The Honorable Steve Ogden
The Waco Court of Appeals has reversed a trial court summary judgment against an oil and gas company owned by former State Senator Steve Ogden in a dispute over whether a master service agreement’s indemnification provision applied to services provided by an engineering and consulting firm that was not a signatory to the agreement.
Ogden Resources Corporation v. John Brooks and New Tech Global Ventures, LLC (No. 10-23-00223-CV; April 2, 2026) arose from a dispute between an operator and an engineering and consulting services firm and its onsite consultant. Ogden and several investors owned the Stasny-Krog Unit, Well #1 in Brazos County, of which Ogden was the operator under a joint operating agreement with the investors. Ogden engaged Knight Oil Tools to supply tubing and other equipment to be used in drilling the well, as well as NTGV to provide engineering and consulting services. NTGV also provided a “company man” (Brooks) during the drilling of the unit, who acted as the owner’s representative.
Ogden and NTGV entered into a master services agreement (MSA), which, among other provisions, included an indemnification clause. This clause obligated Ogden to “defend, indemnify, hold harmless, and release” a contractor “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 attorney’s fees) brought or asserted against [a contractor] by any party whomsoever arising out of or related to this agreement and resulting from any claim of loss, damage, injury, illness or death … 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 [a contractor or third party] or (2) a defect in the property or equipment of either party provided by or on behalf of either party,” including pre-existing defects. The MSA further included a similar provision obligating contractors to indemnify Ogden.
After drilling commenced, however, something bad happened, leading Ogden to sue Knight, NTGV, and Brooks for causing downhole damages that wrecked the well. Eventually, Ogden nonsuited Knight Oil. The remaining defendants responded with a general denial and asserted the affirmative defense of release. They also counterclaimed for breach of contract and declaratory relief. Defendants moved for summary judgment. After initially denying the motion, the trial court granted it and awarded attorney’s fees of $767,129 and court costs of $94,160.77 to Defendants. Ogden appealed.
In an opinion by Chief Justice Johnson, the court of appeals reversed and remanded. Ogden argued that the trial court erred in granting summary judgment because Defendants “did not prove that ‘the MSA controlled the relationship [between] the parties with respect to the drilling of the [well].” Defendants countered that the MSA protected NTGV as a successor to New Tech Engineering, which executed the MSA, and as an affiliate of NTE. Brooks claimed the protection of the MSA as NTGV’s subcontractor. Ogden responded that NTGV had presented no summary judgment evidence that NTGV was a “successor” or an “affiliate” of NTE.
Since the MSA did not define either term, the court looked to the plain, ordinary, and generally accepted meaning of the terms. NTGV and Brooks offered the affidavit of Cress, NTE’s and NTGV’s president and CEO. He averred that NTGV’s work on the well was performed under the MSA, the MSA was binding on NTGV, the MSA had never been terminated, and Ogden requested NTGV to provide services on the well. Ogden pointed out that Cress’s affidavit merely conclusorily asserted that NTGV was NTE’s successor without any proof. The court agreed with Ogden, finding that, “Conclusory statements in affidavits are not sufficent to support a summary judgment because they are not credible or susceptible to being readily controverted” (citations omitted). In the absence of underlying facts that could be readily controverted, Cress’s affidavit did not constitute summary judgment evidence.
Defendants argued that Cress’s “personal knowledge” should overcome that problem and that his statements should be accepted as factual. But, as the court pointed out, Cress provided no definition of “successor” or “underlying facts to show what he meant when he used the word ‘successor’ in his affidavit.” That was fatal in this case because Defendants “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.” Cress further didn’t provide any evidence that NTGV and NTE were related by “common ownership or control,” and the fact that Cress was CEO of both companies didn’t establish that. The court thus reversed the trial court’s summary judgment order and remanded for further proceedings.
