Opinion
12-24-00158-CV
12-20-2024
AIMAN M. KOUATLI D/B/A KOUATLI OIL & GAS, AND AMK OILFIELD SERVICE, INC., APPELLANT v. ENDEAVOR ENERGY RESOURCES, L.P., APPELLEE
Appeal from the 335th District Court of Burleson County, Texas (Tr. Ct. No. 29221)
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
MEMORANDUM OPINION
Brian Hoyle Justice
Appellant, Aiman M. Kouatli, doing business as both Kouatli Oil &Gas and AMK Oilfield Service, Inc., appeals the trial court's grant of summary judgment in favor of Appellee, Endeavor Energy Resources, L.P. (Endeavor). In his sole issue, Kouatli challenges the trial court's grant of Endeavor's no-evidence motion for summary judgment on his breach of contract claim. We affirm.
Background
On or about May 5, 2009, Endeavor entered into a Master Services Agreement (MSA) with Kouatli Oil &Gas and AMK Oilfield Service, Inc., under which Kouatli (as "Contractor") would provide services related to Endeavor's (as "Operator") oil and gas drilling business. Section 1.1 of the MSA states, in relevant part:
At any time and from time to time during the term of this Contract, when Operator desires work to be performed by Contractor, a representative of the Operator shall give Contractor a request for such work. The request ("Work Order") may be in the form of a Work Order, purchase order, letter, memorandum, or other document or may be oral. Upon acceptance of any such Work Order, Contractor shall thereafter commence the performance of the work in accordance with the terms of the Work Order and this Contract. This Contract shall control and govern all work performed by Contractor under Work Orders, either oral or written. Notwithstanding the foregoing, any requested oral work order shall be confirmed in writing within three (3) business days by Contractor. Agreements or stipulations in any such Work Order not in conformity with the terms and provisions hereof shall be null and void. No waiver of any terms, provisions or conditions hereof shall be effective unless in writing and signed by an authorized officer of Operator and Contractor.
Additionally, the final paragraph of the MSA provides:
This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions, prior agreements and understandings relating to the subject matter hereof. This Agreement may not be modified or amended except by an express written Amendment assigned [sic] by both parties.
In March of 2018, Kouatli sued Endeavor for breach of the MSA, alleging that Endeavor failed to remit payment for multiple invoices issued from 2012 to 2015. In its answer, Endeavor denied the allegations, denied that Kouatli performed all contractual obligations under the MSA, and denied that all applicable conditions precedent were fulfilled.
Subsequently, Endeavor filed four motions for summary judgment. The second motion alleged that no evidence supported multiple essential elements of Kouatli's breach of contract claims. Specifically, Endeavor asserted that Kouatli could produce no evidence that (1) "the work described in each of the 16 invoices was requested by Endeavor either (i) through a written Work Order, or (ii) through an oral work order that Plaintiff confirmed in writing within 3 days of issuance," (2) Kouatli "performed the work described in each of the 16 invoices in compliance with the terms of the MSA and a Work Order that conforms to the requirements of the MSA," and (3) "an authorized officer of both Endeavor and [Kouatli] agreed to waive compliance with the requirements of the MSA with respect to any of the work described in the 16 invoices" at issue.
Endeavor attached no evidence to the motion at issue on appeal (as is proper in the no evidence context). See Nalle Plastics Fam. Ltd. P'ship v. Porter, Rogers, Dahlman & Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.-Corpus Christi 2013, pet denied.) ("The burden of producing evidence is entirely on the non-movant; the movant has no burden to attach any evidence to the motion.").
In response to Endeavor's second motion, Kouatli produced his own affidavit in which he averred:
Plaintiffs contracted with Defendant to perform and furnish work, equipment, and materials for Defendant.
All work performed by Plaintiffs was verbally authorized by Defendant or Defendant's representative in the same manner as all work Plaintiffs have performed for Defendant over the course of the last ten years has been authorized. Further, during the operative time period, I was Defendant's representative and was authorized by Defendant to determine what services were necessary to service Defendant's wells.
Plaintiffs prepared and submitted Daily Work Reports to Defendant or Defendant's representative that described the work represented by the invoices. Defendant or Defendant's representative signed each such report, thereby accepting and confirming the performance of Plaintiffs' work.
Plaintiffs have not received any notification of dispute as to the amount of any invoice from Defendant.
Endeavor objected in writing to the above paragraphs of Kouatli's affidavit on multiple grounds, including the presence of unsupported factual and legal conclusions, the parol evidence rule, that Kouatli's affidavit testimony contradicted his deposition testimony, and that Kouatli's affidavit testimony was incompetent summary judgment evidence as the testimony of an interested witness. The trial court did not rule on Endeavor's objections and heard oral argument only pertaining to the no evidence motion for summary judgment and Endeavor's traditional motion for summary judgment on contractual grounds.
Following oral argument, the trial court granted Endeavor's no evidence motion for summary judgment on Kouatli's breach of contract claims in an order which specified that it was final, appealable, and disposed of all claims and parties. The trial court did not rule on Endeavor's remaining summary judgment motions. This appeal followed.
Summary Judgment
Kouatli argues that the trial court erred in granting Endeavor's no evidence motion for summary judgment because he produced more than a scintilla of evidence concerning the challenged elements of his breach of contract claim.
Standard of Review
Because summary judgment is a question of law, a trial court's summary judgment decision is reviewed de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life &Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 467-68 (Tex. App.-Dallas 2009, pet. denied).
After an adequate time for discovery, a party without the burden of proof at trial may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense. See TEX. R. CIV. P. 166a(i). Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged elements. See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.-Houston [1st Dist.] 1999, no pet.). We review a no evidence motion for summary judgment under the same legal sufficiency standards as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). A no evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. See id. at 751. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. See id.
Applicable Law
To prove a breach of contract claim, the following elements must be satisfied: 1) a valid contract, 2) the plaintiff performed or tendered performance, 3) the defendant breached the contract, and 4) the plaintiff was damaged by the breach. Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex. App.-Tyler 2004, pet. denied). Additionally, a party seeking to recover under a contract bears the burden of proving that all conditions precedent have been satisfied. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 283 (Tex. 1998); Lidawi v. Progressive Cty. Mut. Ins. Co., 112 S.W.3d 725, 729 n.1 (Tex. App.-Houston [14th Dist.] 2003, no pet.). "A condition precedent is an event that must happen or be performed before a right can accrue to enforce an obligation." Solar Applications Engineering, Inc. v. T.A. Operating Corp., 327 S.W.3d 104, 108 (Tex. 2010). It may be either a condition to the formation of a contract or to an obligation to perform an existing agreement. Great W. Drilling, Ltd. v. Pathfinder Oil &Gas, Inc., No. 11-14-00206-CV, 2020 WL 373096, at *8 (Tex. App.- Eastland Jan. 23, 2020, pet. dism'd) (mem. op.) (citing Dillon v. Lintz, 582 S.W.2d 394, 395 (Tex. 1979)). In a contract with a condition precedent, performance (or waiver or excusal thereof) of that condition precedent is an essential element of a plaintiff's breach of contract case. Abrams v. Salinas, 467 S.W.3d 606, 614 (Tex. App.-San Antonio 2015, no pet.).
Analysis
In its motion for summary judgment, Endeavor asserts there is no evidence of multiple elements of Kouatli's breach of contract claim: (1) fulfillment of a condition precedent (the requirement of a written work order or written confirmation of a verbal work order), (2) Kouatli's own performance under the MSA, and (3) breach by Endeavor (which it asserts could not have occurred because it never incurred any obligation to pay). Kouatli asserts that "the manner of conduct in which Endeavor and Kouatli operated for approximately ten years precluded enforcement of the requirements of the MSA as it related to the manner in which work was requested and performed." Kouatli cites two cases generally addressing the topic of summary judgment under Rule 166a(i). But he directs this Court to no legal authority that Endeavor's conduct "precluded" it from enforcing any specific portion of the MSA "related to the manner in which work was requested and performed," or otherwise waived its contractual rights in any way. See TEX. R. APP. P. 38.1 ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."). The sole piece of evidence Kouatli presented (his own affidavit), even when viewed in the light most favorable to him as the nonmovant, does not amount to more than a scintilla of probative evidence on the elements Endeavor challenged in its motion.
First, Kouatli does not expressly assert that he fulfilled, or was excused from fulfilling, the alleged condition precedent (namely submission of written confirmation after receiving an oral work order from Endeavor), nor does he argue that the confirmation was not a condition precedent. Instead, Kouatli admits that he never submitted written confirmation of any verbal work orders, although required under the parties' agreement. Second, even accepting Kouatli's affidavit testimony as true, it does not address, or raise a genuine issue of material fact on, the element of Kouatli's own performance under the MSA (and in turn, whether Endeavor ever incurred an obligation to pay the disputed invoices). See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). In fact, Kouatli's affidavit states, "All work performed by Plaintiffs was verbally authorized by Defendant or Defendant's representative... during the operative time period, I was Defendant's representative. Defendant or Defendant's representative signed each [Daily Work Report.]" This vague language appears to raise the possibility that Kouatli himself requested, authorized, and subsequently affirmed much or all of his own work. Third, to the extent Kouatli attempts to argue that Endeavor waived its right to enforce any provision of the MSA, his affidavit is wholly devoid of facts in support of this argument. Kouatli does not claim the existence of any written agreement among the parties other than the MSA (presumably including a written modification thereto) that would effect such a waiver, and further does not assert that Endeavor waived its ability to enforce the nonwaiver clause of the MSA.
Because Kouatli failed to support his claim of breach of contract with summary judgment evidence, the trial court did not err in granting Endeavor's no evidence motion for summary judgment. We overrule Kouatli's sole issue.
Disposition
Having overruled Kouatli's sole issue, we affirm the trial court's judgment.
JUDGMENT
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the appellant, Aiman M. Kouatli, doing business as both Kouatli Oil &Gas and AMK Oilfield Service, Inc., for which execution may issue, and that this decision be certified to the court below for observance.