On Appeal from the 385th District Court Midland County, Texas
Trial Court Cause No. CV50404
BEPCO, L.P., an oil and gas company, hired RMTDC Operations, LLC d/b/a Total Energy Services (TES) to provide drilling consultant services under a Master Work/Service Agreement (the MSA). BEPCO selected Jose Antonio Valencia, one of TES's consultants, to be a "company man" on one of BEPCO's wells to be drilled in New Mexico.
BOPCO, L.P., the original plaintiff in this case, assigned its cause of action to BEPCO, L.P., and BEPCO, L.P. was substituted as the plaintiff prior to trial. In this opinion, we will refer to BOPCO and BEPCO interchangeably as "BEPCO."
The witnesses at trial used the terms "company man" and "well site supervisor" to describe Valencia's position on the well. For the sake of consistency, we will use the term "company man" throughout this opinion.
As set forth below, the casing in the well collapsed during the drilling process. BEPCO incurred costs of almost $3,500,000 to abandon the well and to drill a different well. BEPCO sued TES alleging that TES breached the MSA because Valencia did not perform his work with due diligence and in a good and workmanlike manner and that TES's breach caused BEPCO's damages. A jury found that TES did not breach the MSA, and the trial court entered a take-nothing judgment in favor of TES.
In one issue, BEPCO asserts that the evidence is legally and factually insufficient to support the jury's finding that TES did not breach the MSA. We affirm the trial court's judgment.
In 2013, BEPCO, as the operator, hired Latshaw Drilling Company, LLC, to drill a horizontal well in Eddy County, New Mexico. The well was to be drilled on land restricted by the federal government and was subject to certain requirements of the Bureau of Land Management (the BLM).
From candidates proposed by TES, BEPCO chose Valencia to be one of the company men on the well. Generally, a company man supervises the drilling contractor to ensure that the well is drilled in the manner required by the operator. Pursuant to the terms of the MSA, TES's company man was required to "perform all Work with due diligence and care and in a good and workmanlike manner satisfactory and acceptable to [BEPCO]."
BEPCO provided a copy of the drilling prognosis, or "blueprint" for the well, to Valencia. The drilling prognosis set out BEPCO's technical or design specifications for the well. It contained information on BEPCO's requirements for the well, including the casing sizes, the setting depths, the cementing procedure, the cement types, the directional plan, the depth, and site cleanup. The drilling prognosis was "pretty specific" and gave the company man "instructions on what [he] should do." However, the drilling prognosis did not give any instructions to the company man as to what operations should be supervised.
As it drilled the well, Latshaw set multiple strings of casing or pipe to hold the well in place. Each string of casing had a smaller diameter than the previous string and was set at a greater depth. The first string of casing consisted of a 20-inch conductor pipe and a 16-inch surface pipe. The first string of intermediate casing was 13? inches in diameter and the second string of intermediate casing was 9? inches in diameter.
Each string of casing was cemented on the outside to form a barrier between the casing and either the open formation or another string of casing. The cement stabilized the casing and prevented fluids from entering the wellbore. During the cementing operation, cement was first pumped down the casing. A wiper plug was then pushed down the well with high pressure water to remove the excess cement from the sides of the casing. The excess cement returned to the surface through the annulus, or space, between the casing and the previous string of casing.
Each annulus was connected to a different wellhead. The "A" wellhead was connected to the annulus between the 13?-inch intermediate casing and the 16-inch surface casing. The "B" wellhead, which was connected to the annulus between the 9?-inch intermediate casing and the 13?-inch intermediate casing, was located above the "A" wellhead.
The wellheads were located in the "cellar," which was five to six feet deep. According to Troy Lee Carroll, Latshaw's drilling superintendent, the cellar "stay[ed] full of water and oil-based mud and the nastiest things you could imagine." Carroll specifically testified that the cellar would "stay full to the top almost" after "running casing" and that the entire wellhead could be submerged in drilling fluids. The cellar would be "pumped out" periodically to "get stuff out of it."
After the completion of a cementing operation, Latshaw was required to "washout" the excess cement from the blowout preventer. The washout can be done through either the top-down procedure, which is most commonly used, or the bottoms-up procedure. In the top-down procedure, the blowout preventer is filled from the top with water. Gravity drains the water through a valve in the wellhead and into the cellar. In the less common bottoms-up procedure, a hose is connected to a valve in the wellhead. Water is then pumped through the annulus, out the top of the blowout preventer, and through the flow line into a "half-rack" or tank.
Kelly Shawn Bridges, one of the rig managers for Latshaw, testified that, "way before" the well at issue in this case, BEPCO had a standard procedure to do a bottoms-up washout. According to Bridges, Leobardo Bojorquez, who was a company man for BEPCO at that time, instructed Latshaw to use the bottoms-up washout procedure. Brendin Smith, the other Latshaw rig manager, confirmed that BEPCO "always" had Latshaw use the bottoms-up washout procedure. Smith testified that Latshaw's practice was to follow BEPCO's standards on how to washout the blowout preventer and that Latshaw "clean[ed] out the blowout preventer in the manner that was prescribed . . . by [BEPCO]."
Bojorquez, who had become BEPCO's drilling superintendent by the time that the well at issue in this case was drilled, denied that he told the Latshaw crew to use the bottoms-up washout procedure. Bojorquez testified that he thought that the bottoms-up washout procedure would be the "wrong way" to do it. Bojorquez admitted that his job could have been in jeopardy if he had told Latshaw to use the bottoms-up washout procedure.
Stephen Manuel Martinez, BEPCO's division manager of drilling; Valencia; Bojorquez; BEPCO's expert, Jeffrey R. Hughes; and TES's expert, Gregg Steven Perkin, all testified that they did not expect that the bottoms-up washout procedure would be used. Martinez also testified that he would not have been able to "foresee" that somebody would use the bottoms-up washout procedure. Valencia testified that he had always used the top-down washout procedure and that he did not know that Latshaw used the bottoms-up procedure to wash out the wellhead and the blowout preventer after a cementing operation. In neither the MSA nor the drilling prognosis did BEPCO inform Valencia that Latshaw used the bottoms-up washout procedure or specifically require that Valencia supervise the washout procedure.
Valencia was the company man on the well at the time of the cementing operation on the 9?-inch string of intermediate casing. The BLM mandated that it be informed when a cementing operation occurred on a well, and a representative from the BLM was at the well during the cementing operation. Valencia did not supervise the washout procedure after the cementing operation because he was meeting with the BLM representative. According to Martinez, Valencia was required to meet with the BLM representative. Martinez, however, also noted that other operations on the well did not stop because the BLM representative was present.
When Latshaw attempted to continue drilling the well after the washout procedure, it discovered that both the 13?-inch and the 9?-inch intermediate casing had collapsed, effectively blocking the well. BEPCO ultimately determined that the well was unsalvageable, made the decision to plug and abandon the well, and drilled a different well approximately forty feet from the original well.
BEPCO's claims were tried to a jury over a period of five days. Based on the jury's finding that TES did not breach the MSA, the trial court rendered a take-nothing judgment against BEPCO. BEPCO filed a motion for new trial on grounds that the evidence was legally and factually insufficient to support the jury's negative answer to the question asking if TES breached the MSA. BEPCO also asserted that the trial court made errors in the admission of "unfairly prejudicial 'spoliation' evidence and jury argument of [TES's] counsel." After the motion for new trial was overruled by operation of law, BEPCO filed this appeal.
In a single issue, BEPCO asserts that the evidence was legally and factually insufficient to support the jury's failure to find that TES breached the MSA.
When an appellant attacks the legal sufficiency of an adverse finding on an issue on which it had the burden of proof, it "must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). When we consider a legal sufficiency challenge, we "must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary." Id. (citing Sterner, 767 S.W.2d at 690); see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (When appellate court considers a no-evidence challenge, it views the evidence in the light most favorable to the verdict, crediting favorable evidence when reasonable jurors could do so and disregarding contrary evidence unless reasonable jurors could not.). Only if there is no evidence to support the jury's finding will we examine the entire record to determine if the contrary proposition is established as a matter of law. Francis, 46 S.W.3d at 241.
"The 'test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.'" W&T Offshore, Inc. v. Fredieu, No. 18-1134, 2020 WL 3240869, at *9 (Tex. June 5, 2020) (quoting City of Keller, 168 S.W.3d at 827)). We must uphold the jury's verdict if more than a scintilla of evidence supports the judgment. Id. We will sustain a challenge to the legal sufficiency of the evidence only if (1) there is a complete lack of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) there is no more than a scintilla of evidence offered to prove a vital fact, or (4) the opposite of the vital fact is conclusively established. Pike v. Tex. EMC Mgmt., LLC, No. 17-0557, 2020 WL 3405812, at *14 (Tex. June 19, 2020) (citing Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004)).
To successfully challenge the factual sufficiency of the evidence to support an adverse finding on an issue on which it bore the burden of proof at trial, the appellant must demonstrate that the finding is against the great weight and preponderance of the evidence. Francis, 46 S.W.3d at 242; Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We must consider and weigh all of the evidence and will set aside a verdict only if it so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Francis, 46 S.W.3d at 242; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
It is the jury's role to evaluate the credibility of the witnesses and reconcile any inconsistencies or conflicts in the evidence. Anderson v. Durant, 550 S.W.3d 605, 616 (Tex. 2018) (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency). Generally, the jury may believe or disregard all or any part of the testimony of any witness. Anderson, 550 S.W.3d at 616; Golden Eagle Archery, 116 S.W.3d at 774-75. We will not substitute our opinions on credibility for those of the jurors. See Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019) (factual sufficiency); City of Keller, 168 S.W.3d at 816-17 (legal sufficiency).
The only issue in this case is whether BEPCO carried its burden to prove that TES breached the MSA because Valencia did not "perform all Work with due diligence and care and in a good and workmanlike manner satisfactory and acceptable" to BEPCO. In Question No. 1 of the charge, the jury was simply asked whether TES failed to comply with the MSA. With respect to Question No. 1, the charge specifically instructed the jury:
A good and workmanlike manner is that quality of work performed by one who has the knowledge, training, or experience necessary for the successful practice of a trade or occupation and performed in a manner generally considered proficient by those capable of judging such work.The jury answered "no" to Question No. 1.
Due diligence and care is the diligence and care reasonably expected from and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.
At trial, TES objected to the trial court's instructions on the meaning of "due diligence" and "good and workmanlike manner." However, neither party has challenged the trial court's instructions on appeal. Therefore, we will evaluate the sufficiency of the evidence in light of the instructions submitted to the jury. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); Green v. Richard D. Davis, L.L.P., 593 S.W.3d 842, 849 (Tex. App.—Houston [14th Dist.] 2019, pet. filed).
BEPCO's theory at trial was that, during the washout procedure after the cementing operation on the 9?-inch intermediate casing, the Latshaw drilling crew attached the high-pressure hose to the "A" valve, which led to the annulus between the 13?-inch intermediate casing and the 16-inch surface casing, rather than to the "B" valve, which led to the annulus between the 9?-inch intermediate casing and the 13?-inch intermediate casing. Because the annulus between the 13?-inch intermediate casing and the 16-inch surface casing was a closed system, BEPCO asserted that the resulting high pressure in that annulus caused the 13?-inch intermediate casing to hydraulically collapse into the 9?-inch casing. The 9?-inch casing then mechanically collapsed. BEPCO alleged that Valencia failed to perform his work with due diligence and in a good and workmanlike manner because he did not confirm that the high-pressure hose was connected to the correct valve and did not supervise the washout procedure.
BEPCO presented no direct evidence that the high-pressure hose was connected to the wrong valve. Rather, it relied on evidence that, during the washout procedure, the high-pressure pumps were turned on and that the "Pason data" showed that the pressure in the well reached an "unusual" level of over 2,000 pounds per square inch. Although the recorded pressure did not exceed the rated "collapse pressure" of the casing, Hughes opined that the collapse pressure could have been exceeded in a 0.52-second interval that was not recorded in the Pason data.
Hughes admitted that neither his initial report nor his first supplemental report contained this opinion and that his opinion changed after he received information about how the Pason system collected and recorded data. Based on assumptions about the size of the system and the amount of fluid in the system, Hughes calculated a pressure that, in his opinion, occurred between the intervals in which the Pason data was recorded. Hughes admitted that, if any of the assumed variables changed, the result of the calculation would also change to some degree. He also admitted that he had never seen anybody perform a similar calculation to show that there were pressures in a well that were not shown on the recorded Pason data.
Hughes opined that the only way to collapse the 13?-inch casing was to incorrectly pump high-pressure water into the "A" section valve, rather than into the "B" section valve. Hughes conceded that underlying all of his opinions was the assumption that the high-pressure hose was attached to the "A" valve. Hughes admitted that, "if the hose [was] not connected to the A section" at the time of the washout procedure, then his "theory in this case" would be "incorrect."
Finally, Hughes conceded that, if a pipe collapsed due to a pressure lower than the pipe's rated collapse pressure, "the pipe was probably defective." However, Hughes also noted that he had seen no evidence that the pipe used in the well "was not good pipe."
Perkin attacked Hughes's calculation of the maximum pressure in the well. Perkin noted that Hughes had made a number of assumptions, some of which Perkin described as "unreasonable," and that, if those assumptions were wrong, the result of the calculation changed. In Perkin's opinion, Hughes solved the equation but failed to solve the problem. Perkin testified that he had never seen a scientist or engineer attempt to "explain what the Pason doesn't show" in the manner as Hughes had done and that, in his opinion, Hughes's calculation was not reliable. Finally, Perkin noted that the Pason data did not reflect that the pressure in the well exceeded the collapse pressure of the casing. However, the pipe had not been tested to determine if it was defective because none of the pipe that was recovered from the well had been preserved.
This case is somewhat unusual in the sense that it is a breach of contract action that is akin to one sounding in negligence because the MSA specified that TES was to perform its work in a good and workmanlike manner. Whether Valencia performed his duties as a company man with due diligence and in a good and workmanlike manner was an issue of fact for the jury. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354-55 (Tex. 1987) (reviewing jury's finding that work was not performed in a good and workmanlike manner); Strickland v. Lake, 357 S.W.2d 383, 384 (Tex. 1962) (orig. proceeding) (noting that whether a person exercised "reasonable diligence" was generally a question of fact). Six witnesses testified about whether Valencia was required to supervise all or part of the washout operation in order to perform his job with due diligence and in a good and workmanlike manner: Martinez, Valencia, Smith, Hughes, Bojorquez, and Perkin.
Martinez testified that he expected that the company man would be trained to supervise the operations on the rig. Specifically, Martinez expected that the company man would provide supervision of "the drilling prognosis" and of "the drilling of the well as it relates to the design by [BEPCO]." The company man would also act as the intermediary between BEPCO and the drilling contractor. Based on experience and training, the company man was "supposed to know what [he's] supposed to supervise" and should supervise any operation that would "compromise safety, integrity of equipment and personnel." In Martinez's opinion, the connection of a high-pressure hose potentially put the well at risk.
Valencia agreed that his duties as a company man included the supervision of any operation that involved danger to people, property, the rig, or the well. Valencia testified that, although it was his responsibility to know the washout procedure that Latshaw used on a well, he did not know that Latshaw used the bottoms-up washout procedure. According to Valencia, the bottoms-up washout procedure was potentially dangerous and, if Latshaw used that procedure, Valencia should have supervised the washout procedure.
Smith, one of the rig managers on the well for Latshaw, testified that a Latshaw employee "under" him would have connected the high-pressure hose for the washout operation. Smith first testified that the bottoms-up washout procedure did not "take any more supervision" than the top-down washout procedure. He then testified, however, that the bottoms-up washout procedure involved more risk, that it was an operation that he would expect the company man to supervise, and that it was Valencia's responsibility as a company man to make sure that the hose was connected to the correct valve.
Hughes testified that, because the washout procedure was done with a high-pressure pump, the company man was required to supervise the operation. In Hughes's opinion, if Valencia did not supervise the washout operation, he did not perform his duties with due diligence or in a good and workmanlike manner. Hughes also testified that, in the exercise of diligence, Valencia should have confirmed that the line from the high-pressure pump was connected to the correct valve. In Hughes's opinion, if Valencia confirmed that the line was connected to the right valve, he did not "necessarily need to be there for the washout."
Hughes also testified that neither the MSA nor the drilling prognosis made it mandatory for Valencia to supervise the washout procedure. Hughes agreed that, in the absence of written directions from BEPCO, the method and details of "the cleanup" were left to the company man's discretion. When he exercised his discretion on whether to supervise a particular procedure, Valencia was required to draw on his experience and his training.
Before he was a drilling superintendent, Bojorquez was the company man for BEPCO on over fifty wells. Bojorquez initially testified that a washout procedure cannot be done without the supervision of the company man. However, he then admitted that he had testified at his deposition that a washout procedure was a routine procedure that any competent drilling crew should be able to do. He also admitted that he had testified at his deposition that he had seen drilling crews do a washout procedure without supervision and that he knew that drilling crews could do the procedure without supervision. He reiterated at trial that not every washout procedure was supervised by the company man and that, when the washout procedure was done properly, the drilling crew could do it without instructions from the company man.
On cross-examination, Bojorquez testified that he had never seen a bottoms-up washout procedure performed. He clarified that a top-down washout procedure could be done without the supervision of the company man. However, because a high-pressure pump is used, a bottoms-up washout procedure should be supervised.
Perkin agreed that, in general, Valencia had the duty to supervise any operation that could potentially harm people or destroy the well. However, Perkin had never seen a company man supervise the washout procedure after a cementing operation. Further, "[c]ontrolling the details of the work of a washout operation" was typically not the company man's responsibility. In Perkin's opinion, Valencia performed his job in a good and workmanlike manner and "met his obligations as the company man in this case."
Perkin also testified that, during the time that the washout procedure was taking place, Valencia was "obligated" to meet with the representative of the BLM and agreed that, if Valencia was meeting with the BLM representative during the washout operation, Valencia was "doing his job." Perkin also agreed that, if a well control event or another critical operation was taking place, a company man should supervise that operation rather than meet with the representative of the BLM. However, any operation if done improperly can destroy a well, and a company man is required to use his judgment in terms of which operations to supervise.
Perkin also testified that Valencia was not required to supervise the connection of a high-pressure hose in all instances. In Perkin's opinion, if Valencia was aware that the hose was connected to the wrong valve, he "would stop work and have it corrected." But if Valencia could not see the valve, he would have "to rely upon the people who [were] controlling the details of the work, which [was] the drilling crew."
BEPCO argues that we must disregard Perkin's testimony because it is conclusory, does not address the issue in this case, and contradicts Valencia's testimony. "[C]onclusory or speculative opinion testimony is not relevant evidence because it does not make the existence of a material fact more or less probable." Pike, 2020 WL 3405812, at *17. An expert's opinion is conclusory when "he offers only his word that the bases offered to support his opinion actually exist or support his opinion." Id. at *21 (quoting Windrum, 581 S.W.3d at 769). Generally, conclusory expert opinions will not support a judgment even if there is no objection to their admission into evidence. HMC Hotel Props. II Ltd. P'ship v. Keystone-Tex. Prop. Holding Corp., 439 S.W.3d 910, 917 (Tex. 2014).
Here, Perkin, a professional engineer, based his opinions on his 50-year career in the oil field, on his experience working with company men like Valencia, and on his experience in working on oil rigs in a number of capacities, including a rig hand, a roughneck, a derrickman, and a field engineer. Perkin, therefore, provided factual bases to support his opinions that a company man does not generally supervise a washout procedure and that Valencia did not breach a duty owed to BEPCO.
Viewed in the light most favorable to the jury's finding, there is more than a scintilla of evidence to support the jury's finding that TES did not breach the MSA. First, Perkin testified that Valencia was not required to supervise the washout procedure and was not always required to supervise the connection of the high-pressure hose. According to Perkin, Valencia was "doing his job" by meeting with the BLM representative, performed his work in a good and workmanlike fashion, and complied with his contractual obligations as a company man. Second, although he subsequently attempted to limit his testimony to the top-down washout procedure, Bojorquez had testified at his deposition, without qualification as to the procedure involved, that a company man was not required to supervise a washout procedure. Finally, although he also later qualified his answer, Smith testified that the bottoms-up washout procedure required no more supervision than the top-down washout procedure.
BEPCO responds that this evidence is not legally sufficient to support the jury's finding because Valencia's testimony conclusively established that he was required to supervise the washout procedure. If, during a legal sufficiency review, the reviewing court determines that evidence contrary to the verdict is conclusive, it cannot disregard that evidence. City of Keller, 168 S.W.3d at 817. Undisputed evidence usually "becomes conclusive (and thus cannot be disregarded) when it concerns physical facts that cannot be denied" or "may also become conclusive when a party admits it is true." Id. at 815. "Evidence is conclusive only if reasonable people could not differ in their conclusions, a matter that depends on the facts of the case." Id. at 816 (footnote omitted).
BEPCO contends that Valencia's testimony amounts to an admission by TES that Valencia was required to supervise the washout operation. Although we question whether there is any evidence that Valencia had the authority to make an admission on behalf of TES, it is clear from the record that TES did not admit that Valencia was required to supervise the washout procedure. Rather, the issue of whether Valencia performed his job duties with due diligence and in a good and workmanlike manner was hotly contested at trial. It was the jury's role to determine the credibility of the witnesses and the weight to be given their testimony, and it could have found that Valencia's testimony was unpersuasive.
Valencia was required to decide, based on his judgment and experience, what operations needed to be supervised. Although there was conflicting evidence about whether Valencia was required to supervise all or part of the washout procedure, it was undisputed that it was part of Valencia's job duties to meet with the BLM representative. Based on the evidence, the jury could have reasonably determined that Valencia's decision to meet with the representative of the BLM rather than supervise the washout procedure was "that quality of work . . . generally considered proficient by those capable of judging such work" and was made with "the diligence and care reasonably expected from and ordinarily exercised by" a company man.
We hold that there was more than a scintilla of evidence to support the jury's finding that TES did not breach the MSA.
Further, a review of all the evidence does not demonstrate that the jury's finding is against the great weight and preponderance of the evidence. The jury could have believed Bridges's and Smith's testimony that Bojorquez instructed Latshaw to use the bottoms-up washout procedure on BEPCO wells, that the bottoms-up washout procedure was BEPCO's standard procedure, and that Latshaw followed BEPCO's instructions. There was also evidence that a bottoms-up washout procedure was not commonly used and that a company man, such as Valencia, could not foresee that the drilling crew would use that method. Although the jury could have believed that BEPCO required Latshaw to use the unusual bottoms-up washout procedure, Valencia was not informed that the procedure was being used. Further, neither the MSA nor the drilling prognosis required Valencia to supervise the washout procedure.
Based on his judgment and experience, Valencia had the discretion to determine which operations needed to be supervised. The jury could have believed Bojorquez's deposition testimony that, when done properly, drilling crews can do washout procedures without instructions from the company man. Further, Bojorquez and Perkin testified that washout procedures were not always supervised by the company man. Given that Valencia's job duties required him to meet with the BLM representative, the jury could have determined that Valencia performed his job duties with due diligence and in a good and workmanlike manner when he attended that meeting rather than supervise the washout operation.
We recognize that there was testimony from Valencia, Martinez, Hughes, Bojorquez, and Smith that Valencia should have supervised the washout procedure and that Martinez, Hughes, and Smith all opined that Valencia should have supervised the connection of the high-pressure hose to the valve in the wellhead. However, both Smith and Bojorquez also testified that the washout procedure did not always need to be supervised by the company man. Further, Perkin opined that the company man was not required to supervise the washout operation and that Valencia was not required to supervise the connection of the high-pressure hose if he could not see the valve. The jury heard that the cellar was five to six feet deep and that the wellhead could have been submerged beneath drilling fluids. According to Perkin, under such circumstances, Valencia would have "to rely upon the people who are controlling the details of the work, which is the drilling crew." Finally, Perkin testified that Valencia performed his work in a good and workmanlike manner and fulfilled his duties under the MSA.
It was the role of the jury to resolve the conflicts in the evidence, and we may not substitute our judgment for that of the jury, even if the evidence would support a different result. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). After examining all of the evidence under the appropriate standard of review, we cannot conclude that the jury's determination that TES did not breach the MSA is so contrary to the evidence as to be clearly wrong and unjust.
We hold that there was legally and factually sufficient evidence to support the jury's determination that TES did not breach the MSA. We overrule BEPCO's sole issue.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment. --------