Opinion
NO. 01-18-00397-CV
04-28-2020
JASON SEARCY, AS TRUSTEE AND DEBTOR IN POSSESSION FOR THE BANKRUPTCY ESTATE OF PRIMERA ENERGY, L.L.C., Appellant v. R.W. DIRKS PETROLEUM ENGINEER, INC., Appellee
On Appeal from the 215th District Court Harris County, Texas
Trial Court Case No. 2015-65104
MEMORANDUM OPINION
Jason Searcy, as trustee and debtor in possession for the bankruptcy estate of Primera Energy, L.L.C., appeals from an adverse summary judgment. In five issues, he contends that the trial court:
(1) abused its discretion by hearing the summary-judgment motion on less than 21 days' notice as required by the rules of procedure;We affirm.
(2) abused its discretion by allowing him five days to respond to the summary-judgment motion before granting summary judgment;
(3) abused its discretion by denying his motion for a continuance of the summary-judgment hearing to allow him to conduct further discovery;
(4) erred by granting summary judgment on his claim for breach of fiduciary duty because the movant did not seek it as to this claim; and
(5) erred by granting summary judgment on his claim for breach of contract due to the existence of genuine issues of material fact.
BACKGROUND
This suit arises out of two fracking mishaps in the Eagle Ford basin.
Primera Energy was the operator of the Screaming Eagle 3-H well. It hired R.W. Dirks Petroleum Engineer, Inc. as its consulting engineer on the well. As the consulting engineer, Dirks acted as Primera's "company man." In this capacity, Dirks oversaw and coordinated all operations at the well on Primera's behalf.
Among other services, Dirks advised Primera in choosing equipment. Dirks had heard anecdotal reports of casing and casing collar failures from other operators in the basin. A casing is a pipe placed in an oil or gas well to prevent cave in, restrict and control the movement of fluids, and maintain pressure while drilling. A casing collar is the threaded coupling that joins two casings together.
On Dirks's advice, Primera bought casings and casing collars from Tejas Tubular Products, Inc. Tejas Tubular represented that its casings and collars had been designed to minimize the risk of failure in fracking operations. Tejas Tubular also committed to have its representative, Superior Performance, Inc., at the well to observe and explain how best to use the casings and collars.
Primera, or Dirks acting as its agent, hired various other contractors and subcontractors to work the well. These included drilling and casing contractors, which did the actual drilling and installation of the casing.
On December 5, 2013, a casing collar failed. This halted work and required remedial measures, including removal of some of the casing that had been installed. After the issue was remedied, the casing previously used in the well was reinstalled, and work on the well resumed on December 17. On January 1, 2014, part of the casing itself failed, which again halted work and required remedial measures.
PROCEDURAL HISTORY
On October 30, 2015, Searcy, as trustee for the now-bankrupt Primera, sued Tejas Tubular. Searcy alleged causes of action for negligent design, marketing, and manufacture, corresponding product-liability claims, and breach of warranty. He alleged damages in excess of $2,300,000.
Tejas Tubular answered. On May 4, 2016, it filed a third-party petition suing multiple entities and persons that it alleged were liable for contribution. These third- party defendants included Dirks, Superior Performance, and several contractors, including those responsible for drilling and casing installation at the well.
Dirks filed a general denial. Dirks also asserted the statute of limitations as an affirmative defense.
Dirks sought leave to designate two third-party defendants as responsible third parties vis-à-vis Tejas Tubular's contribution claim. The trial court granted leave.
The trial court entered an agreed docket-control order, which the court later amended by agreement. Together these orders provided that any additional parties were to be joined and served by May 13, 2016; summary-judgment motions were to be set for hearing by March 9, 2018; discovery was to be concluded and all amended pleadings were to be filed by March 16, 2018; and trial was set for April 16, 2018.
On December 5, 2017, Searcy moved for leave to file an amended petition naming Dirks as a defendant and asserting a breach-of-contract claim against it. Searcy's proposed amended petition also named several others as defendants, including three that had not previously been joined to the suit as parties and who thus far had only been designated as responsible third parties by third-party defendants.
On January 26, 2018, the trial court denied Searcy's motion for leave to file an amended petition except as to a single third-party defendant. With respect to Dirks, the court denied Searcy's motion for leave.
On February 28, 2018, Searcy moved for reconsideration of the denial of his motion for leave to file an amended petition. His motion was scheduled to be heard by the trial court on March 12, 2018.
In early March 2018, Searcy announced that he had settled, nonsuited, or soon would nonsuit his claims as to all parties other than Dirks. Tejas Tubular nonsuited its contribution claim against Dirks later that month.
On March 7, 2018, Dirks moved for summary judgment on Searcy's contract claim. Dirks sought no-evidence summary judgment on the basis that Searcy had no evidence of a valid contract between the parties, performance by Searcy, or breach by Dirks. Dirks sought traditional summary judgment on the basis that Searcy's claim required expert testimony but Searcy's expert did not fault Dirks and because Searcy's claim was barred by limitations.
Dirks contemporaneously moved for leave to shorten the time to hear its summary-judgment motion from 21 days to 5 days. Searcy opposed this motion on the grounds that it violated the docket-control order and he was entitled to 21 days' notice under the rules of civil procedure.
The trial court heard Searcy's motion to reconsider the denial of leave to file an amended petition, Dirks's motion to shorten time, and Dirks's summary-judgment motion on March 12, 2018. At the hearing, the trial court asked Searcy whether he had served any discovery on Dirks. Searcy conceded that he had not previously served any written discovery requests on Dirks but did note that he had noticed the deposition of Dirks's corporate representative for March 15—one day before the close of discovery; Searcy represented that he otherwise had relied on discovery requests made by other parties during the course of litigation. Searcy also requested "a couple of days" to file a formal response to Dirks's summary-judgment motion. The trial court gave him until March 14 to file a response.
On March 14, 2018, Searcy filed a verified motion for continuance and response to Dirks's motion for summary judgment. Searcy sought the continuance on the ground that he needed to depose a corporate representative of Dirks to support his contract claim because Dirks had heretofore misrepresented its role in the fracking mishaps. Searcy opposed summary judgment on the grounds that more than a scintilla of evidence supported his contract claim, Searcy was not required to support his claim with expert testimony and Dirks had mischaracterized Searcy's expert testimony, and Dirks had not conclusively proved its limitations defense.
On March 15, 2018, Searcy moved to compel the deposition of Dirks's corporate representative after Dirks had quashed the deposition. The record does not reflect whether the trial court ruled on the motion.
On March 15, 2018, Searcy also filed a second amended petition. In Searcy's amended petition, he still named Tejas Tubular as a defendant. He also named Dirks and two other third-party defendants as defendants. Searcy alleged that Dirks was liable for breach of contract and breach of fiduciary duty.
Dirks answered Searcy's second amended petition the next day. It generally denied Searcy's allegations and asserted several affirmative defenses, including the statute of limitations.
On March 21, 2018, the trial court granted Dirks's summary-judgment motion and dismissed Searcy's claims without stating a basis for its ruling. A week later, the trial court denied Searcy's continuance motion.
Searcy moved for reconsideration of the trial court's summary judgment on April 18, 2018. Searcy argued that reconsideration was warranted because he had not been given adequate time to file a response and he had not yet filed his response when the trial court held its summary-judgment hearing. Searcy also argued that the trial court had erred in granting summary judgment on his claim for breach of fiduciary duty because Dirks had not moved for summary judgment on this claim.
On April 30, 2018, the trial court denied Searcy's motion for reconsideration. By this time, no other claims in the suit remained pending.
Searcy appeals.
DISCUSSION
I. Shortened Time For Consideration of Summary-Judgment Motion
In his first two issues, Searcy argues that the trial court abused its discretion in hearing Dirks's summary-judgment motion three business days after it was filed and in allowing Searcy just five business days to file a response before ruling. In his third issue, Searcy argues that the trial court abused its discretion in denying his motion for continuance of the summary-judgment hearing so that he could conduct further discovery.
A. Standard of review and applicable law
The summary-judgment rule requires 21 days' notice except "on leave of court." TEX. R. CIV. P. 166a(c). This notice requirement exists to ensure that the nonmovant has a fair opportunity to respond to the motion. Rasheed v. Tex. Fair Plan Ass'n, No. 01-15-00887-CV, 2016 WL 3162584, at *2 (Tex. App.—Houston [1st Dist.] June 2, 2016, no pet.) (mem. op.); Ready v. Alpha Bldg. Corp., 467 S.W.3d 580, 585 (Tex. App.—Houston [1st Dist.] 2015, no pet.). As the language of the rule indicates, however, a trial court has discretion to shorten the 21-day period. See Rasheed, 2016 WL 3162584, at *2. We therefore review a trial court's decision to do so for abuse of discretion. Id.
A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998). This standard of review insulates the trial court's discretionary choices from appellate second guessing, and we therefore cannot reverse the trial court simply because we might have decided the issue differently. See Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011); Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). When a trial court makes its ruling based on conflicting evidence, we must affirm its decision unless we conclude that the circumstances extinguish any discretion in the matter. See Samlowski, 332 S.W.3d at 410; Kepple, 970 S.W.2d at 526.
The summary-judgment rule also allows a trial court to order a continuance if the nonmovant cannot respond to the motion without further discovery. TEX. R. CIV. P. 166a(g); see also TEX. R. CIV. P. 166a(i) (imposing adequate time for discovery as prerequisite for consideration of no-evidence summary-judgment motion). We review a trial court's decision on whether to grant a continuance for abuse of discretion as well. Cypress Creek EMS v. Dolcefino, 548 S.W.3d 673, 687 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). In deciding whether a trial court abused its discretion in denying a continuance, we consider factors like the:
• nature of the case;
• length of time the case and motion have been on file;
• materiality and purpose of the discovery sought;
• amount of discovery that has already taken place; and
• movant's diligence in seeking the discovery.Id.; Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 404 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
Even when a trial court abuses its discretion, however, we may not reverse its judgment unless the error probably caused the rendition of an improper judgment or probably prevented appellate review. See TEX. R. APP. P. 44.1(a); Cypress Creek, 548 S.W.3d at 688 (when reviewing court determines trial court abused its discretion, reviewing court must conclude error was harmful to reverse); Mullins v. Martinez R.O.W., 498 S.W.3d 700, 705 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (rulings reviewable for abuse of discretion, including denial of motion for continuance, reversible only if error was harmful).
B. Analysis
The record shows that Searcy was given little notice of the summary-judgment hearing and little notice to prepare and file a response in opposition. On the present record, however, we are constrained to hold that the trial court did not abuse its discretion in either regard as its decisions were based on disputed facts and we cannot say that the circumstances extinguished the trial court's discretion such that it had no choice but to give Searcy greater notice of the hearing or additional opportunity to respond to the motion. In addition, we hold that any conceivable error associated with either action would be harmless at any rate.
Searcy filed suit in October 2015. He tried to assert a claim against Dirks for the first time when he sought leave to file an amended petition naming Dirks as a defendant more than two years later. The trial court denied Searcy leave to add Dirks as a defendant, and Searcy moved for reconsideration. His motion for reconsideration was set to be heard in mid-March 2018. Five days before the hearing, Dirks moved for summary judgment and requested that its summary-judgment motion be heard the same day as Searcy's motion for reconsideration. Both Searcy's motion for reconsideration and Dirks's summary-judgment motion concerned the contract claim that Searcy desired to assert against Dirks.
Under these circumstances, the trial court did not abuse its discretion in shortening the time for hearing and responding to Dirks's summary-judgment motion. The dispute as to Searcy's contract claim was not a new one. The trial court had denied Searcy leave to add Dirks as a defendant more than a month before the summary-judgment hearing. Searcy therefore knew before Dirks moved for summary judgment that he would have to act before trial, set for April 2018, if he wished to pursue a contract claim against Dirks. Searcy did so by moving for reconsideration of his requested pleading amendment. Dirks then moved for summary judgment and requested that its motion be heard at the same time as Searcy's motion for reconsideration. Given that both motions concerned the same subject matter—Searcy's contract claim against Dirks—the trial court did not act arbitrarily or unreasonably by hearing them together. As to Searcy's expedited date for filing a summary-judgment response, Searcy requested a "couple of days" to respond at the hearing, and the trial court granted his request. The trial court did not act arbitrarily or unreasonably by granting Searcy the very relief he requested.
Nor does Searcy explain how the trial court's expedited consideration of the summary-judgment motion harmed him. On appeal, he alternatively argues that:
(1) the evidence he filed in opposition to summary judgment raises a genuine issue of material fact requiring a trial; orIn other words, Searcy maintains that the trial court either erred in granting summary judgment or else should have postponed consideration of summary judgment to allow further discovery. He does not, however, articulate any specific harm that he suffered because the trial court heard the motion within three business days of its filing or required him to file a response within five business days, aside from the denial of the opportunity to conduct additional discovery. We thus proceed to consider Searcy's complaint as to the trial court's denial of his continuance motion.
(2) the trial court should have granted his motion for continuance to develop the evidence necessary to raise a genuine issue of material fact.
Searcy contends that the trial court erred in refusing to continue the summary-judgment hearing to allow for the deposition of Dirks's corporate representative. But Searcy's suit had been pending for more than two years when the trial court denied his motion for continuance. As Primera's consultant, Dirks's role in the fracking operation was well known. Cliff Davis, a key employee of Dirks, had been deposed as a fact witness in September 2017 and was questioned by Primera's counsel during his deposition. Dirks had long been a third-party defendant, and Searcy had unsuccessfully tried to name Dirks as a defendant three months before Dirks moved for summary judgment. By the time Dirks moved for summary judgment, trial was about a month away, and the close of discovery was imminent. Even so, Searcy conceded at the summary-judgment hearing that he had not served discovery on Dirks before noticing the deposition of a corporate representative shortly beforehand and instead had relied on discovery requests made by others. On this record, we hold that the trial court did not abuse its discretion in denying a continuance to conduct additional discovery because the trial court could have reasonably found based on the disputed facts before it that Searcy did not diligently use the discovery rules to investigate the contract claim that he belatedly tried to assert.
In the trial court, Searcy tried to explain his delay based on the contention that Dirks had until recently concealed its role in causing the fracking mishaps. He argued in his motion for continuance that he "was misled by Dirks regarding the events that led to the damages sustained by Primera" and was "told by Dirks, its agent and fiduciary, that Tejas Tubular was responsible for all of the damages." The trial court, however, was not bound to accept Searcy's conclusory assertions at face value. Moreover, even if the trial court credited Searcy's version of events, it reasonably could have found that Searcy, represented by his own counsel, did not diligently conduct discovery on the circumstances of his loss and the identity of those who allegedly were to blame. See Cypress Creek, 548 S.W.3d at 687 (party must show due diligence to obtain continuance for further discovery); Landers v. State Farm Lloyds, 257 S.W.3d 740, 747 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (party that doesn't diligently use discovery rules is not entitled to continuance).
Searcy also contended in the trial court that Dirks had thwarted his discovery efforts. However, in his motion for leave to file an amended petition naming Dirks as a defendant, Searcy admitted that "not much discovery ha[d] taken place" as of early December 2017. In his motion for continuance, Searcy cited a single effort to obtain the deposition of Dirks's corporate representative: on March 8, 2018, Searcy noticed the deposition for March 15—a day before the close of discovery. Dirks quashed the deposition, and Searcy filed a motion to compel the deposition on March 15. In his motion to compel, Searcy acknowledged that he had first asked for the deposition on February 8, 2018—after the trial court already had denied Searcy leave to amend its petition to sue Dirks. On this record, the trial court reasonably could have found that Searcy did not diligently seek this deposition and was not improperly thwarted from obtaining it by Dirks. In particular, we note that Searcy did not act promptly enough to compel the additional discovery he sought so that it could be completed by the discovery deadline. See TEX. R. CIV. P. 190 cmt. 4. The trial court therefore did not abuse its discretion in denying Searcy's request for a continuance. See Chico Auto Parts & Serv. v. Crockett, 512 S.W.3d 560, 578-79 (Tex. App.—El Paso 2017, pet. denied) (continuance motion premised on discovery abuse must be substantiated to justify postponing summary-judgment hearing).
Finally, Searcy argues that we should consider on appeal whether the trial court erred at the outset in denying his request for leave to file an amended petition asserting a contract claim against Dirks. In his opening brief, however, Searcy did not challenge the trial court's order denying leave to add Dirks as a defendant. He belatedly attempted to do so in his reply brief, but an appellant cannot raise new issues in his reply. Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Searcy asserts that a challenge of the trial court's denial of leave to amend is a subsidiary issue of the issues raised in his opening brief. We disagree. A single issue challenging multiple trial court rulings is multifarious and improper. Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 570 (Tex. App.—Houston [1st Dist.] 1996), aff'd, 972 S.W.2d 35 (Tex. 1998); see, e.g., Saldana-Fountain v. Chavez Law Firm, 450 S.W.3d 913, 916 (Tex. App.—El Paso 2014, no pet.) (continuance and discovery rulings not within scope of appellate issue challenging trial court's summary-judgment ruling). Thus, in general, a challenge to one trial-court ruling does not subsume challenges to distinct and separate rulings. We hold that the trial court's denial of Searcy's motion for leave to file an amended petition is not before us.
Even if Searcy had properly challenged the trial court's denial of his motion for leave to amend, he could not show harm. By considering whether Dirks was entitled to summary judgment on Searcy's contract claim, the trial court implicitly treated the amendment as though it and Searcy's contract claim had been allowed.
We overrule Searcy's first, second, and third issues.
II. Summary Judgment on Searcy's Claim for Breach of Fiduciary Duty
Searcy filed a second amended petition alleging claims for breach of contract and breach of fiduciary duty against Dirks three days after the summary-judgment hearing. In his fourth issue, Searcy argues that the trial court erred in granting summary judgment as to his fiduciary-duty claim because Dirks never moved for summary judgment on that claim.
A. Standard of review and applicable law
In general, a party may amend its pleadings without leave of court so long as it does so more than a week before trial and the amendment does not surprise opposing parties. TEX. R. CIV. P. 63. When, however, a party wants to amend its pleadings within seven days of trial, it must obtain permission from the court, which must grant permission unless a showing of surprise is made. Id. A summary-judgment hearing is a trial for purposes of this rule. Mensa-Wilmot v. Smith Int'l, 312 S.W.3d 771, 778-79 (Tex. App.—Houston [1st Dist.] 2009, no pet). In addition, the summary-judgment rule specifies that the court's ruling must be based on the pleadings "on file at the time of the hearing, or filed thereafter and before judgment with permission of the court." TEX. R. CIV. P. 166a(c).
If a trial court does not state whether it granted leave of court to file an amended pleading, we apply certain presumptions. When a party files an amended pleading within seven days before a summary-judgment hearing, we presume that the trial court granted leave to do so if the summary judgment states that all pleadings were considered, the record does not indicate that the amended pleading was not considered, and the opposing party does not show surprise. Mensa-Wilmot, 312 S.W.3d at 778. This presumption does not apply, however, when a party files an amended pleading after the summary-judgment hearing. Id. Instead, when a party files an amended pleading after the hearing, we presume that the trial court denied leave to amend unless the record shows leave was granted. Id. at 778-79.
On appeal, we do not consider an amended pleading filed after the summary-judgment hearing if the trial court did not grant leave to amend. Id. at 779-80. The movant thus need not amend his motion to address such an amendment. Id. at 780.
B. Analysis
Searcy argues that the we must presume that the trial court considered his second amended petition because the summary judgment recites that the court considered "the pleadings." Assuming "the pleadings" indicates that the trial court considered all pleadings on file, Searcy's argument rests on the presumption applicable when a party files an amended pleading within seven days before the summary-judgment hearing. See id. at 778. But he filed his second amended petition after the hearing. Therefore, unless the record shows that the trial court granted him leave to amend, we presume that it did not grant leave. Id. at 778-79. The record does not show that the trial court granted Searcy leave to file his second amended petition. Thus, we do not consider Searcy's second amended petition for purposes of summary judgment. See id. at 778-80.
We overrule Searcy's fourth issue.
III. No-Evidence Summary Judgment on Searcy's Contract Claim
In his fifth issue, Searcy argues that the trial court erred in granting no-evidence summary judgment because genuine issues of material fact exist as to each element of his contract claim. In particular, Searcy maintains that the summary-judgment evidence raises a reasonable inference that there was an implied-in-fact contract between Primera and Dirks and that Dirks breached this contract.
A. Standard of review
We review summary-judgment orders de novo. Cypress Creek, 548 S.W.3d at 683. When, as here, a party moves for both traditional and no-evidence summary judgment, we first review the trial court's ruling under the no-evidence standard. Id.
After adequate time for discovery, a party may move for summary judgment on the basis that there is no evidence to support one or more essential elements of the nonmovant's claim. TEX. R. CIV. P. 166a(i); Cypress Creek, 548 S.W.3d at 684. The trial court must grant no-evidence summary judgment unless the nonmovant responds by producing competent summary-judgment evidence raising a genuine issue of material fact as to each challenged element. TEX. R. CIV. P. 166a(i); Cypress Creek, 548 S.W.3d at 684. The standard of review mirrors legal-sufficiency review. Cypress Creek, 548 S.W.3d at 684. Thus, we will affirm a no-evidence summary judgment when there is a complete absence of evidence of a vital fact; the court is barred by rules of law or evidence from giving weight to the sole evidence offered to prove a vital fact; the evidence offered to prove a vital fact is no more than a mere scintilla; or the evidence conclusively shows the opposite of a vital fact. Id. We consider the evidence in the light most favorable to the nonmovant. Id.
B. Applicable law
To prove a breach of contract, Searcy must show (1) the existence of a valid contract between Primera and Dirks, (2) performance or tendered performance by Primera, (3) breach of the contract by Dirks, and (4) damages. AKIB Constr. v. Shipwash, 582 S.W.3d 791, 806 (Tex. App.—Houston [1st Dist.] 2019, no pet.). Dirks disputed the first three elements in its no-evidence motion.
As to the existence of a valid contract, the elements are the same regardless whether the contract is express or implied. Plotkin v. Joekel, 304 S.W.3d 455, 476 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). These elements are an offer, an acceptance, a meeting of the minds, consent to the terms, and execution and delivery of the contract with the intent that it be mutual and binding. Id. The difference between an express and implied contract is that the latter is shown by the surrounding circumstances rather than a writing. See id. at 476-77; City of Houston v. First City, 827 S.W.2d 462, 473 (Tex. App.—Houston [1st Dist.] 1992, writ denied). A meeting of the minds requires mutual assent as to the material terms of the contract; without this mutual assent, there is not an enforceable contract. Potcinske v. McDonald Prop. Invs., 245 S.W.3d 526, 530 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
C. Summary-judgment evidence
Searcy relies on the deposition testimony of Cliff Davis, an employee of Dirks, to support his contract claim. He contends that Davis's testimony raises genuine issues of material fact as to whether Dirks was contractually obligated to ensure that an electronic torque-monitoring device was used when casing was installed and that casing that had been removed was not reused or reinstalled.
Primera and Dirks did not have a written contract. But Dirks does not dispute that an implied-in-fact contract existed. Instead, Dirks disputes that the contract made it responsible for ensuring the use of an electronic torque-monitoring device or preventing the reuse or reinstallation of removed casing. Dirks contends that Davis's testimony does not raise a genuine issue of material fact on these issues.
Davis was deposed as a fact witness, not as a corporate representative. Several other independent consultants associated with Dirks worked at the well during its drilling and completion. Davis's role was more supervisory in nature. He investigated the two mishaps after they occurred.
Davis testified that Dirks worked for Primera as a consulting engineer. As the consulting engineer, Dirks represented Primera at the well and advised Primera on technical aspects of the operation that were outside Primera's expertise. For the most part, Primera delegated its decision-making authority to Dirks.
Dirks oversaw operations at the well. Contractors and subcontractors performed various tasks; Dirks's job was to ensure that all parties worked together to achieve Primera's goals. Dirks did not control every aspect of the contractors' and subcontractors' work. Instead, its role was to integrate their tasks into the overall operation and coordinate responses when problems arose. A drilling contractor was in charge of the actual drilling, and there were casing subcontractors as well.
Dirks assisted Primera in choosing equipment. Dirks had heard anecdotal reports of casing-related failures in the area—enough reports for the issue to be a concern. On Dirks's advice, Primera bought Tejas Tubular's casings and collars because they were represented to be as close to failure-proof in fracking as possible. Tejas Tubular agreed to provide an on-site representative to advise as to their use.
Superior Performance was Tejas Tubular's on-site representative. Superior Performance's role was one of quality-control; it was there to ensure that the casings and collars were used as the manufacturer intended. According to Davis, Tejas Tubular—through its on-site representative—effectively was responsible for how the casings and collars were used at the well:
Q. Based on the communications you had with Primera—and you were acting as Primera's agent. Right?Because these were Tejas Tubular's products, Tejas Tubular—through Superior Performance—would or should have made the decisions as to how these products were used.
A. Yes.
Q. Through this whole thing. Right?
A. Yes.
Q. So based on—really, based on the conversations you had with Tejas, you were under the impression, as Primera's agent, that Tejas was going to be overseeing this to make sure everything was done correctly?
A. Yes.
Q. And that includes the installation?
A. Yes.
Q. And that includes when the—after the first failure, the second insertion?
A. Yes.
From start to finish, Davis testified, Tejas Tubular and its representative were in charge of overseeing the use of its casings and collars. This included ensuring that the casing contractor used the correct amount of torque, which is force applied to the casing in a rotational fashion. Davis stated that, based on Tejas Tubular's representations, it or its agent had supervised the casing installation to ensure that it was properly done on the occasion of both mishaps. Davis acknowledged, however, that Superior Performance was not in control of the casing installation and that its role would have been to make recommendations to the casing contractor.
There are two ways to monitor torque: a gauge and an electronic device known as a "torque turn." A torque turn was not used. According to Davis, the operator typically decides whether to use one. Some operators use them, and some do not; using them imposes additional cost. Davis did not have firsthand knowledge as to the decision-making process for not using a torque turn at the well. He assumed that Superior Performance—as Tejas Tubular's representative—"would make this call" because it "would have better information than Dirks on this question." But he did not know for certain whether this was the case. No one ever told Davis that use of a torque turn was required or recommended in this instance.
As to the reinstallation of the same casing after the first mishap, Davis testified that in his opinion casing is made to be used a single time and that he raised this issue with both Tejas Tubular and Primera. Specifically, Davis said that Dirks asked for new casing to be used after the first mishap, but Tejas Tubular insisted that reusing the previously installed casing would be fine. Dirks ultimately deferred to Tejas Tubular on this issue because Tejas Tubular vouched for the reusability of the casing. Davis testified that he generally tries "to stay away from telling a particular vendor how to do their job," in part because the vendor is the expert when it comes to its own products.
D. Analysis
Davis's testimony makes it clear that Dirks coordinated all operations at the well and had significant decision-making authority. His testimony, however, provides no evidence from which a reasonable jury could find that Dirks had agreed to ensure that an electronic torque-monitoring device was used when casing was installed or that removed casing was not reused or reinstalled.
Tejas Tubular and its on-site representative, Superior Performance, were the experts on casing and collars, and their advice was heeded. Neither Tejas Tubular nor Superior Performance recommended the use of an electronic torque-monitoring device, and nothing in Davis's testimony suggests that Dirks was responsible for ensuring that one was used in the absence of a recommendation to do so. To the best of Davis's knowledge, Tejas Tubular and Superior Performance would have decided whether to use such a device because they knew more about it than Dirks.
Davis testified that Tejas Tubular recommended reuse of the casing that had been installed and then removed after the first mishap. Davis raised concerns about reinstalling the used casing with Tejas Tubular and the operator. In the end, however, Dirks deferred to Tejas Tubular's recommendation due to its expertise. Nothing in the record indicates that Dirks was contractually obligated to ensure that used casing was not reinstalled over the recommendation of the product's manufacturer.
To avoid no-evidence summary judgment, Searcy was required to adduce evidence of conduct or other circumstances raising a genuine issue of material fact that Primera and Dirks mutually agreed that Dirks would be responsible for deciding whether to use an electronic torque-monitoring device when installing casing and whether removed casing should be reinstalled. See Potcinske, 245 S.W.3d at 530. Davis's testimony does not satisfy Searcy's summary-judgment burden.
We overrule Searcy's fifth issue.
Because we affirm the trial court's judgment on no-evidence grounds, we need not address the parties' additional dispute as to whether traditional summary judgment was proper on the basis of limitations. See TEX. R. APP. P. 47.1.
CONCLUSION
We affirm the trial court's judgment.
Gordon Goodman
Justice Panel consists of Chief Justice Radack and Justices Kelly and Goodman.