Dorothea Levine, Individually and as Personal Representative of the Estate of Sol Levine v. El Paso Production Oil & Gas Company

Opinion

MEMORANDUM OPINION No. 04-10-00659-CV

Dorothea LEVINE, Individually and As Personal Representative of the Estate of Sol Levine, Deceased, Appellant

v.

EL PASO PRODUCTION OIL & GAS COMPANY, El Paso Production Oil & Gas USA, L.P., and ConocoPhillips, Appellees

From the 49th Judicial District Court, Zapata County, Texas Trial Court No. 5,357 Honorable Jose A. Lopez, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice

Delivered and Filed: May 25, 2011

AFFIRMED

This is an appeal from the trial court’s order denying appellants’ motion for partial

summary judgment and granting appellees’ motion for summary judgment. We affirm.

BACKGROUND

In mid-1970, Colorado Oil and Gas Corp. (“Colorado”), Flying Diamond Oil Corp.

(“FDOC”), Gifford E. Joseph, and W.C. DeArman decided to explore for oil and gas in Zapata 04-10-00659-CV

County, Texas. Consequently, Colorado executed an oil and gas lease (“the Dye lease”) with

James D. Dye on 850.72 acres located in Zapata County. Colorado conveyed twenty-five

percent of its interest in the Dye lease to FDOC, and twelve and one-half percent of its interest in

the Dye lease each to Joseph and DeArman. Pursuant to a joint venture agreement, Colorado,

FDOC, Joseph, and DeArman were required to contribute their interest in the Dye lease to the

joint venture in exchange for a corresponding interest in the joint venture. However, it is

undisputed that no writing evidences FDOC’s conveyance of its interest in the Dye lease to the

joint venture. The joint venture agreement stated that the parties believed certain land subject to

the agreement was “prospective for oil and/or gas and that an exploratory well should be drilled

thereon to evaluate the possibility of producing oil and/or gas therefrom in commercial

quantities, which prospective area shall be hereinafter referred to as “‘The Prospect[.]’”

[Emphasis added.]

According to the Levines, because FDOC needed capital for its contribution to the

expenses of the joint venture, FDOC formed a limited partnership, known as the Flying Diamond

Oil Corporation – 1975 Western Drilling Program (“FDLP”), with FDOC as general partner.

FDOC executed an assignment to FDLP of various “rights and interest[s] earned or to be earned”

in, among other “rights and interests,” the following:

Dye-Laredo Prospect Zapata County, Texas

By virtue of that certain Joint Venture Agreement . . . between [Colorado, FDOC, Joseph, and DeArman], for the drilling of a well to an approximate depth of 8500´, Wilcox test, [FDOC] earns 50% working interest before payout and 25% working interest thereafter in an 850.72 acre, more or less, lease situated in the La Perla Subdivision of the Jose Vasquez Borrego Grant, Abstract No. 209, Zapata County, Texas.

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The record does not contain a signed copy of the limited partnership agreement or

indicate FDOC’s conveyance to FDLP was recorded. FDLP had several limited partners,

including Sol Levine, all of whom contributed various amounts of cash in return for “profits”

from wells “on each of the prospects owned by” FDLP. The Levines point to a certificate of

limited partnership as proof of the existence of the partnership. The certificate specifically

provides as follows: “A Limited Partner shall not have the right to demand and receive property

other than cash in return for his contribution.”

In 1982, FDOC executed an “Assignment of Mineral Lease” in which it assigned its

“right, title, and interest” in the Dye lease to Bow Valley Petroleum, Inc. (“Bow Valley”). In

1986, Bow Valley, acting as successor-in-interest to FDOC and as the general partner of FDLP,

executed and recorded an “Agreement, Assignment, and Dissolution” (the “Dissolution

Instrument”). The Dissolution Instrument terminated and dissolved FDLP and provided for

distribution of assets to the general partner and the limited partners. Pursuant to this instrument,

Sol and Dorothea Levine received working interests in four wells on the Dye lease, 1 in addition

to wells located on other leases. Over the years, through a series of name changes, mergers, and

assignments, Bow Valley’s interest in the Dye lease was ultimately conveyed into Coastal Oil &

Gas Corp. Coastal Oil & Gas Corp. later conveyed its interest to ConocoPhilips.

The Levines later sued El Paso Production Oil & Gas Co. (f/k/a Coastal Oil & Gas

Corp.), El Paso Production Oil & Gas USA, L.P. (f/k/a Coastal Oil & Gas USA, L.P.), and

ConocoPhillips (collectively, “the defendants”). In their second amended petition, the Levines

(1) requested a declaratory judgment on their rights, status, and interest in the Dye lease; (2)

asserted a trespass to try title claim against ConocoPhillips as the party in possession of the

mineral interest at issue in the suit; (3) requested an accounting and audit; (4) asserted a cause of 1 These four wells are not at issue in this appeal.

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action under the Texas Natural Resources Code for nonpayment of proceeds regarding wells

producing on the Dye lease; (5) asserted a breach of contract claim against all defendants; and

(6) asserted a conversion claim against all defendants. All of the Levines’ claims are premised

on their argument that they are entitled to twenty-five percent of the oil, gas, and other minerals

produced under the Dye lease, together with all revenue and proceeds attributable to the sales of

that production, from the date of the alleged wrongful possession commencing on June 12, 1996

(the date of the purported assignment to Coastal Oil & Gas Corp.).

The Levines filed a motion for partial summary judgment on the issue of liability only in

which they asked the trial court to construe various documents and then judicially declare the

extent and size of their mineral interests. All of the defendants jointly responded to the Levines’

motion for a partial summary judgment, and jointly filed a separate cross-motion for a traditional

and no-evidence summary judgment. While these motions were pending, the defendants jointly

filed a first amended motion for a traditional and no-evidence summary judgment, in which they

incorporated all arguments made in their original cross-motion and in their response to the

Levines’ motion for summary judgment. The trial court signed an order denying the Levines’

motion for a partial summary judgment, granting the defendants’ first amended motion for a

traditional and no-evidence summary judgment, and rendering a take-nothing judgment against

the Levines. The trial court did not state its basis for granting the defendants’ motion. This

appeal by the Levines ensued, in which the Levines raise one procedural challenge and four

substantive challenges to the summary judgment in favor of the defendants.

SPECIAL EXCEPTIONS

After the defendants filed their first amended motion for a traditional and no-evidence

summary judgment, the Levines filed special exceptions arguing the motion was “not

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categorically premised on either no evidence or traditional grounds,” the defendants did not

identify the elements of the Levines’ causes of action for which there was no evidence, and the

defendants did not state on which affirmative defenses they sought a traditional summary

judgment. The Levines also excepted to the defendants’ request to incorporate all the grounds

contained in their original motion for summary judgment and their response to the Levines’

motion for partial summary judgment into their amended motion. On appeal, the Levines

contend this court should reverse the trial court’s order denying their special exceptions and

require the defendants to clearly explain their entitlement to summary judgment on either

traditional or no-evidence grounds.

Texas Rule of Civil Procedure 166a does not prohibit a party from combining in a single

motion a request for traditional summary judgment with a request for a no-evidence summary

judgment. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004). Here, the defendants’ request for

a no-evidence summary judgment is contained in a section separate from the defendants’

arguments in favor of their request for a traditional summary judgment. Therefore, their first

amended motion for a traditional and no-evidence summary judgment motion was not improper.

However, Rule 166a requires a party moving for a no-evidence summary judgment to state the

essential elements of a claim or defense on which an adverse party would have the burden of

proof at trial as to which there is no evidence. TEX. R. CIV. P. 166a(i). We agree with the

Levines that the defendants’ no-evidence motion failed to state the specific elements of the

Levines’ causes of action as to which there is no evidence. Consequently, the no-evidence

motion was not sufficiently specific to meet the requirements of Rule 166a(i). Therefore, the

following discussion focuses on only whether the traditional motion for summary judgment was

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properly granted in favor of the defendants and whether the trial court properly denied the

Levines’ motion for partial summary judgment. 2

DEFENDANTS’ TRADITIONAL MOTION FOR SUMMARY JUDGMENT AND THE LEVINES’ MOTION FOR PARTIAL SUMMARY JUDGMENT

In their motion for a partial summary judgment, the Levines asserted, among other

grounds, that (1) the joint venture agreement established FDOC’s mineral interest, (2) the limited

partnership agreement established the mineral ownership of both themselves and FDLP, and (3)

the Dissolution Instrument proved that FDLP and its limited partners continue to own

undistributed mineral interests in the Dye Lease. In their amended motion for a traditional

summary judgment, the defendants argued that the summary judgment evidence established an

unbroken chain of title to the twenty-five percent undivided interest in the Dye lease conveyed

by Colorado Oil & Gas Corp. (the original lessee) to FDOC, and this chain of title continued,

unbroken, through to the conveyance into ConocoPhillips. The defendants also argued that, in

this chain of title, there is no conveyance of any undivided interest in the Dye lease to FDLP or

the Levines, and both of these missing conveyances were essential elements in order for the

Levines to prove their claimed title to an interest in the entire Dye lease.

On appeal, the Levines do not raise a broad Malooly challenge that the trial court erred in

granting the defendants’ motion for summary judgment. Malooly Bros., Inc. v. Napier, 461

S.W.2d 119, 121 (Tex. 1970) (holding that a general issue on appeal that the “trial court erred in

granting the motion for summary judgment” allows the nonmovant to dispute on appeal all

possible grounds upon which summary judgment should have been denied). Instead, in addition

2 Our discussion of the Levines’ challenge to the traditional summary judgment focuses only on those grounds specifically stated in the defendants’ amended motion. Our disposition of these challenges does not require us to review the Levines’ complaint regarding the defendants’ request to incorporate all the grounds contained in their original motion for summary judgment and their response to the Levines’ motion for partial summary judgment into their amended motion.

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to the procedural challenge discussed above, the Levines challenged the summary judgment on

four specific substantive grounds: (1) the trial court erred by granting the defendants’ motion

based on El Paso’s status as a bona fide purchaser for value; (2) the trial court ignored the

Dissolution Instrument, which was in the defendants’ chain of title and, thus, gave notice of the

Levines’ competing title claim; (3) a title opinion prepared for Coastal raised a fact issue on the

defendants’ actual knowledge of the Levines’ claim; and (4) a 1982 Stipulation of Settlement and

General Release did not foreclose the underlying litigation arising under the Dissolution

Instrument. However, these challenges do not address all possible grounds upon which the

defendants moved for a traditional summary judgment.

When the nonmovant fails to raise on appeal a general Malooly point of error contending

the trial court erred in granting summary judgment and also fails to specifically challenge every

ground raised in the motion for summary judgment, the summary judgment must be affirmed.

Gamboa v. Shaw, 956 S.W.2d 662, 665-66 (Tex. App.—San Antonio 1997, no pet.) (citing

Malooly Bros., 461 S.W.2d at 121). Here, the Levines did not challenge all of the grounds on

which the defendants sought a traditional summary judgment. For example, the defendants

alleged, and the Levines do not challenge on appeal, that all the documents on which the Levines

base their claim of interest in the Dye lease do not convey any interest in the Dye lease for the

following reasons: (1) the purported FDLP limited partnership agreement is not signed, (2) none

of the instruments contain any words of present conveyance purporting to convey an interest in

the Dye lease to either FDLP or the Levines, (3) none of the instruments contain a legally

sufficient description of the Dye lease, and (4) no oral or written conveyance of an interest in the

entire Dye lease is valid under the Statute of Conveyances. The defendants also alleged, and the

Levines do not challenge on appeal, that any claim for cancellation or reformation of an

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instrument and any claim for reexamination of the accounts or distribution of FDLP is barred by

a four-year statute of limitations.

CONCLUSION

Because the trial court could have rendered summary judgment in favor of the defendants

on these, and other, unchallenged grounds, we do not review the merits of the Levines’

challenged grounds and we affirm the take-nothing summary judgment in favor of the

defendants. Also, because these unchallenged grounds would defeat the Levines’ claims, we

affirm the trial court’s denial of the Levines’ motion for partial summary judgment.

Sandee Bryan Marion, Justice

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