West Inland Energy, Inc. v. Rockwater Energy Solutions, Inc. ( 2021 )

Opinion filed June 4, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00219-CV
__________
WEST INLAND ENERGY, INC., Appellant
V.
ROCKWATER ENERGY SOLUTIONS, INC., Appellee
On Appeal from the 132nd District Court
Scurry County, Texas
Trial Court Cause No. 25930
MEMORANDUM OPINION
Appellant, West Inland Energy, Inc., brought this action against Appellee,
Rockwater Energy Solutions, Inc., and alleged that Rockwater, without
authorization, negligently administered a chemical treatment to a well owned and
operated by West Inland that caused the well to cease its production. Specifically,
West Inland asserted claims, albeit globally, against Rockwater for negligence, gross
negligence, and trespass. Rockwater filed an amended hybrid motion for summary
judgment in which it claimed that West Inland could produce no evidence that the
well treatment administered by Rockwater proximately caused the cessation of the
well’s production. The trial court granted Rockwater’s motion without stating a
basis for its rulings. West Inland now appeals those rulings, contending that (1) the
trial court erred when it granted Rockwater’s traditional motion for summary
judgment and (2) the trial court erred when it granted Rockwater’s no-evidence
motion for summary judgment. We affirm.
I. Factual and Procedural Background
West Inland owns and operates the well at issue in this case. Rockwater is an
oilfield service company that serviced the well. In 2014, the well casing leaked,
necessitating repairs. Repairs were made in the form of a “cement squeeze,” a type
of cement-based patch used to seal the leak in the well casing. After the well casing
was patched, West Inland instructed Rockwater to discontinue servicing the well.
Nevertheless, in 2016, Rockwater chemically treated the well with a scale inhibitor,
a corrosion inhibitor, and flush water. Within days after this treatment had been
completed, the well stopped producing.
West Inland filed its Amended Petition and Request for Disclosure on
March 16, 2017. Rockwater filed its amended hybrid motion for summary judgment
on March 11, 2019. The primary focus of Rockwater’s motion was the causation
element of West Inland’s asserted claims. After a hearing, the trial court granted
summary judgment against West Inland as to all claims it had asserted against
Rockwater. This appeal followed.
II. Standard of Review
We review a trial court’s order granting summary judgment de novo. KMS
Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019); Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When we review either
a traditional or a no-evidence summary judgment, we take as true all evidence
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favorable to the nonmovant, and we indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor. KMS Retail, 593 S.W.3d at 181; Provident
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We credit
evidence favorable to the nonmovant if reasonable jurors could do so, and we
disregard contrary evidence unless reasonable jurors could not. Samson
Exploration, LLC v. T.S. Reed Props., Inc., 521 S.W.3d 766, 774 (Tex. 2017);
Boerjan v. Rodriguez, 436 S.W.3d 307, 311–12 (Tex. 2014) (per curiam).
Generally, when parties move for summary judgment on both traditional and
no-evidence grounds, we first consider the no-evidence motion. KMS Retail, 593
S.W.3d at 181; Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39,
45 (Tex. 2017). If the nonmovant fails to overcome its no-evidence burden on any
claim, we need not address the traditional motion to the extent that it addresses the
same claim. Lightning Oil, 520 S.W.3d at 45; Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004).
To prevail on a traditional summary judgment motion, the movant must show
that no genuine issue of material fact exists and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); KMS Retail, 593 S.W.3d at 181; Nassar v.
Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). The evidence raises a
genuine issue of material fact if “reasonable and fair-minded jurors could differ in
their conclusions in light of all of the evidence presented.” Goodyear Tire & Rubber
Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
We review a no-evidence motion for summary judgment under the same legal
sufficiency standard as a directed verdict. Merriman v. XTO Energy, Inc., 407
S.W.3d 244, 248 (Tex. 2013). Pursuant to this standard, and “[t]o defeat a no-
evidence motion, the nonmovant must produce at least a scintilla of evidence raising
a genuine issue of material fact as to the challenged elements.” KMS Retail, 593
S.W.3d at 181; see Ridgway, 135 S.W.3d at 600; see also TEX. R. CIV. P. 166a(i).
3
Evidence is no more than a scintilla if it is “so weak as to do no more than create a
mere surmise or suspicion of a fact.” KMS Retail, 593 S.W.3d at 181 (citing King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)).
Here, the trial court’s order does not specify upon which ground or grounds it
granted summary judgment. Therefore, we will affirm if any of the grounds
advanced by Rockwater are meritorious. F.W. Indus., Inc. v. McKeehan, 198 S.W.3d
217, 220 (Tex. App.—Eastland 2005, no pet.) (citing Dow Chem. Co. v. Francis, 46
S.W.3d 237, 242 (Tex. 2001)); see FM Props. Operating Co. v. City of Austin, 22
S.W.3d 868, 872 (Tex. 2000).
III. Analysis
On appeal, West Inland contends that the trial court erred when it granted
Rockwater’s amended hybrid motion for summary judgment because Matthew Reed
would purportedly testify—whether as an expert witness or lay opinion witness—as
to certain mathematical calculations that may tend to show that the well ceased
producing as a result of Rockwater’s negligent well-treatment protocol. However,
in its brief, West Inland does not allude to or specifically address the trial court’s
grant of summary judgment as to the claims it asserted against Rockwater for gross
negligence and trespass.1
To establish a claim for negligence one must show that (1) a legal duty was
owed by one person to another; (2) a breach of that duty; and (3) damages
proximately resulting from the breach. IHS Cedars Treatment Ctr. of DeSoto, Tex.,
1
To the extent that West Inland intended to challenge the trial court’s grant of summary judgment
as to those claims, they could be waived for inadequate briefing. See TEX. R. APP. P. 38.1(i). Nevertheless,
for purposes of our review, because the element of causation was the focus of Rockwater’s motion and
West Inland’s brief and because that element also applied as to the three causes of action that West Inland
asserted against Rockwater in this case, it is plausible that West Inland’s generic issue, i.e., that the trial
court erred in granting summary judgment, could be construed to encompass West Inland’s gross
negligence and trespass claims. See Plexchem Int’l, Inc. v. Harris Cty. Appraisal Dist., 922 S.W.2d 930,
930–31 (Tex. 1996) (citing Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)).
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Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); Lee Lewis Constr., Inc. v.
Harrison, 70 S.W.3d 778, 782 (Tex. 2001). These elements cannot be satisfied by
mere conjecture, guess, or speculation. IHS Cedars, 143 S.W.3d at 798–99.
A. Incompetent Evidence
It is the basis of a witness’s opinion, and not his qualifications or his bare
opinion alone, that can establish an issue as a matter of law; that is, “a claim will not
stand or fall on the mere ipse dixit of a credentialed witness.” Burrow v. Arce, 997
S.W.2d 229, 235 (Tex. 1999) (citing Gammill v. Jack Williams Chevrolet, Inc., 972
S.W.2d 713, 726–27 (Tex. 1998)). “Expert opinions must be supported by facts in
evidence, not conjecture.” Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.
2003). If no basis for an opinion is offered, or the basis that is offered provides no
support, the opinion does not constitute probative evidence. Gunn v. McCoy, 554
S.W.3d 645, 662 (Tex. 2018). Further, if the record contains no evidence to support
an expert’s material factual assumptions, or if such assumptions are contrary to
conclusively proven facts, opinion testimony founded on those assumptions cannot
be competent evidence. See id.; Houston Unlimited, Inc. Metal Processing v. Mel
Acres Ranch, 443 S.W.3d 820, 833 (Tex. 2014). In this case, West Inland contends
that the expert opinions it intended to present from Reed, if offered, would be
sufficient to defeat Rockwater’s amended motion for summary judgment. We
disagree.
Schultz, a personal injury case that required expert testimony in the field of
accident reconstruction, is instructive. See Schultz ex rel. Schultz v. Lone Star Rd.
Constr., Ltd., 593 S.W.3d 750, 756 (Tex. App.—Houston [14th Dist.] 2019, pet.
filed). In that case, the trial court excluded an expert’s testimony because the
evidence was deemed to be incompetent—even though the expert conducted detailed
accident reconstruction analysis involving “recognized and accepted standard
engineering principles.” Id.5
In Schultz, the plaintiff’s husband was a passenger in a pickup when a heavy
projectile (a tow hook) smashed through the vehicle’s windshield and severely
injured him. Id. at 752. In response to the defendant’s motion for summary
judgment, the plaintiff’s expert attested in an affidavit as to his opinion of what
caused the accident, that is, who was responsible for the flying projectile. Id. at 755.
He recited four equations in his affidavit that “represent[ed] the recognized standard
equations used for describing an article in motion through the air.” Id. at 756–57.
The plaintiff’s expert further stated that “[a]ll engineering and physics standards and
practitioners” would confirm that these four equations were the correct tools to
analyze and reconstruct the accident that was the subject of the case. Id. at 759
(alteration in original).
In reviewing the substance of the expert’s affidavit, though the court did not
question the expert’s qualifications, it did note that the expert did not recite any of
the calculations that he had used in his analysis, nor did he define any of the variables
in the four equations. Id. Further, the court noted that the expert did not include in
his affidavit several other calculations that were relevant to his ultimate conclusions
regarding causation. Id. The Schultz court held: “On the face of the record, we can
only conclude that [the expert’s] opinion testimony that the Tow Hook traveled 45
feet from launch to impact is conclusory and speculative and thus incompetent
evidence.” Id. at 760 (citing Houston Unlimited, Inc., 443 S.W.3d at 829–32).
The court in Schultz also dismissed the plaintiff’s argument that, in the
absence of a showing of other causes, when a possible cause of an accident is known
to have been present, “it is a warrantable inference” that the known cause was the
“operative agency in bringing about such result” because, in Schultz, there was no
“absence of showing of other cause.” Id. at 760 (quoting English v. Miller, 43
S.W.2d 642, 644 (Tex. App.—Amarillo 1931, writ ref’d)).
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Here, even more so than in Schultz, Reed’s purported expert opinions lack any
basis beyond that of mere conjecture and speculation. See id.; see also Burrow, 997
S.W.2d at 235–36; Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). In the
summary judgment proceeding, both Rockwater and West Inland relied on the same
excerpts from Reed’s deposition testimony, in which Reed unequivocally conceded
that he had not performed any of the necessary calculations that would allegedly
support the four principles of physics that he and West Inland had proposed would
establish the causation element of West Inland’s negligence claim. As to each
physics theory that he and West Inland advanced and to which they claimed could
mathematically demonstrate that Rockwater’s chemical treatment of the well caused
and resulted in the well’s damage and cessation in production—the hammer effect,
the friction forces, the pressure change, and the Venturi effect—Reed clearly
testified that he was not an expert on these topics,2 that he had not performed any of
the calculations that were related to these formulas, and that he would rely on a
qualified expert to make these calculations.
At the summary judgment hearing, West Inland’s counsel summarized West
Inland’s summary judgment evidence: “[A]s I understand it, all I have to do is show
that I have experts that will prove [causation], not prove the element itself, and I do
have such experts.” Irrespective of counsel’s representation to the trial court, the
retention or designation of an expert is not itself evidence. See Fort Brown Villas III
Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881–83 (Tex. 2009). Furthermore, it
is the basis and foundation of the expert’s opinion, and not the expert’s bare
qualifications, that will resolve a disputed issue. See Burrow, 997 S.W.2d at 235.
2
Reed and West Inland’s counsel stated during Reed’s deposition that anyone could perform the
calculations that were involved in each formula; however, this representation does not contradict Reed’s
explicit testimony that he did not perform any of the necessary calculations, that he would rely upon a
qualified expert to make these calculations, and that he (Reed) was not a qualified expert in this field.
Further, West Inland points to no other evidence of causation other than Reed’s conclusory testimony and
the alleged application of the theory of res ipsa loquitor, which we discuss below.
7
The basis of Reed’s proposed opinions is premised on principles of physics,
expressed as mathematical formulas, which, according to West Inland, may
demonstrate how Rockwater’s treatment of the well caused damage to it. Even if
Reed is qualified to testify as an expert on this issue—and we do not hold that he
is—his bare assertions, without more, do not rise above the level of mere conjecture,
guess, or speculation. Therefore, the theories advanced by West Inland and Reed
constitute incompetent summary judgment evidence. See Neely v. Union Carbide
Corp., 619 S.W.3d 839, 854–55 (Tex. App.—Houston [14th Dist.] 2021, no pet. h.)
(upholding summary judgment in part because expert witness’s opinion depended
on unsupported factual assumptions and unrevealed and unexplained calculations);
Schultz, 593 S.W.3d at 761; see also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
580–84 (Tex. 2006); Burrow, 997 S.W.2d at 235–36 (excluding as incompetent
evidence expert’s affidavit for lack of sufficient basis for his opinions); Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997) (“[T]o say that the expert’s
testimony is some evidence under our standard of review simply because the expert
testified that the underlying technique or methodology supporting his or her opinion
is generally accepted by the scientific community is putting the cart before the horse
. . . . [A]n expert’s bald assurance of validity is not enough.”). In fact, Reed and
West Inland have essentially conceded this to be the case. Because Reed’s
deposition testimony and proffered opinions constitute incompetent summary
judgment evidence, we do not reach the question of his qualifications.3
3
West Inland contends for the first time on appeal that Reed’s deposition testimony may also be
considered as lay opinion testimony. See TEX. R. EVID. 701. The capacity in which Reed could allegedly
express an opinion, whether as an expert or a lay witness, does not affect the disposition of West Inland’s
appeal. Reed unequivocally testified, and it is undisputed, that he has not performed (and would not
perform) any of the necessary formula calculations to support West Inland’s claim that Rockwater’s
negligence caused the damage to the well. Further, West Inland has presented no evidence of causation as
to any claim it has asserted against Rockwater.
8
Nevertheless, even assuming that Reed’s assumptions could be characterized
as competent summary judgment evidence, West Inland neither offered nor
presented his assumptions and proposed opinions to the trial court for consideration.
In fact, no formula calculations were performed by Reed, or anyone else, to
substantiate the theories advanced by West Inland. West Inland’s response to
Rockwater’s amended hybrid motion for summary judgment merely stated that West
Inland intended to offer Reed’s formula calculations in an effort to defeat
Rockwater’s motion. As such, what Reed may have concluded had he performed
these formula calculations, in a summary judgment context, is tantamount to offering
nothing at all. Because West Inland’s assertions rested exclusively on a hypothetical
result, i.e., the conclusory and speculative calculations that Reed never performed,
it failed to present even a scintilla of evidence to controvert the basis of Rockwater’s
amended motion. Accordingly, we agree with Rockwater that West Inland did not
produce any evidence to support the causation element of its asserted claims.
B. Improper Designation
In its brief, West Inland emphasized that Reed’s deposition testimony was
bolstered by his consultation with David Watson, a petroleum engineer, who West
Inland had also designated as a potential testifying expert witness. However, West
Inland’s designation of Watson as an expert witness was untimely. West Inland filed
its Amended Petition and Request for Disclosure on March 16, 2017. Rockwater
filed its amended hybrid motion for summary judgment on March 11, 2019. West
Inland thereafter filed its response to Rockwater’s motion on June 5, 2019, and
attached, as evidence, its amended disclosure responses and designation of expert
witnesses. West Inland’s amended disclosure responses identified and designated
Reed as a testifying expert and stated that he would testify as to Rockwater’s
treatment of the well and how Rockwater’s unauthorized conduct allegedly caused
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the patch to come loose.4 Additionally, West Inland, in its amended disclosure
responses, for the first time, designated Watson as a testifying expert and stated that
he would testify “in accordance with the opinions of Mr. Reed.” At the summary
judgment hearing, Rockwater objected to West Inland’s designation of Watson as a
testifying expert as untimely; it also filed a motion to exclude.5 West Inland
ultimately conceded that Rockwater had filed its amended no-evidence motion for
summary judgment after time for adequate discovery had elapsed—two years had
passed from the date that West Inland had filed its initial request for disclosures with
its amended petition until the date that Rockwater filed its amended hybrid motion
for summary judgment.
Rule 166a(i) provides that a party may move for a no-evidence summary
judgment “[a]fter adequate time for discovery.” TEX. R. CIV. P. 166a(i). The
discovery rules for the proper and timely designation of testifying experts, and the
exclusionary provisions that apply should a party fail to do so, apply equally to trial
and summary judgment proceedings. Gillenwater, 285 S.W.3d at 881–83;
McKeehan, 198 S.W.3d at 220–21 (citing Ersek v. Davis & Davis, P.C., 69 S.W.3d
4Rockwater does not challenge the timeliness of West Inland’s designation of Reed. Rather, it only
challenges Reed’s qualifications to express expert opinions and asserts that the content (or lack thereof) of
his deposition testimony fails to raise more than a scintilla of evidence on causation.
5
Rockwater’s motion also sought to exclude Reed on the basis that he was not qualified to testify
as an expert regarding the effect of the chemical treatment on the patch. The trial court never expressly
ruled on the motion to exclude but, rather, granted summary judgment against West Inland. However, the
trial court’s order recites that, in granting summary judgment, it considered Rockwater’s motion, West
Inland’s response to the motion, and Rockwater’s reply to West Inland’s response.
Moreover, the trial court’s grant of summary judgment does not imply that it ruled on either
Rockwater’s objections or the motion to exclude. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166
(Tex. 2018). However, even in the absence of Rockwater’s objections, the trial court could have granted
summary judgment against West Inland if it found that West Inland’s evidence did not create a genuine
issue of material fact. Id. Indeed, our holding that Reed’s deposition testimony constitutes incompetent
summary judgment evidence constitutes a sufficient basis for the trial court to have granted either
Rockwater’s no-evidence motion for summary judgment or traditional motion for summary judgment
because West Inland presented no competent evidence to raise a genuine issue of material fact regarding
causation.
10
268 (Tex. App.—Austin 2002, pet. denied)). Furthermore, in a summary judgment
setting, a “date certain” exists to designate expert witnesses. McKeehan, 198 S.W.3d
at 221 (citing Ersek, 69 S.W.3d at 273). Therefore, we hold that West Inland’s
designation of Watson as a potential testifying expert was untimely. See TEX. R.
CIV. P. 190.3, 195.2; Gillenwater, 285 S.W.3d at 881–83; McKeehan, 198 S.W.3d
at 221.
Generally, under Rule 190.3, the default discovery control plan, discovery
begins when the suit is filed and continues until “the earlier of 30 days before the
date set for trial, or 9 months after the earlier of the date of the first oral deposition
or the due date of the first response to written discovery.” McKeehan, 198 S.W.3d
at 221; see TEX. R. CIV. P. 190.3(b)(1)(B). Unless otherwise ordered by the court, a
party seeking affirmative relief must designate all testifying experts no later than
ninety days before the end of the applicable discovery period. TEX. R.
CIV. P. 195.2(a); see McKeehan, 198 S.W.3d at 221. A party who fails to make,
amend, or supplement a discovery response in a timely manner, including a required
disclosure, may not introduce into evidence the material or information that was not
timely disclosed, or offer the testimony of a witness (other than a named party to the
proceeding) who was not timely identified, unless the trial court determines: (1) that
there was good cause for the failure to comply with designation requirements or
(2) that such failure will not unfairly surprise or unfairly prejudice the other parties.
TEX. R. CIV. P. 193.6(a). The party who seeks to avoid the exclusion of evidence or
witness testimony shoulders the burden to establish that good cause or the lack of
unfair surprise or unfair prejudice exists to justify its admission. TEX. R.
CIV. P. 193.6(b); see Gillenwater, 285 S.W.3d at 881; McKeehan, 198 S.W.3d at
221.
In this case, West Inland conceded, and we agree, that adequate time for
discovery had passed when Rockwater filed its amended hybrid motion for summary
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judgment. Further, West Inland did not offer any reasons to either explain or justify
its failure to timely designate Watson as a testifying expert. Therefore, because West
Inland failed to satisfy its required burden under Rule 193.6(b), West Inland would
be precluded from offering any opinions or other testimony from Watson to
controvert the basis of Rockwater’s amended motion. See Gillenwater, 285 S.W.3d
at 881–83; McKeehan, 198 S.W.3d at 221.
Importantly, as it did with Reed, West Inland failed to either offer or to present
to the trial court for its consideration any testimony, affidavit, or other form of
admissible evidence from Watson to dispute the basis of Rockwater’s amended
motion. West Inland’s designation in its amended disclosure responses, which was
submitted as an attachment to its response to Rockwater’s amended motion, simply
stated that Watson would testify “in accordance with the opinions of Mr. Reed.” As
such, West Inland contends that this recitation was equivalent to an adoption of
Reed’s testimony. Nevertheless, even if Watson had offered any opinion, the trial
court could not have considered it because of West Inland’s untimely designation of
Watson. See Cunningham v. Columbia/St. David’s Healthcare Sys., L.P., 185
S.W.3d 7, 10–14 (Tex. App.—Austin 2005, no pet.) (The trial court granted
movant’s motion to strike the affidavit of the late-designated expert and held that,
“even if the party knows the substance of the witness’s opinions, the non-designated
witness should not be permitted to testify because the party is not on notice that the
witness will be called and, thus, cannot adequately prepare.” (citing Alvarado v.
Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex. 1992))); Ersek, 69 S.W.3d at 274.
Moreover, like Reed, what Watson might have opined or concluded is of no
consequence and does not constitute even a scintilla of evidence to controvert the
basis of Rockwater’s amended motion.
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C. Res Ipsa Loquitor
West Inland next contends that the doctrine of res ipsa loquitor is applicable
here. Res ipsa loquitor—“the thing speaks for itself”—applies when (1) the
character of the accident, or the injury, is a type that would not ordinarily occur in
the absence of negligence and (2) the instrumentality causing the injury was under
the defendant’s management and control. Parker v. Three Rivers Flying Serv., Inc.,
220 S.W.3d 160, 167–68 (Tex. App.—Eastland 2007, no pet.) (citing Haddock v.
Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990)). Res ipsa loquitor is not a separate or
independent cause of action; rather, it is a rule of evidence by which negligence may
be inferred by the jury. Id.In support of this argument, West Inland posits (1) that the water and
chemicals that were used to treat the well were under Rockwater’s exclusive control
and (2) that the well ceased producing approximately three days after Rockwater
chemically treated the well. According to West Inland, because the well had been
producing steadily since it was patched in 2014, there could be no other reasonable
cause for the well’s failure “other than the unauthorized treatment [performed by
Rockwater].” Nevertheless, West Inland’s assertion does not mean that the claimed
injury (the well ceasing to produce) is a type that does not ordinarily occur in the
absence of negligence. In fact, as Rockwater points out, the well’s casing leaked in
2014, necessitating the application of the patch at issue in this case. In that instance,
no claim of negligence was alleged by West Inland against Rockwater. Nor has
West Inland presented any evidence that the alleged damage to the patch itself was
in fact the reason for the cessation of the well’s production. As such, West Inland
failed to carry its burden to show that the claimed injury to the well is a type that
would not ordinarily occur in the absence of negligence. See Aguilar v. Trujillo, 162
S.W.3d 839, 850 (Tex. App.—El Paso 2005, pet. denied).
13
Furthermore, West Inland’s reliance on the evidentiary doctrine of res ipsa
loquitor is misplaced for other reasons. Here, the basis for West Inland’s reliance
on this doctrine rests exclusively upon an allegation that has no evidentiary support.
A bare assertion, without more, will not trigger this doctrine’s application.
Moreover, because we have concluded that West Inland’s negligence claim fails as
a matter of law because no summary judgment evidence of causation was produced,
any reliance by West Inland on the res ipsa loquitor doctrine would also fail.
D. Gross Negligence/Trespass
As we have said, West Inland’s negligence claim fails for lack of causation.
As such, West Inland’s inability to prevail on this claim would necessarily preclude
any recovery for gross negligence. See Mobil Oil Corp. v. Ellender, 968 S.W.2d
917, 921 (Tex. 1998); Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 327
(Tex. 1993).
Similarly, West Inland cannot establish causation in relation to the damages
it seeks against Rockwater for trespass. To recover on this theory, the damages
sought must be caused by the trespass. Coinmach Corp. v. Aspenwood Apt. Corp.,
417 S.W.3d 909, 921 (Tex. 2013); Schievink v. Wendylou Ranch, Inc., 227 S.W.3d
862, 865 (Tex. App.—Eastland 2007, pet, denied). Consequently, because no
evidence of causation was produced, West Inland’s claim for trespass also fails.
E. Conclusion
Based on the record before us, we hold that the trial court did not err when it
granted Rockwater’s amended motion for summary judgment. Accordingly, we
overrule West Inland’s first and second issues on appeal. See Lightning Oil, 520
S.W.3d at 45; Ridgway, 135 S.W.3d at 600; McKeehan, 198 S.W.3d at 220.
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IV. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
June 4, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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