Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 3 of Nueces County,
Chief Justice Contreras and Justices Longoria and Hinojosa
L. LONGORIA Justice
Michael Gilmore sued appellant Accurate Valve Services, Inc.
("Accurate Valve") and multiple other defendants
for injuries sustained in a workplace injury. On the day the
trial was to begin, Gilmore nonsuited Accurate. After the
jury returned a verdict finding Accurate partially liable as
a responsible third party, Accurate filed a motion for
sanctions against Gilmore. The trial court denied the motion.
On appeal, Accurate claims that the trial court erred in
denying its motion for sanctions. We affirm.
underlying facts are undisputed. In 2011, Gilmore was injured
while working at an oil drilling site controlled by Unit
Texas Drilling, LLC ("Unit"). Unit contracted
Gilmore's employer, Accurate Valve, to replace seals on
the door of the blow out preventer. Employees on site had
Gilmore stand on a wooden pallet that was raised in the air
by a forklift to perform his duties. While Gilmore was
standing on the forklift, the forklift operator went in
reverse and severed a cable wire on the ground, causing an
industrial-sized metal pulley to fall and crush Gilmore's
right hand. Gilmore sued Accurate Valve and Unit.
Valve filed a no-evidence motion for summary judgment, which
the trial court denied. During the discovery period, Gilmore
filed an affidavit, stating:
In addition, there is a tool called "lifting eyes"
that would have allowed me to make the same repairs without
having to be elevated at all. I have personally used this
tool in the past and have seen many other companies using it
at drilling sites. Had Accurate Valve Service, Inc. provided
me with this tool, I could have done all my work from the
ground, I would not have needed a forklift, and my injury
would not have occurred.
March of 2017, on the morning of trial, Gilmore agreed to
non-suit Accurate Valve. Accordingly, Accurate Valve was
dismissed from and did not participate in the trial. However,
Unit Texas named Accurate Valve as a responsible third party.
During the first day of trial, Unit's counsel
cross-examined Gilmore as follows:
[Counsel for Unit]: And then you go on to say here, had they
done so, I would not have made use of a forklift and my
injury would not have occurred, we looked at that. In
addition, there is a tool called lifting eyes that would have
allowed me to make the same repairs without having to be
elevated at all, correct? Do you see where I'm reading?
[Gilmore]: I see.
[Counsel]: And, sir, the truth is you actually had those
lifting eyes in your truck, correct?
[Gilmore]: Yes, ma'am.
. . .
[Counsel]: Sir, can we agree that you had lifting eyes in
[Counsel]: It was your decision not to use them?
[Gilmore]: I used the lifting eyes.
[Counsel]: But here-and you may have used it at other times,
but what you're saying here is-these are my words, you
are blaming them for this accident based on your words, your
sworn affidavit, because they didn't give you a lifting
[Gilmore]: Yes, ma'am.
[Counsel]: And you recall that we asked you this question in
your deposition, and your testimony was-and this is the last
point we're gonna make here, is that you have lifting
eyes and you have other equipment that's able [sic] for
your use. Let me see if I can flip back here. You have