Dennis Hagy; Tamera Hagy v. Equitable Production Co.; Bj Services Company, USA

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1926
DENNIS HAGY; TAMERA HAGY,
Plaintiffs - Appellants,
and
DUSTIN HAGY; CLARK HAGY,
Plaintiffs,
v.
EQUITABLE PRODUCTION CO.; BJ SERVICES COMPANY, USA,
Defendants - Appellees,
and
HALLIBURTON ENERGY SERVICES, INC.; WARREN DRILLING COMPANY,
INC.,
Defendants.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
District Judge. (2:10-cv-01372)
Submitted: August 22, 2013 Decided: October 8, 2013
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.

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Kevin W. Thompson, David R. Barney, Jr., THOMPSON BARNEY,
Charleston, West Virginia for Appellants. Timothy M. Miller,
Benjamin W. Price, ROBINSON & MCELWEE, PLLC, Charleston, West
Virginia, for Appellee Equitable Production Co. John H. Barr,
Jr., M. Coy Connelly, Jeffrey L. Oldham, BRACEWELL & GULIANI,
LLP, Houston, Texas, for Appellee BJ Services Company, USA.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dennis and Tamera Hagy (the “Hagys”) appeal the district
court’s grant of summary judgment to BJ Services Company, USA
(“BJ Services”) and Equitable Production Co. (“EQT”) on their
negligence and trespass claims, based on their allegation that
BJ Services’ and EQT’s oil and gas operations contaminated their
well water supply.1 For the reasons that follow, we affirm the
judgment of the district court.
I.
The Hagys own the surface rights to approximately eighty
acres of land in Jackson County, West Virginia. In 2007, the
Hagys received notices from EQT informing them that EQT was
preparing to file for state permits to drill new natural gas
wells on the property. In October 2007, Mr. Hagy signed surface
owner waivers for all new wells, stating that he had no
objection to the proposed work on the property.
After performing pre-drilling water tests on the Hagys’
water well, EQT—as well as BJ Services, Warren Drilling Company,
Inc. (“Warren Drilling”), and Halliburton Energy Services, Inc.
1 The Hagys’ adult sons, Dustin Hagy and Clark Hagy, were
also originally named as plaintiffs in this action. All of
their claims against all defendants, however, were eventually
voluntarily dismissed with prejudice.

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(“Halliburton”)—began construction in late October 2007.2 BJ
Services performed cementing services on three gas wells on
select dates between November 2007 and January 2008. All
drilling and completion operations were finalized by the end of
June 2008.
The Hagys allege that they began to notice changes in their
water quality and experienced temporary illnesses, such as
nausea, headaches, and slow heartbeat around July 2008.
According to the Hagys, later that year, the quality of their
water began to further degrade and the quantity of water
available from their well began to decline. Tests performed by
EQT on the well water showed increased levels of iron and
manganese. In November 2008 and February 2009, Mr. Hagy
complained to the West Virginia Department of Environmental
Protection (“DEP”) about the water quality. The DEP inspected
the well site on several occasions and ultimately found no
violations.
The Hagys left the Jackson County property in April 2009.
In October 2010, they filed this lawsuit, along with their two
adult sons, Dustin Hagy and Clark Hagy, against EQT, BJ
Services, Warren Drilling, and Halliburton (collectively
2 The pre-drilling water tests revealed that the water
contained elevated levels of total coliform bacteria and
detectable levels of iron and manganese.

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“Defendants”) in West Virginia state court, alleging that
Defendants had contaminated their well water supply and that, as
a result, they had suffered damages to personal property as well
as personal injuries. The complaint alleged five causes of
action: negligence, private nuisance, strict liability,
trespass, and medical monitoring.
In December 2010, Warren Drilling removed the case to the
United States District Court for the Southern District of West
Virginia based on complete diversity of the parties under 28
U.S.C. § 1332. All claims against Warren Drilling and
Halliburton were eventually dismissed with prejudice, as were
the adult sons’ claims against EQT and BJ Services.
In March 2012, EQT and BJ Services filed motions for
summary judgment. The district court granted EQT’s motion for
summary judgment based on two release agreements executed
between the parties in October 2007 (prior to initial drilling
of the gas wells) and April 2008 (approximately two months after
BJ Services performed the fracturing operations). The court
found that the Hagys had released all of their claims—the
subject matter of which was covered by the plain language of the
releases—for due consideration paid by EQT. The Hagys
subsequently filed a motion for relief from judgment, which the
district court denied.

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The district court also granted BJ Services’ motion for
summary judgment, finding that the Hagys had failed to produce
any evidence, or even a clear theory, of a negligent act by BJ
Services that had caused any harm to the Hagys. The district
court further found that the Hagys had failed to provide
sufficient evidence to raise a genuine issue of material fact as
to any trespass or private nuisance claims.
The Hagys timely appealed, and we have jurisdiction under
28 U.S.C. § 1291.
II.
We review the district court’s grant of summary judgment de
novo, applying the same standard as the district court. See
Nat’l City Bank of Ind. v. Turnbaugh, 463 F.3d 325, 329 (4th
Cir. 2006). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
III.
The Hagys raise two issues on appeal: (1) whether the
district court erred in granting summary judgment to BJ Services
on their negligence and trespass claims; and (2) whether the
district court erred in granting summary judgment to EQT based
on the parties’ release agreements.

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We conclude that the district court properly granted
summary judgment to BJ Services on the Hagys’ negligence and
trespass claims. The Hagys have failed to provide sufficient
evidence to raise a genuine issue of material fact with respect
to any alleged negligence on the part of BJ Services. See
Strahin v. Cleavenger, 603 S.E.2d 197, 205 (W. Va. 2004)
(stating elements of negligence claim under West Virginia law).
The Hagys cannot connect any allegedly wrongful conduct by BJ
Services with the harm they claim to have suffered. Similarly,
the Hagys have provided no evidence from which a reasonable
trier of fact could conclude that BJ Services is liable for
trespass.
We also conclude that the district court did not err in
granting summary judgment to EQT based on the parties’ release
agreements. The plain language of the release agreements covers
the subject matter of the Hagys’ claims, all of which were
released for due consideration paid by EQT:
The Landowner hereby irrevocably and unconditionally
releases, acquits and forever discharges [EQT] . . .
from any and all Claims of any kind or nature.
“Claims” as that term is used in this Agreement
includes any and all liabilities, obligations,
agreements, damages, causes of action for injuries to
persons or damage to property . . . suits, rights,
demands, costs, losses, whether known or unknown and
whether now existing or yet to accrue, arising from or
relating in any way whatsoever to the Drilling
Operations and Additional Damage.

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(J.A. 265–66 (emphasis added).) The Hagys had an adequate
opportunity to consult legal counsel in negotiating the
agreements, and the law presumes that they knew the contents of
each prior to signing, thereby voluntarily agreeing to release
all claims as defined therein. See Sedlock v. Moyle, 668 S.E.2d
176, 180 (W. Va. 2008) (per curiam) (“‘[I]n the absence of
extraordinary circumstances, the failure to read a contract
before signing it does not excuse a person from being bound by
its terms.’” (quoting Reddy v. Cmty. Health Found. of Man, 298
S.E.2d 906, 910 (W. Va. 1982))). We further conclude that the
district court properly rejected the Hagys’ arguments that the
releases were procured by fraud. See White v. Nat’l Steel
Corp., 938 F.2d 474, 490 (4th Cir. 1991) (citing Lengyel v.
Lint, 280 S.E.2d 66, 69 (W. Va. 1981)) (stating elements of
fraud under West Virginia law).
IV.
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.
AFFIRMED

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