void indemnity obligations. 

In addition, Mewbourne filed a third-party petition against Kent Trucking. Banta contends that Mewbourne’s 

claim against Kent Trucking rested on identical indemnity language contained in a MSA between Mewbourne and 

Kent Trucking. In Mewbourne’s petition, it claimed that Kent Trucking was obligated to (1) indemnify Banta as a 

result of Vargas’ claim, or (2) was obligated to indemnify Mewbourne as a result of Banta’s claim. The trial court 

denied Mewbourne’s motion for summary judgment against Kent Trucking. It also dismissed Mewbourne’s claims 

against Kent Trucking on September 25, 2017. 
6

Banta subsequently filed an amended motion for summary judgment wherein it asserted 

the same arguments contained in its original motion, but also offered additional proof to 

demonstrate the application of the indemnity agreement as it applied to Vargas’ claim. 

Mewbourne filed an amended response to Banta’s amended motion for summary judgment. In its 

amended response, Mewbourne continued to argue the applicability of the principles of judicial 

estoppel and quasi-estoppel, but also added a choice-of-law analysis under the Restatement 

(Second) of Conflict of Laws and argued that the indemnity agreement was invalid under Texas 

law as applied to gross negligence and willful misconduct. 

After the trial court held two hearings on the parties’ cross-motions for summary judgment, 

it entered judgment in favor of Mewbourne and denied Banta’s motions for summary judgment. 

Banta appealed, maintaining that the trial court erred in granting Mewbourne’s motion for 

summary judgment and in failing to grant its motion for summary judgment. Banta also contends 

that it affirmatively demonstrated entitlement to summary judgment on Mewbourne’s indemnity 

obligation. Banta asks this Court to reverse the trial court’s judgment in favor of Mewbourne, 

reverse the trial court’s denial of Banta’s summary judgment motion, render judgment in favor of 

Banta on the enforceability of the indemnity provision against Mewbourne and Mewbourne’s 

breach thereof, and remand for a determination on the issues of damages and attorney fees.8

 

 8

In the alternative, Banta asks this Court to remand its claims in whole or in part for further trial court proceedings, 

along with an award of appellate court costs. 
7

II. Standard of Review

Appellate courts review de novo the grant or denial of a motion for summary judgment. 

Hotze v. Miller, 361 S.W.3d 707, 712 (Tex. App.—Tyler 2012, pet. denied) (citing Tex. Mun. 

Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007)). “The party moving for 

traditional summary judgment bears the burden of showing no genuine issue of material fact exists 

and it is entitled to judgment as a matter of law.” Mann Frankfort Stein & Lipp Advisors, Inc. v. 

Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Where, as here, “both sides move for summary 

judgment and the trial court grants one motion and denies the other, we review the summary 

judgment evidence presented by both sides and determine all questions presented.” Id. After 

making a determination as to all of the questions presented, the appellate court must render the 

judgment the trial court should have rendered. See Nash v. Beckett, 365 S.W.3d 131, 136 (Tex. 

App.—Texarkana 2012, pet. denied). 

III. Discussion

A. Mewbourne’s Motion for Summary Judgment

In Mewbourne’s motion for summary judgment and its supplement to its motion for 

summary judgment, Mewbourne argued that the application of judicial estoppel and quasi-estoppel 

prevented Banta from using “a Texas choice-of-law provision in the Banta/[Mewbourne] MSA to 

obtain indemnity when, in the past, Banta has used the [NMOAIS] to void indemnity obligations 

and to thwart a similar choice-of-law provision.”9

 The trial court found merit in Mewbourne’s 

 9

In its supplement to its original motion for summary judgment, Mewbourne presented analogous estoppel arguments. 

Moreover, Mewbourne asserted a very similar position in its response to Banta’s motion for summary judgment. In 

addition, Mewbourne filed an amended response to Banta’s motion, continuing to assert its estoppel arguments, but 
8

argument and granted judgment in its favor. Therefore, in order for this Court to affirm the trial 

court’s judgment in favor of Mewbourne, we must initially address Mewbourne’s contention that 

the principles of judicial estoppel and quasi-estoppel are applicable to this case. See McConnell

v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993) (finding an appellate court cannot 

affirm summary judgment on a basis not stated in a party’s motion for summary judgment).

1. Judicial Estoppel

“Judicial estoppel precludes a party who successfully maintains a position in one 

proceeding from afterwards adopting a clearly inconsistent position in another proceeding to 

obtain an unfair advantage.” Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 643 

(Tex. 2009) (per curiam) (citing Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 

(Tex. 2008)). Judicial estoppel is a rule “of procedure based on justice and sound public policy.” 

Long v. Knox, 291 S.W.2d 292, 295 (Tex. 1956). Its main function “is to prevent the use of 

intentional self-contradiction as a means of obtaining fair advantage.” Pleasant Glade Assembly 

of God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2008). “The doctrine is not intended to punish 

inadvertent omissions or inconsistencies but rather to prevent parties from playing fast and loose 

 

also adding a choice-of-law analysis under the Restatement (Second) Conflict of Laws and an argument that the 

indemnity agreement was invalid under Texas law to indemnify for gross negligence or willful misconduct. 

In its appellate brief, Mewbourne presents arguments beyond the estoppel arguments contained in its motion 

for summary judgment. “[T]he Texas Supreme Court has held that summary judgment cannot be granted except on 

the grounds expressly presented in [a party’s] motion.” Bean v. Reynolds Realty Grp., Inc., 192 S.W.3d 856, 860 

(Tex. App.—Texarkana 2006, no pet.) (citing Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002)). 

Thus, an appellate court cannot affirm summary judgment on a basis not stated in a party’s motion for summary 

judgment. Id. (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993)). Thus, this Court 

may affirm the trial court’s judgment in favor of Mewbourne based only on the estoppel theories contained in 

Mewbourne’s original motion for summary judgment and it supplement to that motion. See Johnson v. Brewer & 

Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002).
9

with the judicial system for their own benefit.” Ferguson, 295 S.W.3d at 643 (citing Pleasant 

Glade Assembly of God, 264 S.W.3d at 7). 

In order for the doctrine of judicial estoppel to apply, a party must show the following: 

“(1) the opposing party made a sworn, inconsistent statement[10] in a prior judicial proceeding; 

(2) the opposing party making the statement gained some advantage by it; (3) the statement was 

not made inadvertently or because of mistake, fraud, or duress; and (4) the statement was 

deliberate, clear, and unequivocal.” Galley v. Apollo Associated Servs., Ltd., 177 S.W.3d 523, 

528–29 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Swilley v. McCain, 374 S.W.2d 

871, 875–76 (Tex. 1964); Long v. Knox, 291 S.W.2d 292, 295 (1956); In re Estate of Huff, 15 

S.W.3d 301, 309 (Tex. App.—Texarkana 2000, no pet.)). Thus, in order for the trial court to grant 

summary judgment in favor of Mewbourne based on its judicial estoppel theory, Mewbourne must 

have presented sufficient summary judgment evidence in support of these four factors.

Maintaining that Banta is estopped from arguing that Texas law applies to the indemnity 

issues in this case, Mewbourne relies on Pina, 136 P.3d 1029, which is an opinion issued by the 

New Mexico Court of Appeals. In Pina, Banta and Gruy entered into a Master Services Contract 

(MSC) under which Banta agreed to perform work at an oil-well site operated by Gruy in 

Lea County, New Mexico. The MSC contained a choice-of-law provision requiring the 

application of Texas law to the company’s obligation to indemnify the operator from liability for 

its own negligence. Id. at 1031. Specifically, the MSC provided that it “shall be construed and 

 10In order to qualify as a sworn statement under Texas law, the statement must have been made in verified pleadings, 

an affidavit, or a deposition during the course of sworn testimony. Aetna Life Ins. Co. v. Wells, 557 S.W.2d 144, 147 

(Tex. Civ. App.—San Antonio 1977), writ ref’d n.r.e., 566 S.W.2d 900 (Tex. 1978) (per curiam). 
10

interpreted in accordance with the laws of the state of Texas.” Id. Gruy drafted the MSC and 

signed it in Texas. Banta signed the MSC in New Mexico. Id.

In addition, Article 10 of the MSC provided that 

[t]o the fullest extent permitted by law, [Banta] shall indemnify, defend and hold 

harmless GRUY . . . from and against all claims, damages, losses, liens, causes of 

action, suits, judgments, fines and expenses, including, but not limited to reasonable 

attorneys’ fees (collectively referred to and defined as “Liabilities”), of any person 

or entity arising out of, caused by or resulting directly or indirectly from the 

performance of the work under this Contract, . . . regardless of whether the

Liabilities are caused in part by the negligence of any Indemnitee. 

Id. at 1030–31. Banta purchased liability insurance from Bituminous. Id. at 1031. The policy 

insured Banta against tort liability assumed by contract and named Gruy as an additional insured. 

Id. In March 2003, Pina’s wife filed a wrongful death action against Gruy, alleging that her 

husband had suffered fatal burns in 2002 while employed by Banta at the well site located in 

Lea County, New Mexico, and which was owned and operated by Gruy. Id. Pina alleged that her 

husband’s injuries were caused by the wrongful conduct of Gruy’s agents and employees. Pina 

sought compensatory and punitive damages. Id.

Banta intervened in the wrongful death action, seeking a declaratory judgment invalidating 

the indemnity provision in Article 10 as violative of Section 56-7-2 of the NMOAIS (which was 

enacted in 1971), and it also filed a motion for summary judgment11 based on that section.

12 Id. 

 11Gruy also filed a motion for summary judgment. 

12Originally, Section 56-7-2 stated as follows: 

A. Any agreement, covenant or promise contained in, collateral to or affecting any agreement 

pertaining to any well for oil, gas or water . . . which purports to indemnify the indemnitee against 

loss or liability for damages, for:
11

Notably, in 2003, the New Mexico Legislature amended Section 56-7-2, by including more 

specific prohibitions on indemnity agreements. Id. at 1033. The amended version stated, 

A. An agreement, covenant or promise, foreign or domestic, contained 

in . . . an agreement pertaining to a well for oil . . . within New Mexico, that 

purports to indemnify the indemnitee against loss or liability for damages 

arising from the circumstances specified in Paragraph (1) . . . of this 

subsection is against public policy and is void:

(1) the sole or concurrent negligence of the indemnitee . . . .

N.M. STAT. ANN. § 56-7-2 (West, Westlaw through end of Second Regular Session of 53d Leg.). 

The district court granted Banta’s motion and denied Gruy’s motion, ruling that the indemnity 

provisions of the MSC were against the public policy of New Mexico as expressed in Section 

56-7-2 and, thus, were void and unenforceable. Pina, 136 P.3d 1031. Gruy appealed. 

The New Mexico Court of Appeals affirmed the district court’s summary judgment in favor 

of Banta. Is doing so, it examined conflict-of-laws principles, “observ[ing] that New Mexico 

courts may decline to enforce a choice-of-law provision in a contract incorporating foreign law if 

application of foreign law would offend New Mexico public policy.” Id. at 1032. After discussing 

the amendment to Section 56-7-2, the appellate court stated,

 

(1) death or bodily injury to persons; or

(2) injury to property; or

(3) any other loss, damage or expense arising under either Paragraph (1) or (2) or both; or

(4) any combination of these, arising from the sole or concurrent negligence of the indemnitee 

or the agents or employees of the indemnitee . . . is against public policy and is void and 

unenforceable. This provision shall not affect the validity of any insurance contract or any benefit 

conferred by the Workmen’s Compensation Act. . . . 

Pina, 136 P.3d at 1031.
12

The Legislature’s decision to expressly subordinate freedom of contract to well site 

safety is a persuasive indicator that the Legislature believed promoting safety at 

well sites to be an especially important public policy. The Legislature, which we 

presume was familiar with the strong public policy favoring freedom of contract, 

nevertheless, chose to elevate the public policy favoring safety at well sites over 

the public policies underlying freedom of contract.

Id. at 1033. 

Relying on Banta’s position in Pina, Mewbourne contends in this case that Banta is 

precluded from enforcing Mewbourne’s indemnity obligation under Texas law. In doing so, 

Mewbourne emphasizes the factual similarities in this case to those contained in Pina, that is, 

(1) the operator, Gruy, drafted the agreement that included a Texas choice-of-law provision and 

an indemnity provision; (2) the agreement was signed by Banta in New Mexico; (3) the agreement 

was signed by the adverse party in Texas; (4) New Mexico was the location of the work to be 

performed; (5) the event leading to the underlying lawsuit was injury or death to a worker at a well 

site located in New Mexico; (6) demands for defense and indemnity were made under New 

Mexico’s jurisdiction; and (7) the claims contained in the underlying lawsuit consisted of 

negligence and gross negligence. Mewbourne points out (1) that in Pina, Banta argued that the 

choice-of-law provision was void and unenforceable since the accident and lawsuit were in New 

Mexico and (2) that it received affirmative relief based on its argument. Mewbourne contends that 

the only time Banta makes any distinction in the two cases is when Banta sues in Texas to obtain

a defense and indemnity, as opposed to Banta owing a defense and indemnity under similar 

contract terms and similar facts. 

Notably, Mewbourne contends that it was not required to show that Banta made a prior 

sworn inconsistent statement. In support of its position, Mewbourne relies on the Fifth Court of 
13

Appeals’ opinion in Webb v. City of Dallas, 211 S.W.3d 808 (Tex. App.—Dallas 2006, pet. 

denied). In that case, the trial court upheld a ruling by an administrative law judge terminating 

Webb’s employment from the Dallas Police Department.13 Id. at 811. Webb appealed, 

complaining of the trial court’s ruling and its failure to make and file proper findings of fact and 

conclusions of law. Id. In its opinion reversing the trial court’s judgment, the appellate court 

noted as an additional basis for its opinion that “the doctrine [of judicial estoppel] is most 

commonly applied to sworn statements of witnesses, [but] it also applies to the statements of 

attorneys explaining their client’s position in the litigation.”14 Id. at 820. 

The Dallas Court of Appeals’ reasoning has little, if any, application to this case. Judicial 

estoppel seeks to prevent a party from “abus[ing] the judicial process by obtaining one recovery 

based first on affirming a certain state of facts, and then another recovery based on denying the 

same state of facts.” Metroflight, Inc. v. Shaffer, 581 S.W.2d 704, 709 (Tex. Civ. App.––Dallas 

1979, writ ref’d n.r.e.) (emphasis added). In Webb, the appellate court made clear that an exception 

to the general rules of judicial estoppel would apply under a very particular set of circumstances,

that is, where contrary statements have been made by a party’s attorney relating to distinctly 

 13Webb’s employment with the police department was terminated due to an arrest and charge of assault on a family 

member. After entering a plea of nolo contendere, Webb was subsequently sentenced to deferred adjudication 

community supervision, which he successfully completed. Webb, 211 S.W.3d at 811. Because Webb completed 

community supervision, he was not convicted of the charged offense. 

14The city first stated that Webb’s employment with the police department was based on his conviction for family 

violence assault. The statement was obviously not sworn. Later in the proceedings, the city changed its position 

regarding the basis for Webb’s termination. Id. at 818. The court estopped the city from using the latter statement 

because it was inconsistent with the first statement, stating, “We conclude the City’s statements to the administrative 

law judge that the incident violating the code of conduct was Webb’s conviction for family violence assault judicially 

estopped the City from asserting a contrary position before the district court and this Court.” Id. at 820. 
14

different factual assertions made in two separate proceedings in the same case and involving the 

same parties. That is simply not the case here.15 

Mewbourne also relies on Jones v. Jones, 301 S.W.2d 310 (Tex. App.—Texarkana 1957, 

writ ref’d n.r.e.). Following Jones’ death in April 1952, Jones’ wife (Wife) sought to probate his 

purported last will and testament in the First District Court of Caddo Parish, Louisiana.16 Id. at 

311. Jones’ will had been dated September 12, 1951 (September Will). Id. at 312. Finding it to 

be Jones’ last will and testament, the court admitted the September Will to probate. Id. Wife was 

appointed administratrix and subsequently accepted benefits under the September Will. Id. 

After the September Will was admitted to probate in Louisiana, certified copies of the will 

and the order admitting it to probate were filed of record in the office of the County Clerk of Gregg 

County, Texas. Id. In May 1954, Wife, along with several other family members, filed suit in 

Gregg County averring that Jones had made a will in December 1951 (the December Will) and 

that several individuals, including attorney Winston Linam (Linam), had conspired to suppress 

Jones’ December Will. Id. at 312–13. Wife asked the court to declare the December Will Jones’ 

last will and testament and to make a finding that the probate of Jones’ September Will was null 

 15Our sister court explained,

Stated differently, if a party prevails in one action after asserting the truth of one version of the facts, 

he cannot attempt to prevail in a later proceeding by asserting those same facts are not true. Indeed, 

pursuant to this doctrine, a fact admitted by a prevailing party in a judicial proceeding is established 

as a matter of law; the admitting party may not in a second proceeding dispute the admission or 

introduce evidence contrary to it.

Bailey-Mason v. Mason, 334 S.W.3d 39, 43 (Tex. App.—Dallas 2008, pet. denied) (emphasis added). 

16Louisiana was Jones’ place of domicile at the time of his death. Jones, 301 S.W.3d at 311.
15

and void. Id. at 314. After a jury trial, the trial court entered judgment in favor of Wife. Linam 

appealed. 

In the Jones opinion, we addressed, among other things, Linam’s argument that Wife was 

estopped from asserting her position in the trial court because she had not only accepted benefits 

under the September Will, but she was the actual proponent in securing probate of the will in the 

Louisiana court. Id. at 316. In finding that Wife was “very definitely estopped to contest the will 

under Texas law,” we stated, 

Any person who secures the entry of a judgment fully cognizant of all antecedent 

facts, is estopped to assert any right contrary to such judgment even though the 

determination made by the prior judgment may not be right. A person is estopped 

from taking an adverse position in a subsequent suit involving the same matters to 

a position previously taken in the same matters by pleadings or otherwise. [Wife] 

having successfully maintained [her] first position in the State of Louisiana, with 

full cognizance of the contention made in this case, [she] cannot now be permitted 

to take a position inconsistent therewith.

Id. (citations omitted).

Despite Mewbourne’s contention, Jones does not stand for the proposition that the use of 

the doctrine of judicial estoppel may be held to be factually sufficient even without the existence 

of a sworn statement. In fact, Jones does not speak to the issue at all, and Mewbourne has conceded 

this point. Further, the facts contained in Jones are not analogous to the facts in this case. In Jones 

we held, “A person is estopped from taking an adverse position in a subsequent suit involving, the 

same matters to a position previously taken in the same matters . . . .” Id. That is not the case 

here. While the factual background in Pina may be similar to the facts of this case, the two cases 

clearly do not involve the same “matters.” Among other things, Mewbourne was not a party to 

the contract between Banta and Gruy, it had no rights or obligations under the Pina-Gruy contract, 
16

and it was not involved in the litigation between the parties who did have rights and obligations 

under the contract, i.e., Pina and Gruy. 

Regardless, this Court has previously made clear that a prior, sworn, inconsistent statement 

is required in order to establish judicial estoppel. In re Estate of Loveless, 64 S.W.3d 564, 580 

(Tex. App.—Texarkana 2001, no pet.). More importantly, however, the Texas Supreme Court has 

held that the doctrine of judicial estoppel applies to any sworn statement, whether oral or written, 

made in the course of a judicial proceeding. Miller v. Gann, 842 S.W.2d 641, 641 (Tex. 1992)

(per curiam). Moreover, judicial estoppel applies to preclude a different factual position from one 

previously taken. Bailey-Mason, 334 S.W.3d at 43.

17 Here, Banta does not take a different factual 

position; instead, it takes a different legal position from the position it took in the Pina litigation, 

which litigation did not involve Mewbourne in any way.

 17As we stated previously in In re Estate of Loveless:

There is a line of Texas cases holding that, if a party takes an affirmative position in a proceeding 

and is successful in having the court adopt its position, that party may be judicially estopped from 

later taking an inconsistent position in that or in any other proceeding, even though the previous 

position does not consist of a sworn declaration. Zipp Indus., Inc. v. Ranger Ins. Co., 39 S.W.3d 

658, 665 (Tex. App.—Amarillo 2001, no pet.) see also Thompson v. Cont’l Airlines, 18 S.W.3d 

701, 703–04 (Tex. App.—San Antonio 2000, no pet.); Stewart v. Hardie, 978 S.W.2d 203, 208 

(Tex. App.—Fort Worth 1998, pet. denied); Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 

646, 649–50 (Tex. App.—El Paso 1997, writ denied). 

These cases all involve judicial estoppel invoked by defendants against plaintiffs who 

failed to list causes of action as potential assets in previous bankruptcy actions. The courts in those 

cases applied Fifth Circuit precedent rather than Texas law in order to “promote the goal of 

uniformity and predictability in bankruptcy proceedings.” Andrews, 959 S.W.2d at 649 n.1. 

Estate of Loveless, 64 S.W.3d at 579. In addition, the Tyler Court of Appeals’ reasoning in Cleaver was consistent 

with the above-mentioned cases. See Cleaver v. Cleaver, 140 S.W.3d 771, 775 (Tex. App.—Tyler 2004, no pet.) 

(“[B]ecause he failed to list this lawsuit as a potential asset in bankruptcy[,] . . . Jimmy [Cleaver] is judicially estopped 

from pursuing this claim.”). Notwithstanding this very narrow exception, however, Texas Supreme Court precedent 

is clear that in Texas, judicial estoppel requires a sworn inconsistent statement made in a previous judicial proceeding 

and that the statement was deliberate, clear, and unequivocal. Id. 
17

In sum, the evidence does not show that Banta made a prior, sworn, inconsistent statement 

in the Pina litigation, and in fact, Mewbourne concedes this point by arguing that proof of a sworn 

statement is not necessary to support a finding of judicial estoppel. We recognize that there are 

very narrow exceptions to this rule; however, the facts of this case do not support such an 

exception.18 For these reasons, we find that judicial estoppel does not apply in this case. 

2. Quasi-Estoppel

The affirmative defense of quasi-estoppel precludes another party from asserting, to 

another’s disadvantage, a right inconsistent with a position he or she has previously taken. Weaks 

v. White, 479 S.W.3d 432, 437 (Tex. App.—Tyler 2015, pet. denied) (citing Lopez v. Munoz, 

Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000)). The doctrine applies when it would 

be unconscionable to allow a party to maintain a position inconsistent with one in which he 

acquired or by which that party accepted a benefit. In re Estate of Webb, 266 S.W.3d 544, 552 

(Tex. App.—Fort Worth 2008, pet. denied). However, before the acceptance of benefits can 

trigger estoppel, it must be shown that the benefits were accepted with knowledge of all material 

facts. Nash, 365 S.W.3d 131. “A properly pleaded affirmative defense, supported by 

uncontroverted summary judgment evidence, may serve as the basis for summary judgment.” Fair 

v. Arp Club Lake, Inc., 437 S.W.3d 619, 626 (Tex. App.—Tyler 2014, no pet.) (citing Roark v. 

Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991)). 

Banta maintains that quasi-estoppel requires mutuality of parties and unconscionability, 

neither of which Mewbourne could show. Quasi-estoppel “may not be asserted by or against a 

 18There is no evidence in the record to indicate that Mewbourne was involved in the Pina litigation.
18

‘stranger’ to the transaction that gave rise to the estoppel.” Deutsche Bank Nat’l Tr. Co. v. 

Stockdick Land Co., 367 S.W.3d 308, 315 n.13 (Tex. App.—Houston [14th Dist.] 2012, pet. 

denied). The doctrine precludes a party from accepting the benefits of a transaction and then taking 

a contrary position to avoid corresponding obligations or effects. Stable Energy, L.P. v. Newberry, 

999 S.W.2d 538, 548 (Tex. App.—Austin 1999, pet. denied). Here, because Mewbourne was 

neither a party to the contract at issue in the Pina litigation nor involved in any way in the 

controversy over the subject matter of that lawsuit, it was a stranger to the Pina litigation and a 

stranger to the transaction that was made the basis of that lawsuit. For that reason alone, 

Mewbourne’s quasi-estoppel argument is without merit. 

In our review, we may address only those grounds expressly presented in Mewbourne’s 

motion for summary judgment and its supplement to that motion. See McConnell, 858 S.W.2d at 

341. Because we find that neither judicial estoppel nor quasi-estoppel are applicable under the 

facts of this case, we reverse the trial court’s order granting summary judgment in favor of 

Mewbourne.

B. Banta’s Motion for Summary Judgment

Banta contends that the trial court wrongly denied its motion for summary judgment, which 

sought enforcement and determination of Mewbourne’s liability for breach of its defense and 

indemnity obligations. Banta asks this Court to reverse and render judgment in its favor, declaring 

the defense and indemnity obligations enforceable and finding Mewbourne liable for its breach of 

contractual obligation. 
19

1. The MSA’s Choice-of-Law Provision 

Paragraph 11 of the MSA states:

All disputes, controversies, or claims arising out of or relating to this Agreement, 

including the validity, construction, enforcement, or interpretation of this 

Agreement, shall be governed and controlled by the substantive laws of the State 

of Texas, excluding any conflict of law or choice-of-law principles. In the 

absence of a mandatory venue prescribed by state or federal law, any suit or 

proceeding hereunder shall be exclusively in the state or federal courts located in 

Tyler, Smith County, Texas. Each Party hereby consents to the personal 

jurisdiction of said state and federal courts and waives any objection that such 

courts are an inconvenient forum. 

(Emphasis added). Banta contends that according to this paragraph, the parties clearly intended 

Texas substantive law to apply to the interpretation of the MSA. While this issue appears to be 

one of first impression in Texas, Banta maintains that Texas’ contract-construction principles 

require the same result. 

In support of its position, Banta contends that the exclusion is phrased broadly in terms 

precluding the application of “any conflict of law or choice of law principles.”19 Further, Banta 

states that under relevant contract-construction principles, this exclusion must have some meaning 

and that the only meaning that makes sense of the entire agreement is one that precludes the choiceof-law analysis that Mewbourne contends is necessary. According to Banta, “Because Texas is—

 19Banta cites to several non-Texas courts that have limited language to narrow the scope of this exclusion to, for 

example, the conflicts of law of one particular state. See Agility Health, L.L.C. v. FPCG Health, L.L.C., No. 324571, 

2016 WL 4069477, at *4–5 (Mich. Ct. App. July 28, 2016) (per curiam) (unpublished) (only choice of law provision 

adopted New York law without regarding the conflict of law principles); OrbusNeich Med. Co., Ltd., BVI v. Boston 

Sci. Corp., 694 F.Supp.2d 106, 113 (D. Mass. 2010) (relying on without reference clause to avoid choice-of-law 

analysis); Proctor & Gamble Co. v. Bankers Trust Co., 925 F.Supp. 1270, 1288 (S.D. Ohio 1996) (dismissing Ohio 

statutory claims because “the inclusion of the phrase ‘without reference to choice of law doctrine’ forecloses the 

application of Ohio law”); Turtur v. Rothchild Registry Int’l, Inc., 26 F.3d 304, 309 (2d Cir. 1994); First W. Capital 

Mgmt. Co. v. Malamed, No. 16-CV-1961-WJM-MJW, 2016 WL 8358549, at *10–11 (D. Colo., Sept 30, 2016), rev’d 

on other grounds by 874 F.3d 1136 (10th Cir. 2017). 
20

and always will be—the forum and because the forum’s conflicts laws apply by default, the parties 

necessarily intended to preclude any choice-of-law analysis that would point away from applying 

Texas substantive law to their contractual disputes—even if the exclusion of choice-of-law 

principles were limited to those of Texas.” 

Maintaining that the parties did not intend for Texas law to apply in relation to any potential 

indemnification issues, Mewbourne contends that when a declarative contract provision is 

followed by “excluding,” the general rule is that the parties intended to narrow the primary 

provision by carving out an exception. Thus, according to Mewbourne, the exclusionary language 

in the MSA means that conflict of law and choice-of-law principles are omitted from and not 

subject to the parties’ attempt to fix the applicable law.20 Mewbourne also contends that Banta 

ignores the phrase “substantive laws.” Thus, before the comma, the choice-of-law proviso 

addresses the substantive laws, while after the comma, the exclusion addresses the procedural 

choice-of-law principles. 

Taken together, the intention is that the parties intend to be governed by 

Texas substantive laws insofar as they are permitted to make this selection. And in 

those instances when choice-of-law principles are available to override the parties’

 20Mewbourne states that its position is consistent with the last antecedent doctrine concerning the use of commas. In

support of its contention, Mewbourne cites In re Finley, 220 S.W.3d 608, 615 (Tex. App.—Texarkana 2007, no pet.). 

Finley concerned the Court’s analysis of the legislative intent of a statute. In explaining the “last antecedent doctrine,”

the Court stated, “Under the last antecedent doctrine, where no contrary intention appears, relative and qualifying 

words, phrases, and clauses are to be applied to the immediately preceding words or phrase. Such words, phrases, and 

clauses are not to be construed as extending to or modifying others which are more remote. . . .” Id. (emphasis added)

(quoting 82 C.J.S. Statutes § 333 (1999)). 

Here, when reading the MSA in its totality, we are of the opinion that the parties’ MSA contained a “contrary 

intention.”
21

choice of substantive law, the parties have chosen to allow for application of the 

forum state’s choice-of-law principles.

This Court disagrees.

When interpretation of a contract is in issue, a court must first determine whether the 

provisions in question are ambiguous. Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). When 

determining whether a contract is ambiguous, this Court must examine the contract as a whole in 

light of the circumstances existing at the time the contract was signed. Id. at 393. A contract is 

ambiguous if, after examining the contract as a whole in light of the circumstances existing at the 

time the contract was signed and after applying the rules of construction, “its meaning is uncertain 

and doubtful or it is reasonably susceptible to more than one meaning.” Id. Notably, a contract is 

not ambiguous “simply because the parties advance conflicting interpretations of the contract; 

rather, for an ambiguity to exist, both interpretations must be reasonable.” Lopez v. Munoz, 

Hockema & Reed, L.L.P., 22 S.W.3d 857 (Tex. 2000). Not every difference in interpretation of a 

contract amounts to an ambiguity. State Farm Fire & Cas. Co. v. Reed, 873 S.W.2d 698, 699 

(Tex. 1993).

In maintaining that New Mexico law applies to any indemnity issues, Mewbourne points 

to the language contained in paragraph 5F of the MSA, which states, 

The indemnities provided in this Article shall be limited to the extent necessary for 

compliance with laws or regulations applicable to the performance of Work 

hereunder, and to the extent any such laws or regulations are in variance with the 

indemnities provided in this Agreement, such indemnity shall be deemed to be

amended so as to comply with such laws or regulations. 
22

Mewbourne contends that the exclusionary language contained in paragraph 11, along with 

language contained in paragraph 5F, clearly shows that the parties intended for New Mexico law 

to apply to indemnity issues since the work performed took place in New Mexico.21

If we were to adopt Mewbourne’s position, we would be compelled to consider paragraph 

5E alone, while at the same time ignore the remaining provisions of the parties’ MSA. It is well 

settled that no single provision taken alone is given controlling effect; rather, each provision must 

be considered in the context of the instrument as a whole. Moayedi v. Interstate 35/Chisam Rd., 

L.P., 438 S.W.3d 1, 7 (Tex. 2014). Here, Mewbourne discounts the language contained in

paragraph 5E, which states:

In the event this Agreement is subject to the indemnity limitations in Chapter 127 

of the Texas Civil Practice and Remedies Code (or any successor statute), and so 

long as such limitations are in force, each Party covenants and agrees to support the 

mutual indemnity obligations contained in Sections 5.B and 5.C, by carrying 

insurance of the types and in the amounts not less than those specified in Article 4 

and Exhibit A of this Agreement, for the benefit of the other Party. 

(Emphasis added). The language of paragraph 5E clearly demonstrates that the parties intended 

Texas law to apply, even in regard to indemnity issues. Had the parties intended for New Mexico 

law to apply, they could have easily included that language in the MSA. Had the parties intended

to apply New Mexico law to indemnity issues, the MSA could have stated that the agreement shall 

be governed and controlled by the substantive laws of the State of Texas, excluding any conflict 

 21Contrary to Mewbourne’s contention, paragraph 5F can have no effect until after the “applicable” state laws and 

regulations have been determined. In other words, paragraph 5F does not dictate what state’s law applies; instead, 

only after that determination has been made, does paragraph 5F have any meaning or relevance. 
23

of law or choice-of-law principles, which principles shall be controlled by New Mexico law.22 In 

addition, the forum selection clause in the MSA contained a venue provision that clearly stated

any potential litigation would take place in Texas; more specifically, Tyler, located in Smith 

County, Texas. 

The Texas Supreme Court has held that courts are required to consider the entire writing, 

harmonizing and giving effect to all contract provisions so that none will be rendered meaningless. 

See id. at 4. Stated differently, even if the language of the parties’ MSA was in conflict, this Court 

is required to choose an interpretation that harmonizes all of the provisions contained in the 

agreement. When we review the parties’ MSA in its totality, we find that the language contained 

in their agreement showed the parties’ intent that there be no choice-of-law analysis and that Texas 

law apply regarding any issue arising out of the parties’ agreement, including indemnity issues. 

2. Enforceability of the Choice-of-Law Provision

However, while courts generally honor contracting parties’ bargained-for and expressed 

choice of which state’s laws governs the performance of a contract, the contracting parties’ 

freedom to choose what state’s law applies is not unlimited. DeSantis v. Wackenhut Corp., 793 

S.W.2d 670, 677 (Tex. 1990).23 Parties “cannot require that their contract be governed by the law 

 22Mewbourne states that paragraph 5E added a “flexibility” to the contract, harmonizing its expressed general desire 

for the application of Texas law with the specific requirements of local law, but without the necessity of redrafting the 

entire MSA anytime work is to be done in a state that prohibits indemnification for well-site negligence. Mewbourne’s 

contention is not based on a reading of all of the provisions contained in the MSA; rather, Mewbourne speculates, in 

its favor, as to what the agreement meant based on a single provision in the MSA. 

23In DeSantis, a Florida corporation filed suit in Texas against one of its Texas employees for violating a non-compete 

agreement. The agreement contained a choice-of-law provision that specified Florida law would govern any disputes 

under the agreement. DeSantis, 793 S.W.3d at 681. In holding that Texas law should govern the dispute despite the 

choice-of-law provision, the Texas Supreme Court reasoned that Texas law should control because, among other 

things, “the law governing enforcement of noncompetition agreements is fundamental policy in Texas” and “to apply 
24

of a jurisdiction which has no relation whatever to them or their agreement. And they cannot by 

agreement thwart or offend the public policy of the state the law of which ought otherwise to 

apply.” Id. Notably, applying the law of another state is “not contrary to the fundamental policy 

of the forum merely because it leads to a different result than would obtain under the forum’s law.” 

Id. at 680. 

In order to determine the enforceability of a choice-of-law provision, we apply principles 

from the Restatement (Second) of Conflict of Laws. Id. at 677–81. Section 187(2) of the 

Restatement reads as follows:

(2) The law of the state chosen by the parties to govern their contractual 

rights and duties will be applied, even if the particular issue is one which the parties 

could not have resolved by an explicit provision in their agreement directed to that 

issue, unless either

(a) the chosen state has no substantial relationship to the parties 

or the transaction and there is no other reasonable basis for the parties’ 

choice, or

(b) application of the law of the chosen state would be contrary 

to a fundamental policy of a state which has a materially greater interest 

than the chosen state in the determination of the particular issue and which, 

under the rule of § 188, would be the state of the applicable law in the 

absence of an effective choice of law by the parties.

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187(2) (AM. LAW INST. 1989 Supp.) (emphasis 

added). In this case, Texas, the state chosen by Banta and Mewbourne to govern disputes arising 

out of the MSA, has a substantial relationship to the parties because Mewbourne, the drafter of the 

 the law of another state to determine the enforceability of such an agreement in the circumstances of a case like this 

would be contrary to that policy.” Id. at 681. Thus, the court held that enforceability of the non-compete agreement 

“must be judged by Texas law, not Florida law.” Id.
25

MSA, is a Texas corporation doing business in Texas, with its corporate office located in Tyler, 

Texas. See DeSantis, 793 S.W.2d at 678 (finding state had a substantial relationship to the parties 

because one of the party’s corporate offices was located in that state); see also In re J.D. Edwards 

World Sols. Co., 87 S.W.3d 546, 549 (Tex. 2002) (per curiam) (orig. proceeding) (finding 

Colorado had a substantial relationship to parties and their transaction because one party’s office 

was located in Colorado). We, therefore, conclude that under these circumstances, Texas has a 

substantial relationship to the parties and the transaction, and Section 187(2)(a) of the Restatement 

does not preclude the application of Texas law in this case. 

Next, we determine, pursuant to Sections 187(2)(b) and 188(1),

24 (1) whether the 

application of Texas law would be contrary to a fundamental policy of New Mexico, (2) whether 

New Mexico has a materially greater interest in determining the issue of indemnity, and

(3) whether New Mexico has the most significant relationship to the transaction and the parties. 

See RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 187(2)(b), 188(1); DeSantis, 793 S.W.2d 

at 678). “We must enforce the parties’ choice-of-law unless all three elements of this test are 

satisfied.” Gator Apple, LLC v. Apple Tex. Rests., Inc., 442 S.W.3d 521, 533 (Tex. App.—Dallas 

2014, no pet.) (citing Mary Kay, Inc. v. Woolf, 146 S.W.3d 813, 816 (Tex. App.—Dallas 2004, 

pet. denied) (emphasis added)). Thus, if we find that even one of the three factors favors the 

 24Section 188(1) states, “The rights and duties of the parties with respect to an issue in contract are determined by the 

local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the 

parties under the principles stated in §6.” RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188(1) (AM. LAW INST.

1971). 
26

parties’ choice of Texas law, we are not compelled to examine the remaining two. See Gator 

Apple, 442 S.W.3d at 533; see also TEX. R. APP. P. 47.1.25

Whether there is a state with a more significant relationship to the parties and the 

transaction at issue than the one contractually specified by the parties is determined pursuant to

five factors that are set out in Section 188(2) of the Restatement. DeSantis, 793 S.W.2d at 677–

78. The factors are as follows: (1) the place of contracting; (2) the place of negotiation; (3) the 

place of performance; (4) the location of the subject matter of the contract; and (5) the domicile, 

residence, nationality, place of incorporation, and place of business of the parties. RESTATEMENT 

(SECOND) OF CONFLICT OF LAWS § 188 (AM. LAW INST. 1971). These factors are to be taken into 

account “in light of the basic conflict of laws principles of section 6 of the RESTATEMENT.”

DeSantis, 793 S.W.2d at 678. 

We find that Texas has the most significant relationship to the parties and the transaction 

in regard to the first, second, and fifth factors. Mewbourne, the drafter of the agreement, is 

domiciled in Texas and conducts business in Texas. Its business office is located in Texas. 

Further, Banta maintains, and Mewbourne does not dispute, that Mewbourne drafted the MSA in 

Texas and signed the agreement in Texas. We recognize that Banta is a New Mexico company 

and that it signed the agreement in New Mexico. Despite those facts, we find, among other 

reasons, that because Mewbourne drafted the agreement in Texas, Texas, and not New Mexico,

has a more significant relationship to the substantive issue before us. 

 25Rule 47.1 provides, “The court of appeals must hand down a written opinion that is as brief as practicable but that 

addresses every issue raised and necessary to final disposition of the appeal.” TEX. R. APP. P. 47.1.
27

In regard to the third and fourth factors, we find that Texas has a more significant

relationship to the parties and the transaction than does New Mexico. Notably, Vargas’ accident 

occurred while he was performing work in New Mexico; however, the parties’ agreement is silent 

as to where any of the work was to be performed. The MSA did not state that New Mexico would 

be the place of performance. In fact, there is no mention of New Mexico in the entire agreement. 

More importantly, however, the issue in this case involves the enforceability of the indemnity 

provision in the MSA, and not the work that had been performed in New Mexico pursuant to that 

agreement. “What is determinative is which state has the most significant relationship with respect 

to the indemnity issue,” and not the location of the work.26 Chesapeake Operating, Inc. v. Nabors 

Drilling USA, Inc., 94 S.W.3d 163, 173 (Tex. App.—Houston [14th Dist.] 2002, no pet.). The 

past performance of the work is not at issue here. The only dispute remaining is wholly related to

the performance of the MSA’s indemnity provision, a dispute that has been litigated entirely in 

Texas. 

Further, the MSA was written in a manner showing the parties anticipated and intended

that the provisions of the agreement would control regardless of the location of the work being 

performed. In fact, the parties agreed in paragraph 5E that the provisions of Chapter 127 of the 

Texas Civil Practice and Remedies Code, entitled “Indemnity Provisions in Certain Mineral 

Agreements,” would apply. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 127.001–.007 (West 

2011). Chapter 127.005 addresses indemnity obligations and insurance coverage. TEX.CIV. PRAC.

 26Banta sought defense and indemnity from Mewbourne with respect to the Vargas lawsuit by sending a letter to 

Mewbourne’s office in Tyler, Texas. The insurance company that drafted and sent the demand letter on Banta’s behalf 

was located in Houston, Texas. 
28

& REM. CODE ANN. § 127.005. Not only was a Texas statute regulating indemnity specifically 

referred to in the MSA, but both parties agreed to comply with the Texas statute by purchasing an 

adequate amount of insurance.27 “[Mewbourne] can hardly be shocked that Texas law applies, as 

the indemnity clauses and insurance coverage were specifically drafted to meet Texas law.” 

Chesapeake, 94 S.W.3d at 177.

In addition, Section 6 of the Restatement sets out several non-exclusive factors that may

be considered in determining the applicable law. RESTATEMENT (SECOND) OF CONFLICT OF LAWS

§ 6 (AM. LAW INST. 1971). Section 6 factors are:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum.

(c) the relevant policies of other interested states and the relative interests of 

those states in determination of the particular issue,

(d) the protection of justified expectations, 

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law applied.

Id.

 27Exhibit A is attached to the parties’ MSA and states, in part, “During the term of this Agreement, unless otherwise 

prohibited by law, each Party shall, at each Party’s sole expense, carry with solvent and reputable insurance carriers, 

insurance of the types and in the minimum amounts . . . .” The document set out the minimum dollar amount of 

insurance the parties were required to carry for commercial (or comprehensive) general liability insurance, workers’ 

compensation insurance, employer’s liability insurance, automobile liability insurance, pollution insurance, and 

excess (or umbrella) liability insurance.
29

Here, the enforcement of the MSA in accord with its terms satisfies the relevant policies of 

the chosen forum (that is Texas). See Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 

653, 664 (Tex. 2008). In addition, the principles of certainty, predictability, and uniformity

support the application of Texas law. “Industry and commerce cannot operate in a climate that 

allows a contracting party to make a bad bargain to change the terms of a deal at its option.” 

Chesapeake, 94 S.W.3d at 177. Here, if New Mexico law were applied to the indemnity issue, as 

Mewbourne maintains, it would have relieved Mewbourne of the defense and indemnity it agreed 

to provide Banta. Certainly, Banta had a justified expectation that Mewbourne would comply with 

the terms of an agreement that Mewbourne negotiated, drafted, and signed (all in Texas). 

Moreover, Mewbourne and Banta purchased insurance in order to comply with Texas law. Had 

the parties expected New Mexico law to apply, there would have been no reason to include such a

requirement in their agreement.

28 

When we consider the Restatement’s factors, along with the quality and quantity of each 

of the parties’ contacts to Texas and New Mexico, we find that Texas has the “most significant

relationship to the transaction and the parties.” See RESTATEMENT (SECOND) CONFLICT OF LAWS

 28Mewbourne maintains that if Texas law were applied to the facts of this case, such application would be in violation 

of New Mexico’s public policy against the use of indemnity provisions imposing indemnity obligations for an 

indemnitee’s own negligence. Unlike New Mexico, Texas does not prohibit such an indemnity agreement if “the 

parties agree in writing that the indemnity obligation will be supported by liability insurance coverage to be furnished 

by the indemnitor . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 127.005(a) (West 2011). We are unwilling to find,

nor is it necessary to do so, that the enforcement of an indemnity agreement indemnifying the indemnitee against its 

own negligence supported by insurance directly contravenes New Mexico’s public policy of assuring the safety of its 

oilfield workers. Even assuming it does, when we rely on Texas’ public policy favoring freedom of contract, along 

with the numerous other factors favoring the use of Texas law, this factor, alone, is not determinative. 
30

§§ 187(2)(b), 188(1). As such, we must enforce the parties’ choice of Texas law. For these 

reasons, we hold that Texas law governs the enforceability of the MSA’s indemnity provision.

3. Enforceability of MSA under Texas Law

In order for this Court to grant its requested relief, Banta was required, pursuant to the laws 

of Texas, to present sufficient competent summary judgment evidence to show that Mewbourne’s 

defense and indemnity obligations were enforceable pursuant to the terms of the MSA. 

a. Coverage of Vargas’ Claim

Mewbourne maintains that the provisions of the MSA did not cover Vargas’ personal injury 

claim because Vargas was not Mewbourne’s employee. Paragraph 5C of the MSA states that 

Mewbourne, as “Company Group,” would release, indemnify, defend, and hold Banta, as 

“Contractor Group,” harmless against any and all claims resulting from, among other things, 

personal injury.29 In paragraph 5.A.3, Company Group is defined as:

(i) Company, its parent, subsidiary and affiliated or related companies, (ii) its and 

their working interest owners, co-lessees, co-owners, partners, joint operators, and 

joint venturers, if any, and their respective parent, subsidiary and affiliated or 

related companies, (iii) Company’s other contractors of any tier, and (iv) the 

officers, directors, employees, agents, consultants, and invitees of any and all of the 

foregoing. 

The summary judgment evidence shows that on February 17, 2015, Mewbourne contracted 

with Kent Trucking to be a contractor at the New Mexico site. Further, in the plethora of summary 

judgment evidence provided to the Court, we find a letter written and sent by Mewbourne’s counsel 

to Kent Trucking, which letter had been written following Vargas’ accident. In it, Mewbourne’s 

 29See infra note 3 (referring to paragraph 5C).
31

counsel explained, “At the time of the incident Daniel Vargas was employed by C&M Services

LLC who either shares the same ownership as [Steve Kent Trucking] or was a subcontractor of 

[Steve Kent Trucking].” There is even stronger evidence of this relationship in Mewbourne’s 

responses to Vargas’ interrogatories, where Mewbourne ratified that Vargas was either employed 

by or was a contractor for Kent Trucking when the injury occurred. 

Based on the summary judgment evidence, we find that Banta demonstrated that Vargas 

was at the very least a “contractor[] of any tier,” or Mewbourne’s invitee, and that Vargas had 

asserted a claim against Mewbourne for the injury he incurred while working at the New Mexico 

site. As such, the MSA covers Mewbourne’s indemnity and defense obligations to Banta as it 

relates to the Vargas lawsuit. 

b. Fair Notice Requirements

Banta seeks indemnity from Mewbourne for the consequences of its own negligence. 

Indemnity agreements used to exculpate a party from the consequences of its own negligence 

involve an extraordinary shifting of risk. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 

S.W.2d 505, 508 (Tex. 1993). Thus, fair notice of the risk shifting must be given to the party 

assuming the shifted risk. Id. at 508–09. “The fair notice requirements include the express 

negligence doctrine and the conspicuousness requirement.” Id. at 508. “The express negligence 

doctrine states that a party seeking indemnity from the consequences of that party’s own 

negligence must express that intent in specific terms within the four corners of the contract.” Id. 

“The conspicuous requirement mandates ‘that something must appear on the face of the [contract] 

to attract the attention of a reasonable person when he looks at it.’” Id. (quoting Ling & Co. v. 
32

Trinity Sav. & Loan Ass’n, 482 S.W.2d 841, 843 (Tex. 1972)). “Either an indemnity provision is 

clear and enforceable, or it is not.” DDD Energy, Inc. v. Veritas DGS Land, Inc., 60 S.W.3d 880, 

883 (Tex. App.––Houston [14th Dist.] 2001, no pet.) (citing Fisk Elec. Co. v. Constructors & 

Assoc., Inc., 888 S.W.2d 813, 815 (Tex. 1994)).

Banta points out that the Texas Supreme Court (along with several appellate courts) has 

held that the express-negligence doctrine is satisfied when “regardless” language is included as 

part of the parties’ indemnity provision. Enserch Corp. v. Parker, 794 S.W.2d 2, 6–7 (Tex. 1990). 

In Enserch, the indemnity agreement provided that “[the indemnitor] would indemnify [the 

indemnitee] for any claims ‘regardless of whether such claims are founded in whole or in part on 

alleged negligence of [the indemnitee.]” Id. at 8. The agreement in Ensearch also provided that 

“[the indemnitor] ‘further agrees to indemnify and hold harmless [the indemnitee] . . . in respect 

of any such matters.’” Id. at 7. The Texas Supreme Court held that “an indemnity agreement need 

not be confined to one sentence” when it is clear that that “the contract as a whole is sufficient to 

define the parties’ intent that [the indemnitor] indemnify the [indemnitee] for the consequences of 

the [indemnitee’s] own negligence.” Id. at 8. 

Here, paragraph 5D of the parties’ MSA states,

THE ASSUMPTIONS OF LIABILITY, RELEASES, AND INDEMNITIES SET FORTH IN 

THIS ARTICLE 5[30] SHALL APPLY TO ANY CLAIMS WITHOUT REGARD TO THE 

CAUSES THEREOF, INCLUDING, WITHOUT LIMITATION, PRE-EXISTING 

CONDITIONS, WHETHER SUCH CONDITIONS BE PATENT OR LATENT, 

ULTRAHAZORDOUS ACTIVITY, STRICT LIABILITY, TORT, BREACH OF 

CONTRACT, BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF ANY 

SAFETY REQUIREMENT OR REGULATION, OR THE NEGLIGENCE OF ANY 

PERSON OR PARTY, INCLUDING THE INDEMNIFIED PARTY OR PARTIES,

WHETHER SUCH FORM OF NEGLIGENCE BE SOLE, JOINT AND/OR 

 30See infra note 3 (referring to paragraph 5C).
33

CONCURRENT, ACTIVE OR PASSIVE, OR ANY OTHER THEORY OF LEGAL 

LIABILITY.[31]

 

The plain language of the MSA shows that the parties intended for Mewbourne to indemnify Banta, 

“without regard to the causes thereof,” and that it contracted to do so even in the event the claim 

was a result of Banta’s own negligence. Further, the MSA consisted of seven pages of singlespaced language, with the majority of its contents written in lower-case letters. The language 

contained in paragraphs 5C and 5D, however, consist entirely of capital letters, along with bold 

type-face. In general, “[l]anguage that appears in contrasting type or in capitals satisfies the 

conspicuousness requirement.” Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 553 (Tex. 2001), 

superseded by statute on other grounds by Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 

467 S.W.3d 494 (Tex. 2015). We, therefore, find that the indemnity provision of the MSA satisfies 

the express negligence doctrine and the conspicuousness requirement; thus, Mewbourne had fair 

notice that it agreed to indemnify Banta, even for Banta’s own negligence.32

 31In Texas, oilfield indemnity clauses are generally void. TEX.CIV. PRAC. & REM. CODE ANN. § 127.003 (West 2011). 

There are, however, several exceptions, including one for indemnities that are mutual and supported by liability 

insurance. TEX. CIV. PRAC. & REM. CODE ANN. § 127.005 (West 2011); Ken Petroleum Corp. v. Questor Drilling 

Corp., 24 S.W.3d 344, 346 (Tex. 2000). In this case, paragraph 5E states, 

In the event this Agreement is subject to the indemnity limitations in Chapter 127 of the Texas Civil 

Practice and Remedies Code (or any successor statute), and so long as such limitations are in force, 

each Party covenants and agrees to support the mutual indemnity obligations in Section 5.B and 

5.C, by carrying insurance of the types and in the amounts not less than those specified in Article 4 

and Exhibit A of this Agreement, for the benefit of the other Party. 

Attached to the parties’ agreement is Exhibit A, which sets out in detail the parties’ obligations regarding the types 

and minimum amounts of insurance the parties were required to procure. Thus, by the terms of the contract, both 

companies were required to maintain a sufficient amount of liability insurance.

32In Dresser, the Supreme Court of Texas extended the “fair notice” requirements applicable to an agreement 

providing for indemnity against a party’s own negligence to a contractual release in which one party relieves the other 

in advance of liability for the latter’s own negligence. The Court reiterated the components of the fair notice 

requirements as previously applicable to an indemnity agreement, that is, (1) the “express negligence doctrine,”

mandating that the provision specifically express within its four corners intent to indemnify a party against its own 
34

Despite this language, Mewbourne maintains that the MSA included no requirement that 

it indemnify Banta on claims relating to punitive damages or gross negligence. We disagree. The 

MSA contains a list of claims that would be covered by the indemnity provision: latent or patent 

conditions, ultrahazardous activity, strict liability, tort, breach of contract, breach of duty, or breach 

of safety requirements or regulations. Moreover, the provision clearly includes language 

extending its duties to Mewbourne, that is, “including without limitations” and “without regard to 

the causes of action thereof.” It is plain that Mewbourne drafted this agreement. As the drafter of 

the agreement, Mewbourne cannot now maintain that it intended anything other than to indemnify 

Banta in relation to any cause of action, including gross negligence claims and punitive damages 

claims. 

IV. Conclusion

Based on the foregoing, we find that Texas law applies to the terms of the parties’ MSA; 

that under Texas law, Mewbourne had the obligation to defend and indemnify Banta against 

Vargas’ claims; that it breached its contractual obligation to Banta by refusing to do so; and that 

Banta is entitled to recover damages and its attorney fees. 

We, therefore, reverse the trial court’s summary judgment in favor of Mewbourne, reverse 

the trial court’s denial of Banta’s motion for summary judgment and render judgment in favor of 

 

negligence, and (2) the “conspicuousness” requirement, mandating “that something must appear on the face of the 

[agreement] to attract the attention of a reasonable person when he looks at it.” Dresser, 853 S.W.2d at 508 (quoting 

Ling & Co. v. Trinity Sav. & Loan Ass’n, 482 S.W.2d 841, 843 (Tex. 1972)). However, the Court also stated, “The 

fair notice requirements are not applicable when the indemnitee establishes that the indemnitor possessed actual notice 

or knowledge of the indemnity agreement.” Id. at 508 n.2 (citing Cate v. Dover Corp., 790 S.W.2d 559, 561). 

The summary judgment evidence in this case shows that Mewbourne had actual knowledge of the indemnity 

provision. 
35

Banta on the enforceability of the indemnity provision against Mewbourne and Mewbourne’s 

breach thereof; and remand to the trial court for a determination of damages and attorney fees.

Bailey C. Moseley

Justice

Date Submitted: August 1, 2018

Date Decided: December 4, 2018