IN THE TENTH COURT OF APPEALS
No. 10-23-00348-CV
MARTIN L. RILEY, JR. AND JUDITH ANN RILEY, Appellants v.
VESS OIL CORPORATION, W. GLENN BARRETT, AND BRIAN D. BARRETT, Appellees
From the 85th District Court Brazos County, Texas Trial Court No. 19-002727-CV-85
MEMORANDUM OPINION
Martin L. Riley, Jr. and Judith Ann Riley appeal from an adverse judgment in their
declaratory judgment action originally filed against Vess Oil Corporation. Vess interpled
third-party defendants W. Glenn Barrett and Brian Barrett. Appellants raise two issues
on appeal regarding the trial court’s application of the law. We affirm. BACKGROUND
In 1995, Appellants conveyed a mineral interest in certain property to the Barretts.
The conveyance contained the following limitation: “This conveyance is limited in depth
to the unitized interval referred to as the Woodbine formation in that certain Unit
Agreement dated October 10, 1983, recorded in Volume 686, page 326, Deed Records,
Brazos County, Texas.” Article 1 of the Unit Agreement included the following
definition:
1.2 Unitized Formation is the subsurface portion of the Unit Area commonly known as the Woodbine Formation and identified as that correlative zone found between the electric log depths of 8133 feet to 8788 feet in the Gulf Oil Corporation – Jones Enhanced Recovery Unit Well No. 1, . . . located in H. Cartmell Survey Abstract 87, Brazos County, Texas.
Appellants filed a petition for declaratory judgment in 2019 naming Vess Oil
Corporation as defendant. They alleged that Vess is drilling the Woodbine Formation to
a depth of 9600 feet, but Appellants have not been compensated for the production under
the 8788-foot depth. They requested a declaratory judgment that all mineral interest
described in the 1995 conveyance below the depth of 8788 feet below the surface as set
forth in the Unit Agreement was retained by Appellants. They also requested attorney’s
fees.
Vess, successor lessee under the oil and gas lease covering the minerals in the
property subject to the documents referred to above, filed a counterclaim and petition for
third-party interpleader, naming the Barretts as third-party defendants. Vess suspended Riley v. Vess Oil Corp. Page 2 royalty payments attributed to the lease for wells drilled in the unitized interval. Vess
asked the court to interplead those funds, adjudicate claims to the funds, discharge Vess
from all liability, and award attorneys’ fees to Vess.
On March 3, 2021, the court rendered an “agreed order” awarding Vess its
attorney’s fees and requiring it to deposit the remaining balance of the suspended funds
into the court’s registry. Further, the court ordered that Vess is “discharged” from this
suit and the Barretts are now identified as the defendants.
The Barretts denied Appellants’ allegations and filed a counterclaim requesting a
declaratory judgment declaring that they are entitled to all of the royalty payments under
the mineral deed from Appellants to the Barretts for any well that is drilled in “the
subsurface portion of the Unit Area commonly known as the Woodbine Formation and
identified as that correlative zone found between the electric log depths of 8133 feet to
8788 feet in the Gulf Oil Corporation – Jones Enhanced Recovery Unit Well No. 1.” The
Barretts requested the court to interpret that language from the Unit Agreement “to mean
that Barrett is entitled to any royalty from any well drilled at any depth, as long as it is in
the ‘correlative zone’ identified in the Kurten Woodbine Unit Agreement.” They prayed
for a declaration that the Barretts are entitled to all funds placed in the registry of the
court and all funds Vess is holding in suspense related to this matter.
Thereafter, the Barretts filed a “No Evidence Motion for Summary Judgment and
Traditional Motion for Partial Summary Judgment.” They assert that the Unit
Riley v. Vess Oil Corp. Page 3 Agreement’s definition of the Woodbine Formation does not mean that it only exists
within the 655 feet between electric log depths of 8133 feet and 8788 feet. Arguing that it
is not a depth limitation, they contend the Woodbine Formation “is at different depths
depending on where you are drilling.” They reason that, because each of the wells Vess
has drilled were drilled in the Woodbine Formation, each is subject to the conveyance
from Appellants to the Barretts, and the assignment is limited in depth to the unitized
interval referred to as the Woodbine Formation. Attached to the motion as exhibits are
the 1995 conveyance, the Unit Agreement, a 1977 lease signed by Appellants, and
Appellants’ 1983 ratification of the Unit Agreement. The Barretts also presented as
evidence the affidavit of Todd Fidler, Vice President, Land and Acquisitions for Vess.
Attached to the affidavit are copies of Texas Railroad Commission permits for Vess wells
drilled in the Woodbine Formation.
In the “no evidence” portion of the motion, the Barretts assert: (1) Appellants can
produce no evidence that the assignment to the Barretts contained a depth limitation
which allowed Appellants to get paid on wells that were drilled deeper than 8788 feet
into the Woodbine Formation and (2) Appellants can produce no evidence that any of the
funds held in the registry or held in suspense by Vess were generated from any other
formation.
Riley v. Vess Oil Corp. Page 4 In their response, Appellants point out this is a declaratory judgment action and
assert that “[t]he only evidence that can be presented for the purpose of this trial is the
court’s interpretation of the language in the referenced documents.”
The trial court rendered an order granting the Barretts’ no evidence motion for
summary judgment. The court also ordered that royalties generated by Vess from the
Woodbine Formation covered by the 1995 conveyance to the Barretts are owned by the
Barretts. At a later date, the court rendered a final judgment awarding attorneys’ fees to
the Barretts and ordering Vess to release any suspended funds that it may be holding
related to the lease and conveyance to the Barretts.
CONTRACT CONSTRUCTION
In their first issue, Appellants contend that the trial court erred in allowing
extrinsic evidence when there were no pleadings or proof as to any ambiguities in the
deed. In their second issue, Appellants assert the trial court erred in not applying the
long-established contract construction law applicable when ambiguity is not pled or
proven. They argue that the court was to give effect to the intentions of the parties as
expressed in the contract and that the specific language in the Unit Agreement identifying
the depth levels controls over general provisions.
Standard of Review
Declaratory judgments rendered by summary judgment are reviewed under the
same standards applicable for review of summary judgments generally. Hourani v.
Riley v. Vess Oil Corp. Page 5 Katzen, 305 S.W.3d 239, 248 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). We review
a trial court’s decision to grant summary judgment de novo. Tex. Mun. Power Agency v.
Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007).
After adequate time for discovery, a party without the burden of proof at trial may
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IN THE TENTH COURT OF APPEALS
No. 10-23-00348-CV
MARTIN L. RILEY, JR. AND JUDITH ANN RILEY, Appellants v.
VESS OIL CORPORATION, W. GLENN BARRETT, AND BRIAN D. BARRETT, Appellees
From the 85th District Court Brazos County, Texas Trial Court No. 19-002727-CV-85
MEMORANDUM OPINION
Martin L. Riley, Jr. and Judith Ann Riley appeal from an adverse judgment in their
declaratory judgment action originally filed against Vess Oil Corporation. Vess interpled
third-party defendants W. Glenn Barrett and Brian Barrett. Appellants raise two issues
on appeal regarding the trial court’s application of the law. We affirm. BACKGROUND
In 1995, Appellants conveyed a mineral interest in certain property to the Barretts.
The conveyance contained the following limitation: “This conveyance is limited in depth
to the unitized interval referred to as the Woodbine formation in that certain Unit
Agreement dated October 10, 1983, recorded in Volume 686, page 326, Deed Records,
Brazos County, Texas.” Article 1 of the Unit Agreement included the following
definition:
1.2 Unitized Formation is the subsurface portion of the Unit Area commonly known as the Woodbine Formation and identified as that correlative zone found between the electric log depths of 8133 feet to 8788 feet in the Gulf Oil Corporation – Jones Enhanced Recovery Unit Well No. 1, . . . located in H. Cartmell Survey Abstract 87, Brazos County, Texas.
Appellants filed a petition for declaratory judgment in 2019 naming Vess Oil
Corporation as defendant. They alleged that Vess is drilling the Woodbine Formation to
a depth of 9600 feet, but Appellants have not been compensated for the production under
the 8788-foot depth. They requested a declaratory judgment that all mineral interest
described in the 1995 conveyance below the depth of 8788 feet below the surface as set
forth in the Unit Agreement was retained by Appellants. They also requested attorney’s
fees.
Vess, successor lessee under the oil and gas lease covering the minerals in the
property subject to the documents referred to above, filed a counterclaim and petition for
third-party interpleader, naming the Barretts as third-party defendants. Vess suspended Riley v. Vess Oil Corp. Page 2 royalty payments attributed to the lease for wells drilled in the unitized interval. Vess
asked the court to interplead those funds, adjudicate claims to the funds, discharge Vess
from all liability, and award attorneys’ fees to Vess.
On March 3, 2021, the court rendered an “agreed order” awarding Vess its
attorney’s fees and requiring it to deposit the remaining balance of the suspended funds
into the court’s registry. Further, the court ordered that Vess is “discharged” from this
suit and the Barretts are now identified as the defendants.
The Barretts denied Appellants’ allegations and filed a counterclaim requesting a
declaratory judgment declaring that they are entitled to all of the royalty payments under
the mineral deed from Appellants to the Barretts for any well that is drilled in “the
subsurface portion of the Unit Area commonly known as the Woodbine Formation and
identified as that correlative zone found between the electric log depths of 8133 feet to
8788 feet in the Gulf Oil Corporation – Jones Enhanced Recovery Unit Well No. 1.” The
Barretts requested the court to interpret that language from the Unit Agreement “to mean
that Barrett is entitled to any royalty from any well drilled at any depth, as long as it is in
the ‘correlative zone’ identified in the Kurten Woodbine Unit Agreement.” They prayed
for a declaration that the Barretts are entitled to all funds placed in the registry of the
court and all funds Vess is holding in suspense related to this matter.
Thereafter, the Barretts filed a “No Evidence Motion for Summary Judgment and
Traditional Motion for Partial Summary Judgment.” They assert that the Unit
Riley v. Vess Oil Corp. Page 3 Agreement’s definition of the Woodbine Formation does not mean that it only exists
within the 655 feet between electric log depths of 8133 feet and 8788 feet. Arguing that it
is not a depth limitation, they contend the Woodbine Formation “is at different depths
depending on where you are drilling.” They reason that, because each of the wells Vess
has drilled were drilled in the Woodbine Formation, each is subject to the conveyance
from Appellants to the Barretts, and the assignment is limited in depth to the unitized
interval referred to as the Woodbine Formation. Attached to the motion as exhibits are
the 1995 conveyance, the Unit Agreement, a 1977 lease signed by Appellants, and
Appellants’ 1983 ratification of the Unit Agreement. The Barretts also presented as
evidence the affidavit of Todd Fidler, Vice President, Land and Acquisitions for Vess.
Attached to the affidavit are copies of Texas Railroad Commission permits for Vess wells
drilled in the Woodbine Formation.
In the “no evidence” portion of the motion, the Barretts assert: (1) Appellants can
produce no evidence that the assignment to the Barretts contained a depth limitation
which allowed Appellants to get paid on wells that were drilled deeper than 8788 feet
into the Woodbine Formation and (2) Appellants can produce no evidence that any of the
funds held in the registry or held in suspense by Vess were generated from any other
formation.
Riley v. Vess Oil Corp. Page 4 In their response, Appellants point out this is a declaratory judgment action and
assert that “[t]he only evidence that can be presented for the purpose of this trial is the
court’s interpretation of the language in the referenced documents.”
The trial court rendered an order granting the Barretts’ no evidence motion for
summary judgment. The court also ordered that royalties generated by Vess from the
Woodbine Formation covered by the 1995 conveyance to the Barretts are owned by the
Barretts. At a later date, the court rendered a final judgment awarding attorneys’ fees to
the Barretts and ordering Vess to release any suspended funds that it may be holding
related to the lease and conveyance to the Barretts.
CONTRACT CONSTRUCTION
In their first issue, Appellants contend that the trial court erred in allowing
extrinsic evidence when there were no pleadings or proof as to any ambiguities in the
deed. In their second issue, Appellants assert the trial court erred in not applying the
long-established contract construction law applicable when ambiguity is not pled or
proven. They argue that the court was to give effect to the intentions of the parties as
expressed in the contract and that the specific language in the Unit Agreement identifying
the depth levels controls over general provisions.
Standard of Review
Declaratory judgments rendered by summary judgment are reviewed under the
same standards applicable for review of summary judgments generally. Hourani v.
Riley v. Vess Oil Corp. Page 5 Katzen, 305 S.W.3d 239, 248 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). We review
a trial court’s decision to grant summary judgment de novo. Tex. Mun. Power Agency v.
Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007).
After adequate time for discovery, a party without the burden of proof at trial may
move for summary judgment on the ground that there is no evidence of one or more
essential elements of a claim or defense. TEX. R. CIV. P. 166a(i). “The motion must state
the elements as to which there is no evidence.” Id. The rule does not authorize conclusory
motions or general no-evidence challenges to an opponent’s case. Id. cmt - 1997. Once a
no evidence motion is filed in accordance with Rule 166a(i), the burden shifts to the
nonmovant to present evidence that raises a fact issue on each element contested in the
motion. JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021).
Analysis
A declaratory judgment action is a procedural device. See TEX. CIV. PRAC. & REM.
CODE ANN. § 37.002(b); City of Dallas v. Albert, 354 S.W.3d 368, 378 (Tex. 2011). Here,
Appellants asked the trial court to construe an unambiguous contract. See TEX. CIV. PRAC.
& REM. CODE ANN. § 37.004(a). The Barretts in effect argued in their motion that there is
no evidence to prove Appellants’ construction of the contract. The trial court granted the
no-evidence motion. Appellants’ issues on appeal, comprised solely of contract
construction law, are wholly untethered to the procedural stance of this case.
Riley v. Vess Oil Corp. Page 6 The rules of appellate procedure require that the appellant’s brief must contain a
clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record. TEX. R. APP. P. 38.1(i). The statement of an issue in an
appellate brief is treated as covering every subsidiary question fairly included within that
issue. Id. R. 38.1(f). Further, an issue is sufficient if it directs the appellate court’s
attention to the error complained of. Texas Mexican Ry. v. Bouchet, 963 S.W.2d 52, 54 (Tex.
1998). However, in their brief, Appellants’ only arguments address the law applicable to
contract construction. Appellants never mention the summary judgment standard of
review. They do not attack, generally or specifically, the grounds for judgment asserted
in the Barretts’ motion for no evidence summary judgment. See Rosetta Res. Operating,
L.P. v. Martin, 645 S.W.3d 212, 226-27 (Tex. 2022); see also Jose Fuentes Co. v. Alfaro, 418
S.W.3d 280, 287 (Tex. App.—Dallas 2013, pet. denied) (The legal sufficiency, that is
validity, of a no- evidence motion for summary judgment may be challenged for the first
time on appeal.).
This Court may not sua sponte raise grounds to reverse a summary judgment that
were not briefed or argued in the appeal. Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d
912, 916 (Tex. 2015). Because Appellants failed to challenge the grounds on which
summary judgment could have been granted on their declaratory judgment claim, we are
required to affirm the granting of summary judgment on that claim. See Malooly Bros.,
Riley v. Vess Oil Corp. Page 7 Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Juarez v. Longoria, 303 S.W.3d 329, 330 (Tex.
App.—El Paso 2009, no pet.). We overrule Appellants’ first and second issues.
CONCLUSION
Having overruled Appellants’ issues, we affirm the trial court’s judgment.
STEVE SMITH Justice
Before Justice Johnson, Justice Smith, and Justice Wright1 Affirmed Opinion delivered and filed December 30, 2024 [CV06]
1 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by
assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.
Riley v. Vess Oil Corp. Page 8