Roy Jordan, Jr. v. CenterPoint Energy Houston Electric, LLC ( 2019 )

Affirmed and Memorandum Opinion filed October 29, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00663-CV
ROY JORDAN, JR., Appellant
V.
CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2015-53281
MEMORANDUM OPINION
Appellant Roy Jordan, Jr. sued CenterPoint Energy Houston Electric, LLC,
alleging negligence for personal injuries he sustained from being electrocuted while
trimming a tree located on his property. CenterPoint counterclaimed for indemnity
under Texas Health and Safety Code Chapter 752, which prohibits a person from
engaging in activities within a certain proximity of high voltage overhead power
lines unless that person has given the operator prior notice and taken safety
precautions. CenterPoint moved for summary judgment on its indemnity
counterclaim and Jordan’s negligence claim. The trial court granted summary
judgment in favor of CenterPoint and awarded CenterPoint attorney’s fees, costs,
and expenses.
On appeal, Jordan argues that the summary judgment is erroneous because it
is based on improper summary-judgment evidence as well as an incorrect reading of
Chapter 752, and because he raised material fact issues. Jordan also challenges the
attorney fee award in CenterPoint’s favor. We conclude that Jordan’s issues lack
merit and affirm the trial court’s judgment.
Background
Two crepe myrtle trees grow adjacent to Jordan’s driveway and sit directly
beneath overhead high voltage power lines, which CenterPoint owns and maintains.
Jordan decided to trim the trees because certain lower-hanging limbs over his
driveway scratched his truck. The highest limbs of one or both trees reached to
within six feet of the overhead power lines. Jordan did not request CenterPoint to
trim the trees, nor did he notify CenterPoint beforehand that he planned to trim them.
Jordan positioned himself in and at the “lower bottom” of one crepe myrtle,
standing where the “tree starts to divide.” Using bolt-cutters, Jordan successfully
cut a few branches. He encountered difficulty cutting one particular limb, however,
and set down the bolt-cutters to grab the limb with both hands. When he did, he felt
a current through his body and received severe electrical burns to his hands, legs,
and left foot.
Jordan sued CenterPoint for negligence, claiming that CenterPoint breached a
duty to exercise ordinary care by failing to properly maintain the area around the
power lines, which caused the tree to contact the power lines and become energized.
CenterPoint answered with an affirmative defense and counterclaim for
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indemnification under Texas Health and Safety Code Chapter 752, “High Voltage
Overhead Lines.” See Tex. Health & Safety Code §§ 752.001-.008. Among other
things, Chapter 752 prohibits any person from performing an activity on land if it is
possible that the person may bring any material within six feet of a high voltage
overhead line while performing the activity. See id. § 752.004(a). Additionally, if
a violation of Chapter 752 results in physical or electrical contact with a high voltage
overhead line, the person committing the violation is responsible for any liability the
owner or operator incurs as a result of the contact. See id. § 752.008.
CenterPoint moved for summary judgment on its Chapter 752 affirmative
defense and indemnity counterclaim. CenterPoint attached relevant excerpts from
Jordan’s deposition, which established the factual circumstances surrounding the
injury, including facts relevant to CenterPoint’s Chapter 752 defense. CenterPoint
established that: (1) Jordan alone was responsible for his tree-trimming work;
(2) the overhead power lines were high voltage lines; (3) Jordan gave CenterPoint
no advance notice that he would trim trees beneath the power lines; and (4) Jordan’s
activity involved at least the possibility of bringing material within six feet of the
overhead line. CenterPoint’s expert, F.M. Brooks, P.E., stated in an affidavit:
Jordan stated that he was using the bolt cutters to cut the tree limbs. He
stated further that on one of the limbs he could not get the bolt cutters
through the limb so he grabbed the limb to break it. That is when he
felt the current. Assuming that to be true, Jordan brought material, the
tree limb, into direct or effective contact with the CenterPoint electrical
distribution line.
For electrical current to flow through a tree limb and for Jordan to feel
the current and sustained [sic] electrical burn injuries, the tree limb
must have been brought to within one inch of the electric line. This is
a basic law of physics. Electricity does not “jump” several feet, or even
one foot, across the air to a tree limb or any conductive material. So,
Jordan made direct contact, or effective contact with the electric line
while when he was handling the tree limb. Because of that, Jordan
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necessarily must have brought a tree limb physically with six feet of the
line in order for electricity to conduct from the power line to his body.
Otherwise, it was not possible for the incident and the injuries he
sustained as a result to have occurred.
The electrical distribution line that was involved in the accident in
question is a 19,900 volt overhead primary power line, as measured
between a conductor and the ground. The crest for this power line is
28,139 volts. The ‘crest’ is the maximum possible voltage that may be
sustained by the power line.
At standard air density—a barometric pressure of 76 cm of mercury and
temperature of 25 degrees Celsius—air has a dielectric strength of
approximately 31 kilovolts per centimeter (31 kv/cm) In other words,
a 31,000-volt source of electricity can conduct across air for
approximately one centimeter. This physical law is documented in
scientific treatises, manuals, and other books routinely relied upon by
engineers to ensure the safe and proper performance of their work. The
relevant passages from two of these books are attached hereto. . . .
Although changes in atmospheric factors such as temperature and
relative humidity can alter the dielectric strength of air, any effect such
factors might have is negligible.
Based on the maximum voltage sustainable by the overhead primary
power line involved in this case—28,139 volts—the maximum distance
electricity from the line could have conducted across air is
approximately 0.94 centimeters, or 0.37 inches. Stated another way, in
order for electricity from the power line in question to have arced a
distance of six feet in the air, the maximum voltage of the lien would
have to have been over 5,600,000 volts. Therefore I can state with
absolute scientific certainty that it is physically impossible for
electricity from the 19,900 volt power line involved in this case to have
arced over six feet in the air to contact Jordan.
Jordan responded and moved to strike almost all of CenterPoint’s summary-
judgment evidence. He urged that CenterPoint failed to show that he brought
himself or any material within six feet of a high voltage overhead line. Jordan
asserted by affidavit that he did not come within six feet, nor did he cause any tree
branch to come within six feet, of the overhead lines. He stated that CenterPoint’s
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contrary conclusion “is wrong because they were not there when it happened.”
Finally, he contended that Chapter 752 should not apply to the circumstances of his
case because it would essentially provide a “blank check to a company that makes
billions to never have to maintain any of their lines. . . .”
After a hearing, the trial court concluded that Jordan violated “multiple
provisions of Chapter 752” and that his violations “resulted in electrical or physical
contact with CenterPoint Energy’s high voltage overhead power line.” The court
concluded that Jordan violated Chapter 752 as a matter of law. Consequently, Jordan
owed indemnity to CenterPoint and was precluded from recovering on his
negligence claim as a matter of law. The trial court signed an interlocutory order
granting CenterPoint summary judgment on its counterclaim for section 752.008
indemnity and dismissing Jordan’s negligence claim with prejudice. The court also
overruled Jordan’s objections to Brooks’s affidavit and most of his other objections
to CenterPoint’s summary-judgment evidence.
CenterPoint subsequently filed a motion for attorney’s fees and costs and for
entry of final judgment, and the trial court signed a final judgment incorporating its
earlier order on CenterPoint’s summary-judgment motion and awarding CenterPoint
$124,236.44 in attorney’s fees, $30,813.25 in costs and expenses, and conditional
appellate attorney’s fees. After Jordan’s motion for new trial was overruled by
operation of law, this appeal timely followed.
Objections to Summary-Judgment Evidence
As part of his first issue, Jordan argues that the trial court erred in overruling
many of his objections to CenterPoint’s summary-judgment evidence. We begin
with this issue because it will determine the scope of summary-judgment evidence
we may consider.
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A. Standard of Review
The rules of evidence control the admissibility of evidence in summary-
judgment proceedings, and we review a trial court’s decision to admit or exclude
summary-judgment evidence for abuse of discretion. Seim v. Allstate Tex. Lloyds,
551 S.W.3d 161, 163-64 (Tex. 2018). An abuse of discretion occurs when the trial
court acts arbitrarily or without reference to any guiding rules and principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We
must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the
ruling. See Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d
256, 264 (Tex. 2012) (quoting Owens-Corning Fiberglas Corp. v. Malone, 972
S.W.2d 35, 43 (Tex. 1998)). We will set aside the trial court’s judgment only if the
“erroneous evidentiary ruling probably caused the rendition of an improper
judgment.” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex.
2000); see Tex. R. App. P. 44.1(a)(1).
B. Expert Affidavit
Jordan first challenges the affidavit of F.M. Brooks, CenterPoint’s expert. “A
witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if the expert’s scientific,
technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.” Tex. R. Evid. 702; see Transcontinental
Ins. Co. v. Crump, 330 S.W.3d 211, 215 (Tex. 2010). Brooks opined that, based on
Jordan’s injuries and the laws of physics, “Jordan necessarily must have brought a
tree limb physically with[in] six feet of the line in order for electricity to conduct
from the power line to his body. Otherwise, it was not possible for the incident and
the injuries he sustained as a result to have occurred.” Brooks summarized various
scientific principles and facts that led him to this conclusion.
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Jordan argues Brooks’s affidavit is not admissible because it:
• contains hearsay, although Jordan does not identify specifically any
hearsay statements;
• assumes facts not in evidence, including that Jordan was approximately
four feet off the ground, Jordan was using or had at his disposal several
tools, the limbs of the tree Jordan was trimming were already within six
feet of the power line, and the power lines at issue were high voltage
lines;
• contains conclusory statements, such as that Jordan brought a tree limb
into direct or effective contact with the power line or Jordan made direct
or effective contact with the power line;
• fails to set out Brooks’s methodology, technique, or foundational data
upon which Brooks’s opinions are based;
• does not show Brooks is qualified as an expert; and
• violates Texas Rule of Civil Procedure 166(a) because the statements
contained in paragraphs 3, 6, 7, 8, 9, 10, 11, 12, and 16 are conclusory,
not readily convertible, or are not credible.
Jordan asserted each of the above objections in the trial court, and the court overruled
them by written order.1 Thus, Jordan preserved error in the trial court.2 See, e.g.,
1
We reject CenterPoint’s argument that Jordan waived his evidentiary objections to
Brooks’s affidavit by failing to obtain a ruling. The trial court expressly overruled them in its
summary judgment order.
2
Jordan raises several additional objections to Brooks’s affidavit on appeal. However, he
did not assert them in the trial court and thus has not preserved any challenges to Brooks’s affidavit
other than those we have identified. See Tex. R. App. P. 33.1(a) (to preserve a complaint for
appellate review, a party must, as is relevant here, make a timely objection in the trial court and
7
Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 317 (Tex.
2012).
First, Jordan’s complaints that Brooks’s affidavit contains hearsay or assumes
facts not in evidence, are unavailing. “An expert may base an opinion on facts or
data in the case that the expert has been made aware of, reviewed, or personally
observed. If experts in the particular field would reasonably rely on those kinds of
facts or data in forming an opinion on the subjection, they need not be admissible
for the opinion to be admitted.” Tex. R. Evid. 703; see In re Christus Spohn Hosp.
Kleberg, 222 S.W.3d 434, 440 (Tex. 2007) (orig. proceeding) (noting that expert
witnesses may testify about facts or data not personally perceived, but “reviewed by,
or made known to them”; experts may “rely on inadmissible hearsay, privileged
communications and other information that the ordinary witness may not”; “an
expert may state an opinion on mixed questions of law and fact”).
Moreover, Brooks explained that his opinions are based on his review of the
case evidence. For example, in recounting the sequence of events leading to Jordan’s
injury, Brooks relied not only on his own inspection of the accident site but also on
Jordan’s deposition testimony, which was attached to CenterPoint’s summary-
judgment motion. Brooks relied on CenterPoint’s incident report to support his
conclusion that the overhead lines operated at high voltage. In his affidavit, Brooks
explained the bases for his opinions and properly attached several pertinent excerpts
from electrical handbooks that described the physical laws supporting his opinions.
See, e.g., Thompson v. Curtis, 127 S.W.3d 446, 450 (Tex. App.—Dallas 2004, no
pet.) (explaining that logical conclusions based on stated underlying facts are not
conclusory and are proper in summary-judgment affidavits). Jordan offers no
obtain a ruling); Seim, 551 S.W.3d at 163-64 (explaining that the rules of error preservation apply
to summary-judgment evidence).
8
argument or authority explaining why Brooks’s reliance on the facts or data
described undermines Brooks’s expert opinions. See In re Christus Spohn Hosp.
Kleberg, 222 S.W.3d at 440. We therefore reject Jordan’s arguments that Brooks’s
testimony assumes facts not in evidence, is conclusory, or is not readily
controvertible or not credible.3
Further, Brooks attached his curriculum vitae, which reflects his extensive
qualifications, education, training, and experience as an electrical engineer. Jordan
has not cited, either on appeal or in the trial court, any authority that an expert with
Brooks’s qualifications and experience is not qualified to opine about the issues in
this case. See Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d 893,
905 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (holding that Church waived
complaint about admission of evidence because it “failed to articulate a coherent
argument supported by substantive analysis” to support its contention that evidence
was incompetent).
Jordan has not established that the trial court abused its discretion in
overruling his objections to Brooks’s affidavit.
C. Admission of Business Records
Jordan also complains that the trial court erroneously admitted various
business records, including Exhibit D, CenterPoint’s incident report; Exhibit M,
Atascocita Volunteer Fire Department records; and Exhibit N, UT Physicians
records. Each exhibit, however, was accompanied by affidavits pursuant to Texas
Rule of Evidence 902(10). See Tex. R. Evid. 902 (governing admission of self-
authenticating evidence, including business records). Jordan complains that the
3
Additionally, the credibility of an expert witness’s testimony goes to the weight of the
evidence, not its admissibility. See LMC Complete Automotive, Inc. v. Burke, 229 S.W.3d 469,
479 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
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records contain hearsay, but the rules specifically permit the introduction of such
business records as an exception to the general prohibition against the admission of
hearsay. See Tex. R. Evid. 803(6). He also complains that the records contain
conclusory or speculative statements, but he has not directed us to any specific
portions of the records that are conclusory or speculative. See, e.g., Carnegie Homes
& Constr. LLC v. Turk, No. 14-16-00260-CV, 2017 WL 3927290, at *6, 8 (Tex.
App.—Houston [14th Dist.] Sept. 7, 2017, no pet.) (mem. op.) (explaining that
“global and non-specific objections” to summary-judgment evidence do not preserve
error; “objections of this nature create no obligation on a court’s part to go line-by-
line attempting to separate the wheat from the chaff”). Thus, Jordan has not
demonstrated that the trial court abused its discretion in overruling his objections to
the business records.
We overrule the portion of Jordan’s first issue challenging CenterPoint’s
summary-judgment evidence.
Summary Judgment on CenterPoint’s Indemnity Claim
Jordan attacks the merits on essentially two grounds: (1) CenterPoint did not
establish a violation of Chapter 752; and (2) Jordan raised genuine and material fact
issues.
A. Standard of Review
We review de novo a trial court’s decision to grant summary judgment.
Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per
curiam). We consider the evidence in the light most favorable to the non-movant,
indulging reasonable inferences and resolving doubts in the non-movant’s favor.
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). We credit evidence
favorable to the non-movant if reasonable fact finders could, and we disregard
10
contrary evidence unless reasonable fact finders could not. Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
To prevail on a traditional motion for summary judgment, the movant has the
burden to establish that no genuine issue of material fact exists and that the movant
is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort
Stein & Lipp Advisors, 289 S.W.3d at 848. Additionally, when, as here, a defendant
moves for summary judgment on an affirmative defense, it must prove each essential
element of that defense. See Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 609
(Tex. 2012); see also Trail v. Friedrich, 77 S.W.3d 508, 513-14 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied); Chavez v. City of San Antonio ex rel. City
Public Service Bd. of San Antonio, 21 S.W.3d 435, 438 (Tex. App.—San Antonio
2000, pet. denied). Once the movant establishes its entitlement to summary
judgment, the burden shifts to the non-movant to present a material fact issue
precluding summary judgment. Tex. Black Iron, Inc. v. Arawak Energy Int’l Ltd.,
566 S.W.3d 801, 810 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). “The
evidence raises a genuine issue of fact if reasonable and fair-minded jurors could
differ in their conclusions in light of all of the summary-judgment evidence.”
Hilburn v. Storage Trust Props., LP, —S.W.3d—, No. 14-18-00184-CV, 2019 WL
4432625, at *2 (Tex. App.—Houston [14th Dist.] Sept. 17, 2019, no pet. h.) (citing
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007)).
B. Public Safety and High Voltage Overhead Lines
The legislature passed Texas Health and Safety Code Chapter 752 to ensure
the safety of persons engaged in activities near high voltage power lines. See Tex.
Health & Safety Code §§ 752.001-.008; see also McCaughtry v. Barwood Homes
Ass’n, 981 S.W.2d 325, 334 (Tex. App.—Houston [14th Dist.] 1998, pet. denied);
Martinez v. Gulf States Util. Co., 86 S.W.2d 802, 804 (Tex. App.—Houston [14th
11
Dist.] 1993, writ denied). Section 752.003 burdens persons responsible for
temporary work or activities within certain prescribed proximities to high voltage
overhead lines to notify the operator at least forty-eight hours before any work begins
and to arrange for de-energization of the lines or other safety precautions. See id.
§ 752.003(a)-(b). Additionally, section 752.004 restricts activities near high voltage
lines unless a person first complies with section 752.003:
Unless a person, firm, corporation, or association effectively guards
against danger by contact with the line as prescribed by Section
752.003, the person, firm, corporation, or association, either
individually or through an agent or employee, may not perform a
function or activity on land, a building, a highway, or other premises if
at any time it is possible that the person performing the function or
activity may:
(1) move or be placed within six feet of a high voltage overhead line
while performing the function or activity; or
(2) bring any part of a tool, equipment, machine, or material within six
feet of a high voltage overhead line while performing the function
or activity.
Tex. Health & Safety Code § 752.004.
When a person fails to comply with Chapter 752 and physical or electrical
contact with high voltage overhead lines results, the person who committed the
violation is liable “for all liability that the owner or operator incurs as a result of the
contact.”4 See id. § 752.008; see also Trail v. Friedrich, 77 S.W.3d 508, 513-14
(Tex. App.—Houston [1st Dist.] 2002, pet. denied) (plaintiff who violates Chapter
752 cannot recover damages from line owner because, under section 752.008,
plaintiff must indemnify line owner for his own damages); Chavez, 21 S.W.3d at
439-40 (same). “[T]he purpose of the indemnification provision of Chapter 752 is
4
Violations of this chapter also subject persons to fines of between $100 and $1,000,
confinement in jail for not more than one year, or both. See id. § 752.007.
12
to place the liability for losses resulting from noncompliance with the notification
and safety provisions on the ‘person . . . responsible’ for having workers near the
line.” Martinez, 864 S.W.3d at 805.
C. CenterPoint Established Its Entitlement to Indemnity
CenterPoint established that the overhead lines directly above Jordan’s crepe
myrtles were high voltage lines. “High voltage” means more than 600 volts
measured between conductors or between a conductor and the ground. Tex. Health
& Safety Code § 752.001(1). CenterPoint presented evidence that the lines at issue
here carried 34.5 kilovolts—or 34,500 volts—if measured between conductors and
19.9 kilovolts—or 19,900 volts—if measured between the conductor and the ground.
Because the lines at issue are high voltage lines, Chapter 752 applies. See id.
Second, Jordan is a person “responsible for temporary work” near the high
voltage overhead lines. See id. § 752.003. A “person responsible” under this
provision is a person who has some degree of control over the details of the work
being performed. See Trail, 77 S.W.3d at 513; Chavez, 21 S.W.3d at 439. Jordan
testified in his deposition that he alone controlled the work that he was doing, and
he does not dispute on appeal that he is a person responsible under section 752.003.
Third, CenterPoint demonstrated that Jordan’s tree-trimming work involved
activity for which “it is possible that the person performing the function or activity
. . . may bring any . . . material within six feet of a high voltage overhead line.” See
Tex. Health & Safety Code § 752.004(a) (emphasis added). Jordan concedes on
appeal that the evidence established that the tree’s branches were already within six
feet of the high voltage overhead lines when he undertook his tree-trimming
activities; thus, his work on the tree undisputedly involved activity that created the
possibility that he would bring tools, equipment, machines, or materials within six
feet of the high voltage lines. See Chavez, 21 S.W.3d at 439-40. In fact, Brooks
13
established that it would be physically impossible for electricity to have arced
through the air to contact Jordan, and that Jordan necessarily brought material, the
tree limb, into at least within one inch of the lines, which is direct or effective
contact. CenterPoint thus established that Jordan violated section 752.004.
Finally, it is undisputed that Jordan did not notify CenterPoint that he was
undertaking tree-trimming work near the high voltage lines, nor did he negotiate de-
energization of the line or other measures to guard against the danger of contact with
the line. See Tex. Health & Safety Code § 752.003(a)-(b). Thus, CenterPoint
demonstrated that Jordan violated section 752.003.
Because Jordan violated Chapter 752, he is liable to CenterPoint for all
liability CenterPoint incurred as a result of the physical or electric contact with the
high voltage line. See id. § 752.008. CenterPoint, as the summary-judgment
movant, established its entitlement to summary judgment on its Chapter 752
indemnity claim. See, e.g., Trail, 77 S.W.3d at 513-14; Chavez, 21 S.W.3d at 437,
440. Thus, the burden shifted to Jordan to raise a genuine issue of material fact issue
precluding summary judgment in CenterPoint’s favor. See Chavez, 21 S.W.3d at
438.
D. Jordan Failed to Raise a Genuine and Material Fact Issue
Jordan asserts that several fact issues preclude summary judgment. First, he
contends he did not bring a tree limb within six feet of the power line because it is
undisputed that the limbs of the tree were already within six feet of the power lines.
The San Antonio Court of Appeals has rejected this argument, and so do we.
Chavez, 21 S.W.3d at 439-40 (“It would be absurd to hold Chavez did not violate
§ 752.004 by performing work on a tree limb that was already within six feet of a
power line, but find a violation occurs when a person whose work on a tree limb
farther than six feet from a power line brings the limb within six feet of the line.”).
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Next, Jordan urges that there was no evidence of how he contacted the line or
which tree limb he touched, and that he did not “come within 6 feet of the power
lines above that tree with [his body], any tool, any machinery, or any material.”
However, neither contention creates a genuine issue of material fact in light of
CenterPoint’s expert proof that Jordan violated Chapter 752. Jordan’s contentions
do not preclude summary judgment on CenterPoint’s indemnity claim. See, e.g.,
Presley v. Gulf States Utils. Co., No. 09-10-00039-CV, 2010 WL 4264097, at *3
(Tex. App.—Beaumont Oct. 28, 2010, pet. denied) (mem. op.) (“Texas courts have
held that summary judgment precluding recovery against an owner or operator of a
power line is proper against a person who violates Chapter 752 and is liable to the
owner or operator pursuant to the indemnity provision in section 752.008.”). Jordan
offered no expert evidence controverting Brooks’s explanation and opinions. Thus,
CenterPoint conclusively established that, under section 752.008, Jordan must
indemnify CenterPoint for all liability that CenterPoint incurs as a result of the
contact. See Tex. Health & Safety Code § 752.008; Trail, 77 S.W.3d at 513-14;
Chavez, 21 S.W.3d at 440. Reasonable and fair-minded jurors simply could not
differ on this conclusion.
Jordan relies on Wolfenberger v. Houston Lighting and Power Co., 73 S.W.3d
444, 448-49 (Tex. App.—Houston [1st Dist.] 2002, pet. denied), to support his
argument. There, however, Wolfenberger was not engaged in tree-trimming
activities on a tree that was already within six feet of an overhead line; he was
repairing roof leaks. See id. at 446. Although the powerline ran “about three feet
above the building,” there was no evidence of the location of the roof leaks, and
Wolfenberger testified that he stayed at least six feet away from the power lines. Id.
at 448-49. HL&P’s expert witness stated, with no explanation, that Wolfenberger
or his equipment “must have been within six feet of the [line] . . . in order for
15
electricity to conduct from the power line to his body, causing the accident in
question.” Id. at 448. Thus, the court concluded that HL&P did not meet its
summary judgment burden. Although Jordan similarly stated that he did not bring
himself or anything else within six feet of the power lines, there is no dispute that
the tree that Jordan was trimming was already within six feet of the overhead line
when he climbed into it. This fact, as well as the detailed expert affidavit provided
in this case, discussed above, distinguish Wolfenberger from the present
circumstances.
We conclude that Jordan failed to raise a genuine issue of material fact
sufficient to defeat summary judgment. We overrule Jordan’s issue challenging the
summary judgment in CenterPoint’s Favor.
Attorney’s Fees, Costs, and Expenses
Finally, Jordan challenges the trial court’s award of attorney’s fees, costs, and
expenses to CenterPoint in the final judgment. He contends the trial court erred in
awarding fees, costs, and expenses because: (1) CenterPoint did not seek attorney’s
fees, costs, or expenses in its summary-judgment motion; (2) there exists no legal
basis to support the award; and (3) he is entitled to a trial or evidentiary hearing on
the issue.
A. CenterPoint Pleaded for Attorney’s Fees, Costs, and Expenses
First, CenterPoint’s request for attorney’s fees, costs, and expenses is
supported by pleading and motion. CenterPoint specifically asserted in its answer
and counterclaim that it was entitled to attorney’s fees, costs, and expenses under
Chapter 752: “Plaintiff owes complete indemnity to CenterPoint Energy for any and
all damages recovered against CenterPoint Energy in this lawsuit, for the costs of
any settlement, if any, and for the costs and attorneys’ fees and expenses incurred
16
by CenterPoint Energy in defense of this suit.” (Emphasis added). Additionally,
CenterPoint sought full indemnity in the summary-judgment motion, and the trial
court’s order granting summary judgment in CenterPoint’s favor adjudicated
CenterPoint’s entitlement to fees, costs, and expenses because it clearly stated that
Jordan owes complete indemnity to CenterPoint Energy “for the costs and attorneys’
fees and expenses incurred by CenterPoint Energy in defense of this suit.” The order
did not, however, state the amount awarded but left the issue for future
determination. Thus, the summary-judgment order was interlocutory. See, e.g.,
Jimenez v. Lewis, No. 14-17-00347-CV, 2019 WL 546426, at *4 (Tex. App.—
Houston [14th Dist.] Feb. 12, 2019, no pet.) (mem. op.) (citing Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001), and explaining that to be final, “a judgment
must state clearly and unequivocally that it disposes of all claims and parties, or it
must dispose of every pending claim and party regardless of its language”); Zurich
Am. Ins. Co. v. Debose, No. 01-08-00717-CV, 2009 WL 793851, at *2 (Tex. App.—
Houston [1st Dist.] Mar. 2, 2009, pet. denied) (mem. op.) (explaining that summary-
judgment order that did not (1) unequivocally state that it finally disposes of all
claims and all parties and (2) otherwise dispose of appellee’s counterclaim for
attorney’s fees was not final despite appellee’s motion for “final summary
judgment”). Because the order granting summary judgment was not final and a
claim for fees, costs, and expenses remained pending, the trial court retained plenary
power to consider CenterPoint’s motion for attorney’s fees. See Lacy v. Castillo, —
S.W.3d—, No. 14-17-00766-CV, 2019 WL 3368083, at *2-3 (Tex. App.—Houston
[14th Dist.] July 25, 2019, no pet.).
B. Chapter 752’s Indemnification Provision Supports the Award
Jordan additionally contends that Chapter 752 does not support an award of
attorney’s fees and costs because it does not contain a provision explicitly stating
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that a power line operator may recover attorney’s fees, costs, and expenses.
However, section 752.008 states that if a violation of Chapter 752 results in physical
or electrical contact with a high voltage overhead line, the person who committed
the violation is liable for “all liability that the owner or operator incurs as a result of
the contact.” That section sounds in indemnity and requires the responsible party to
indemnify the operator of high voltage overhead lines for all damages the operator
incurs as a result of the chapter’s violation. See Chavez, 21 S.W.3d at 438-39. The
violator’s indemnity obligation necessarily extends to attorney’s fees, costs, and
expenses the operator incurs in defending a lawsuit brought by the violator. See
Olson v. Central Power & Light Co., 803 S.W.2d 808, 814 (Tex. App.—Corpus
Christi 1991, writ denied); see also Whiteco Metrocom, Inc. v. Texas Utils. Elec.
Co., 30 S.W.3d 421, 423 (Tex. App.—Dallas 2000, pet. denied) (utility’s right to
indemnity under Chapter 752 included attorneys’ fees). The purpose of indemnity
is to make a party whole, and if the indemnitee must bear the expense of defending
a suit brought by a person who violated Chapter 752, then he is not made whole.
Olson, 803 S.W.2d at 814. Jordan has not cited, nor have we found, any contrary
authority.
C. Jordan Failed to Raise a Fact Issue in Response to CenterPoint’s Motion
Finally, Jordan contends that “the court should have required the parties to
proceed to a trial on the issue of reasonable and necessary attorney fees so that proper
evidence could be presented, and cross examination could be conducted as due
process would require.” Jordan does not challenge the sufficiency of the evidence
supporting the awards, but only his opportunity for an evidentiary hearing or trial.
In its motion for summary judgment, CenterPoint asked the court to grant
judgment on its claim for full indemnity from Jordan, including all damages
CenterPoint incurred. CenterPoint offered no evidence on attorney’s fees, costs, or
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expenses at that time. The order granting CenterPoint’s motion stated that Jordan
owes complete indemnity to CenterPoint for all its damages, including “the costs
and attorneys’ fees and expenses incurred by CenterPoint in defense of this suit.”
The order, however, did not determine the amounts incurred. CenterPoint then filed
a motion for attorney’s fees, costs, and expenses, supported by an affidavit of its
attorney in which she explained the reasonable, necessary, and customary fees for
legal services incurred in defense of Jordan’s suit.
Jordan filed a response to CenterPoint’s motion for attorney’s fees. In the
response, Jordan argued that he was entitled to an evidentiary hearing on the
reasonableness and necessity of attorney’s fees and that the evidentiary proceeding
must be a jury trial because he paid a jury fee. Jordan’s response was not supported
by an attorney affidavit controverting CenterPoint’s evidence, though the response
stated that Jordan’s counsel believed that the amounts CenterPoint requested were
not reasonable or necessary.
The trial court signed a final judgment incorporating its earlier order granting
CenterPoint’s summary-judgment motion and awarding CenterPoint $124,236.44 in
attorney’s fees, $30,813.25 in costs and expenses, and conditional appellate
attorney’s fees.
Generally, the reasonableness of attorney’s fees is a fact question. See, e.g.,
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). However, it is well-settled that
“the affidavit of the attorney representing a claimant constitutes expert testimony
that will support an award of attorney’s fees in a summary judgment proceeding.”
Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 513 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied); Tesoro Petroleum Corp. v. Coastal Refining & Mktg., Inc.,
754 S.W.2d 764, 767 (Tex. App.—Houston [1st Dist.] 1988, writ denied). When
the movant presents expert testimony in support of attorney’s fees, the burden shifts
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to the non-movant to raise a fact issue. See, e.g., In re Estate of Tyner, 292 S.W.3d
179, 184-85 (Tex. App.—Tyler 2009, no pet.) (where appellant failed to provide
controverting evidence in response to motion for attorney’s fees, she “did not raise
a fact question triggering the need for an evidentiary hearing before a fact finder”).
In the absence of controverting evidence, the movant’s affidavit will support
summary judgment. Tesoro, 754 S.W.2d at 767.
Here, CenterPoint provided a detailed affidavit from its attorney. In the
affidavit, CenterPoint’s attorney swore under oath that she is a licensed attorney, she
is familiar with the reasonable and necessary attorney’s fees charged for cases such
as this one, she has personal knowledge of the services rendered to CenterPoint in
this matter, and that those services were reasonable, necessary, and customary. She
specifically identified many of the Arthur Anderson factors5 and attached detailed
billing records to her affidavit. The affidavit and attached billing records
conclusively support CenterPoint’s claim for attorney’s fees, costs, and expenses.
See Estate of Tyner, 292 S.W.3d at 84-85; see also Haden, 332 S.W.3d at 513-14.
Thus, the burden shifted to Jordan to raise a fact issue for trial.
To create a fact issue entitling a non-movant to an evidentiary hearing or trial
on attorney’s fees, “‘the non-movant’s attorney must file an affidavit contesting the
reasonableness of the movant’s attorney’s fee affidavit.’” Pacific Energy & Mining
Co. v. Fidelity Exploration & Production Co., No. 01-17-00594-CV, 2018 WL
3543103, at *11 (Tex. App.—Houston [1st Dist.] July 24, 2018, no pet.) (mem. op.)
(quoting Owen Elec. Supply, Inc. v. Brite Day Constr., Inc., 821 S.W.2d 283, 288
(Tex. App.—Houston [1st Dist.] 1991, writ denied)). Though Jordan filed a
response to CenterPoint’s motion for attorney’s fees, Jordan did not attach an
5
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
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affidavit or other evidence in an attempt to controvert CenterPoint’s evidence of
attorney’s fees, costs, and expenses. He offered no expert evidence challenging the
reasonableness and necessity of the attorney’s fees CenterPoint requested. Jordan’s
sole evidence in response to CenterPoint’s motion was his attorney’s verification of
the statements in the response, which averred:
I am the attorney for the movant in the foregoing Motion for
Continuance.[6]. I have read the motion. The statements contained in
the motion are within my personal knowledge and are true and correct.
Further, Counsel for Non-Movant does not believe the costs, expenses,
and attorney fees as found in the Motion and/or attached as exhibits are
reasonable nor reasonable and necessary.
Jordan’s counsel’s conclusory belief in a verification that CenterPoint’s requested
attorney’s fees, costs, and expenses are not reasonable or necessary is alone
insufficient to create a fact issue justifying a trial. Affidavits containing conclusory
statements that are not supported by facts are not competent summary-judgment
evidence. See Tex. R. Civ. P. 166a(f); Pavlow v. Jensen, No. 14-04-00750-CV, 2005
WL 3310015, at *6 (Tex. App.—Houston [14th Dist.] Dec. 8, 2005, no pet.) (mem.
op.) (citing Skelton v. Comm’n for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex.
App.—Houston [14th Dist.] 2001, no pet.)). Jordan’s counsel’s verification was not
competent summary judgment evidence because it contained no factual support for
his “belief” that CenterPoint’s attorney’s fees were unreasonable or unnecessary.
See Tex. R. Civ. P. 166a(f) (affidavit must be based on personal knowledge, set forth
facts that would be admissible in evidence, and affirmatively show the affiant’s
competence to testify to the matters stated therein); see also Pavlow, 2005 WL
3310015, at *6 (citing cases where such conclusory affidavits failed to raise fact
issue on reasonableness and necessity of attorney’s fees). Jordan did not present any
6
The pleading to which this verification was attached was not titled a motion for
continuance, nor did it seek a continuance.
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other evidence on attorney’s fees. He did not complain that he lacked sufficient time
to respond to CenterPoint’s motion, nor did he request more time to investigate the
reasonableness or necessity of CenterPoint’s attorney’s fees, or seek to depose
CenterPoint’s counsel.
We conclude that Jordan failed to raise a fact issue warranting a trial or
evidentiary hearing on the amount of CenterPoint’s requested attorney’s fees, costs,
and expenses. On appeal, he has not challenged the reasonableness or necessity of
the trial court’s award. Under these circumstances, we are compelled to affirm the
award.
We overrule Jordan’s challenge to the judgment awarding attorney’s fees,
costs, and expenses to CenterPoint.
Conclusion
Having overruled Jordan’s issues, we affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
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