Maria Montoya, Individually, and as Representative of the Estate of Jaime Montoya, Sr. Jaime Montoya, Jr. And Javier Montoya v. RSP Permian, LLC RSP Permian, Inc. And Pepe Le'Pew Oilfield Rental, Inc.

Opinion filed September 29, 2022
In The
Eleventh Court of Appeals
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No. 11-21-00016-CV
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MARIA MONTOYA, INDIVIDUALLY, AND AS
REPRESENTATIVE OF THE ESTATE OF JAIME MONTOYA,
SR.; JAIME MONTOYA, JR.; AND JAVIER MONTOYA,
Appellants
V.
RSP PERMIAN, LLC; RSP PERMIAN, INC.; AND PEPE
LE’PEW OILFIELD RENTAL, INC., Appellees
On Appeal from the 118th District Court
Martin County, Texas
Trial Court Cause No. 7485
MEMORANDUM OPINION
Appellants Maria Montoya, Jaime Montoya, Jr., and Javier Montoya are the
survivors of the decedent, Jaime Montoya, Sr. Appellants filed suit against
Appellees, RSP Permian, LLC; RSP Permian, Inc. (collectively RSP Permian); and
Pepe Le’Pew Oilfield Rental, Inc., alleging that decedent died as a result of inhaling
hydrogen sulfide gas and that his death was attributable to Appellees’ negligence.
Decedent was an employee of Pepe Le’Pew Oilfield Rental working at RSP
Permian’s wellsite in Martin County at the time of his death. Pepe Le’Pew Oilfield
Rental and RSP Permian filed separate motions for summary judgment, which the
trial court granted. Appellants challenge the summary judgments in two issues. We
affirm.
Background Facts
In May 2018, decedent was working at RSP Permian’s Johnson Ranch
wellsite No. 1022MS in Martin County. RSP Permian’s consultant, Don Frank
Thomas, stated in his deposition that various contractors were performing work at
the wellsite. Decedent was there on behalf of Pepe Le’Pew Oilfield Rental to operate
a pump and tank on behalf of his employer. Thomas observed decedent working at
the wellsite upon Thomas’s arrival at the well. Thomas stated that decedent was
“hooking up a hose to one of his connections.” Thomas remained at the wellsite for
approximately fifteen minutes before going to another wellsite. At the time that
Thomas left, decedent was finished with the task that he was doing and was waiting
for a crew from War Horse Services to arrive.
Thomas estimated that he remained away from the wellsite for fifteen to
twenty minutes. Upon his return, Thomas found decedent “slumped over” on the
concrete pad. Thomas, who had worked in the past as a nurse, started CPR on
decedent when he could not find a pulse. Appellants contend that decedent died as
a result of inhaling hydrogen sulfide gas at the wellsite. They asserted numerous
allegations of negligence against Appellees; each allegation was predicated on the
contention that decedent’s cause of death was hydrogen sulfide inhalation.
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Analysis
Appellants assert in their first issue that the trial court erred by granting
Appellees’ motions for summary judgment. Decedent’s employer, Pepe Le’Pew
Oilfield Rental, filed a no-evidence motion for summary judgment asserting that
Appellants had no evidence of proximate cause because there was no evidence that
decedent died as a result of hydrogen sulfide gas at the wellsite. RSP Permian also
filed a no-evidence motion for summary judgment. In addition to asserting that
Appellants had no evidence of proximate cause, RSP Permian also asserted that
Appellants had no evidence that it owed decedent any duty.
Appellants filed a single response to both motions for summary judgment.
They included within their response the contention that spoliation of evidence
occurred in this case. They assert the following matters as constituting spoliation of
evidence: the hydrogen sulfide monitor provided to Appellants by the funeral home
was not the same one that decedent was wearing at the time of his death; Thomas
moved decedent’s body from where he originally found it; and Thomas and a
representative of Pepe Le’Pew Oilfield Rental influenced the justice of the peace to
not perform an autopsy on decedent. Appellants asserted in their responses to the
motions for summary judgment that the alleged spoliation of evidence hampered
their ability to present their claims. Thus, Appellants essentially assert that the
alleged spoliation of evidence precluded summary judgment.
“The spoliation of evidence is a serious issue.” Brookshire Bros., Ltd. v.
Aldridge, 438 S.W.3d 9, 16 (Tex. 2014). “[S]poliation is an evidentiary concept
rather than a separate cause of action.” Id. at 18. Thus, the trial court, rather than
the jury, “must determine whether a party spoliated evidence and, if so, impose the
appropriate remedy.” Id. at 20. By granting the motions for summary judgment, the
trial court implicitly denied Appellants’ requested relief for the alleged spoliation of
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evidence. See Gregg v. Walgreen Co., 625 S.W.3d 636, 640 (Tex. App.—Houston
[14th Dist.] 2021, no pet.).
We review the trial court’s denial of a remedy for an allegation of spoliation
of evidence for an abuse of discretion. Id. (citing Brookshire Bros., Ltd., 438 S.W.3d
at 27); Adobe Land Corp. v. Griffin, L.L.C., 236 S.W.3d 351, 357 (Tex. App.—Fort
Worth 2007, pet. denied) (citing Wal–Mart Stores, Inc. v. Johnson, 106 S.W.3d 718,
723 (Tex. 2003); Aguirre v. S. Tex. Blood & Tissue Ctr., 2 S.W.3d 454, 457 (Tex.
App.—San Antonio 1999, pet. denied) (op. on reh’g)). If we find no abuse of
discretion on the denial of the spoliation contention, we proceed to review the
propriety of the summary judgment based upon the summary judgment evidence
submitted by the parties. See Adobe Land Corp., 236 S.W.3d at 357 (citing Aguirre,
2 S.W.3d at 457).
We first address the contention that Thomas moved decedent’s body at the
wellsite.1 As previously noted, Thomas began performing CPR on decedent when
he found him at the wellsite. Thomas’s efforts to revive decedent can hardly be
characterized as the spoliation of evidence. With respect to the allegation that the
hydrogen sulfide monitor given to Appellants after decedent’s death was not the
monitor that he was wearing, this is a disputed fact issue for which the trial court did
not abuse its discretion in resolving against Appellants. Lastly, RSP Permian
submitted deposition testimony from the justice of the peace wherein she testified:
“No one influenced me to not do the autopsy.” Accordingly, the trial court also did
not abuse its discretion by implicitly determining that Appellees did not cause the
justice of the peace to not order an autopsy. Thus, the record does not demonstrate
1
For the purposes of our review, we have not differentiated the acts of RSP Permian’s
representatives from those of the representatives of Pepe Le’Pew Oilfield Rental in resolving the alleged
spoliation of evidence.
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that the trial court abused its discretion by denying a remedy for the alleged
spoliation of evidence in this case.
We review the trial court’s grant of summary judgment de novo. Lujan v.
Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). When the trial court’s order does
not specify the grounds for its summary judgment, we will affirm the summary
judgment if any of the theories are meritorious. Knott, 128 S.W.3d at 216.
After an adequate time for discovery, a party may move for summary
judgment on the ground that there is no evidence of one or more essential elements
of a claim or defense on which an adverse party would have the burden of proof at
trial. TEX. R. CIV. P. 166a(i). 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). Under this
standard, the nonmovant has the burden to produce more than a scintilla of evidence
to support each challenged element of its claims. Id. 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. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). In reviewing no-
evidence summary judgments, we consider the evidence in the light most favorable
to the nonmovant, indulging every reasonable inference in favor of the nonmovant
and resolving any doubts against the movant. Merriman, 407 S.W.3d at 248.
We first address the no-evidence motion for summary judgment filed by Pepe
Le’Pew Oilfield Rental, which challenged the existence of proximate cause.
Proximate cause has two elements: cause in fact and foreseeability. Akin, Gump,
Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 122
(Tex. 2009). Pepe Le’Pew Oilfield Rental alleged that there is no evidence that
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decedent died as a result of hydrogen sulfide gas. Thus, Pepe Le’Pew Oilfield
Rental’s motion for summary judgment is directed at the element of cause in fact.
Cause in fact requires a showing that the act or omission was a substantial
factor in bringing about the injury and without which harm would not have occurred.
HMC Hotel Props. II Ltd. P’ship v. Keystone–Tex. Prop. Holding Corp., 439 S.W.3d
910, 913 (Tex. 2014). “Cause in fact is essentially but-for causation.” Ryder
Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 929 (Tex. 2015). Pepe
Le’Pew Oilfield Rental contends that its alleged negligent acts and omissions
concerning hydrogen sulfide could not be a cause in fact of decedent’s death if there
is no evidence that his death was caused by hydrogen sulfide gas.
Appellants have not provided any summary judgment evidence that decedent
died as a result of hydrogen sulfide gas inhalation. As noted previously, an autopsy
of decedent was not performed on decedent at the time of death. The justice of the
peace determined that decedent died of natural causes. Decedent’s family members
retained Dr. Thomas Parsons, a forensic pathologist, to perform a “private autopsy”
of the decedent more than thirty days after decedent had been embalmed and buried.
Dr. Parsons testified by deposition that testing a body for hydrogen sulfide poisoning
must be performed soon after death.
Dr. Parsons testified that nothing in his examination of decedent led him
“down that path” to believe that decedent died as a result of hydrogen sulfide
exposure. He opined that a factor in determining if hydrogen sulfide exposure
occurred is as follows:
[O]ther people at the scene being sick and exposed to high levels of
hydrogen sulfide[.] You know, cases are very common where they see
someone go down, a responder goes into the same area to do the rescue,
they succumb immediately to the effects of hydrogen sulfide, and, you
know, their monitors start beeping and so forth.
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Furthermore, Dr. Parsons observed areas of significant stenosis in decedent’s
coronary arteries (up to seventy-five percent in some areas) as well as severe
blockage at the opening of the aorta and the cusps of the aortic valve—indications
of significant arteriosclerotic cardiovascular disease. He also observed that decedent
had “a very large heart,” which can lead to sudden cardiac death.
Thomas testified that the well was shut-in when decedent was working at the
wellsite and that the purpose of shutting it in was to prevent gas flow from the well.
He further testified that he did not smell hydrogen sulfide at the wellsite at any time
and that his hydrogen sulfide monitor never went off. Thomas also stated that
decedent’s hydrogen sulfide monitor was not going off when Thomas found him and
that no one’s hydrogen sulfide monitor went off when they attempted to revive
decedent. Thomas further testified that when the work at the wellsite was eventually
completed a few days later, no hydrogen sulfide was detected.
Appellants direct our attention to the fact that the Occupational Safety and
Health Administration (OSHA) cited Pepe Le’Pew Oilfield Rental for a “serious”
violation by not providing adequate training to employees for the hazards of
hydrogen sulfide. The citation referenced the date and location of decedent’s death.
Appellants contend that OSHA would not have cited Pepe Le’Pew Oilfield Rental
for a serious violation unless there “is a substantial probability that death or serious
physical harm could result.” See 29 U.S.C. § 666(k). However, OSHA findings and
citations are neither relevant nor admissible on the issue of common law negligence.
Hill v. Consol. Concepts, Inc., No. 14-05-00345-CV, 2006 WL 2506403, at *4–6
(Tex. App.—Houston [14th Dist.] 2006, pet. denied) (mem. op.). Moreover, the
OSHA citation did not determine that decedent died as a result of hydrogen sulfide.
OSHA documentation submitted as summary judgment evidence by Appellants
indicated that OSHA concluded that the cause of death was “undetermined.”
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Appellants also contend that summary judgment evidence that Thomas
assisted decedent in breaking loose a connection at the wellsite is evidence of cause
in fact because it was a substantial factor in bringing about decedent’s death. We
disagree. As noted previously, there is no evidence that decedent suffered hydrogen
sulfide poisoning or that his death was caused by hydrogen sulfide. In the absence
of evidence of a causal link between hydrogen sulfide and decedent’s death, there is
no evidence of cause in fact to support Appellants’ negligence claims against Pepe
Le’Pew Oilfield Rental. Thus, the trial court did not err in granting Pepe Le’Pew
Oilfield Rental’s no-evidence motion for summary judgment.
RSP Permian’s no-evidence motion for summary judgment also alleged that
Appellants had no evidence of proximate cause. For the same reason that Pepe
Le’Pew Oilfield Rental was entitled to a no-evidence motion for summary judgment,
RSP Permian was also entitled to a no-evidence motion for summary judgment. 2 We
overrule Appellants’ first issue.
Appellants’ second issue concerns the trial court’s rulings on RSP Permian’s
objections to Appellants’ summary judgment evidence. We considered Appellants’
excluded summary judgment evidence in addressing the no-evidence motions for
summary judgment. Because we have determined that Appellees were entitled to
summary judgment based on all of the summary judgment evidence submitted by
Appellants, we do not reach Appellants’ second issue. See TEX. R. APP. P. 47.1.
2
Because of our determination that RSP Permian was entitled to summary judgment on the issue of
proximate cause, we do not reach the remaining grounds contained in RSP Permian’s no-evidence motion
for summary judgment. See TEX. R. APP. P. 47.1.
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This Court’s Ruling
We affirm the judgments of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
September 29, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Wright, S.C.J. 3
Williams, J., not participating.
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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