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Continental Expl., LLC v. Banner Well Service, LLC

Court of Appeals of Texas, Seventh District, Amarillo

January 21, 2014

CONTINENTAL EXPL., LLC, APPELLANT
v.
BANNER WELL SERVICE, LLC, APPELLEE

On Appeal from the 110th District Court Floyd County, Texas Trial Court No. 10, 138, Honorable William P. Smith, Presiding.

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

JAMES T. CAMPBELL, Justice.

Appellee Banner Well Service, LLC, sued appellant Continental Exploration, LLC, for charges for repairs to Continental's Adams No. 1 well in Floyd County. After a bench trial, judgment was for Banner. We will affirm the judgment of the trial court.

Background

Russell Henzler was a pumper hired as an independent contractor by Continental principal Doug Harrington to pump the Adams No. 1, a 7200-foot oil well. The duties of a pumper, according to Henzler, are "gauging tanks, selling oil, packing wells . . . normal maintenance."[1]

When the Adams No. 1 stopped producing in January 2009, Henzler reported the problem to Harrington. Harrington authorized Henzler to hire a work-over rig to pull the down-hole pump at an estimated cost of some $2, 500 to $3, 000. Harrington directed Henzler to be present for the work and to obtain a signed work ticket. If other issues arose, Henzler understood he was to contact Harrington for additional authority. Henzler retained Banner for the work.

On Monday, February 2, Henzler reported to Harrington by telephone that the pump was stuck and could not be removed from the well, meaning that the tubing and rods would have to be removed, or "stripped, " from the well. Based on his conversations with Henzler and others, Harrington expected the job to take two days and cost about $5, 000. Henzler was instructed to remain on site and report any problems to Harrington.

Two days later, on Wednesday February 4, Henzler called Harrington to report that Banner's work-over rig was broken. According to Henzler, after completion of the work he had another brief telephone conversation with Harrington, letting him know the work was complete and the well was pumping. Harrington was not told that Banner's work on the well had continued until February 11, at a total cost to Continental of $17, 877.49.

On receiving the bill from Banner, Harrington contacted Henzler about the additional charges. Henzler had no explanation. Continental paid Banner $5, 000, leaving the claimed balance in dispute. Banner filed suit seeking recovery on a sworn account or in quantum meruit.

Trial was to the bench with judgment for Banner in the principal sum of $12, 877.49. At Continental's request, the trial court made findings of fact and conclusions of law. It found, among other things, that "several" times between February 2 and February 11, Henzler as agent for Continental ordered goods and services from Banner in connection with the maintenance and repair of the well. It further found the reasonable value of the goods and services was $17, 877.49. The court also found that at all material times, Henzler as agent for Continental acted within the scope of authority implied by "industry custom."

Analysis

Through its first issue, Continental asserts the evidence is legally and factually insufficient to sustain a finding of Henzler's actual or apparent authority to bind Continental for the payment of the excess repair charges over the $5, 000 Continental paid.

In deciding a no-evidence challenge we determine whether there is evidence that would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Accordingly we must: (1) credit all favorable evidence that reasonable jurors could believe; (2) disregard all contrary evidence except that which they could not ignore; (3) view the evidence in the light ...


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