Carroll L. Lee, Peggy G. Lee, Lee Concho Valley Family L.P., Sandra Cagle, Jerry D. Lee, Larry G. Lee, and Matthew Lee v. Memorial Production Operating, LLC Grandfield Consulting, Inc. Boaz Energy, LLC And Ivory Energy, LLC

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00063-CV

Carroll L. Lee, Peggy G. Lee, Lee Concho Valley Family L.P., Sandra Cagle, Jerry D. Lee,
Larry G. Lee, and Matthew Lee, Appellants

v.

Memorial Production Operating, LLC; Grandfield Consulting, Inc.; Boaz Energy, LLC;
and Ivory Energy, LLC; Appellees

FROM THE 51ST DISTRICT COURT OF COKE COUNTY
NO. CV1604622, THE HONORABLE CARMEN DUSEK, JUDGE PRESIDING

M E M O RAN D U M O PI N I O N

This case arises from the failure of a saltwater-disposal well on appellants’ ranch.

Appellants Carroll L. Lee, Peggy G. Lee, Lee Concho Valley Family L.P., Sandra Cagle, Jerry D.

Lee, Larry G. Lee, and Matthew Lee sought to recover for damage to their cattle operation and

familial enjoyment on the land. The trial court disposed of appellants’ many claims through

various means including dismissal of some appellants’ claims for lack of standing, summary

judgment, and judgment based on a jury verdict. Appellants challenge those decisions as well as

the trial court’s rulings on objections to pleadings and evidence, the court’s charge, jury argument,

and the sufficiency of the evidence to support the jury’s verdict. We will affirm the judgment.
 BACKGROUND

Appellants include landowners Carroll L. Lee and Peggy G. Lee; their children,

Sandra Cagle, Jerry D. Lee, Larry G. Lee, and Matthew Lee; and a family partnership, Lee Concho

Valley Family L.P. 1 Appellees include companies that owned and/or operated the lease with the

failed disposal well over the years: Grandfield Consulting, Inc.; Ivory Energy, LLC; Boaz Energy,

LLC (Boaz I); and Memorial Production Operating, LLC. Boaz Energy II, LLC (Boaz II), and

Grandfield’s owner, Charles Mark Witt, were defendants and have filed briefs. While Memorial

Resource Development Corporation was a defendant below, it is not, according to Appellants, a

party to this appeal. Neither Boaz II, Witt, nor Memorial Resource Development Corporation were

named in the Final Judgment on Jury Verdict.

Carroll and Peggy Lee own the surface estate of land they call the Cedar Mountain

Ranch (Ranch) in Coke County. The mineral estate was leased by a previous owner in the 1940s

for oil and gas production under the Bronte Capps Unit Lease. Well 5 was drilled for oil and gas

production in 1957 and became a saltwater-disposal well called SWD5 as permitted by the Texas

Railroad Commission. Grandfield actively operated SWD5 between January 2007 and December

2010, transferring operations to Ivory in March 2011. 2 A company called C.C. Forbes worked on

SWD5 for Grandfield in December 2010; Appellants settled and dismissed their claims against

C.C. Forbes before trial. After Ivory, Boaz I owned and operated SWD5 from August 2011 to

October 2013. Memorial merged with and absorbed Boaz I’s liabilities and obligations, owning

1
We refer to appellants collectively as “Appellants.” Where necessary to distinguish from
the remaining Appellants, we will refer to Carroll and Peggy Lee as “the Lees” exclusive of other
appellants named Lee.
2
Some evidence indicates that Ivory took over actual operation in January 2011 before the
transfer of operations was official.
2
and operating SWD5 from October 1, 2013, until June 1, 2016, when Boaz II became the owner

and operator. The purchase and sale agreement between Memorial and Boaz II expressly

mentioned the failure of the disposal well.

The wellbore had tubing through which fluid was injected surrounded by a casing

with space between the tubing and casing. The well was required to have a device called a

mechanical packer designed to block injected water from flowing up from the injection zone into

the space between the tubing and casing (and beyond). The mechanical packer was required to be

installed within one hundred feet above the injection level. Documents filed with the Railroad

Commission state that the mechanical packer was installed 4492 feet below the surface and that

injection was occurring beginning at 4576 feet. In September 2014, Memorial injected more

barrels of saltwater than the permit authorized on several days.

Ranch foreman Roger Graves testified that, on September 25, 2014, he saw water

gushing out of the ground about 150 yards from SWD5. Matt Lee testified that water was bubbling

up in all directions. He said, “I can’t explain the massive amount of fluid that was coming out of

the ground.” Pools were constructed to collect the water. Efforts to remediate the effects of the

breakout were, according to Appellants, ineffective and created additional problems.

Investigation revealed that the tubing of the well was seriously degraded and that

the well had an additional packer installed 260 feet below the surface. This packer was an “EE

Packer” and was not designed to work in the same way as a mechanical packer. There was

evidence that the EE packer masked any pressure anomalies that could have indicated that the well

was failing after more than fifty years of operation. The installation of the EE packer was noted

on a wellbore diagram prepared on June 1, 2011, by an Ivory employee. Last on a list entitled

“Well Maintenance History” was this entry: “12/20/10 Repl Pkr, EE 8jts down.” Ivory

3
representative Lee Beam averred in an affidavit that the entry meant someone replaced an EE

packer eight joints (sections of tubing) below the surface and was consistent with the EE packer’s

being installed 261 feet below the surface. This also put the EE packer impermissibly within 150

feet of usable subsurface water. The presence of the EE packer was not disclosed on H-10 forms

(annual disposal/injection-well monitoring reports) submitted by appellees to the Railroad

Commission that reported the depth of the tubing packer (4492 feet), the depth of the injection

interval (4576 feet to 4676 feet), and the volume injected, nor was it disclosed on Grandfield’s H-

5 form reporting its December 27, 2010 pressure test that reported a Baker Loc Set packer placed

at 4499 feet for a permitted injection interval of 4570 feet to 4675 feet. Grandfield’s Witt certified

on the H-5 form that “the data and facts stated herein are true, correct and complete to the best of

my knowledge.”

During the pendency of the case, the trial court made pretrial rulings, some of which

are challenged as set out below. After several days of trial testimony, the court submitted the

surviving claims to the jury, which did not find any appellee liable for negligence or nuisance. The

judge rendered a take-nothing judgment on Appellants’ claims. 3

DISCUSSION

Appellants present three broad issues asserting that the trial court made erroneous

pretrial rulings, trial rulings, and charge errors that, “in isolation or the aggregate,” warrant reversal

and remand for a new trial. These three issues comprise multiple subissues regarding particular

3
The trial record contains much testimony and evidence about damages to the land and its
effect on the Lee family’s cattle business and their enjoyment of the land. Because the jury did
not reach the damages issues, we will not recount or summarize it in this opinion. See Tex. R.
App. P. 47.1.
4
rulings concerning different appellees. Appellants also contend that an appellee’s jury argument

was incurably improper and warrants reversal, and that the jury’s no-liability finding is not

supported by factually and legally sufficient evidence.

I. The court allowed Ivory and Grandfield to amend their answers to plead a defense
that they acted as reasonably prudent operators.

We review the trial court’s decision allowing Ivory and Grandfield to amend their

pleadings for an abuse of discretion. See Lower Valley Water Dist. v. Danny Sander Constr., Inc.,

657 S.W.3d 404, 408 (Tex. App.—El Paso 2022, no pet.). The trial court has no discretion to deny

leave to amend unless (1) the party opposing amendment shows evidence of surprise or prejudice,

or (2) the amendment asserts a new cause of action or defense and is thus prejudicial on its face

and the opposing party objects accordingly. Greenhalgh v. Service Lloyds Ins., 787 S.W.2d 938,

939 (Tex. 1990) (concluding no abuse of discretion in allowing post-verdict amendment of

pleadings); see Tex. R. Civ. P. 63 (amending pleadings), 66 (trial amendments). Rule 63 provides

that leave of court is required only for amendments less than seven days before trial or “after such

time as maybe ordered by the judge under Rule 166” and that “leave shall be granted by the judge

unless there is a showing that such filing will operate as a surprise to the opposite party.” Tex. R.

Civ. P. 63. An amendment is prejudicial on its face if: (a) it asserts a new substantive matter that

reshapes the nature of the trial itself; (b) the opposing party could not have anticipated it in light

of the development of the case up to the time the amendment was requested; and (c) the opposing

party’s presentation of its case would be detrimentally affected by the amendment. Tanglewood

Homes Ass’n v. Feldman, 436 S.W.3d 48, 64 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

To determine if the amendment is prejudicial on its face, we must evaluate it in the context of the

entire case. See id.

5
 Appellants challenge the trial court’s grant of leave to Ivory and Grandfield to

amend their answers after the scheduling-order deadline but more than seven days before trial.4

Appellants assert that allowing the amendment was an abuse of discretion because the reasonably-

prudent-operator defense is inapplicable to Appellants’ claims and legally futile. The defense is

set out in the statute Appellants invoke to bring suit. See Tex. Nat. Res. Code § 85.321 (establishing

cause of action and defense), .046(a)(8) (defining waste). At the trial court, Appellants objected

to the amendment on grounds that “waste” was a term of art limited to diminution of mineral

interests and did not encompass the conventional property damages and personal loss Appellants

sought to recover. Appellants’ attorney acknowledged, however, that they were aware of the

defense because it is part of the statute but contended that it was inapplicable because they were

not alleging waste. One of Appellants’ attorneys said that, if the pleading were allowed, excluding

the issue from the jury charge could cure any disadvantage to Appellants from the amendment, but

Appellants’ other attorney argued that the harm would be from allowing these appellees to assert

throughout the trial that they were reasonably prudent operators when that was not really an issue

before the court.5

We conclude that Appellants have not shown that the trial court abused its discretion

by allowing Ivory and Grandfield to amend their answers. Though the amendments were offered

after years of litigation, the amendments were offered and allowed a week before the close of

discovery and more than a month before trial; leave was required under the scheduling order, not

4
Appellees filed their motions in late August 2021, the court granted the motions at a
September 7, 2021 hearing, and trial began October 9, 2021.
5
Appellants assert that the court’s inclusion in the jury charge of the reasonably-prudent-
operator defense to their negligence claim shows that their prediction of harm was accurate.
6
by general rule. See Tex. R. Civ. P. 63 (leave required within seven days of trial). Appellants were

aware of the defense, the parties could discover and adduce evidence about it at trial, and

Appellants could seek to exclude the defense from the jury charge. The case on which Appellants

relied at the trial court to argue that courts should not allow “legally futile” amendments concerned

facts and procedures not applicable here. See City of Waco v. Lopez, 259 S.W.3d 147, 156 (Tex.

2008). In that case, the Texas Supreme Court declined to remand to let a plaintiff amend pleadings

after that court reversed and dismissed the case for want of jurisdiction; the court held that no

amendment could cure the jurisdictional pleading defects related to immunity. Id. Here, however,

the trial court was not dismissing the cause and jurisdiction did not turn on the amendment. The

leeway courts must give parties to amend their pleadings is evident in the Texas Supreme Court’s

holding in Greenhalgh that the trial court would have abused its discretion by not allowing a

post-verdict amendment to conform the pleadings to the verdict regarding the amount of damages

sought. Greenhalgh, 787 S.W.2d at 939-40. Given the narrow discretion courts have to refuse

amendments, we find no abuse of discretion by the trial court in allowing Ivory and Grandfield to

amend their pleadings more than a month before trial to include the reasonably-prudent-operator

defense contained in the statute Appellants used as part of the basis for their claims.

II. Rulings on summary-judgment motions

Appellants complain of the denial of their motion for summary judgment on Ivory’s

liability under Texas Natural Resources Code Section 85.321, the grant of summary judgments to

Boaz II and Witt, and the grants of summary judgment to Grandfield and Ivory on Appellants’

breach-of-contract claims.

7
 A. Denial of Appellants’ summary-judgment motion on Ivory’s liability under
Section 85.321.

Appellants contend that the trial court erred by denying their cross-motion for

summary judgment that Ivory was liable for negligence under Texas Natural Resources Code

section 85.321 based on an admission that Ivory possessed a wellbore diagram that documented

the presence of the EE packer. Appellants contend that they were entitled to summary judgment

on that element of their claim of negligence, reserving for trial the amount of damages. They argue

that the trial court’s take-nothing judgment shows the harm from the trial court’s denial of

their motion.

Generally, a denial of a motion for summary judgment is not eligible for appellate

review because it is not a final judgment. National Union Fire Ins. Co. v. Insurance Co. of N. Am.,

955 S.W.2d 120, 125 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (citing Cincinnati Life

Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996)). An appeal from such denial is proper when

the denial is: (1) based on an assertion of immunity by an officer or employee of the state or its

political subdivision or (2) based at least in part upon a claim against or defense by a member of

the media, acting in such capacity, or a person whose communication appears in or is published by

the media, arising under the free-speech or free-press clauses of the state or federal constitution.

Id. Appellants cite a case authorizing review of a denial of a summary-judgment when we review

the grant of a competing motion for summary judgment on the same issue. McCreight v. City of

Cleburne, 940 S.W.2d 285, 288 (Tex. App.—Waco 1997, writ denied).

None of these exceptions to the general rule of non-reviewability of

summary-judgment denials are presented here. After the trial court denied summary judgment on

the issue of Ivory’s liability under Section 85.321, the issue was resolved by the jury against

8
Appellants. Appellate courts do not review a trial court’s denial of summary judgment when a trial

on the merits occurs and a judgment is entered on the same issue. Ackermann v. Vordenbaum,

403 S.W.2d 362, 365 (Tex. 1966); Casa Palmira, LP v. Taylor Child Care, LP, 632 S.W.3d 11, 22

(Tex. App.—El Paso 2020, no pet.) (citing Gem Homes, Inc. v. Contreras, 861 S.W.2d 449, 453

(Tex. App.—El Paso 1993, writ denied)). Accordingly, we are precluded from reviewing the trial

court’s denial of summary judgment.

B. Grant of summary judgments for Witt and Boaz II.

Appellants challenge the grants of traditional and no-evidence motions for

take-nothing summary judgment on claims against Witt and Boaz II. However, Witt and Boaz II

are not parties to this case despite their filing of briefs in this appeal.

The live pleading, Plaintiffs’ Fourth Amended Petition—filed after the summary

judgments were granted—omitted Witt and Boaz II as parties. An amended pleading supersedes

and supplants the original pleading. Tex. R. Civ. P. 65; Phifer v. Nacogdoches Cnty. Cent.

Appraisal Dist., 45 S.W.3d 159, 172 (Tex. App.—Tyler 2000, pet. denied). An amended petition

that omits a previously named defendant operates as a voluntary dismissal or nonsuit as to that

party. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972). The effect of a nonsuit is equivalent to a

suit never having been filed. Thompson Hancock Witte & Assocs., Inc. v. Stanley Spurling &

Hamilton, Inc., 650 S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.] 2022, no pet.). This

nonsuit effect applies when claims involving a party are resolved by interlocutory summary

judgment and the party is then omitted from an amended petition filed before the remaining live

claims are resolved by a later final judgment. Alpha Pay Phones, Ltd. III v. Mankoff, Hill, Held &

Metzger, P.C., No. 05-97-01610-CV, 2000 WL 688176, at *4 (Tex. App.—Dallas May 30, 2000,

no pet.) (not designated for publication). In Alpha Pay Phones, a plaintiff whose claims were

9
resolved by interlocutory summary judgment had its claims nonsuited when it and its claims were

omitted from a subsequent amended petition. Id. The court of appeals held that the plaintiff

nonsuited and could not complain of the grant of the take-nothing summary judgment rendered

against its claims. Id.

Here, the fourth amended petition omitted Witt and Boaz II as parties. It mentions

Witt’s actions as owner/principal of Grandfield and does not mention Boaz II at all. It omits both

Witt and Boaz II from the style of the case, from the recitation that defined the “Defendants”

against whom claims were made, and from the section of the petition that described the parties.

The fourth amended petition includes in the certificate of service counsel for Witt, who was also

counsel for Grandfield, but does not list Boaz II at all. The final judgment does not include Witt

and Boaz II in its style or body. The fourth amended petition nonsuited claims against Boaz II and

Witt as if they were never filed. Thus, Boaz II and Witt are not properly parties to this appeal, and

there are no claims against them to review or remand. Appellants have not demonstrated a basis

on which we can reverse the judgment on these claims.

C. Grant of summary judgments to Grandfield and Ivory on breach-of-contract
claims.

We review the grant of a motion for summary judgment de novo. Texas Mun.

Power Agency v. Public Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007). We take as true all

evidence favorable to the nonmovant and indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005) (traditional motion); Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (no-evidence

motion). A traditional summary judgment is proper when “there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.” Tex. R. Civ. P.

10
166a(c); see also Mangham v. YMCA of Austin, Tex.-Hays Cmties., 408 S.W.3d 923, 926 (Tex.

App.—Austin 2013, no pet.). A trial court properly grants a no-evidence summary judgment if the

nonmovant produces no more than a scintilla of probative evidence—that is, if the nonmovant’s

evidence does not rise to a level that would enable reasonable and fair-minded people to differ in

their conclusions. Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 625 (Tex. 2018). The

court must grant the motion unless the nonmovant raises a genuine issue of material fact on each

challenged element. Tex. R. Civ. P. 166a(i). When the trial court’s order granting summary

judgment does not specify the grounds relied upon, the reviewing court must affirm the summary

judgment if any of the summary-judgment grounds is meritorious. FM Props. Operating Co.

v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

Grandfield asserted in its motion in part that Appellants could adduce no evidence

of any valid contract between Appellants and Grandfield or that Appellants were a proper party to

sue Grandfield for breach of contract. The elements of a breach-of-contract claim are (1) the

existence of a valid contract between the parties, (2) performance (or excuse) by the party asserting

the claim, (3) breach of the terms of the contract by another party, and (4) damages resulting from

the breach. See, e.g., C.W. 100 Louis Henna, Ltd. v. El Chico Rests., L.P., 295 S.W.3d 748, 752

(Tex. App.—Austin 2009, no pet.). When the owner of a fee-simple estate severs the mineral estate

by a conveyance, five rights are conveyed to the transferee or grantee: “(1) the right to develop,

(2) the right to lease, (3) the right to receive bonus payments, (4) the right to receive delay rentals,

and (5) the right to receive royalty payments.” Lightning Oil Co. v. Anadarko E&P Onshore, LLC,

520 S.W.3d 39, 49 (Tex. 2017). Thus, Appellants needed to adduce proof that they were the

mineral-rights owner/lessor or otherwise party to the lease in order to show that they were proper

parties to sue on the lease. See Grinnell v. Munson, 137 S.W.3d 706, 714 (Tex. App.—San Antonio

11
2004, no pet.) (surface owner was not party to leases and lacked standing to challenge their validity

directly or as beneficiary of company that had royalty interest). Appellants produced evidence that

they own the surface estate but did not produce evidence that they are the successor owners of the

mineral estate and thus successor lessors of the mineral estate. 6 The absence of proof that

Appellants were parties to the contract renders immaterial Appellants’ argument that conflicting

evidence existed regarding whether Grandfield was party to the lease. Appellants have not shown

that the trial court erred by granting Grandfield’s no-evidence motion for summary judgment on

their breach-of-contract claim against Grandfield.

Ivory moved for traditional summary judgment on grounds that it proved

conclusively that it was not a party to the lease Appellants alleged it breached. Appellants alleged

that Grandfield assigned the lease to Ivory on March 14, 2011, but Ivory produced evidence that

Grandfield had previously assigned all its rights under the lease effective January 1, 2011, to Nyala,

Inc., who later assigned it to Boaz I effective July 1, 2011. Though Appellants contended that

these documents created a fact issue as to whether Grandfield was a party to the lease, they did not

rebut the evidence that Ivory was not part of the chain of successive assignees and was not party

to the lease. Appellants have not shown that the trial court erred by granting Ivory’s traditional

motion for summary judgment on their breach-of-contract claim against Ivory.

III. Directed verdict for Memorial on breach-of-contract claim.

Appellants assert that the trial court erred by granting Memorial’s motion for

directed verdict on their claim for breach of contract against Memorial. We review the grant of a

6
At trial, Larry Lee, the Lees’ eldest son who oversees the ranch testified that his family
does not own the mineral rights under Cedar Mountain.
12
directed verdict under the same legal-sufficiency standard that applies to no-evidence

summary judgments. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We sustain a

legal-sufficiency point when (1) there is a complete absence of evidence regarding a vital fact,

(2) rules of law or evidence preclude according weight to the only evidence offered to prove a vital

fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence

conclusively establishes the opposite of the vital fact. Id. at 810; RSL-3B-IL, Ltd. v. Prudential

Ins., 470 S.W.3d 131, 135 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). To prove breach

of contract, a plaintiff must prove that a valid contract existed between the parties. Roundville

Partners, L.L.C. v. Jones, 118 S.W.3d 73, 82 (Tex. App.—Austin 2003, pet. denied) (setting out

elements of breach of contract).

The Lees undisputedly own the surface estate and presented the original 1940s

mineral lease sued upon. The Lees alleged that they were successors to the mineral lease, but we

find no evidence establishing who is the current mineral lessor who would be party to the contract.

Rather, Larry Lee, the Lees’ eldest son who oversees the ranch, testified as follows:

Q (BY MR. BROWN) Does your family own the mineral rights under Cedar Mountain?

A No.

This unequivocal and unrebutted denial that the Lees own the mineral rights shows that the mineral

estate has been severed from the surface estate. This view is consistent with the Lees’ counsel’s

assertion, when objecting to the absence of a trespass instruction during the charge conference,

that the “contaminants and other fluids and materials escaped the mineral estate and ended up in

the surface estate and property owned by the Lees.” When the mineral estate is severed from the

surface estate, the grantee of the mineral estate retains the right to develop, lease, and receive bonus

13
payments, delay rentals, and royalty payments. Lightning Oil, 520 S.W.3d at 49. As the evidence

shows that the Lees are not the mineral-rights owners, it shows that they do not have the right to

lease the minerals and thus that they are not the successors to the original mineral lessors on the

mineral lease.

There is a surface-use or surface-lease agreement between C.L. Lee and Memorial,

but Appellants stated in briefing at the trial court that the surface-use agreement “has no bearing

on the Lee Plaintiffs’ contract claim under the lease.” When granting the directed verdict on

Appellants’ contract claim against Memorial, the trial court echoed that assertion by stating that

the surface-use agreement “is not the contract that Plaintiffs contend was breached.” The trial

court did not err in granting a directed verdict on this issue because the record conclusively

established the opposite of a fact vital to Appellants’ breach-of-contract claim. 7

IV. Jury charge

Appellants assert that the trial court made several errors in the jury charge. The

parties filed proposed jury charges, the court had an informal charge conference largely off the

record on November 1, 2021, and the court presented its proposed charge and held a formal charge

conference before hearing closing argument on November 2, 2021.

We review the trial court’s submission of instructions and jury questions for an

abuse of discretion. Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012); Rosell v. Central W. Motor

7
This conclusion also supports a conclusion that any error by the trial court in granting a
take-nothing summary judgment on Appellants’ claims against Ivory and Grandfield for breach of
the mineral lease was harmless. See Progressive Cnty. Mut. Ins. v. Boyd, 177 S.W.3d 919, 921
(Tex. 2005). Because the evidence at trial showed that Appellants are not parties to the mineral
lease, they could not have recovered for breaches of that lease by Ivory and Grandfield.
Accordingly, any error in the granting of summary judgment on their claims against Ivory and
Grandfield was harmless.
14
Stages, Inc., 89 S.W.3d 643, 653 (Tex. App.—Dallas 2002, pet. denied). The trial court has broad

discretion in submitting jury questions as long as the questions submitted fairly place the disputed

issues before the jury. Rosell, 89 S.W.3d at 653. To determine whether an alleged error in the jury

charge is reversible, we must consider the pleadings of the parties, the evidence presented at trial,

and the charge in its entirety to determine if the trial court abused its discretion. Id. A reversal is

warranted when the trial court denies a proper submission of a valid theory of recovery raised by

the pleadings and evidence. Id. Otherwise, we do not reverse unless the error probably caused the

rendition of an improper judgment. Tex. R. App. P. 44.1; Rosell, 89 S.W.3d at 653.

The Texas Supreme Court has held that “the singular test for preservation of error

is whether a party made the trial court aware of the complaint, timely and plainly, and obtained a

ruling.” State Dept. of Hwys. & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). But the

Texas Supreme Court has adopted and retains several rules that describe how and when litigants

must make the court aware of their complaints about the jury charge timely and plainly to preserve

their complaints for appellate review. See Tex. R. App. P. 33.1 (to preserve issue for appeal, litigant

must complain to trial court by timely request, objection, or motion); Tex. R. Civ. P. 272-74, 276,

278-79 (collectively describing process for requesting and objecting to elements of jury charge).

The requirements vary based on whether the litigant bears the burden of proof on the issue that is

the subject of the proposed instruction or question and whether the trial court omits or gives a

contested instruction or question. See Tex. R. Civ. P. 272-74, 276, 278-79. The Texas Supreme

Court harmonized its call for “one test” in Payne with the justification for the rules for preserving

charge error:

Payne’s cure must not worsen the disease. Trial courts lack the time and the means
to scour every word, phrase, and omission in a charge that is created in the heat of

15
 trial in a compressed period of time. A proposed charge, whether drafted by a party
or by the court, may misalign the parties; misstate the burden of proof; leave out
essential elements; or omit a defense, cause of action, or (as here) a line for
attorney’s fees. Our procedural rules require the lawyers to tell the court about such
errors before the charge is formally submitted to a jury. Tex. R. Civ. P. 272. Failing
to do so squanders judicial resources, decreases the accuracy of trial court
judgments and wastes time the judge, jurors, lawyers, and parties have devoted to
the case. In the Interest of B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (discussing the
“[i]mportant prudential considerations [that] underscore our rules on
preservation”).

Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 829-30 (Tex. 2012).

To preserve a complaint of jury-charge error, appellants must object to the jury

charge in writing or on the record and obtain a ruling from the trial court during the charge

conference after the close of the evidence, but before the charge is read to the jury. Tex. R. Civ. P.

272; Cruz, 364 S.W.3d at 829. An appellant preserves a complaint about error in the jury charge

by making the trial court aware of the complaint, timely and plainly, and obtaining a ruling. Cruz,

364 S.W.3d at 829. “Our procedural rules state that a complaint to a jury charge is waived unless

specifically included in an objection.” Id. (citing Tex. R. Civ. P. 274; Tex. R. App. P. 33.1(a)(1)).

An appellant asserting that the trial court improperly omitted an instruction or question in the

court’s charge must do more than object to preserve its complaint for appeal; an appellant must

request and tender to the trial court a substantially correct instruction or question in writing.

Tex. R. Civ. P. 278; Patriot Contracting, LLC v. Shelter Prod., Inc., 650 S.W.3d 627, 651

(Tex. App.—Houston [1st Dist.] 2021, pet. denied).

A. Reasonably prudent operator

Appellants complain that the trial court improperly included an instruction on the

defense to the negligence claim that appellees acted as reasonably prudent operators. The court

instructed the jury on negligence and on the reasonably-prudent-operator defense as follows:

16
 “Negligence,” with respect to an oil and gas operator or contractor, means
failure to use ordinary care, that is, failing to do that which an operator or
contractor of ordinary prudence would have done under the same or similar
circumstances or doing that which an operator or contractor of ordinary
prudence would not have done under the same or similar circumstances.

....

Further, with respect to Memorial, the law requires the following, and a failure
to comply with the law is “negligence” in itself, except it is a defense that the
operator was acting as a reasonably prudent operator would act under the same
or similar facts and circumstances.

Appellants contend that the reasonably-prudent-operator defense is inapplicable, futile, confusing,

and not supported by evidence that it was reasonably prudent for appellees to disregard mandates

of permit conditions or regulations. Appellants objected before trial on September 7, 2021, to the

amendment of appellees’ pleadings to include the defense; reminded the court during a midtrial

hearing on motions for directed verdict on October 28, 2021, that Appellants believed the defense

was applicable only to cases involving waste; and submitted a proposed jury instruction on

October 31, 2021, that excluded the defense. Appellants assert that these actions called the court’s

attention to their position sufficiently to satisfy the standard in Payne, 838 S.W.2d at 239-40. In

that case, the Texas Supreme Court held that the appellant’s written proposal of a particular

jury-charge instruction sufficiently called the court’s attention to the appellant’s desire for

submission of that instruction to preserve for appellate review the omission of the instruction. Id.

But, at the November 2, 2021 formal charge conference, Appellants’ stated

objections to the charge did not include any mention of the court’s inclusion of the reasonably-

prudent-operator defense in the negligence charge. This case resembles Cruz, in which the party

complaining of the omission of a jury question submitted a proposed charge four days before trial

17
that included the omitted charge. 364 S.W.3d at 830. After the two-week trial, the court gave the

parties a proposed charge that omitted the requested subpart of the charge. After an informal

charge conference, the court held a formal charge conference at which the complaining party raised

only one objection—not the one it raised on appeal. Id. The party asserted on appeal that the

court’s failure to include its requested charge constituted a “clear refusal” to submit its proposed

question in the multipart 40-page jury charge. Id. Balancing its 1992 plea in Payne for simplicity

in preservation requirements, the 2012 Texas Supreme Court held that the party in Cruz failed to

preserve the complaint for appeal because its pretrial proposed charge alone did not sufficiently

alert the trial court to the omission of the party’s requested subpart of a question when not coupled

with an objection at the charge conference—particularly when another objection was made at the

charge conference. Id. The court contrasted Cruz with Payne, concluding that in Payne the party’s

request for a subsequently omitted instruction combined with an imprecise objection to the

instruction given to alert the trial court to the complaint. Id.; see also Alaniz v. Jones & Neuse,

Inc., 907 S.W.2d 450, 452 (Tex. 1995) (per curiam) (plaintiff preserved error regarding court’s

failure to include subpart for lost profits within broad-form damage question where plaintiff both

filed proposed charge pretrial and objected during charge conference to omission of requested

element). The court in Cruz relied on Rule 272, which provides:

[The proposed jury charge] shall be submitted to the respective parties or their
attorneys for their inspection, and a reasonable time given them in which to
examine and present objections thereto outside the presence of the jury, which
objections shall in every instance be presented to the court in writing, or be dictated
to the court reporter in the presence of the court and opposing counsel, before the
charge is read to the jury. All objections not so presented shall be considered as
waived.

Tex. R. Civ. P. 272 (emphasis added); see also Cruz, 364 S.W.3d at 830.

18
 Here, Appellants submitted their last proposed charge during trial before the

informal trial conference and two days before the formal charge conference. The 15-page charge

included the disputed defense, and Appellants stated some objections to the charge but not to the

disputed defense. In these circumstances, we conclude that Appellants did not satisfy Rule 272’s

requirement that they make the court aware of their continued challenge to the inclusion of the

defense in the jury charge. See Cruz, 364 S.W.3d at 830-31. Appellants waived any error in the

inclusion of the reasonably-prudent-operator defense in the jury charge.

B. Intentional nuisance

Appellants similarly complain that the trial court improperly refused to charge on

Appellants’ intentional-nuisance claim. They assert that the trial court misconstrued “intent” in

the context of a nuisance complaint and charged only a negligence-based nuisance. Appellants

filed the proposed jury instruction but did not object to this omission of the intentional-nuisance

claim in writing or in the recorded charge conference. This complaint was waived. See id.

C. Forest Oil instruction

Appellants contend that the trial court erred by failing to instruct the jury that

compliance with Texas Railroad Commission cleanup standards is not a defense to civil liability.

See Forest Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 430 (Tex. 2017) (“[W]hile

RRC regulations and orders certainly inform the extent to which remediation of contamination is

required by law, they do not supplant Forest’s common-law duties, which are also required by

law.”). At the formal charge conference, Appellants asserted, “With respect to the Texas Railroad

Commission remediation standards found in Question 3, we respectfully submit there should be a

balancing instruction in accordance with the Forest Oil case.” But Question 3 in the jury charge

given does not concern remediation standards; instead, it asks the jury to apportion a percentage

19
of responsibility for causing or contributing to cause the “occurrence in question,” which the

charge defined as “the surface breakout on the Cedar Mountain Ranch in 2014.” Question 3 in

Appellants’ last proposed jury charge proposed asking whether the defendants damaged the Ranch

by violating the permit or specified laws, but none of the listed laws mentions compliance with

remediation standards. In objecting, Appellants did not present or refer to a specific instruction

that was excluded, nor do they do so in their appellate briefs; Appellants’ last jury charge proposed

a special instruction that references Forest Oil8 unconnected to any particular jury question.

Appellants have not presented an issue to us that was presented and preserved at

trial. Further, the Forest Oil instruction last proposed by Appellants relates to compliance with

remediation standards, but the jury charge by definition expressly asks about responsibility for the

breakout, not damages caused by noncompliance with remediation standards. Although the jury

questions on damages could have included remediation expenses, they do not mention compliance

with remediation statutes as a mitigating factor that needed “a balancing instruction” as requested

by Appellants. We conclude that Appellants have not shown reversible error in the absence of a

Forest Oil instruction from the jury charge.

D. Trespass

Appellants assert that the trial court improperly refused to charge the jury on their

trespass claim. They submitted a trespass charge in their proposed jury charge on October 31,

2021, but the court announced on the morning of trial at the formal charge conference that it would

8
The proposed instruction read in relevant part, “You are instructed that the Texas Railroad
Commission’s authority does not exclude Defendants’ legal obligations addressed in this Jury
Charge, and any determinations made by the Texas Railroad Commission do not supplant
Defendants’ legal obligations addressed in this Jury Charge.” The proposed charge then cited
Forest Oil in a footnote.
20
not submit a trespass charge. The court noted that the “unique circumstances” of the case and how

the causes of action fit together meant that the trespass charge would not “add to the charge.” The

court noted that the measure of damages for trespass would be the same as for negligence and

opined that inclusion of a trespass charge could cause confusion “because all of the aspects of what

would be encompassed in trespass are already encompassed in the negligence issue as far as

causation and as far as the measure of damages.”

Appellants objected to the exclusion of the trespass charge on several bases:

[T]respass should be included, because the plaintiffs have shown at least three
trespass events, one by all of the defendants which arises from the surface breakout
itself where contaminants and other fluids and materials escaped the mineral estate
and ended up in the surface estate and property owned by the Lees.

The second element of trespass stems from evidence that is in the record in the form
of Exhibit 111, I believe, which is a letter from Mr. McPherson to Memorial
discussing, eleven months after the surface breakout, that Memorial is using the
Lees’ property to move about without authorization.

And the third trespass, of course, involves the use of the Lees’ property to execute
the response at the site which involved the contamination of more amounts of soil
than those that were owned by the surface estate.

Appellants did not submit a trespass charge at that time. The trial court overruled the objection

and submitted the charge without a trespass charge.

On appeal, Appellants contend that the omission of the trespass charge was error

because trial courts can refuse to submit an issue only if no evidence warrants its submission, citing

Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex. 1985). Appellants assert that trespass has different

elements than does negligence—a difference compounded by the addition of the reasonably-

prudent-operator defense that would not have been part of the trespass instruction. They argue

21
that if they recovered redundant awards for trespass and negligence they could be required to elect

a remedy, but that the court erred by refusing to submit the trespass charge.

Appellants’ argument that evidence and differences in elements warranted the

submission of a trespass charge shows no error on this record. To recover damages for trespass to

real property, a plaintiff must prove that (1) the plaintiff owns or has a lawful right to possess real

property; (2) the defendant entered the plaintiff’s land and the entry was physical, intentional, and

voluntary; and (3) the defendant’s trespass caused injury to the plaintiff. Environmental

Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 424-25 (Tex. 2015). At first glance,

this tort appears distinct from negligence as defined in the court’s charge. 9 The intent element of

trespass requires proof of interference with the right of possession of real property; the relevant

intent is that of the actor to enter the property. Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex.

App.—Fort Worth 2006, pet. denied). If the act intended would necessarily violate a property

right, the actor is liable regardless whether the actor knows the act to be a violation, and that

liability may extend to unintended consequences. General Tel. Co. of Sw. v. Bi-Co Pavers, Inc.,

514 S.W.2d 168, 170 (Tex. App.—Dallas 1974, no writ); Schronk v. Gilliam, 380 S.W.2d 743, 746

(Tex. App.—Waco 1964, no writ). Plaintiffs must present evidence that the defendant intended to

commit a trespass that violated the plaintiff’s property rights or would be practically certain to

violate their rights. Id.; see also Texas Woman’s Univ. v. The Methodist Hosp., 221 S.W.3d 267,

9
As set out above, the trial court defined negligence as follows:

“Negligence,” with respect to an oil and gas operator or contractor, means failure
to use ordinary care, that is, failing to do that which an operator or contractor of
ordinary prudence would have done under the same or similar circumstances or
doing that which an operator or contractor of ordinary prudence would not have
done under the same or similar circumstances.

22
286 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Plaintiffs must prove that the defendant

intentionally committed the act that constitutes a trespass even though it need not show that the

defendant intended to trespass. Stukes v. Bachmeyer, 249 S.W.3d 461, 466 (Tex. App.—Eastland

2007), abrogated on other grounds by Environmental Processing Sys., 457 S.W.3d at 423-25.

But, unless the intended act would violate a property right, the actor’s liability for

unintended consequences ordinarily depends upon proof of negligence. Bi-Co Pavers, 514 S.W.2d

at 170. Here, though appellees operated the well, there is no evidence that they intentionally

operated it with the shallow packer. In Texas Woman’s University, TWU contended that Methodist

diverted floodwaters from its garage that eventually flooded TWU facilities. 221 S.W.3d at 270-71.

The court of appeals affirmed the summary judgment for Methodist because “TWU presented no

evidence that Methodist failed to timely install its flood protection devices and take other

reasonable measures with the intent to flood both Methodist and TWU.” Id. at 286. The court

held that TWU’s allegations concerning Methodist’s failures to act were based on negligence, not

intentional acts. Id. Here, the trial court’s conclusion that the trespass charge would add nothing

to the negligence charge is consistent with a conclusion that the record contained no evidence that

appellees intended any act that trespassed or would be practically certain to violate Appellants’

rights. Our review of the record reveals no evidence that the appellees intended any act or omission

that violated or was practically certain to violate Appellant’s property rights, and thus no error in

the trial court’s decision not to charge the jury on trespass.

Even if the omission of the trespass charge were error, the jury’s “no” finding on

the negligence question with regard to each appellee rendered such error harmless. Appellants

argue that the trespass charge would not have been subject to the reasonably-prudent-operator

defense, but a negligence finding requires proof of the existence of a duty, a breach of that duty, a

23
resulting injury, and the foreseeability to a reasonably prudent person that such an injury was a

likely result of the breach. Boyles v. Kerr, 855 S.W.2d 593, 614 (Tex. 1993). The reasonable

prudence of the defendants/appellees was part of the trial court’s definition of negligence

independent of the reasonably-prudent-operator instruction. As discussed below, the jury’s finding

of “no” regarding negligence is supported by factually and legally sufficient evidence. Because

the jury did not find negligence on this record, it would not have found trespass, and any error in

the refusal to give the trespass charge was harmless. Our conclusion that the trial court did not err

in refusing to charge the jury on trespass renders moot Appellants’ argument in their reply brief

that overlap between negligence and trespass claims should be resolved by election of remedies.

V. Incurable jury argument

Appellants complain of jury argument they contend was harmful and incurable.

Ordinarily, improper jury argument must be preserved by a timely, overruled objection. Living

Ctrs., Inc. v. Penalver, 256 S.W.3d 678, 680-81 (Tex. 2008). An appellant who does not timely

object to jury argument may move for a new trial and complain that prejudice from the argument

was incurable. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009); see also Tex. R. Civ. P.

324(b)(5) (new trial). Typically, retraction of the argument or an instruction from the court can

cure any probable harm. Penalver, 256 S.W.3d at 680. To merit reversal, the record as a whole

must show that the offensive argument was so extreme that it could convince a juror of ordinary

intelligence to agree to a verdict contrary to the verdict the juror would have agreed to but for the

argument. Phillips, 288 S.W.3d at 883. The appellant must show that the argument was so extreme

that an instruction or retraction could not remove its effect. Penalver, 256 S.W.3d at 680-81.

Generally, incurable argument encompasses statements that “strike at the courts’ impartiality,

24
equality, and fairness” because they “inflict damage beyond the parties and the individual case

under consideration if not corrected.” Id. at 681. Instances of incurable jury argument include

appeals to racial prejudice; unsupported charges of perjury; unsupported, extreme, and personal

attacks on opposing parties and witnesses; and baseless accusations of witness tampering.

Metropolitan Transit Auth. v. McChristian, 449 S.W.3d 846, 855 (Tex. App.—Houston [14th Dist.]

2014, no pet.).

Memorial’s attorney asserted during argument that the Lees were “asking for

somewhere around a hundred seventy million dollars for damage to a three and a half million dollar

ranch. I just don’t think that’s fair. Oh, by the way, they get to keep the ranch. So they still have

the ranch.” The factual assertions are within the evidence and Appellants’ own argument. The

Lees testified that, though their enjoyment of the Ranch was reduced, they never considered selling

it—Peggy Lee testified they were staying at the Ranch during the trial—and their appraisal expert

valued the land consistently with the Lees’ financial statements over the course of seven years that

valued the Ranch between $3.4 million and $3.6 million. Appellants’ expert testified that restoring

the Ranch to pre-breakout state would cost between $545 million to $654 million, and during their

own jury argument Appellants requested $121,839,000 for repairs, $1,062,506 for diminution in

value, and up to $45 million for annoyance and discomfort for a total of $167,901,506—an amount

that is reasonably “somewhere around” $170 million. Finally, Memorial’s attorney’s assessment

that he did not think the total requested was “fair” bears on the instruction that the jury should

determine the sum of money that would “fairly and reasonably” compensate Appellants.

Appellants complain that this argument was nevertheless inaccurate and unfair

because (1) they would not be able to recover all of the damage amounts in evidence but (2) they

had to present evidence of all the mutually exclusive classes of damages to avoid waiver of any

25
particular type. 10 Appellants contend that the argument perpetuated a false perception that they

are not victims “but rapacious, exploitative and immoral.” They contend that there was no way to

fix that perception because any action (presumably, objection or instruction) would have drawn

more attention to these “egregiously misleading comments regarding the purported effect of the

jury’s answers.”

We conclude that a reasonable juror would not have understood the argument to be

the moral indictment Appellants argue it was and that the argument was not so extreme that an

instruction or retraction could not remove any such effect. It is not like an attack on the fairness

of the court system, an appeal to racism, or unfounded accusations of perjury or witness tampering

that have been held to be incurable argument. See Penalver, 256 S.W.3d at 680-81; McChristian,

449 S.W.3d at 855. The amounts of damages Memorial aggregated in its argument were in

evidence and Appellants’ argument. To the extent that aggregating them was misleading, the jurors

could have been instructed to disregard Memorial’s totaling of the damages requested and

reminded of the court’s instruction that they “not speculate about what any party’s ultimate

recovery may or may not be. Any recovery will be determined by the court when it applies the

law to your answers at the time of judgment.” We conclude that the argument based on evidence

before the jury was not so extreme that it could convince a juror of ordinary intelligence to agree

to a verdict contrary to the verdict the juror would have agreed to but for the argument. See

Phillips, 288 S.W.3d at 883. We overrule Appellants’ complaint about Memorial’s jury argument.

10
See Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474, 479-81
(Tex. 2014) (plaintiffs should present evidence of both temporary and permanent damages to
support damages under theory that court decides applies as a matter of law).
26
VI. Sufficiency of the evidence to support the “no” finding on negligence

Appellants assert that there was no basis in law or fact to “exonerate” appellees

because they did not present defenses calculated to rebut either that appellees operated SWD5 in

violation of the permit and regulations or that the illegal condition of SWD5 caused its failure.

Appellants challenge the verdict on their negligence claim on which they bore the

burden of proof. When a party attacks the legal sufficiency of the evidence supporting an adverse

finding on an issue on which it bears the burden of proof, the judgment must be sustained unless

the record conclusively establishes all vital facts in support of the issue. Shields Ltd. P’ship

v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). Evidence is legally insufficient to support a jury

finding when (1) the record bears no 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 to prove a vital fact; (3) the

evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence

conclusively establishes the opposite of a vital fact. Id. When determining whether legally

sufficient evidence supports a finding, we must consider evidence favorable to the finding if the

factfinder could reasonably do so and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Id. We also view the evidence in the light most favorable to the

verdict and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d

at 822.

When a party attacks the factual sufficiency of the evidence to support an adverse

finding on which it had the burden of proof, it must demonstrate on appeal that the adverse finding

is against the great weight and preponderance of the evidence and that the verdict is clearly wrong,

unjust, or manifestly erroneous. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per

curiam); Nelson v. Najm, 127 S.W.3d 170, 174 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

27
We must examine the evidence that both supports and contradicts the jury’s verdict in a neutral

light. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We still defer to the jury’s determinations

of credibility and weight to be given to the evidence. See Golden Eagle Archery, Inc. v. Jackson,

116 S.W.3d 757, 761 (Tex. 2003). Jurors are the sole judges of the credibility of the witnesses and

the weight to give their testimony. City of Keller, 168 S.W.3d at 819. They may choose to believe

one witness and disbelieve another. Id. Reviewing courts cannot impose their own opinions to

the contrary. Id.

When an issue of material fact is submitted to the jury, the sufficiency of the

evidence is measured by the questions and instructions in the charge. See Regal Fin. Co. v. Tex

Star Motors, Inc., 355 S.W.3d 595, 601 (Tex. 2010) (noting that evidentiary sufficiency must be

measured against jury charge). The jury charge on negligence was as follows:

Did the negligence, if any, of those named below proximately cause the
occurrence in question?

“Negligence,” with respect to an oil and gas operator or contractor, means
failure to use ordinary care, that is, failing to do that which an operator or
contractor of ordinary prudence would have done under the same or similar
circumstances or doing that which an operator or contractor of ordinary
prudence would not have done under the same or similar circumstances.

The law additionally requires all of the following of persons operating saltwater
disposal wells, and a failure to comply with the law is “negligence” in itself,
except it is a defense that the operator was acting as a reasonably prudent
operator would act under the same or similar facts and circumstances.

• Wells drilled or converted for injection shall be equipped with tubing
set on a mechanical packer. Packers shall be set no higher than 200 feet
below the known top of cement behind the long string casing but in no
case higher than 150 feet below the base of usable quality water.

• The mechanical integrity of an injection well shall be evaluated by
conducting pressure tests to determine whether the well tubing, packer,

28
 or casing have sufficient mechanical integrity to meet the performance
standards of Texas Railroad Commission rules.

• No person conducting activities subject to regulation by the Texas
Railroad Commission may cause or allow pollution of surface or
subsurface water in the state.

• A person may not knowingly render inaccurate any monitoring device
required to be maintained by a Texas Railroad Commission rule, order,
or permit.

Further, with respect to Memorial, the law requires the following, and a failure
to comply with the law is “negligence” in itself, except it is a defense that the
operator was acting as a reasonably prudent operator would act under the same
or similar facts and circumstances.

The operator shall report to the appropriate District Office within 24 hours any
significant pressure changes or other monitoring data indicating the presence of
leaks in the well.

“Ordinary care” means that degree of care that would be used by an operator or
contractor of ordinary prudence under the same or similar circumstances.

“Proximate cause” means a cause, unbroken by any new and independent cause,
that was a substantial factor in bringing about an occurrence, and without which
cause such occurrence would not have occurred. In order to be a proximate
cause, the act or omission complained of must be such that a person using
ordinary care would have foreseen that the occurrence, or similar occurrence,
might reasonably result therefrom. There may be more than one proximate cause
of an occurrence.

“New and independent cause” means the act or omission of a separate and
independent agency, not reasonably foreseeable, that destroys the causal
connection, if any, between the act or omission inquired about and the
occurrence in question and thereby becomes the immediate cause of such
occurrence.

The jury answered “No” with regard to negligence by Grandfield, CC Forbes, Ivory, and

Boaz/Memorial.

29
 Even if we assume Appellants are correct and the record conclusively shows

that appellees were negligent per se for violating statutes, Appellants were required to prove

that such negligence was a proximate cause of their damages as plaintiffs in ordinary

negligence claims must. See Reinicke v. Aeroground, Inc., 167 S.W.3d 385, 389 (Tex. App.—

Houston [14th Dist.] 2005, pet. denied) (citing Missouri Pac. R.R. Co. v. American Statesman,

552 S.W.2d 99, 103 (Tex. 1977)). The factfinder must decide whether the negligent act (1) set

in motion a natural and unbroken chain of events that led directly to the injury or (2) merely

furnished a condition that made it possible for the injury to instead result from a separate act

of negligence. IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 799 (Tex. 2003). If the

evidence shows only a mere possibility that the plaintiff’s injuries arose from the defendant’s

negligence, or if it shows more than one equally probable cause, for any of which the defendant

was not responsible, then the evidence is legally insufficient to support a finding of causation.

Reinicke, 167 S.W.3d at 389 (citing Hart v. Van Zandt, 399 S.W.2d 791, 792-93 (Tex. 1965)).

Although a finding of cause-in-fact may be based on either direct or circumstantial evidence,

it cannot be supported by mere conjecture, guess, or speculation. Marathon Corp. v. Pitzner,

106 S.W.3d 724, 727 (Tex. 2003). Therefore, the causation evidence must show that the injury

would not have occurred if the negligence had not occurred. Reinicke, 167 S.W.3d at 389.

All three appellees denied having any knowledge that the shallow EE packer

was in place. Grandfield was the operator of the well when, some evidence indicated, the

packer was installed. Witt testified that he had no knowledge of Grandfield ever buying an EE

packer. He denied authorizing C.C. Forbes to install an EE packer on the well, to run the well

with an illegal packer, or to set the mechanical packer at anything other than the permitted

30
depth. He testified that Grandfield conducted a mechanical integrity test on December 27,

2010; the test report lists a packer only at 4492 feet. Grandfield pointed to testimony of expert

witness Jason Foster about the effects of water chemistry, heat, and pressure on the steel and

cement in the well as a cause of the corrosion of the well over time. Grandfield notes that no

expert testified directly that the violation of Railroad Commission rules was a proximate cause

of SWD5’s failure.

Ivory points to the evidence that the EE packer was installed before Ivory was

the operator, that it did not install a packer or do a workover, and that the breakout undisputedly

occurred three-and-a-half years after Ivory transferred operations to another entity. Ivory’s

president, Kerry Krottinger, testified that the wellbore diagram someone at his company

created on June 1, 2011 was “not current” saying, “The whole thing is a mistake.” Krottinger

testified that an EE packer “could not perform its task at any depth.” Krottinger said Ivory

relied on other documents in the well file, which included certified reports filed with the

Railroad Commission that did not include the EE packer.

Memorial points to evidence that it (and Boaz) did not install the EE packer and

did not know about the EE packer. Appellants’ expert Foster testified that he believed that the

EE packer was installed sometime between December 2010 and June 2011—years before

Memorial began operating the well. Grandfield was the operator when C.C. Forbes performed

a workover. C.C. Forbes’s then-rig operator, Raul Baltazar, testified in his deposition

explaining his notes on a field ticket he prepared to invoice the work done on December 20,

2010. Baltazar testified that C.C. Forbes installed a new mechanical packer at 3800 feet in the

well on December 20, 2010; he based the depth on the 119 joints of tubing inserted above the

31
packer, though he testified that the joints were of varying lengths. Baltazar testified that the

mechanical packer initially did not hold when the well was pressurized, so they pulled eight

joints out of the well and installed a metered bull plug at the top of the well to help monitor

the pressure in the well; he testified that the plug did not affect the packer depth. Baltazar

testified that the mechanical packer eventually held when the well was pressurized. He

testified that the mechanical packer at 3800 feet was the only packer C.C. Forbes installed; he

did not recall installing a shallower packer and did not (and could not have) installed the bull

plug in the ground.

Memorial notes that, after Grandfield’s December 27, 2010 mechanical integrity

test that was reported to the Railroad Commission on December 29, 2010, on form H-5, the

next test was not due for five years—after the breakout occurred. The H-5 form states that the

mechanical packer was placed at 4499 feet and did not list an EE packer. Memorial notes that

wellbore diagram—the only document in the well file indicating the existence of the EE

packer—was inconsistent with C.C. Forbes’s field ticket and documents filed with the Railroad

Commission that do not mention the EE packer. Though Krottinger testified that he understood

that Appellants had “admitted” that C.C. Forbes did not install the EE packer, the wellbore

diagram has a well-maintenance history entry dated December 20, 2010, that states: “Repl Pkr.

EE 8 jts down.” That date is when C.C. Forbes did the workover on the well, and eight joints

is the number of joints Baltazar testified they pulled while doing the workover. Memorial

contends that the only way it could have verified the information in the well file was to pull the

entire tubing configuration out of the ground—an act Krottinger testified was expensive and

not normal. Memorial also notes that, though it exceeded daily pumping limits in September

32
2014, it had not exceeded the monthly limit when the breakout occurred. Memorial refers to

Foster’s testimony that the condition of the wellbore was due to conditions over a longer term

than the 17-day period during which it overpumped saltwater.

Viewing the evidence favoring the adverse finding in the light most favorable to

the verdict as we must when analyzing legal sufficiency, see City of Keller, 168 S.W.3d at 819,

we conclude that more than a scintilla of evidence supports the jury’s failure to find that any

negligence by appellees caused the damages to Appellants.

In their reply brief, Appellants list evidence that they urge overwhelms evidence

cited by appellees. 11 Appellants contend that appellees did not dispute that Railroad

Commission regulations forbid installation of multiple packers and forbid installation of a

packer above 350 feet below the surface, and that appellees operated SWD5 with an improper

EE packer at about 260 feet below the surface. See 16 Tex. Admin. Code § 3.46(g)(1) (2023) 12

(R.R. Comm’n, Fluid Injection into Productive Reservoirs). Appellants also contend that the

improper packer masked defects below it by masking the pressure. Nicholas Eldridge, who

was Memorial’s production foreman at the time of the Railroad Commission’s investigation,

11
Appellees urged that, because Appellants did not include specific record references in
their discussion in the evidentiary-sufficiency section of their initial brief, we should hold that
Appellants waived this issue through inadequate briefing. See Tex. R. App. P. 38.1(i); NexPoint
Advisors, L.P. v. United Dev. Funding IV, 674 S.W.3d 437, 446-47 (Tex. App.—Fort Worth 2023,
pet. filed) (citing Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 283-84 (Tex.
1994)). Appellants’ recitation of the facts of the case included many record references, though
their discussion of the sufficiency-of-the-evidence issue did not. This placed appellees at some
disadvantage to know on what particular evidence Appellants relied for their evidentiary
sufficiency challenges. Because of the recitation in the opening brief and the greater specificity in
the reply brief, we will address the merits of their appellate complaint.
12
This regulation appears to have been the same through all relevant times in this case.
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testified at his deposition that only a few hundred feet of tubing were retrievable and that he

did see an EE packer at about 260 feet. Other witnesses—including experts Jeffrey Hughes

and Foster—confirmed that the tubing and casing had deteriorated. Hughes testified that a

hole likely developed around 400 feet down, causing injected fluids to bore a hole in the casing

and break out. He said that Memorial could have noticed a discrepancy from the pressures

they would expect to accompany the increased volumes of fluid they were injecting but the EE

packer masked the true pressure. Appellants also note that the wellbore diagram states that the

mechanical packer is at 3727 feet rather than the 4492 reported in filings with the Railroad

Commission. Krottinger testified that the mechanical packer should be within one hundred

feet of where injections were occurring which, according to the wellbore diagram, were

happening at 4576 feet. Memorial exceeded the 6,000 barrels a day its permit allowed to be

injected for nine of the seventeen days preceding the breakout, injecting 7372 barrels on

September 24, 2014—the day of the breakout.

The jury was charged with deciding the credibility of witnesses and determining

what acts or omissions were a “substantial factor” in causing the damage to Appellants. It may

have concluded that installation of the EE packer was the sole proximate cause of the breakout

and that Appellants failed to prove by a preponderance of the evidence that any of the appellees

installed it. Appellees denied installing the EE packer, and no direct evidence contradicts their

denials. While the wellbore diagram indicates the EE packer was installed on the date that

C.C. Forbes did the workover, C.C Forbes’s Baltazar denied installing it. Appellants asserted

that Grandfield installed it or authorized its installation, leading to the well’s eventual failure,

and that the continued operation of the injection well by all appellees when the installation of

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the packer was noted on the wellbore diagram was also a proximate cause of the breakout.

They argue that the failure to include the EE packer information from the wellbore diagram in

filings with the Railroad Commission added another layer of proximate cause. They argue that

the appellees’ copying and filing of inaccurate information regarding packers further masked

the EE packer’s masking of the problems in the well. The jury, however, saw and heard the

witnesses, assessed their credibility, and found that Appellants did not prove by a

preponderance of the evidence that appellees’ negligence proximately caused Appellants’

damages. We conclude that Appellants have not shown that the great weight and

preponderance of the evidence is against jury’s adverse finding regarding appellees’ negligence

and thus that the evidence is factually sufficient to support the judgment.

VII. Appellate issues mooted by preceding resolutions

Our resolutions of these issues in support of the jury’s verdict that did not find

appellees liable for damages to the Lees render Appellants’ remaining appellate claims moot or

render harmless any remaining errors asserted. Appellants complained of the summary-judgment

ruling that the Lees’ partnership and children lack standing to pursue these claims, but their theories

of recovery did not differ from those of the Lees and there is no showing that they would have

provided different evidence had they remained parties to the case; the claims of the partnership

and children would fall on the same bases even if they had remained in the suit. The affirmance

of the non-liability finding renders harmless any error in decisions concerning the non-exclusivity

of claims for property damage and personal losses, the exclusion of evidence on damages related

to the Herring ranch, the applicability of joint and several liability and the divisibility of damages,

and the directed verdict on Appellants’ gross-negligence claim. Tex. R. App. P. 47.1 (opinions

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address issues raised and necessary to final disposition of appeal); see Crawford v. Hope,

898 S.W.2d 937, 943 (Tex. App.—Amarillo 1995, writ denied) (affirmance of non-liability moots

damages-related issues); Douglas v. Hardy, 600 S.W.3d 358, 372 (Tex. App.—Tyler 2019, no pet.)

(negligence finding is prerequisite for gross negligence).

CONCLUSION

We affirm the trial court’s judgment.

__________________________________________
Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Triana and Theofanis

Affirmed

Filed: February 29, 2024

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