Opinion issued May 9, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00326-CV
———————————
STEVE STEPHENS D/B/A AND A/K/A TERRA-TEXAS COMPANY
AND JOHN RUNION, SR., Appellants
V.
PRECISION DRILLING OILFIELD SERVICES CORPORATION, Appellee
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2009-30296-A
MEMORANDUM OPINION
This case involves claims for conversion of oil field equipment. Appellants
Steve Stephens, doing business as and also known as Terra-Texas Company, and
John Runion, Sr. filed a suit alleging conversion by appellee Precision Drilling
Oilfield Services Corporation and other defendants who are not parties to this
appeal. The trial court granted Precision Drilling’s two motions for summary
judgment on the claims asserted by Stephens and Runion. These claims were
severed into a separate suit, thereby transforming the two summary-judgment
orders into a final judgment. Stephens and Runion appeal from the judgments that
they take nothing. We affirm.
Background
Stephens owned an Emsco C2, Type 3 draw works, which is a kind of
oilfield equipment resembling a winch. He alleges that he entered into an oral
contract of bailment in Houston with Garrick Industries, Inc. to repair and
refurbish his equipment. The equipment was delivered to a Garrick facility in
Louisiana, and Stephens occasionally traveled there to check on the progress of the
work.
Approximately nine months later, Stephens came to believe that Garrick had
sold his equipment. He later determined that the buyer was Rig Fabricators &
Repair, Inc., whose president was Keith Richardson. Stephens allegedly tried to
contact Richardson and the owners of Garrick over the course of several months,
but his phone calls were not returned.
Another company, Grey Wolf, Inc., delivered its own draw works to Rig
Fabricators for repair, refurbishment, and upgrades. Grey Wolf either merged with
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or was acquired by Precision Drilling before this suit was filed. A Grey Wolf
“Material Transfer Record” reflects that an “Emsco C-2 Drawworks” was “rebuilt
by Rig Fab” and delivered back to Grey Wolf. By the time that Grey Wolf
received its equipment back from Rig Fabricators, Stephens had learned of the
allegedly unauthorized sale of his equipment by Garrick to Rig Fabricators.
Stephens believed that Rig Fabricators had delivered his equipment to Grey
Wolf. Runion, a business associate of Stephens, sent an email message to Grey
Wolf to inform it of the allegations against Garrick. In that email message, Runion
stated his belief that Grey Wolf “had no specific knowledge of the above scenario
of lies, deception, theft and collusion” and indicated that he was contacting the
company “as a courtesy and a heads-up of advising you’all of what is coming
next.”
Stephens ultimately sued Garrick and its owners, Rig Fabricators, and Keith
Richardson and some of his businesses, including Precision Drilling as the
successor-in-interest to Grey Wolf. With respect to the claims against Precision
Drilling, Stephens alleged:
Plaintiff brings this action for Conversion and for the return of
his property held by this Defendant. In this regard, Plaintiff says that
since Plaintiff’s property was initially stolen by the Garrick
Defendants, no good title could pass to any purchaser from Defendant,
or any subsequent purchaser, including the Grey Wolf Defendant [i.e.,
Precision Drilling]. This Defendant therefore presently possesses
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property which belongs to Plaintiff and which it refuses to return,
rendering such Defendant Liable for Conversion.
Pleading further, Plaintiff says the Grey Wolf Defendant holds
Plaintiff’s property adversely and refuses to return the property.
Plaintiff therefore brings this action to recover the draw works in
question from the Defendant, pursuant to common-law principals [sic]
governing such matters and pursuant to Art. 47.01, Tex Code Crim P.,
et seq.
Stephens also asserted claims for conversion against the other defendants, and with
respect to those parties he also alleged civil conspiracy and violation of the Texas
Theft Liability Act. Precision Drilling answered with a general denial.
Stephens moved for the restoration of his equipment pursuant to Chapter 47
of the Code of Criminal Procedure. See generally TEX. CODE CRIM. PROC.
arts. 47.01–.12 (West Supp. 2012) (providing procedures for the restoration of
stolen property to its true owner). After a hearing, the trial court signed an order
denying the motion.
Precision Drilling subsequently filed a motion for summary judgment on
both traditional and no-evidence grounds. It construed the petition as alleging that
Rig Fabricators had incorporated parts of Stephens’s equipment into Precision
Drilling’s equipment during repairs and refurbishments. Precision Drilling argued
that Stephens had no standing to sue because he had assigned his entire ownership
interest in the equipment to Runion before filing suit. In the no-evidence section of
its motion, Precision Drilling argued that Stephens had no evidence for any of the
4
elements of conversion. It further argued that Stephens had no evidence for
several elements of theft.
Stephens filed a response, including legal arguments to support his own
standing. To show that he had evidence on the elements of conversion, he
submitted a sworn affidavit with several attached exhibits. Stephens did not,
however, address Precision Drilling’s contention that he had no evidence to
support the contested elements of theft.
After Stephens filed his response and before the trial court ruled on the
motion for summary judgment, an amended petition was filed in which Runion
joined all causes of action as Stephens’s co-plaintiff. The amended petition
substantially repeated Stephens’s prior allegations and claims against the
defendants, including Precision Drilling.
The trial court granted summary judgment on Precision Drilling’s motion
and ordered that Stephens take nothing against the company. Subsequently,
Precision Drilling filed another motion for summary judgment challenging
Runion’s suit, in which it reiterated substantially the same arguments made against
Stephens’s suit, though it did not challenge Runion’s standing. Runion filed
substantially the same response that Stephens had previously filed. As it had with
respect to Stephens, the trial court granted summary judgment and ordered that
5
Runion take nothing against Precision Drilling. Stephens and Runion appeal from
the final judgments that they take nothing on their claims.
Analysis
We review de novo a trial court’s decision to grant a motion for summary
judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
We review the summary-judgment evidence in the light most favorable to the
nonmovant, crediting evidence favorable to that party if reasonable jurors could,
and disregarding contrary evidence unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).
A no-evidence motion for summary judgment under Rule 166a(i) is
essentially a directed verdict granted before trial, to which we apply a legal-
sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
750–51 (Tex. 2003). In general, a party seeking a no-evidence summary judgment
must assert that no evidence exists as to one or more of the essential elements of
the nonmovant’s claim on which the nonmovant would have the burden of proof at
trial. Finger v. Ray, 326 S.W.3d 285, 289–90 (Tex. App.—Houston [1st Dist.]
2010, no pet.). Once the movant specifies the elements on which there is no
evidence, the burden shifts to the nonmovant to raise a fact issue on the challenged
elements. See TEX. R. CIV. P. 166a(i). A no-evidence summary judgment will be
6
sustained on appeal when (1) there is a complete absence of evidence of a vital
fact, (2) the court is barred by rules of law or of evidence from giving weight to the
only evidence offered by the nonmovant to prove a vital fact, (3) the nonmovant
offers no more than a scintilla of evidence to prove a vital fact, or (4) the
nonmovant’s evidence conclusively establishes the opposite of a vital fact. King
Ranch, 118 S.W.3d at 751. More than a scintilla of evidence exists when the
evidence supporting the finding, as a whole, rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions. Burroughs
Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). If the evidence is so
weak as to do no more than create a mere surmise or suspicion of its existence, its
legal effect is that it is no evidence. Ridgway, 135 S.W.3d at 601.
I. Stephens’s standing
In its motion for summary judgment, Precision Drilling argued that Stephens
lacked standing “for the simple reason that he was not the owner of the Draw
Works at the time suit was filed,” and therefore he had “no justiciable interest.” As
an appellant, Stephens must negate all grounds that were raised in Precision
Drilling’s summary-judgment motion against him. See Ellis v. Precision Engine
Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no
pet.) (citing State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993)).
When, as here, the trial court does not specify the basis for its summary judgment,
7
“the appellant must show it is error to base it on any ground asserted in the
motion.” Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). When the
appellant fails to challenge on appeal a ground asserted in the motion, we will
affirm the summary judgment with respect to the relevant claim, regardless of
whether summary judgment could have been properly rendered on that ground.
Ellis, 68 S.W.3d at 898.
Despite having responded to the standing challenge in the trial court,
Stephens does not address on appeal Precision Drilling’s summary-judgment
argument that he lacked standing. Because Stephens has failed to address on
appeal a ground that Precision Drilling raised in the summary-judgment motion,
we affirm the judgment against him. See id.
II. Conversion
One of the elements of conversion is that the defendant unlawfully and
without authorization assumed and exercised control over the property to the
exclusion of, or inconsistent with, the plaintiff’s rights as an owner. NXCESS
Motor Cars, Inc. v. JPMorgan Chase Bank, N.A., 317 S.W.3d 462, 470 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied). When Precision Drilling challenged
this element in its no-evidence motion for summary judgment, it became Runion’s
burden to “produce[] summary judgment evidence raising a genuine issue of
material fact.” TEX. R. CIV. P. 166a(i). Runion was not required to marshal his
8
proof, but he needed to “point out evidence that raises a fact issue on the
challenged elements.” Id. cmt. 1997. The nonmovant must expressly and
specifically identify the supporting evidence on file that it wants the trial court to
consider in its response to a summary judgment motion. See, e.g., Speck v. First
Evangelical Lutheran Church of Houston, 235 S.W.3d 811, 816 (Tex. App.—
Houston [1st Dist.] 2007, no pet.).
The summary-judgment motion asserted that there was no evidence of
several elements of Runion’s conversion claim, including the element that
“Precision wrongfully took dominion and control over the property in question.”
In response, Runion stated:
Plaintiffs incorporate by reference all the foregoing pleadings,
arguments and evidence, for all purposes, as if repeated verbatim in its
entirety, here: . . . As reflected above, the draw-works was stolen and
no subsequent purchaser of it could obtain any title to the draw-works
(See, Affidavit of Steve Stephens, attached).
With respect to the possession of his equipment, Stephens averred as follows in his
affidavit:
9. Sometime around September 2008, I learned for the first time
my Draw-works had been sold by GARRICK to a company called
Fire Fox. I did not know of this sale, nor did I approve of such sale,
either before or after it occurred, nor did I receive any of the sale
proceeds. I later learned that my Draw-works had been sold on
April 8, 2008, to a company called Red Fox, located near Lafayette,
LA. I learned that the sale price was $225,000.00 [MSJ Affidavits,
Exhibits Nos. 6 and 6a];
9
10. On January 14, 2009, when I learned that Red Fox had my
Draw-works, I sent a letter to Keith Richardson by Fax informing him
that the draw-works was stolen and demanding its immediate return. I
later learned that Keith Richardson was the owner of both the Red Fox
company and the company which actually purchased the draw-works,
Rig Fabricators & Repair, Inc. [“RIG FAB”] [MSJ Affidavit Exhibit
No. 4];
11. We learned that two (2) days after we sent the letter telling RIG
FAB that GARRICK had stolen the Draw-Works [Exhibit No. 11,
above], on January 16, 2009], RIG FAB delivered my draw-works to
GREY WOLF drilling [MSJ Affidavit Exhibit No. 5] for
$780,579.29. [MSJ Affidavit Exhibit No. 7] I did not know of this
sale nor did I approve of such sale either before or after it occurred,
nor did I receive any of the sale proceeds;
12. On April 30, 2009, after learning that GREY WOLF was now
in possession of our C-2 Draw-works, we e-mailed GREY WOLF
(Terri Lejeune) all of this information showing that Terra-Texas is the
rightful owner of the C-2 Draw-works [MSJ Affidavit Exhibit 8], and
asking GREY WOLF to investigate and work with us to make us
whole. Neither Garrick Industries, Inc., nor Rig Fabricators & Repair,
Inc., nor Grey Wolf has returned my draw-works or paid me its value.
(All emphasis in original.) The exhibits referenced in the foregoing excerpt and
attached to Stephens’s affidavit are:
• Exhibit 4, a letter from Stephens to Richardson demanding return of the
draw works;
• Exhibit 5, a Grey Wolf “Material Transfer Record” reflecting delivery of an
“Emsco C-2 Drawworks” that was “rebuilt by Rig Fab”;
• Exhibit 6, a Rig Fabricators check payable to Garrick Industries in the
amount of $225,000.00;
• Exhibit 6a, a Garrick Industries invoice addressed to Rig Fabricators for a
“Continental Emsco C2 Drawworks” at the unit price of $225,000.00;
• Exhibit 7, a November 10, 2008 Rig Fabricators invoice billed to Grey Wolf
for “REBUILD CONT EMSCO C2 DRAWWORKS”; and
• Exhibit 8, text from an email message from Runion apprising Grey Wolf of
the allegations and asking that it “do its own research into this matter.”
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Runion’s written response to Precision Drilling’s no-evidence motion did not
expressly point to any other specific evidence.
In his appellate brief, Runion contends that Stephens’s affidavit provided
proof on every contested element of conversion. In response, Precision Drilling
argues that Runion failed to offer evidence that the draw works delivered by
Stephens to Garrick and then allegedly sold to Rig Fabricators is the same draw
works that was ultimately delivered to Grey Wolf after it had engaged Rig
Fabricators to repair its own draw works. Precision Drilling alleged that Stephens
lacked any personal knowledge of the transfers involving Rig Fabricators or of
how the repairs were performed on the Grey Wolf draw works. It thus
characterizes Stephens’s affidavit as “rank speculation” to the extent he claimed
that “Rig Fab delivered my draw-works to Grey Wolf Drilling for $780,579.29,”
relying solely on two exhibits: the Grey Wolf “Material Transfer Record” and the
Rig Fabricators invoice dated November 10, 2008 (exhibits 5 and 7, referenced in
paragraph 11 of the Stephens affidavit). Precision Drilling maintains that the
referenced exhibits show only that its own draw works equipment was rebuilt, not
that it is in possession of the equipment allegedly stolen from Stephens or any parts
thereof.
In his reply brief, Runion reprints excerpts of Stephens’s affidavit to show
that Precision Drilling exercised control over the allegedly misappropriated
11
equipment. He argues that the affidavit is competent summary-judgment evidence
because it recites at the beginning that it is based on Stephens’s “personal
knowledge of all the facts stated herein.” Runion also argues that an objection that
the affiant lacks personal knowledge is an objection to the form rather than the
substance of the affidavit, and because Precision Drilling did not object to the
affidavit in the trial court it waived review of any such defect.
Runion’s reply brief additionally points out that Precision Drilling submitted
with its summary-judgment motions a transcript of Runion’s testimony at the
hearing on Stephens’s Chapter 47 motion for restoration. In one part of the
transcript, the following line of testimony appears:
Q. [W]here is the draw works the last time you saw it?
A. As of today, I don’t know. But at the day we inspected it in
September 2009, it was s[i]tting at Grey [W]olf Precision Drilling’s
yard in Eunice, Louisiana.
....
Q. . . . Is it your contention that the draw works you saw in Grey
[W]olf’s yard is the same exact draw works that Mr. Stephens
purchased in 2006?
A. With minor modifications, yes.
Runion argues that this part of Precision Drilling’s summary-judgment evidence
was sufficient to establish the challenged element of the company’s possession and
control of the equipment. He alternatively argues that Precision Drilling judicially
12
admitted, both during the proceedings on the motion for restoration and in the
motions for summary judgment, that it had possession of the equipment.
We will separately consider the sufficiency of each of Runion’s arguments
that he satisfied his burden to avoid a no-evidence summary judgment on the
conversion claim due to the lack of evidence that Precision Drilling wrongfully
took dominion and control over Stephens’s draw works.
A. Runion’s testimony
In Runion’s response to the motion for summary judgment, he stated that he
“incorporate[d] by reference all the foregoing pleadings, arguments and evidence,
for all purposes, as if repeated verbatim in its entirety.” This statement may have
been intended to refer to Runion’s testimony at the hearing on the motion for
restoration in which he testified to having seen Stephens’s equipment in Grey
Wolf’s yard. However, this general reference in the summary-judgment response
was ineffective to point out any particular evidence for the purpose of responding
to a no-evidence summary-judgment motion. See Rogers v. Ricane Enters., Inc.,
772 S.W.2d 76, 81 (Tex. 1989) (holding that summary-judgment motion stating
that movant relied upon “the depositions and exhibits on file” was insufficient to
direct trial court to evidence); Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521,
525 (Tex. App.—San Antonio 2003, no pet.) (observing that nonmovant did not
cite, quote, or otherwise point out testimony creating fact issue and that “trial court
13
was not required to search the record for evidence raising a material fact issue
without more specific guidance”). There were over 200 pages attached to
Precision Drilling’s motion and Runion’s response, and this page count does not
account for the fact that many of those pages are condensed transcripts with four
pages of testimony on each condensed page. Without express and specific
reference to the evidence substantiating the elements of his conversion cause of
action, the trial court was not required to sift through these pages or other filings to
find evidence supporting Runion’s position. See Speck, 235 S.W.3d at 816
(holding that party failed to produce competent summary-judgment evidence when
it attached affidavits to pleadings but party did not refer to them in summary-
judgment responses); Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.—
Houston [1st Dist.] 1996, no writ) (holding that trial court did not abuse discretion
in refusing to consider 500-page deposition testimony attached to summary-
judgment response when nonmovant did not direct attention to portions thereof).
Accordingly, we hold that Runion did not meet his burden to point out the part of
his own testimony in which he testified that he saw the equipment in Grey Wolf’s
yard. See TEX. R. CIV. P. 166a(i) & cmt. 1997.
B. Stephens’s affidavit
Although Runion’s general reference to the evidence was insufficient to
invoke any particular evidence for summary-judgment purposes, his express
14
reference to Stephens’s affidavit, which is only three pages in length, was
sufficient to point out that piece of evidence. See Johnson v. Brewer & Pritchard,
P.C., 73 S.W.3d 193, 207–08 (Tex. 2002) (holding that summary-judgment
specifying evidence in the record, despite failing to connect each referenced fact to
the contested elements, “met the minimum requirements of Rule 166a(i)”); Aleman
v. Ben E. Keith Co., 227 S.W.3d 304, 309–10 (Tex. App.—Houston [1st Dist.]
2007, no pet.) (holding that summary-judgment response referencing attached
deposition testimonies and reprinting half-page of relevant excerpts was sufficient
to point out that evidence). The question remains whether the statements in
Stephens’s affidavit were competent summary-judgment evidence. “A summary
judgment may be based on uncontroverted testimonial evidence of an interested
witness . . . if the evidence is clear, positive and direct, otherwise credible and free
from contradictions and inconsistencies, and could have been readily
controverted.” TEX. R. CIV. P. 166a(c). Affidavits supporting or opposing
summary judgment must be made on personal knowledge and must set forth such
facts as would be admissible in evidence. TEX. R. CIV. P. 166a(f).
“An affidavit which does not positively and unqualifiedly represent the facts
as disclosed in the affidavit to be true and within the affiant’s personal knowledge
is legally insufficient.” Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994)
(per curiam). Moreover, a conclusory affidavit is incompetent evidence that, as a
15
matter of law, does not support summary judgment. Anderson v. Snider, 808
S.W.2d 54, 55 (Tex. 1991) (per curiam, op. on rehearing); see also James L. Gang
& Assocs., Inc. v. Abbott Labs., 198 S.W.3d 434, 439 (Tex. App.—Dallas 2006, no
pet.) (“Conclusory statements in affidavits are not proper summary judgment
evidence if there are no facts to support the conclusions.”). An affidavit is
conclusory when it expresses “a factual inference without stating the underlying
facts on which the inference is based.” E.I. du Pont de Nemours & Co. v. Shell Oil
Co., 259 S.W.3d 800, 809 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)
(quoting BLACK’S LAW DICTIONARY 284 (7th ed. 2001)). Conclusory statements in
affidavits are not competent evidence because they do not raise fact issues, nor are
they credible or susceptible to being readily controverted. Ryland Grp., Inc. v.
Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). Contrary to Runion’s
argument, a conclusory statement in an affidavit is a defect of substance, and we
may review on appeal whether a statement is conclusory despite the absence of any
objection in the trial court. Clarendon Nat’l Ins. Co. v. Thompson, 199 S.W.3d
482, 490 n.7 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Stephens’s affidavit avers that he “learned” that Garrick Industries sold his
equipment to Rig Fabricators, and that he later “learned” that Rig Fabricators
delivered his equipment to Grey Wolf. This language, which suggests that he
undertook an inquiry or otherwise somehow received information, is legally
16
insufficient to show that the statements are based upon his personal knowledge.
See Humphreys, 888 S.W.2d at 470 (holding that affidavits failed to unequivocally
show personal knowledge when they stated that they were based upon “own
personal knowledge and/or knowledge which [affiant] has been able to acquire
upon inquiry”); see also Ryland Grp., 924 S.W.2d at 122 (“An interested witness’
affidavit which recites that the affiant ‘estimates,’ or ‘believes’ certain facts to be
true will not support summary judgment.”).
Furthermore, the affidavit does not reveal the underlying facts of how
Stephens came to “learn” about Grey Wolf’s possession of his equipment.
Consequently, Stephens’s statements concerning Grey Wolf’s possession of the
equipment are conclusory. See LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688–89
(Tex. 2006) (per curiam) (holding that expert opinion concerning cause of injuries
and death was not competent summary-judgment evidence because it failed to
address, among other things, underlying facts on which opinion was based); James
L. Gang, 198 S.W.3d at 439 (holding that affidavit averring amount of damages
suffered was conclusory because it lacked supporting facts or figures).
Because the challenged statements in Stephens’s affidavit do not
unequivocally show that they are based on personal knowledge and there are no
underlying facts in the affidavit to support them, we hold that the statements
17
concerning Grey Wolf’s possession of the equipment are incompetent summary-
judgment evidence. See Anderson, 808 S.W.2d at 55.
C. Affidavit exhibits
Only two of the exhibits attached to Stephens’s affidavit are referenced in
support of the allegation that Precision Drilling had possession of the equipment:
Exhibit 5, a Grey Wolf “Material Transfer Record” reflecting delivery of an
“Emsco C-2 Drawworks” that was “rebuilt by Rig Fab”; and Exhibit 7, a Rig
Fabricators invoice to Grey Wolf for “REBUIL[T] CONT EMSCO C2
DRAWWORKS.” However, without further explanation, this evidence reflects
only that Rig Fabricators rebuilt and delivered a draw works to Grey Wolf. The
documents contain some information that could be clues that would permit the
tracing of the material at issue. For example, Exhibit 5 references “Gray Wolf
Asset # GWD-005-076” and describes its condition as “Rebuilt By Rig Fab. Job #
R1451.” Exhibit 7 references “WO # R1451,” describes the work as “REBUILD
CONT EMSCO C2 DRAWWORKS,” and identifies “ASSET NO# GWD-005-
076.” In any case, whatever is shown by these records, on their face they do not
permit any inference that parts from the allegedly misappropriated Stephens draw
works were incorporated into the rebuilt Grey Wolf draw works equipment or parts
thereof. In the context of other evidence, the two exhibits might allow a surmise or
suspicion that Precision Drilling has possession of Stephens’s equipment. “To
18
raise a genuine issue of material fact, however, the evidence must transcend mere
suspicion.” Ridgway, 135 S.W.3d at 601. Thus, the legal effect of the exhibits
attached to Stephens’s affidavit is that they are no evidence that Precision
Drilling’s equipment contains components of the equipment at issue. Id.
D. Judicial admission
Runion alternatively argues that Precision Drilling judicially admitted in the
trial court that it had possession of the equipment. At an earlier stage of the
proceedings, Stephens moved pursuant to Chapter 47 of the Code of Criminal
Procedure for restoration of the draw works. Precision Drilling filed a written
objection to Stephens’s motion. In that written objection, Precision Drilling
advanced several arguments that it later reiterated in its motion for summary
judgment. In the course of arguing that it was a good faith purchaser, Precision
Drilling stated:
Garrick, clothed with an indicia of ownership of the Draw Works and
all of its accompanying parts sold the Draw Works to Rig Fab, who in
turn sold the Draw Works to Precision, which Precision purchased for
value in good faith. . . . This voluntary delivery gave Garrick the
power to transfer good title to Rig Fab and Rig Fab, subsequently, to
Precision. . . . When Precision purchased the draw works from Rig
Fab, Precision lacked knowledge of any claims to those parts by
Plaintiff.
Moreover, in its later summary judgment motions, Precision Drilling made similar
statements concerning possession of the equipment, including the following
sentence:
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Garrick, clothed with indicia of ownership of the Draw Works,
including all of its accompanying parts, sold the Draw Works to Rig
Fab, which in turn used parts from the Draw Works to repair
Precision’s damaged draw works, and Precision paid for the repairs,
including the used parts, for value in good faith.
(Footnote omitted.) A footnote at the beginning of each motion states: “For
purposes of this motion only, the contentions contained in [the petitions] are taken
as true.” Runion argues that the above statements constituted judicial admissions
that relieved him of the burden of producing summary-judgment evidence
concerning Precision Drilling’s possession of the equipment.
Responding to this argument, Precision Drilling contends that judicial
admissions can be made only in pleadings, as opposed to motions or other filings,
and that none of the supposed judicial admissions were reflected in the company’s
pleadings. Precision Drilling additionally argues that it made the referenced
statements only for the purpose of articulating its defenses and that it never
admitted as fact that it has the equipment.
A judicial admission is a formal waiver of proof usually found in pleadings
or the stipulations of the parties. Hennigan v. I.P. Petroleum Co., 858 S.W.2d 371,
372 (Tex. 1993) (per curiam) (citing Mendoza v. Fidelity & Guar. Ins.
Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980)). Contrary to Precision
Drilling’s contention, a judicial admission may be found in filings other than
pleadings. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568
20
(Tex. 2001) (holding that party made judicial admission in summary-judgment
response and counter-motion for summary judgment). Nevertheless, a judicial
admission must be a “clear, deliberate, and unequivocal statement.” Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000) (quoting Regency
Advantage Ltd. P’ship v. Bingo Idea–Watauga, Inc., 936 S.W.2d 275, 278 (Tex.
1996)). An assertion of fact pleaded in the alternative is not a judicial admission.
See Holy Cross, 44 S.W.3d at 568 (citing Houston First Am. Sav. v. Musick, 650
S.W.2d 764, 767 (Tex. 1983)). When a judicial admission is made, it bars the
party who made the admission from disputing it and relieves the opposing party
from proving the fact admitted. Auld, 34 S.W.3d at 905. “The party relying on his
opponent’s pleadings as judicial admissions of fact, however, must protect his
record by objecting to the introduction of evidence contrary to that admission of
fact and by objecting to the submission of any issue bearing on the fact admitted.”
Musick, 650 S.W.2d at 769.
When Precision Drilling’s motion challenged whether Runion had evidence
to support the “control” element of conversion, see NXCESS, 317 S.W.3d at 470, it
put that element at issue for summary judgment. See TEX. R. CIV. P. 166a(i).
Runion, as the “party relying on his opponent’s pleadings as judicial admissions of
fact,” Musick, 650 S.W.2d at 769, needed to protect any reliance on Precision
Drilling’s purported judicial admissions by objecting at that time to the attempt to
21
put the “control” element at issue. However, Runion’s response to Precision
Drilling’s motion for summary judgment does not reflect any assertion of judicial
admission. Assuming, without deciding, that Precision Drilling did make one or
more judicial admissions that it had possession or control of the equipment, we
hold that Runion waived his reliance on such a judicial admission by failing to
timely object after Precision Drilling put that element at issue in its motion for
summary judgment. See Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762,
765 (Tex. 1987) (holding that defendants could not benefit from purported judicial
admission when they failed to timely object to jury question that was contrary to
facts admitted in plaintiffs’ pleadings); USAA Cnty. Mut. Ins. Co. v. Cook, 241
S.W.3d 93, 102 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that
defendant waived reliance on plaintiff’s judicial admissions when defendant failed
to object to plaintiff’s repeated testimony controverting prior admissions); cf.
United States Fid. & Guar. Co. v. Goudeau, 272 S.W.3d 603, 611 & n.3 (Tex.
2008) (noting that plaintiffs protected their reliance on judicial admission when
they objected to statements in defendant’s summary-judgment motion that
contradicted prior admission).
In summary, (1) Runion did not adequately point out in his summary-
judgment response the part of his testimony that he saw the disputed equipment in
Grey Wolf’s yard; (2) the statements in Stephens’s affidavit concerning Grey
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Wolf’s possession of the equipment were incompetent summary-judgment
evidence, because they were conclusory and they were not clearly and
unequivocally based on his personal knowledge; (3) the exhibits attached to
Stephens’s affidavit represented no more than a scintilla of evidence that Precision
Drilling had possession of the equipment or parts thereof; and (4) Runion did not
timely protect his reliance on Precision Drilling’s purported judicial admissions
that the company had possession of the equipment or parts thereof. Accordingly,
we hold that the trial court did not err in granting summary judgment against
Runion on his conversion cause of action.
III. Theft
In its summary-judgment motion against Runion, Precision Drilling asserted
that he had not pleaded a cause of action for theft against the company.
Nevertheless, “out of abundance of caution,” Precision Drilling argued in the
motion that Runion had no evidence of several elements of theft. Runion did not
address in his response to the motion for summary judgment these no-evidence
arguments concerning theft.
When a no-evidence summary-judgment motion asserts that the nonmovant
has no evidence on an element of a claim, the burden shifts to the nonmovant to
produce evidence raising a fact issue on the challenged element. See TEX. R. CIV.
P. 166a(i); Vice v. Kasprzak, 318 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.]
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2009, pet. denied). Runion, not having addressed in the trial court Precision
Drilling’s no-evidence arguments regarding theft, failed to meet his burden. We
hold that the trial court did not err in rendering the requested summary judgment
on the theft claim. See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per
curiam) (“The trial court must grant the [no-evidence] motion unless the
respondent produces summary judgment evidence raising a genuine issue of
material fact.”).
Conclusion
We affirm the judgment against Stephens because he failed to address on
appeal the standing grounds argued by Precision Drilling in the trial court. We
affirm the trial court’s judgment against Runion on no-evidence grounds. Because
of this disposition, we need not address other arguments relating to Precision
Drilling’s traditional summary-judgment motion.
Michael Massengale
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
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