Credeur, et al v. MJ Oil Inc, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 15, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 04-20463
Summary Calendar
GERALD CREDEUR; LINDA CREDEUR,
Plaintiffs-Appellants,
versus
MJ OIL INC., doing business as TransTexas Gas Corp., ET AL.;
Defendants,
NABORS DRILLING USA, INC.; TRANS TEXAS GAS CORP.
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(4:01-CV-1377)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Gerald and Linda Credeur (Credeur) appeal the summary judgment
against their claims against TransTexas Gas Corporation and Nabors
Drilling U.S.A., Inc. Credeur contends TransTexas and Nabors do
not fall within the protections of Chapter 95 of the Texas Civil
Practices and Remedies Code (Chapter 95) and are liable under
theories of common law premises liability and gross negligence for

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Mr. Credeur’s injuries. Alternatively, Credeur maintains that, if
TransTexas and Nabors are eligible for Chapter 95 protection,
Credeur nonetheless meets the requirements for imposition of
liability under that statute.
TransTexas owned and operated an oil and gas well in Texas; it
contracted with Nabors to drill the well. TransTexas also
contracted with Newpark Drilling Fluids to perform certain services
on the well, including mud filtration. Mr. Credeur was employed by
Newpark and was responsible for operating and maintaining the
Newpark equipment on the well. That equipment was located next to
mud tanks owned by Nabors. Mr. Credeur was injured when he
partially fell through a grating hatch accessing Nabors’ mud tank,
after stepping from a mud cleaner located above the mud tanks onto
a step positioned on top of the hatch. Credeur claims the grating
hatch hinges failed. Credeur brought claims against TransTexas and
Nabors to recover for personal injuries.
TransTexas and Nabors moved for summary judgment, claiming:
Chapter 95 provides Credeur’s exclusive remedy and precludes his
common-law negligence claims; Credeur cannot meet the statutory
elements of premises liability under Chapter 95; Credeur cannot
establish a common law premises liability claim; and Credeur’s
gross negligence claim fails because there is no evidence of
conscious disregard for Mr. Credeur’s safety. In granting summary
judgment, the district court ruled: Chapter 95 provides Credeur’s

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exclusive remedy; and Credeur did not establish TransTexas’ and
Nabors’ liability under that statute.
Credeur filed a motion for relief from judgment within ten
days after judgment. See FED. R. CIV. P. 59(b). The original
filing was stricken from the record, however, because it did not
conform to local filing rules. The corrected motion was filed
outside the ten-day window, and is therefore treated as a motion
under FED. R. CIV. P. 60. The district court denied the motion.
The district court’s striking the nonconforming motion was a final
action for purposes of FED. R. APP. P. 4(a)(4)(A)(v) and (vi), so
that the time to file a notice of appeal began on the date the non-
conforming motion was stricken. We have jurisdiction because the
notice of appeal was timely filed from that final action.
“This court reviews grants or denials of summary judgment de
novo, applying the same legal standards as the district court.”
Mayo v. Hartford Life Ins. Co., 354 F.3d 400, 403 (5th Cir. 2004).
Summary judgment is proper when “there is no genuine issue as to
any material fact and . . . the moving party is entitled to a
judgment as a matter of law”. FED. R. CIV. P. 56(c). The court
views the evidence in the light most favorable to the nonmovant,
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.
1997), but conclusory allegations unsupported by specific facts
will not prevent summary judgment, Doe v. Dallas Indep. Sch. Dist.,

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153 F.3d 211, 215 (5th Cir. 1998), cert. denied, 531 U.S. 1073
(2001).
Chapter 95 applies to a claim against a property owner,
contractor, or subcontractor for personal injuries, when that claim
arises from the condition or use of an improvement to real
property, where the contractor or subcontractor’s employee
constructs, repairs, renovates, or modifies the improvement. TEX.
CIV. PRAC. & REM. CODE § 95.002. Liability is imposed under Chapter
95 only if: (1) the property owner exercises or retains some
control over the manner in which the plaintiff’s work is performed;
and (2) the property owner had actual knowledge of the danger or
condition resulting in the personal injury and failed to adequately
warn. TEX. CIV. PRAC. & REM. CODE § 95.003; Francis v. Coastal Oil &
Gas Corp., 130 S.W.3d 76, 83 (Tex. App. Houston 1 Dist. 2003); see
also Kelly v. LIN Television, 27 S.W.3d 564, 567 (Tex.App.-Eastland
2000, pet. denied).
For the first time on appeal, Credeur contends Chapter 95 does
not apply to his claims against Nabors because it is not a property
owner under Chapter 95. “Although on summary judgment the record
is reviewed de novo, this court, for obvious reasons, will not
consider evidence or arguments that were not presented to the
district court for its consideration in ruling on the motion.”
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 (5th Cir.),
cert. denied, 506 U.S. 832 (1992).

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Credeur also maintains Chapter 95 does not apply because Mr.
Credeur’s work on the rig for Newpark was not construction, repair,
renovation, or modification. Although the district court noted
that neither party specified what Mr. Credeur’s actual duties
entailed, the district court decided that Mr. Credeur’s activity
fit within this requirement of Chapter 95, because Newpark was
hired to filter mud, which was in turn used in drilling. For
purposes of § 95.003, Texas courts have found that activity
facilitating a well’s performance is construction, renovation, or
modification. See Francis, 130 S.W.3d at 85. Mr. Credeur’s
actions qualify to invoke Chapter 95.
As discussed, for liability under Chapter 95, the property
owner must retain some control over the injured party’s work and
must have actual knowledge of the conditions causing the injury.
Credeur contends that TransTexas controlled Mr. Credeur’s work when
its employee ordered him to change equipment owned by Newpark;
directed him to change the type and density of filters used; and
scheduled mud-removal from the drill site. Viewing the facts in
the requisite light most favorable to Credeur, the district court
found Credeur could prove TransTexas had control over Mr. Credeur’s
actions. We agree.
For TransTexas and Nabors to incur liability under Chapter 95,
however, they must also have had actual knowledge of the danger or
condition resulting in Mr. Credeur’s injuries. See TEX. CIV. PRAC.

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& REM. CODE § 95.003(2). Based on our review of the record, we find
no evidence to support such knowledge. Accordingly, TransTexas and
Nabors are protected from liability under Chapter 95. This statute
is the sole basis for liability under these circumstances;
therefore, Credeur’s common law claims must fail.
AFFIRMED

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