5500 Griggs v. Famcor Oil, Inc.
14-15-00151-CV
| Tex. App. | Sep 23, 2015Background
- 5500 Griggs, Inc. (Appellant) sued Famcor Oil, Inc. (Appellee) for breach of a Surface Use Restrictions Agreement (SUA), alleging Famcor’s drilling reduced the fair market value of surface estate. The suit was filed in 2009.
- Famcor moved for no‑evidence summary judgment after extended discovery delays and Appellant’s failure to produce promised supplementation, appraisal, or expert reports. The trial court granted Famcor’s second no‑evidence summary judgment motion and Appellant appealed.
- Appellant relied primarily on two affidavits (Sharon Lewis, president of 5500 Griggs, and appraiser Joseph Stanfield) to prove applicability of the SUA, ownership continuity, breach, and damages.
- Famcor objected that the affidavits were conclusory/speculative, contained improper expert opinion not timely disclosed (Tex. R. Civ. P. 193.6), and used an improper damages measure; it argued the SUA might not apply to the property or to Famcor.
- Famcor’s no‑evidence motion challenged each essential element of breach: existence/enforceability of contract, plaintiff’s standing, plaintiff’s performance/tender, defendant’s breach, and damages. Appellee urged that Appellant produced no competent evidence on these elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by considering Appellant’s affidavits as summary‑judgment evidence | Lewis and Stanfield affidavits suffice to create fact issues on contract applicability and damages | Affidavits are conclusory/speculative, include expert opinion not timely disclosed, and thus are legally insufficient | Court did not err in granting no‑evidence SJ; affidavits may be disregarded as conclusory/improperly disclosed (affirmance urged by appellee) |
| Whether the SUA is valid/enforceable and binds Famcor | SUA applies to the subject tract and binds Famcor; 5500 Griggs owned the property during the relevant period | Appellant failed to produce the SUA exhibits showing covered tracts, and produced no evidence that Famcor fits the contract’s defined “Mineral Owner”; ownership continuity not proven | Appellant failed to produce evidence of contract applicability, Famcor binding, or continuous ownership; no fact issue created |
| Whether Appellant performed or tendered performance under the SUA | Sending notice of damages satisfied plaintiff’s performance/tender obligations | Notice alone (and late discovery) does not constitute the contractual performance required; Appellant offered no proof of required performance | No competent evidence that Appellant performed or tendered performance; element not met |
| Whether Appellant proved breach and resulting damages | Nonpayment following notice shows breach; affidavits quantify loss | No evidence Famcor failed to pay; affidavits are speculative, use improper measure of damages, and (for Stanfield) reflect late, undisclosed expert opinion | No evidence of Famcor’s breach or admissible proof of damages; no‑evidence SJ properly granted (per appellee brief) |
Key Cases Cited
- Boerjan v. Rodriguez, 436 S.W.3d 307 (Tex. 2014) (standard for reviewing no‑evidence summary judgments)
- Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (movant may challenge elements and nonmovant must produce evidence on each challenged element)
- Wal‑Mart Stores, Inc. v. Merrell, 313 S.W.3d 837 (Tex. 2010) (conclusory or speculative opinion testimony is not competent summary‑judgment evidence)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (grounds for sustaining a no‑evidence point)
- Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (framework for determining when evidence is merely a scintilla)
- Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002) (nonmovant’s burden to produce summary‑judgment evidence on challenged elements)