Court of Appeals Tenth Appellate District of Texas
10-23-00223-CV
Ogden Resources Corporation, Appellant
v.
John Brooks and New Tech Global Ventures, LLC, Appellees1
On appeal from the 272nd District Court of Brazos County, Texas Judge John L. Brick, presiding Trial Court Cause No. 19-000366-CV-272
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
In this case, we are asked to decide whether the trial court reversibly
erred when it granted the motion for summary judgment filed by New Tech
Global Ventures, LLC (NTGV) and John Brooks and thereby ruled that NTGV
1 The style of this case in the trial court was “Ogden Resources Corporation v. Knight Oil Tools,
LLC, John Brooks, and New Tech Global Ventures, LLC.” Accordingly, when we initially docketed this appeal in this Court, we included Knight Oil Tools, LLC, as an appellee in the style of the appeal. As the appeal progressed, however, we discovered that Knight Oil Tools, LLC, is not, in fact, a party to this appeal. See TEX. R. APP. P. 3.1(c) (“Appellee means a party adverse to an appellant.”). Thus, we have removed Knight Oil Tools, LLC, from the style of this appeal. and Brooks were entitled to the benefits of allocation-of-risk provisions
contained in a “Master Service Agreement” (MSA). We conclude that the trial
court did err in granting the summary-judgment motion; therefore, we reverse
the trial court’s judgment and remand this case to the trial court for further
proceedings consistent with this opinion.
Background
This case involves experienced, sophisticated oil and gas businessmen.
As pleaded in its seventh amended petition, Ogden Resources Corporation
(Ogden Resources) and several investors own the Stasny-Krog Unit, Well #1 in
Brazos County. Ogden Resources is the operator of the well under the terms
of a joint operating agreement with the other investors.
As operator, it was Ogden Resources’ responsibility, in addition to other
duties, to hire various companies and individuals to perform a variety of
functions in connection with the drilling of the Stasny-Krog Unit, Well #1.
Knight Oil Tools, LLC (Knight Oil) was one of those companies. Ogden
Resources engaged Knight Oil to supply tubing and other equipment to be used
in the drilling of the Stasny-Krog Unit, Well #1.
Another of the companies that worked on the Stasny-Krog Unit, Well #1
was NTGV. In its seventh amended petition, Ogden Resources stated that it
hired NTGV to provide engineering and consulting services as well as an onsite
consultant, or “company man,” during the drilling of the Stasny-Krog Unit,
Ogden Res. Corp. v. Brooks Page 2 Well #1. A “company man” acts as the owner’s representative to ensure proper
drilling of the well. Ultimately, NTGV assigned Brooks to handle this task.
Drilling of the Stasny-Krog Unit, Well #1 commenced. In its seventh
amended petition, Ogden Resources alleged, however, that Knight Oil, NTGV,
and Brooks breached various duties that they owed to Ogden Resources and
that those breaches caused downhole damage to such an extent that the
Stasny-Krog Unit, Well #1 was lost.
Ogden Resources sued Knight Oil and Brooks for damages that Ogden
Resources allegedly sustained in connection with the loss of the well. Ogden
Resources also filed suit against NTGV. By agreement between Ogden
Resources and NTGV, Ogden Resources’ claims against NTGV were
consolidated into the lawsuit brought by Ogden Resources against Knight Oil
and Brooks, i.e., the lawsuit underlying this appeal. After the trial court
consolidated the lawsuits, Ogden Resources nonsuited Knight Oil, and the trial
court entered an order in which it dismissed, with prejudice, all Ogden
Resources’ claims against Knight Oil.
Meanwhile, NTGV and Brooks answered Ogden Resources’ pleadings by
generally denying Ogden Resources’ allegations and asserting the affirmative
defense of release. NTGV and Brooks also brought counterclaims against
Ogden Resources for breach of contract and declaratory relief based on the
MSA.
Ogden Res. Corp. v. Brooks Page 3 Basically, an MSA is designed to define the relationship between a
recurring purchaser and user of goods and services and a seller or supplier of
those goods and services without the need to redefine the relationship between
them with each subsequent, separate transaction. The typical MSA contains
general terms that will govern any subsequent project or transaction when
triggered by a subsequently issued and accepted purchase order, work order,
or other request. Shell W. E & P, Inc. v. Pel-State Bulk Plant, LLC, 509 S.W.3d
581, 587 (Tex. App.—San Antonio 2016, no pet.). When triggered, the terms of
the work orders become part of the MSA. Id.
Furthermore, it is not unusual in the oil and gas industry for the parties
to an MSA to allocate among themselves the risks involved in a project. See
Chesapeake Operating, Inc. v. Nabors Drilling USA, Inc., 94 S.W.3d 163, 168
(Tex. App.—Houston [14th Dist.] 2002, no pet.).
The MSA in this case was executed on August 24, 2003, by Stephen E.
Ogden, as president of Ogden Resources, and by Larry Cress, as president of
New Tech Engineering, LP (NTE). NTGV’s and Brooks’s pleadings allege that
the MSA has never been terminated and that there has never been a
subsequent MSA executed by the parties.
The MSA states that it was “made and entered into” by and between
Ogden Resources, designated as “Company,” and NTE “on behalf of itself and
all its direct and indirect wholly-owned subsidiaries and affiliates (collectively
Ogden Res. Corp. v. Brooks Page 4 ‘Contractor’).” The parties to the MSA further defined “Company Group” in
the MSA to “include Company, its parent(s), subsidiaries, and affiliated
companies, and its and their partners, joint venturers, non-operating working
interest owners, co-lessees, contractors and subcontractors, (except
Contractor), and the owners, shareholders, directors, officers, employees,
agents, representatives, invitees, and underwriters of all the foregoing, and
their heirs, legal representatives, successors and assigns.” The parties also
defined “Contractor Group” in the MSA to “include Contractor, its parent(s),
subsidiaries, and affiliated companies, and its and their subcontractors, and
the owners, shareholders, directors, officers, employees, agents,
representatives, invitees, and underwriters of all the foregoing, and their heirs,
legal representatives, successors and assigns.”
Paragraph 3 of the MSA then contains the provisions regarding the scope
of the agreement. Paragraph 3(b) specifically provides:
At any time and from time to time during the term of this Agreement, when Company desires Work to be performed by Contractor, a Company Representative (as defined below) shall give Contractor a request for such Work. The request may be in the form of a work order, purchase order, letter, memorandum, or other document, or may be verbal (“Work Request”). If and when there is agreement between Company and Contractor regarding the specific terms of the Work Request, Contractor shall thereafter commence the performance of the Work in accordance with the terms and conditions of the Work Request and this Agreement. Commencement of the Work by Contractor shall be deemed to be an acceptance of the terms and conditions of the Work Request that do not conflict with the terms of this Agreement.
Ogden Res. Corp. v. Brooks Page 5 Paragraph 3(e) of the MSA further provides in pertinent part: “Any and all
Work performed by Contractor for Company after the Effective Date of this
Agreement, whether under verbal or written instructions, shall be deemed to
be performed pursuant to the terms and conditions of this Agreement.”
The MSA additionally contains, among many other things, provisions for
the allocation of risks. The portion of the MSA in which the parties to the
agreement addressed the allocation of risks is Paragraph 7(c), bearing the
heading “INDEMNITY-DEFENSE.” Paragraph 7(c)(1) includes the following
“INTRODUCTION” to this portion of the agreement:
Company and Contractor recognize that in connection with the services, operations, and the provision of goods, equipment and facilities contemplated by this Agreement, there is some risk that accidents and events may occur in which property is lost, damaged or destroyed and/or in which persons may be killed or injured. The parties desire to allocate these risks between them and to require that these risks be adequately insured so as to minimize the possibility of disputes and to engage in effective risk management. For these reasons, the parties agree to the indemnities and defense obligations set forth below.
Paragraph 7(c)(2) of the MSA follows, setting out the specific allocation-of-risk
provisions. The specific provisions are set out in uppercase and bold type and
are underlined in the original.
Paragraph 7(c)(2)(b) of the MSA provides for “COMPANY’S
INDEMNITY OBLIGATIONS.” The parties to the MSA have handwritten
Ogden Res. Corp. v. Brooks Page 6 and initialed the phrase—“To the extent permitted by Company’s Insurance”—
at the beginning of the paragraph, followed by:
COMPANY SHALL DEFEND, INDEMNIFY, HOLD HARMLESS, AND RELEASE CONTRACTOR GROUP FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, DEMANDS, CAUSES OF ACTION, SUITS, JUDGMENTS AND LIABILITIES OF EVERY KIND (INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEYS’ FEES) BROUGHT OR ASSERTED AGAINST CONTRACTOR GROUP BY ANY PARTY WHOMSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT AND RESULTING FROM ANY CLAIM OF LOSS, DAMAGE, INJURY, ILLNESS OR DEATH DESCRIBED IN SUBPARAGRAPHS (i) THROUGH (viii) BELOW,[2] REGARDLESS (EXCEPT AS EXPRESSLY PROVIDED HEREIN) OF WHO MAY BE AT FAULT OR OTHERWISE RESPONSIBLE UNDER ANY OTHER CONTRACT, OR ANY STATUTE, RULE OR THEORY OF LAW, INCLUDING BUT NOT LIMITED TO THEORIES OF STRICT LIABILITY, AND EVEN THOUGH THE SUBJECT LOSS, DAMAGE, INJURY, ILLNESS OR DEATH MAY HAVE BEEN CAUSED IN WHOLE OR IN PART BY: (1) THE SOLE, CONCURRENT, ACTIVE OR PASSIVE NEGLIGENCE OF CONTRACTOR GROUP OR A THIRD PARTY OR (2) A DEFECT IN THE PROPERTY OR EQUIPMENT OF EITHER PARTY PROVIDED BY OR ON BEHALF OF EITHER PARTY, INCLUDING BUT NOT LIMITED TO THOSE DEFECTS PRE-EXISTING THE EFFECTIVE DATE OF THIS AGREEMENT.
The MSA contains a similar provision applicable to “CONTRACTOR’S
INDEMNITY OBLIGATIONS” in Paragraph 7(c)(2)(a).
2 We need not specifically discuss Subparagraphs (i) through (viii) in this opinion; however, we
note that Subparagraph (vi) expressly provides: “RESERVOIR DAMAGE, LOSS OR HOLE, COSTS AND EXPENSES IN BRINGING THE WELL UNDER CONTROL.”
Ogden Res. Corp. v. Brooks Page 7 Finally, Paragraph 22 of the MSA includes several miscellaneous
provisions. As relevant here, Paragraph 22(f) provides: “Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.”
NTGV and Brooks alleged in their pleadings that they provided their
services to Ogden Resources in connection with the drilling of the Stasny-Krog
Unit, Well #1 pursuant to the MSA. NTGV and Brooks further asserted that,
under the MSA, Ogden Resources had explicitly agreed to “defend, indemnify,
hold harmless, and release” NTGV and its subcontractors, including Brooks,
from all claims for damages relating to Ogden Resources’ property, including
damage to the Stasny-Krog Unit, Well #1. NTGV and Brooks accordingly
asserted as an affirmative defense that Ogden Resources had “expressly agreed
to defend, indemnify, hold harmless, and release [NTGV and Brooks] from and
against all claims brought by [Ogden Resources] and/or for any claims(s) [sic]
brought by any party whomsoever for any injury to [Ogden Resources],
including the damages it seeks herein.” Additionally, NTGV and Brooks
brought a counterclaim for breach of contract against Ogden Resources,
alleging that Ogden Resources breached the MSA by asserting claims against
them “for damages that fall squarely within the plain language of the MSA’s
defense, indemnity, release and hold harmless requirements.” Finally, NTGV
and Brooks sought declaratory relief as follows:
Ogden Res. Corp. v. Brooks Page 8 a. [A declaration t]hat the MSA is a valid and enforceable contract between [NTGV] and Ogden [Resources].
b. A declaration that Ogden [Resources] shall release [NTGV] from the Lawsuit pursuant to the MSA.
c. A declaration that Ogden [Resources] shall release Brooks from the Lawsuit pursuant to the MSA.
d. A declaration that Ogden [Resources] owes [NTGV] reimbursement of all costs and expenses, including reasonable attorney’s fees, incurred in defending the Lawsuit.
e. A declaration that Ogden [Resources] owes Brooks reimbursement of all costs and expenses, including reasonable attorney’s fees, incurred in defending the Lawsuit.
f. A declaration that Ogden owes [NTGV] all costs and expenses, including reasonable attorney’s fees, incurred in pursuing its claim for indemnity against Ogden [Resources].
NTGV and Brooks filed a motion for summary judgment and later
amended it. NTGV and Brooks moved for traditional summary judgment on
their affirmative defense of release and on their counterclaims for breach of
contract and declaratory judgment. On April 20, 2020, the trial court entered
an order denying NTGV’s and Brooks’s motion.
NTGV and Brooks thereafter filed a motion to reconsider their motion
for summary judgment. On October 26, 2021, the trial court granted NTGV’s
and Brooks’s motion for summary judgment. The order provides that it is
“ORDERED, ADJUDGED, AND DECREED that [NTGV]’s and Brooks’ Motion
Ogden Res. Corp. v. Brooks Page 9 for Summary Judgment is granted in its entirety.” The order further provides
that it is “ORDERED, ADJUDGED, AND DECREED that all claims and
causes of action by Plaintiff Ogden [Resources] against [NTGV] and Brooks are
hereby DISMISSED WITH PREJUDICE.”
Ogden Resources subsequently asked the trial court to reconsider its
ruling on the motion for summary judgment; the trial court declined. On July
24, 2023, after a bench trial, and after the trial court had corrected a minor
error in its initial May 8, 2023 judgment, 3 the trial court entered a final
judgment in which it awarded attorney’s fees of $767,129.00 and court costs
and expenses of $94,160.77 to NTGV and Brooks. In the judgment, the trial
court also granted the declaratory relief sought by NTGV and Brooks.
This appeal followed. In five issues, Ogden Resources challenges the
trial court’s granting of NTGV’s and Brooks’s motion for summary judgment.
Standard of Review
We review a trial court’s grant of summary judgment de novo. Fort
Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 837 (Tex. 2018);
ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018).
To prevail under the traditional summary-judgment standard, the
movant has the burden to establish that there is no genuine issue of material
3 After the trial court had signed its initial May 8, 2023 judgment, Ogden Resources had timely
filed motions extending the trial court’s plenary power. See TEX. R. CIV. P. 329b.
Ogden Res. Corp. v. Brooks Page 10 fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.
166a(c), 50 Tex. B.J. 857 (Tex. 1987, amended 2026) 4; ConocoPhillips Co., 547
S.W.3d at 865. Accordingly, for a trial court to grant a defendant’s traditional
motion for summary judgment on an affirmative defense, the defendant must
conclusively establish each element of the affirmative defense. Sci. Spectrum,
Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); see Draughon v. Johnson,
631 S.W.3d 81, 87–88 (Tex. 2021). Likewise, for a trial court to grant a
defendant’s traditional motion for summary judgment on a counterclaim, the
defendant must conclusively establish each element of that counterclaim.
Almance v. Shipley Bros., Inc., 247 S.W.3d 252, 255 (Tex. App.—El Paso 2007,
no pet.); Rabe v. Dillard’s, Inc., 214 S.W.3d 767, 768 (Tex. App.—Dallas 2007,
no pet.). The plaintiff has no burden to respond to a traditional motion for
summary judgment on a defendant’s affirmative defense or counterclaim
unless the defendant conclusively establishes the affirmative defense or
counterclaim. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d
22, 23 (Tex. 2000) (per curiam). In such cases, only if the defendant meets its
summary-judgment burden does the burden shift to the plaintiff to disprove or
4 The Texas Supreme Court recently amended Rule of Civil Procedure 166a. The amendments apply only to motions for summary judgment filed on or after March 1, 2026. See Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Tex. Feb. 27, 2026). Therefore, the amendments do not apply in this case. Then again, although the amendments resulted in the renumbering of the paragraphs of the rule, the “rewrite [wa]s not intended to substantively change the law,” other than the deadline changes. TEX. R. CIV. P. 166a cmt.
Ogden Res. Corp. v. Brooks Page 11 raise an issue of fact that would preclude the grant of summary judgment.
Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex.
2014).
To determine if a genuine issue of material fact exists, we review the
evidence in the light most favorable to the nonmovant, and we indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. KMS
Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019). We
credit favorable inferences to the nonmovant if reasonable jurors could do so,
and we disregard contrary evidence unless reasonable jurors could not.
Samson Expl., LLC v. T.S. Reed Props., Inc., 521 S.W.3d 766, 774 (Tex. 2017);
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). The evidence raises a genuine issue of material fact if reasonable
and fair-minded jurors could differ in their conclusions in light of all the
summary-judgment evidence presented. See Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
Discussion
In its first three issues, Ogden Resources contends that the trial court
erred in granting NTGV’s and Brooks’s motion for summary judgment because
NTGV and Brooks did not prove that “the MSA controlled the relationship
[between] the parties with respect to the drilling of the Stasny-Krog [Unit,
Ogden Res. Corp. v. Brooks Page 12 Well] #1.” We need address only issues one and two because they are
dispositive of this appeal. See TEX. R. APP. P. 47.1.
NTGV and Brooks argued in their motion for summary judgment that
NTGV was entitled to the protection of the MSA in two different capacities: (1)
as a successor to NTE and (2) as an affiliate of NTE. NTGV and Brooks claimed
that Brooks was then entitled to the protection of the MSA as NTGV’s
subcontractor.
To support their motion for summary judgment, NTGV and Brooks
attached the MSA itself as summary-judgment evidence. As stated above,
Paragraph 22(f) of the MSA provides: “Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.” Additionally, as stated
above, the MSA provides that it was “made and entered into” by and between
Ogden Resources, designated as “Company,” and NTE “on behalf of itself and
all its direct and indirect wholly-owned subsidiaries and affiliates (collectively
‘Contractor’).”
Accordingly, if NTGV was a “successor” or an “affiliate” of NTE under
the MSA, then NTGV was entitled to the benefits of the MSA. In its first and
second issues, however, Ogden Resources contends that NTGV and Brooks
Ogden Res. Corp. v. Brooks Page 13 presented no summary-judgment evidence that NTGV was a “successor” or an
“affiliate” of NTE under the MSA. 5
The interpretation of an unambiguous contract is a question of law for
the court. Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 7 (Tex.
2014). Neither the term “successor” nor the term “affiliate” is defined in the
MSA. Absent such definitions, we look to the plain, ordinary, and generally
accepted meaning of the terms unless the MSA shows that the parties used the
terms in a technical or different sense. See Murphy Expl. & Prod. Co.—USA
v. Adams, 560 S.W.3d 105, 108 (Tex. 2018).
The most recent edition of Black’s Law Dictionary states that a
“successor” is “[s]omeone who succeeds to the office, rights, responsibilities, or
place of another,” “one who replaces or follows a predecessor,” or “[a]
corporation that, through amalgamation, consolidation, or other assumption of
interests, is vested with the rights and duties of an earlier corporation.”
Successor, BLACK’S LAW DICTIONARY (12th ed. 2024).
5 In its second issue, Ogden Resources more precisely asserts that NTGV and Brooks presented
no summary-judgment evidence that NTGV was a “subsidiary or affiliate” of NTE. However, in their motion for summary judgment, NTGV and Brooks only raised the arguments that NTGV was entitled to the protection of the MSA in its capacities as a successor to NTE and as an affiliate of NTE. Therefore, we limit our analysis regarding Ogden Resources’ second issue to whether NTGV and Brooks conclusively established that NTGV was an “affiliate” of NTE under the MSA. See Lee v. Lee, 43 S.W.3d 636, 640 (Tex. App.—Fort Worth 2001, no pet.) (citing Stiles v. Resol. Tr. Corp., 867 S.W.2d 24, 26 (Tex. 1993)) (“This court can affirm a summary judgment only upon the grounds raised in the motion for summary judgment.”); see also TEX. R. CIV. P. 166a(c), 50 Tex. B.J. 857 (Tex. 1987, amended 2026).
Ogden Res. Corp. v. Brooks Page 14 The Business Organizations Code defines “affiliate” as “a person who
controls, is controlled by, or is under common control with another person.”
TEX. BUS. ORGS. CODE ANN. § 1.002(1). A “person” is defined in the Business
Organizations Code as “an individual or a corporation, partnership, limited
liability company, business trust, trust, association, or other organization,
estate, government or government subdivision or agency, or other legal entity,
or a protected series or registered series of a domestic limited liability company
or foreign entity.” Id. § 1.002(69-b) (emphasis added). The most recent edition
of Black’s Law Dictionary contains a similar definition of “affiliate”: “[a]
corporation that is related to another corporation by shareholdings or other
means of control; a subsidiary, parent, or sibling corporation.” Affiliate,
BLACK’S LAW DICTIONARY (12th ed. 2024).
In addition to the MSA itself, NTGV and Brooks provided Cress’s
affidavit as summary-judgment evidence. In his affidavit, Cress stated:
1. “My name is Larry Cress. I am of sound mind, capable of making this affidavit and personally acquainted with the facts herein stated. Everything in this affidavit is true and correct.
2. I am President and Chief Executive Officer of New Tech Engineering, LP (“NTE”) and New Tech Global Ventures, LLC (“NTGV”). NTGV is a successor company to NTE that was created in 2009.
3. All work performed for Ogden by NTE and subsequently NTGV was done pursuant to a Master Service Agreement (the “MSA”). A true and correct copy of the MSA is
Ogden Res. Corp. v. Brooks Page 15 attached hereto and incorporated as Exhibit A. I executed the MSA on behalf of NTE.
4. The MSA was binding on and benefited all NTE successors and assigns, including NTGV, and states that “[t]his Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.”
5. The MSA has never been terminated by either NTE, NTGV or Ogden and there has never been another MSA executed between NTE, NTGV and Ogden.
6. Pursuant to the MSA, Ogden requested NTGV to provide it with consulting engineering and project management services as well as providing wellsite supervision services through independent consultants, Tracy Lisman and John Brooks, during the drilling of one of Ogden’s wells, the Stasny-Krog Unit, Well #1.
Ogden Resources argues that the only statement in Cress’s affidavit that
supports that NTGV had some relationship with the MSA is Cress’s assertion
that NTGV is one of NTE’s “successors” or is a “successor company” to NTE.
Ogden Resources further contends that Cress’s statement is conclusory and
was therefore insufficient to establish that NTGV was a “successor” or
“affiliate” of NTE under the MSA. We agree.
“A summary judgment may be based on uncontroverted testimonial
evidence of an interested witness . . . if the evidence is clear, positive and direct,
otherwise credible and free from contradictions and inconsistencies, and could
have been readily controverted.” TEX. R. CIV. P. 166a(c), 50 Tex. B.J. 857 (Tex.
1987, amended 2026). Conclusory statements in affidavits are not sufficient to
Ogden Res. Corp. v. Brooks Page 16 support a summary judgment because they are not credible or susceptible to
being readily controverted. See Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122
(Tex. 1996) (per curiam); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991)
(per curiam). A conclusory statement is one that does not provide the
underlying facts to support the conclusion. Choctaw Props., L.L.C. v. Aledo
I.S.D., 127 S.W.3d 235, 242 (Tex. App.—Waco 2003, no pet.).
Here, in his affidavit, Cress labeled NTGV as NTE’s successor—an
identical term to that used by the parties in the MSA. But, as stated above,
the MSA does not define the term “successor.” Nor did Cress provide a
definition of the word in his affidavit. Moreover, in his affidavit, Cress
provided no underlying facts—facts that could have been readily
controverted—from which one could determine what he meant in using the
word “successor” in his affidavit. Accordingly, we conclude that Cress’s
assertion in his affidavit that NTGV is one of NTE’s “successors” or is a
“successor company” to NTE is conclusory. See id. Cress’s statement was
therefore insufficient to conclusively establish that NTGV was a “successor” or
an “affiliate” of NTE under the MSA. See Ryland Grp., Inc., 924 S.W.2d at 122;
Anderson, 808 S.W.2d at 55; see also TEX. R. CIV. P. 166a(c), 50 Tex. B.J. 857
(Tex. 1987, amended 2026).
NTGV and Brooks nevertheless contend in their brief that Cress’s
statement is not conclusory because “[a] witness’s personal knowledge may
Ogden Res. Corp. v. Brooks Page 17 itself provide the necessary factual support to ensure that her statements in
an affidavit are not conclusory.” NTGV and Brooks point out that Cress stated
in his affidavit that he executed the MSA on behalf of NTE and that he is the
president and CEO of both NTGV and NTE. NTGV and Brooks then argue
that “[i]f anyone would know whether NTGV is NTE’s successor, it would be
NTGV’s and NTE’s president and CEO.” NTGV and Brooks contend that
Cress’s assertion that NTGV is NTE’s successor was therefore simply a
statement of fact.
We, however, disagree and believe the cases on which NTGV and Brooks
rely to support their argument are distinguishable from the present case. For
instance, NTGV and Brooks cite Alicea v. Curie Building, L.L.C., 632 S.W.3d
142 (Tex. App.—El Paso 2021, no pet.). In Alicea, the summary-judgment
evidence included the affidavit of an accountant who had assisted various
entities involved in a business transaction. Id. at 147. In his affidavit, the
accountant labeled the business transaction as a reorganization rather than a
sale. Id. The appellant complained that such a characterization by the
accountant was conclusory. Id. at 149. But the Alicea court disagreed. See id.
at 149–50. The Alicea court noted that, in his affidavit, the accountant had
provided “an extensive discussion of facts explaining the steps of the
[t]ransaction.” Id. at 149. The Alicea court further discussed that the
accountant had provided his definition of the term “reorganization.” Id. The
Ogden Res. Corp. v. Brooks Page 18 Alicea court was therefore able to analyze how close the accountant’s definition
of the term was to the plain, ordinary, and generally accepted meaning of the
term. See id. at 149–50. Conversely, in the present case, Cress provided no
definition or underlying facts to show what he meant when he used the word
“successor” in his affidavit.
NTGV and Brooks also cite La China v. Woodlands Operating Co., 417
S.W.3d 516 (Tex. App.—Houston [14th Dist.] 2013, no pet.), to support their
argument that Cress’s statement is not conclusory. In La China, the summary-
judgment evidence included the affidavit of the vice president/general counsel
of one of the original defendants in the suit. Id. at 519. In her affidavit, the
vice president/general counsel stated that the original defendants were not the
owners, lessors, lessees, or managers of the waterpark where the plaintiff was
injured, nor the employers of anyone working there. Id. The
plaintiff/appellant argued that the vice president/general counsel’s affidavit
was conclusory. Id. at 519–20. But the La China court determined that the
statements in the affidavit were not conclusory. Id. at 520. The La China
court reasoned that the statements in the affidavit furnished some factual
information that could have been rebutted and, therefore, that they contained
enough underlying facts to support the award of summary judgment. Id. The
La China court further noted that ownership of the waterpark was not a
contested issue in the case. Id. at 521. The original defendants were showing
Ogden Res. Corp. v. Brooks Page 19 that they did not own, lease, or manage the waterpark, or employ anyone
working at the waterpark, to prove that they did not owe a duty to the plaintiff.
Id.
In the present case, however, to be entitled to summary judgment based
on their motion, NTGV and Brooks needed to establish NTGV’s entitlement to
the protection of the MSA by establishing that NTGV was a “successor” or an
“affiliate” of NTE within the meaning of the MSA. NTGV and Brooks did not
attempt to do so by furnishing any factual information that could have been
rebutted. Rather, NTGV and Brooks provided Cress’s bald statement in his
affidavit labelling NTGV as NTE’s successor. As explained above, Cress’s
statement is therefore conclusory. See Choctaw Props., L.L.C., 127 S.W.3d at
242.
Lastly, we will discuss Ortega v. CACH, LLC, 396 S.W.3d 622 (Tex.
App.—Houston [14th Dist.] 2013, no pet.), which NTGV and Brooks also cite
to support their argument that Cress’s statement is not conclusory. In Ortega,
a bank officer asserted in her affidavit that the defendant’s account had been
“sold, transferred and set over” to the plaintiff on a certain date. Id. at 627–
28. The defendant/appellant argued that the bank officer’s affidavit was
conclusory. Id. at 627. The Ortega court determined, however, that the bank
officer’s statement in her affidavit was not conclusory. Id at 628. The Ortega
court reasoned that the bank officer could testify to her personal knowledge of
Ogden Res. Corp. v. Brooks Page 20 the fact that the account had been transferred to the plaintiff even though she
did not provide any supporting documentary evidence of the transfer. Id.
In the present case, however, our concern with Cress’s statement is not
that there is no documentary evidence to support it. Rather, as discussed
above, Cress’s statement is conclusory because it was not supported by any
underlying facts from which one could determine what Cress meant in using
the word “successor.” See Choctaw Props., L.L.C., 127 S.W.3d at 242.
Accordingly, as explained above, Cress’s statement was insufficient to
conclusively establish that NTGV was a “successor” or an “affiliate” of NTE
under the MSA. See Ryland Grp., Inc., 924 S.W.2d at 122; Anderson, 808
S.W.2d at 55; see also TEX. R. CIV. P. 166a(c), 50 Tex. B.J. 857 (Tex. 1987,
amended 2026).
NTGV and Brooks additionally contend in their brief that even if Cress’s
statement that NTGV is NTE’s successor is conclusory and, therefore,
insufficient to support the trial court’s granting of summary judgment, Cress’s
other statements in his affidavit—that he signed the MSA as the president of
NTE, that NTE is still in existence, and that Cress is the president and CEO
of both NTE and NTGV—along with Ogden Resources’ own summary-
judgment evidence, conclusively established that NTGV was NTE’s “affiliate”
under the MSA. But NTGV and Brooks acknowledge in their brief that the
deposition testimony presented by Ogden Resources was, in fact, offered into
Ogden Res. Corp. v. Brooks Page 21 the record after the trial court had already granted summary judgment in
NTGV’s and Brooks’s favor. Furthermore, as explained below, Cress’s other
statements in his affidavit were insufficient to conclusively establish that
NTGV was NTE’s “affiliate” under the MSA. See TEX. R. CIV. P. 166a(c), 50
Tex. B.J. 857 (Tex. 1987, amended 2026).
Citing Eckland Consultants, Inc. v. Ryder, Stilwell Inc., 176 S.W.3d 80
(Tex. App.—Houston [1st Dist.] 2004, no pet.), NTGV and Brooks argue in their
brief that “two or more entities are affiliates simply as long as they are ‘related’
to each other as part of the same family of companies.” But Eckland
Consultants, in fact, defines the term “affiliate” similarly to how we have
above. See id. at 88. The Eckland Consultants court specifically stated:
[“Affiliate”] is generally defined as a “corporation that is related to another corporation by shareholdings or other means of control,” BLACK’S LAW DICTIONARY 59 (7th ed. 1999), and as a “company effectively controlled by another or associated with others under common ownership or control.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 35 (1971).
Eckland Consultants, Inc., 176 S.W.3d at 88.
Here, we believe that Cress’s very limited statements in his affidavit
about the relationship between NTE and NTGV were insufficient to
conclusively establish that the companies were related by common ownership
or control. Accordingly, Cress’s statements were insufficient to conclusively
establish that NTGV was NTE’s “affiliate” under the MSA. See id.; see also
Ogden Res. Corp. v. Brooks Page 22 TEX. BUS. ORGS. CODE ANN. § 1.002(1), (69-b); Affiliate, BLACK’S LAW
DICTIONARY (12th ed. 2024).
In light of the foregoing, we conclude that NTGV and Brooks did not
establish their entitlement to summary judgment on their motion. See TEX. R.
CIV. P. 166a(c), 50 Tex. B.J. 857 (Tex. 1987, amended 2026). We sustain Ogden
Resources’ first and second issues. 6 And having sustained its first and second
issues, we need not reach Ogden Resources’ third, fourth, and fifth issues. See
TEX. R. APP. P. 47.1.
Conclusion
In light of the foregoing, we reverse the trial court’s judgment and
remand this case to the trial court for further proceedings consistent with this
opinion.
MATT JOHNSON Chief Justice
OPINION DELIVERED and FILED: April 2, 2026 Before Chief Justice Johnson, Senior Justice Davis, 7 and Senior Justice Gabriel 8
6 We need not reach Ogden Resources’ argument in its second issue that NTGV must have
been a wholly-owned subsidiary or affiliate of NTE when the MSA was signed.
7 The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Texas.
8 The Honorable Lee Gabriel, Senior Justice (Retired) of the Second Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Texas.
Ogden Res. Corp. v. Brooks Page 23 Reversed and remanded CV06
Ogden Res. Corp. v. Brooks Page 24