Cactus Well Service, Inc. v. Energico Production, Inc. ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00186-CV
CACTUS WELL SERVICE, INC. APPELLANT
V.
ENERGICO PRODUCTION, INC. APPELLEE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CV07-2700
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MEMORANDUM OPINION 1
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Appellant Cactus Well Service, Inc. appeals from the trial court’s final
judgment awarding negligent-misrepresentation damages to appellee Energico
Production, Inc. Because we conclude that the independent-injury rule barred
Energico’s recovery for negligent misrepresentation and that legally sufficient
evidence supported the jury’s damage finding on Cactus’s counterclaim, we
1
See Tex. R. App. P. 47.4.
reverse the trial court’s judgment in favor of Energico and render judgment for
Cactus on its counterclaim.
I. BACKGROUND
A. FACTUAL BACKGROUND
In 2006, Stephen Knight bought Energico, which held the leases to 1,600
mineral acres in Terrell County. One of the leases was located on the Slaughter
Ranch 63 site (the site). Before Knight bought Energico, a geologist had
determined that natural gas appeared to be present at the site at a depth of
12,500 feet. To raise the money needed to drill at the site, Knight brought on
several investors, one of whom hired Roger Neal, an engineer, to advise
Energico in the drilling venture. Neal assessed the risk and commercial quality of
the site and concluded that there was “a very good chance” that the site would be
productive.
Energico hired Nabors Drilling USA, which began drilling at the site on
November 23, 2006. After 101 days of drilling, Nabors had drilled to a depth of
12,180 feet and had discovered that the well was not commercially viable at that
depth. Because Energico believed Nabors’s fee was too high—$21,000 per
day—Energico decided to find a less expensive drilling company to take the well
deeper.
In April 2007, Energico hired Cactus to continue the drilling because
Cactus represented that its rig could drill to a depth of 13,000 feet—an additional
820 feet—and because Cactus would charge only $9,000 per day. Energico’s
2
oral contract with Cactus was on a day-work basis, which meant Cactus would
provide the drilling rig and the crew and Energico would place an employee on
site to direct Cactus’s work. Under the contract, Cactus was not obligated to drill
to a certain depth, and Energico was responsible for providing Cactus with the
appropriate pipe to use in the drilling. Energico ordered new P-110 grade pipe
from Seminole Oilfield Supply, Inc. Seminole, unbeknownst to Energico,
provided used N-80 pipe, which Seminole had purchased from Tadlock Pipe
Rentals, Inc. The used N-80 pipe was delivered directly to the site, and
Energico’s employee informed Cactus that the pipe was P-110 pipe.
Cactus deepened the well an additional 294 feet to a depth of 12,474 feet.
On May 5, 2007, Cactus was pulling the pipe up out of the well to change the drill
bit when the pipe separated and fell to the bottom of the well. Although it was
undisputed that the well was damaged as a result of the pipe separating,
Energico and Cactus disagreed as to the cause of the separation. Energico
claimed the condition of Cactus’s rig caused the pipe to separate:
[T]he Cactus [r]ig, which had key parts in ‘deplorable’ condition, with
a worn bearing in the support arm, caused the wire rope to walk off
the sheave, fall down the support arm/hub, and drop the pipe. The
dynamic force caused the pipe to separate. As had happened
before, the rope walked off the sheave, dropped the rope and
attached pipe, and came to a violent stop causing the pipe to
separate – in that order. Following the [r]ig failure and subsequent
pipe separation, the bottom 8476 feet of pipe fell to the bottom of the
[w]ell.
[Footnotes omitted.] Cactus focused on the condition of the pipe supplied by
Energico:
3
[O]ne of the sections of [pipe supplied by Energico] had a fatigue
fracture on 44% of the surface of one of the threaded male ends. . . .
....
. . . [W]hile Cactus was [raising the drill bit], one of the
sections of [pipe] broke loose from the joint to which it was attached
at a depth of 4,400 feet. . . . This caused everything below that joint
on the drill string to fall to the bottom of the [w]ell.
[Footnote omitted.] In any event, the rig was not operational after the pipe
separated and fell to the bottom of the well. Once Cactus repaired the rig, which
took approximately three days, it was able to pull some of the pipe out of the well.
About four days later, Energico told Cactus to leave the site and remove the rig.
Cactus billed Energico $215,830.57 for the services it rendered at the site;
however, Energico did not pay.
Energico, believing that the well would become commercially productive if
drilled 100 feet deeper, then attempted to salvage the well. First, it tried to fish
the pipe out of the well, which involved lowering a tool into the well to pull out the
lost equipment. The fishing was mostly unsuccessful. Energico then tried to
sidetrack the obstructed portion of the well, which involved setting a pressure-
sealing device into the well and drilling a secondary wellbore off to the side of the
existing wellbore to bypass the unusable area of the existing wellbore. The
sidetracking failed. Energico then plugged and abandoned the well. The total
cost of these salvage attempts was $2,150,800, and Energico’s total
expenditures on the well before it was plugged were $8,863,000. Energico’s
4
investors declined to drill on any of Energico’s leases; thus, the leases expired
and Energico went out of business.
B. PROCEDURAL BACKGROUND
1. Pretrial and Trial
On November 28, 2007, Energico filed suit against Cactus, Seminole, and
Tadlock. Against Cactus, Energico raised claims for breach of contract,
negligent misrepresentation, and negligence and sought a declaratory judgment
“for construction of the duties under the Contract, and for a declaration that this
incident was the fault of Cactus.” Energico raised claims for breach of contract
and violations of the Deceptive Trade Practices Act against Seminole and
Tadlock. Cactus filed a counterclaim against Energico seeking payment for
rendered services through claims for breach of contract, negligent
misrepresentation, negligence, suit on account, and quantum meruit. See Tex.
R. Civ. P. 97(a), 185. In its counterclaim, Cactus alleged that it was owed
$217,933.07 for services rendered at the site.
Energico settled with Tadlock and Seminole, and the trial court entered
take-nothing judgments on Energico’s claims against Tadlock and Seminole.
After a trial on Energico’s and Cactus’s claims, the jury unanimously found that
Cactus breached its contract with Energico, made a negligent misrepresentation,
and was negligent. Although the jury found that the value of the well immediately
before the pipe separated was zero, it awarded Energico (1) $2,150,800 on each
of its breach-of-contract, negligent-misrepresentation, and negligence claims for
5
the expenses Energico incurred in attempting to salvage the well and (2)
$1,080,000 on the same claims for the cost of drilling a replacement well minus
the salvage value of the well. The jury also found that Energico breached its
agreement to pay Cactus for its services and awarded Cactus $215,830.57. 2
The jury found that neither Cactus’s nor Energico’s actions were excused.
2. Posttrial
Energico moved for entry of judgment on the claim it considered to be its
“most favorable theory of recovery”—negligent misrepresentation. Energico also
asserted that “Cactus should not be granted judgment on its counterclaim as
there was a jury finding . . . that Cactus breached the contract[, which] was not
excused.” It further argued that Cactus had failed to prove that its unpaid
charges were reasonable and necessary.
Cactus moved for entry of a take-nothing judgment on Energico’s
negligent-misrepresentation claim because Energico solely sought contractual
damages. Cactus also moved for judgment on its breach-of-contract claim. The
trial court issued a letter ruling denying Cactus’s motion for take-nothing
judgment and rendered “a Final Judgment for . . . Energico . . . of $2,150,800.00
plus prejudgment interest less $215,830.57 plus prejudgment interest, less
settlement credits of $912,000.00 to the Plaintiff[].”
2
The trial court included only Cactus’s breach-of-contract claim in the jury
charge.
6
Cactus sought a reconsideration of the letter ruling, again asserting that
the awarded damages were not recoverable for negligent misrepresentation.
Energico filed an amended motion for entry of judgment, again electing to
recover under its negligent-misrepresentation claim, seeking “no judgment” on
Cactus’s counterclaim, and objecting to the settlement credit. Cactus additionally
filed a cross-motion for a take-nothing judgment and for entry of judgment. In
response, Energico again asserted that Cactus’s previous breach as found by
the jury foreclosed any judgment in favor of Cactus on its counterclaim. On
February 27, 2013, the trial court denied these motions and signed a final
judgment awarding Energico $2,150,800 “based on its negligent
misrepresentation claim . . . to which settlement credits in the amount of
$912,000.00 are applied . . . and a credit for the counterclaim verdict is applied,
resulting in a net judgment amount of $1,023,969.43.” Cactus filed a motion for
new trial, which was overruled by operation of law. See Tex. R. Civ. P. 329b(c).
Both Energico and Cactus filed notices of appeal.
II. INDEPENDENT INJURY
In its second issue, Cactus asserts that the independent-injury rule 3 bars
Energico’s recovery for its negligent-misrepresentation claim. Energico responds
3
It has been suggested, and we agree, that although this rule is alternately
referred to as the economic-loss rule, it is more appropriate to refer to it as the
independent-injury rule, especially in the context of potential tort recovery of
economic damages between contractual parties. See Eastman Chem. Co. v.
Niro, Inc., 80 F. Supp. 2d 712, 716 n.2 (S.D. Tex. 2000); see also Sharyland
Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 415 (Tex. 2011).
7
that it may recover on its negligent-misrepresentation claim because the awarded
damages were mitigation damages.
The independent-injury rule provides that when claims for both negligent
misrepresentation and breach of contract arise out of the same facts, the plaintiff
may recover for negligent misrepresentation only upon showing that it suffered
damages as a result of the alleged misrepresentation that were independent of
any benefit-of-the-bargain damages resulting from the breach of contract.
D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662, 663–64 (Tex. 1998)
(op. on reh’g) (citing Restatement (Second) of Torts § 552B (1977)); Sw. Bell Tel.
Co. v. DeLanney, 809 S.W.2d 493, 494–95 (Tex. 1991); see also Esty v. Beal
Bank S.S.B., 298 S.W.3d 280, 301–02 (Tex. App.—Dallas 2009, no pet.)
(recognizing independent-injury rule applied to bar negligent-misrepresentation
claim). In short, if a plaintiff cannot establish an independent injury—a loss that
is independent or different from that recoverable under breach of contract—its
recovery for negligent misrepresentation is barred. D.S.A., 973 S.W.3d at 663;
Esty, 298 S.W.3d at 301–02; Plano Surgery Ctr. v. New You Weight Mgmt. Ctr.,
265 S.W.3d 496, 503 (Tex. App.—Dallas 2008, no pet.).
To determine whether there was an independent injury authorizing a
recovery for negligent misrepresentation, we consider (1) the source of Cactus’s
duty to act and (2) the nature of Energico’s loss. See DeLanney, 809 S.W.2d at
494–95. First, if Cactus’s duty to act arose solely under an agreement between it
and Energico, any breach of that duty does not give rise to an independent injury.
8
See id. at 494–95 & n.2; Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618
(Tex. 1986). Second, “[w]hen the injury is only the economic loss to the subject
of a contract itself, the action sounds in contract alone.” Jim Walter, 711 S.W.2d
at 618.
Cactus’s duty was solely a product of its oral contract with Energico. As
found by the jury, Cactus breached its contract “to deepen the [w]ell, on a day-
work basis, through additional drilling, using . . . drill pipe provided by Energico.”
Without more than this found malfeasance under the contract, Energico cannot
recover for negligent misrepresentation. See LAN/STV v. Martin K. Eby Constr.
Co., 435 S.W.3d 234, 246–50 (Tex. 2014); Crawford v. Ace Sign, Inc., 917
S.W.2d 12, 14–15 (Tex. 1996); cf. Sharyland, 354 S.W.3d at 420 (“Construction
defect cases, however, usually involve parties in a contractual chain who have
had the opportunity to allocate risk, unlike the situation faced by Sharyland.”);
Grant Thornton L.L.P. v. Prospect High Income Fund, 314 S.W.3d 913, 917–20
(Tex. 2010) (holding auditors under contract with timeshare operator could be
liable to third-party investor with special relationship to audited corporation for
negligent misrepresentation in audit report).
Further, the nature of Energico’s loss solely was economic loss to the
subject of the contract itself, i.e., the well. See LAN/STV, 435 S.W.3d at 242 &
n.35; Med. City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 61 (Tex. 2008);
Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 107 (Tex. App.—Houston
[14th Dist.] 2000, no pet.); accord Greco v. Jones, No. 3:13-CV-1005-M, 2014
9
WL 3855322, at *5 (N.D. Tex. Aug. 6, 2014); cf. Chapman Custom Homes, Inc.
v. Dallas Plumbing Co., 57 Tex. Sup. Ct. J. 1264, 2014 WL 4116839, at *2 (Aug.
22, 2014) (“The plumber’s duty not to flood or otherwise damage the house is
independent of any obligation undertaken in its plumbing subcontract with the
builder, and the damages allegedly caused by the breach of that duty extend
beyond the economic loss of any anticipated benefit under the plumbing
contract.”). Energico asserts that its negligent-misrepresentation damages were
out-of-pocket mitigation damages and, thus, were separate from the benefit-of-
the-bargain damages the jury awarded for breach of contract. Energico argues
that the benefit-of-the-bargain damages sought through its breach-of-contract
claim were the costs to re-drill the well to the depth at which the failure occurred
“less salvage value of the ruined well and the cost of the lost leases”; however,
Energico contends its out-of-pocket damages sought in its negligent-
misrepresentation claim were “the costs to fish, sidetrack, plug, and abandon the
[w]ell.” But at trial, even Energico’s counsel argued to the jury that Energico’s
damages for breach of contract and negligent misrepresentation were “the same”
and asked the jury to answer the damages questions for breach of contract and
negligent misrepresentation with the same number. The nature of the damages
Energico requested under either claim were identical and sought the costs of
bringing the well up to the bargained-for standard, i.e., the benefit of the bargain.
See D.S.A., 973 S.W.2d at 664; Sterling Chems., Inc. v. Texaco Inc., 259 S.W.3d
793, 797–98 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Benefit-of-the-
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bargain damages are not available for a claim of negligent misrepresentation
under these facts. See Esty, 298 S.W.3d at 302; Plano Surgery, 265 S.W.3d at
506.
Thus, the independent-injury rule barred Energico’s recovery for negligent
misrepresentation. Because Energico specifically elected postverdict to recover
solely for negligent misrepresentation, we sustain Cactus’s second issue, reverse
the trial court’s judgment awarding Energico negligent-misrepresentation
damages, and render a take-nothing judgment. See Carrico v. Kondos, 111
S.W.3d 582, 585–86 (Tex. App.—Fort Worth 2003, pet. denied) (discussing
preclusive effect of election of remedies); City of Glenn Heights v. Sheffield Dev.
Co., 55 S.W.3d 158, 164–66 (Tex. App.—Dallas 2001, pet. denied) (same). We
need not address Cactus’s remaining two issues arguing that the evidence was
insufficient to support the jury’s negligent-misrepresentation finding and that
negligent-misrepresentation damages were not recoverable based on the jury’s
finding that the value of the well before the incident was zero. 4 See Tex. R. App.
P. 47.1. We also need not address Energico’s first, third, and fourth issues in
which it argues that its negligent-misrepresentation damages (1) were wrongfully
reduced by the settlement credits, (2) failed to include the cost to re-drill the well,
4
At oral argument, Cactus’s appellate counsel contended that issue two
was dispositive of its claims if found in Cactus’s favor.
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and (3) should not be reduced based on the jury’s proportionate-responsibility
findings. 5 See id.
III. CACTUS’S COUNTERCLAIM
The jury was asked three questions regarding Cactus’s breach-of-contract
counterclaim: (1) whether Energico failed to comply with its agreement to pay
Cactus (the first question); (2) whether such failure to comply, if found, was
excused (the second question); and (3) if the found failure to comply was not
excused, what sum would “fairly and reasonably compensate Cactus” for its
damages arising from the failure to comply (the third question). In its second
issue, Energico argues that the trial court erred by allowing Cactus to recover on
its counterclaim for three reasons: (1) Cactus’s work on the well was “without
value and worthless” and not performed in a good and workmanlike manner,
which precludes any recovery by Cactus; (2) Energico is excused from its
obligation to perform under the contract by Cactus’s previous breach; and
(3) Cactus failed to prove its invoices were reasonable and necessary.
We pause to note that Energico’s appellate issue directed to Cactus’s
counterclaim is not clearly stated such that we can confidently determine on what
exact basis Energico is attacking the judgment. It frames its second issue in
terms of legal impossibility—Cactus is “not entitled to payment on unpaid
5
Additionally, it appears these arguments would be waived because
Energico failed to raise them in a motion for new trial. See Tex. R. Civ. P.
324(b)(4).
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invoices” because its services rendered the well worthless and because the
invoices were due after the well was damaged. Energico does not explicitly
attack the supporting evidence (or lack thereof) or the trial court’s entry of
judgment in light of Energico’s jury-charge objection and post-verdict motions.
But because any judgment that fails to include a recovery on Cactus’s
counterclaim necessarily would have to disregard the jury’s answers, we
construe Energico’s issue to be that the trial court erred to enter judgment on
Cactus’s counterclaim because the evidence was insufficient to support the jury’s
findings on the counterclaim. See Tex. R. App. P. 38.1(f), 38.9.
A. EXCUSE
Energico’s first two arguments in its appeal essentially are attacks on the
sufficiency of the evidence to support the jury’s no-excuse finding in the second
question. After all, if Cactus’s efforts were not sufficiently performed, were
without value, or occurred before Energico’s breach, Energico would be excused
from performing under the contract. See Hernandez v. Gulf Grp. Lloyds, 875
S.W.2d 691, 692 (Tex. 1994) (“A fundamental principle of contract law is that
when one party to a contract commits a material breach of that contract, the
other party is discharged or excused from any obligation to perform.”); Dowell,
Inc. v. Cichowski, 540 S.W.2d 342, 351 (Tex. Civ. App.—San Antonio 1976, no
writ) (“[I]n an action for work and labor, it is a good defense that the work was
done so badly as to be of no value or benefit to the person for whom it is done.”);
cf. Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 852 (Tex. App.—
13
Dallas 2005, pet. denied) (holding prior material breach excusing performance is
affirmative defense upon which defending party has the burden of proof).
To the extent Energico argues that the jury’s no-excuse finding in the
second question is against the great weight and preponderance of the evidence, 6
Energico has failed to preserve any error because it did not file a motion for new
trial raising this issue. See Tex. R. Civ. P. 324(b)(3). To preserve any claim that
the evidence was legally insufficient to support the jury’s answer to the second
question, Energico was required to raise the issue in a motion for instructed
verdict, a motion for judgment notwithstanding the verdict, an objection to the
submission of the question to the jury, a motion to disregard the jury’s answer to
a vital fact question, or a motion for new trial. See T.O. Stanley Boot Co. v. Bank
of El Paso, 847 S.W.2d 218, 220–21 (Tex. 1992).
In its objections to the charge, Energico asserted that the third question,
i.e., damages, should not have been submitted because Cactus failed to produce
any evidence showing that the amounts not paid were reasonable and
necessary. Energico again raised its argument regarding the third question in its
motion for entry of judgment and in its response to Cactus’s cross-motion for
6
Because Energico had the burden of proof to support its affirmative
defense of excuse, any factual-sufficiency challenge would be an argument that
the finding was against the great weight and preponderance of the evidence.
See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); see also
Trencor, Inc. v. Comech Mach. Co., 115 S.W.3d 145, 153 (Tex. App.—Fort
Worth 2003, pet. denied) (holding excuse is affirmative defense under civil
procedure rule 94).
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take-nothing judgment, asserting that Cactus “should not be granted judgment on
its counterclaim” because “there was no evidence admitted that such charges
were reasonable and necessary.” Energico additionally yet fleetingly asserted in
its motion for entry of judgment and more fully in its response to Cactus’s motion
for judgment that Cactus “should not be granted judgment on its counterclaim”
based on the jury’s finding that Cactus breached its contract with Energico, which
was not excused. The crux of this argument to the trial court, which was only
elucidated in response to Cactus’s motion for judgment, was that Energico’s
performance was excused as a matter of law because Cactus breached the
contract first, as found by the jury in response to the questions regarding
Energico’s breach-of-contract claim. Energico never raised a specific postverdict
challenge to the jury’s answer to the second question regarding Cactus’s
counterclaim but instead argued that the jury’s findings regarding Energico’s
breach-of-contract claim foreclosed any recovery by Cactus on its counterclaim.
Clearly, Energico did not preserve for our review its appellate argument
that the trial court erred to enter judgment on Cactus’s counterclaim based on
evidence that Cactus’s work on the well was “without value and worthless” and
not performed in a good and workmanlike manner. 7 This argument is raised for
the first time on appeal and cannot be grounds to reverse the judgment.
7
Energico, citing appellate rule of procedure 38.1(f), asserts that it
preserved this argument because it is a subsidiary argument that was fairly
included in its trial-court argument. But rule 38.1(f) directs that we are to
consider subsidiary questions fairly included in an appellate argument, not a trial-
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Energico also did not preserve its appellate argument that the jury’s finding
on the second question must be disregarded because it conclusively established
that its performance was excused. Energico did not move for a directed verdict,
object to the submission of the second question on Cactus’s counterclaim, move
for judgment notwithstanding the jury’s finding on the second question, move to
disregard the jury’s finding on the second question, or file a motion for new trial.
As such, Energico’s arguments directed to the jury’s answer to the second
question on Cactus’s counterclaim are not preserved. 8 To the extent Energico is
attempting to complain that the jury’s answer to the second question regarding
Cactus’s counterclaim conflicted with the jury’s finding that Cactus breached the
contract, Energico failed to preserve any error because it did not object to the
conflict before the jury was discharged. Kitchen v. Frusher, 181 S.W.3d 467, 473
(Tex. App.—Fort Worth 2005, no pet.) (op. on reh’g).
court objection. See Tex. R. App. P. 38.1(f). This briefing rule cannot be read to
expand the preservation-of-error rules applicable to our review of the sufficiency
of the evidence to support a jury’s finding. Compare Tex. R. App. P.
33.1(a)(1)(A), with Tex. R. App. P. 38.1(f), 38.9.
8
Even if this argument were preserved, we could not conclude that
Energico conclusively established that its performance was excused. Energico
elected to recover on the jury’s negligent-misrepresentation findings; thus,
Energico’s reliance on the jury’s finding that Cactus breached the contract as
excusing Energico’s performance as a matter of law is misplaced. See generally
Carrico, 111 S.W.3d at 586 (“Generally, it is the obtaining of a judgment on one
theory or state of facts that precludes the ability to pursue other inconsistent
remedies.”).
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B. REASONABLE AND NECESSARY
As we previously stated, Energico objected to the third question regarding
Cactus’s counterclaim on the basis that Cactus failed to proffer any evidence that
Cactus’s charges were reasonable and necessary. On appeal, Energico asserts
that Cactus cannot recover the found damages on Cactus’s counterclaim
because the evidence was legally and factually insufficient to show that “such
charges were reasonable and necessary”; thus, we must disregard the jury’s
finding as to the third question and render a take-nothing judgment on Cactus’s
counterclaim. By not filing a motion for new trial, Energico did not preserve its
factual-insufficiency argument. See Tex. R. Civ. P. 324(b)(2). But Energico
preserved its legal-sufficiency argument by objecting to the submission of the
third question on this basis and by asserting on appeal that Cactus tendered no
evidence that its charges were reasonable and necessary. See Tex. Mut. Ins.
Co. v. Morris, 383 SW.3d 146, 149 n.2 (Tex. 2012).
Cactus argues that it was not required to prove that its charges were
reasonable and necessary. One measurement of damages in a breach-of-
contract case is just compensation for the loss or damage actually sustained.
Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 888 (Tex. App.—Dallas
2004, pet. denied). In order to recover these damages, a party must present
evidence to support their reasonableness, which is more than mere evidence of
the amounts charged. See McGinty v. Hennen, 372 S.W.3d 625, 627–28 (Tex.
2012); Dallas Ry. & Terminal Co. v. Gossett, 294 S.W.2d 377, 377, 383 (Tex.
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1956); see also Six Flags Over Tex., Inc. v. Parker, 759 S.W.2d 758, 760 (Tex.
App.—Fort Worth 1988, no writ); cf. Tex. Civ. Prac. & Rem. Code Ann.
§ 18.001(b) (West Supp. 2014) (providing affidavit attesting that amount charged
was reasonable and necessary is sufficient evidence to support fact finding that
amount charged was reasonable or service was necessary); Fort Worth Hotel
Ltd. P’ship v. Enserch Corp., 977 S.W.2d 746, 762 (Tex. App.—Fort Worth 1998,
no pet.) (“A party seeking recovery for the cost of repairs must prove their
reasonable value.”). Therefore, some evidence of reasonableness was required.
When a party attacks the legal sufficiency of the evidence of an adverse
finding on an issue on which it did not have the burden of proof, it must show on
appeal that no evidence supports the adverse finding. Uniroyal Goodrich Tire
Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040
(1999). We will sustain a legal-sufficiency challenge if the evidence offered to
prove a vital fact equates to no more than a scintilla. Akin, Gump, Strauss,
Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex.
2009).
The jury was asked to determine an amount that would “fairly and
reasonably compensate Cactus for its damages, if any, that resulted from
Energico’s failure to comply.” The trial court instructed the jury to consider “[t]he
value of the services rendered by Cactus pursuant to the parties’ agreement” in
determining reasonable compensation for Cactus. Knight testified that after the
incident, he received invoices totaling $215,830.57 from Cactus but that he did
18
not pay because he felt he did not owe Cactus “anything.” Energico did not
object to the admission of the invoices into evidence.
Further, Energico admitted Knight’s affidavit into evidence at trial.
Attached to his affidavit were several invoices “that provide a summary and
itemized statements of the services and the charges for the services that various
contractors, vendors, and the like, provided to Energico” at the site. Knight
confirmed that as Energico’s president, he was in charge of the records related to
the well at the site. Knight averred in his affidavit that “the services provided, as
set forth in the summary and invoices, were necessary, and the amounts
charged for the services, as set forth in the summary and invoices, were
reasonable, at the time and place that the services were provided.” Included in
Knight’s attached invoices, which were kept by Energico in the regular course of
business, were the invoices from Cactus that Cactus admitted at trial to support
its claim for $215,830.57 in damages under its breach-of-contract counterclaim.
Knight’s affidavit, which was uncontroverted and verified that Cactus’s
charges and services were reasonable and necessary, was “sufficient evidence
to support a finding of fact by judge or jury that the amount charged was
reasonable or that the service was necessary.” Tex. Civ. Prac. & Rem. Code
Ann. § 18.001(b); see Hong v. Bennett, 209 S.W.3d 795, 800 (Tex. App.—Fort
Worth 2006, no pet.). Accordingly, there was more than a scintilla of evidence to
support the jury’s finding that Cactus’s services were necessary and charges
were reasonable. We overrule Energico’s second issue.
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IV. CONCLUSION
Energico established no independent injury separate from the injury arising
from its breach-of-contract claim. Thus, Energico could not recover for Cactus’s
breach of contract under its negligent-misrepresentation claim. On the other
hand, Cactus proffered legally sufficient evidence of the necessary nature and
reasonable value of its services at the site. Thus, we reverse the trial court’s
judgment, render a take-nothing judgment on Energico’s claims, and render a
judgment in favor of Cactus on its breach-of-contract counterclaim. See Tex. R.
App. P. 43.2(c), 43.3.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DELIVERED: November 20, 2014
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