                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00062-CV

ALLEGIANCE HILLVIEW, L.P.                                            APPELLANT

                                        V.

RANGE TEXAS PRODUCTION,                                              APPELLEES
LLC AND RANGE PRODUCTION
COMPANY

                                     ----------

         FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

                                     ----------

                                   OPINION
                                     ----------

                                 I. Introduction

      Appellant Allegiance Hillview, L.P. (Allegiance) appeals the trial court‘s

declaratory judgment in favor of Appellees Range Texas Production, LLC and

Range Production Company (collectively, Range) concerning the force majeure

provision in the Surface Use Agreement (SUA) between Allegiance and non-

party Rayzor Investments, Ltd. (Rayzor). After a bench trial, the trial court found

that events of force majeure had occurred, and it extended the deadline under

the SUA by which Range was required to drill a well. Challenging the legal and
factual sufficiency of the evidence, Allegiance contends in its first three issues

that the trial court erred by finding (1) that Range provided timely and sufficient

written notice of an event of force majeure, (2) that an event of force majeure

beyond Range‘s reasonable control occurred, and (3) that Range timely

submitted its permit applications. In its remaining issues, Allegiance challenges

the award of attorney‘s fees to Range, the trial court‘s entry of a permanent

injunction, and the trial court‘s failure to make additional findings of fact and

conclusions of law requested by Allegiance. We affirm.

                                 II. Background

      Allegiance is the surface owner of two contiguous tracts of land in Denton,

Texas (the Property); Rayzor is the mineral interest owner of the Property; and

Range is Rayzor‘s oil and gas lessee. The SUA provided that it would terminate

if Range did not commence drilling by July 11, 2009 (the Development Deadline).

However, the SUA also provided that the Development Deadline could be

extended if Range were prevented from drilling by an event of force majeure,

which the SUA defined to include the City of Denton‘s (the City) failure to issue

necessary permits.    Range did not acquire the necessary permits before the

Development Deadline and initiated this litigation when Allegiance threatened to

terminate the SUA.




A. Original Development Deadline


                                        2
      When Allegiance purchased the Property‘s surface estate in 2005, all

minerals had previously been reserved by Rayzor.

      Allegiance and Rayzor entered into the SUA in April 2006.1 Under the

SUA, the parties designated four drill sites (the Reserved Drill Sites) on the

Property so that Rayzor could drill and produce minerals, but Rayzor‘s right to

access and use the Reserved Drill Sites originally terminated if it did not

commence actual drilling of a well by October 7, 2008. The purpose of the

drilling deadline was to allow for drilling activity before Allegiance developed the

surface. Before drilling could commence, however, Rayzor or its lessee was

required to obtain a Specific Use Permit (SUP) from the City.

      In February 2008, Rayzor and Range entered into a mineral lease (the

Rayzor lease), under which Range would attempt to drill for and develop the

minerals on the Property. Before the parties signed the lease, Range Landman

Jody Watkins had advised Rayzor President Doug Elliott that Range would

―commence the permitting process with the City‖ within sixty days of signing the

lease, that Range had ―been through all of the issues with the City of Denton

before, and [that] by default [Range had] become very well versed in their

ordinances and policies.‖    Range was also aware before signing the Rayzor

lease that Rayzor‘s prior lessee, Dark Horse, did not timely obtain permits or

begin drilling and that the lease with Dark Horse had therefore terminated, and


      1
        As the current surface owner, Allegiance plans to develop the Property
into a mixed-use development known as Rayzor Ranch.


                                         3
Elliott had emphasized to Range the need for the permit in light of the issues

surrounding the Dark Horse lease. In fact, Range had concerns before signing

the Rayzor lease about whether it could meet the original October 2008 drilling

deadline. Even so, Watkins informed Elliott on February 12, 2008, that Range

would ―diligently pursue the permitting process, together with the SUP and all

other necessary permits and requirements as may be required by the City.‖ At

the same time, however, Watkins expressly stated to Elliott that Range had ―no

control over‖ the permitting process.

      In April 2008, Range personnel met with City representatives and

discussed the need for and the process of obtaining a SUP. As a result of the

meeting, Mary Patton, a regulatory manager for Range, understood and

expected that it would take three months from the date of filing the application

through the date of the city council meeting to obtain approval of a SUP. Near

this same time, Allegiance indicated to Elliott that it would agree to extend the

Development Deadline for approximately one year.

B. Amended Development Deadline

      On July 11, 2008, Allegiance and Rayzor executed the First Amendment to

Surface Use Agreement.        The SUA amendment reduced the number of

Reserved Drill Sites from four to one, expanded the force majeure provision to

include the City‘s failure to issue a permit provided the permit application had

been timely submitted and thoroughly prosecuted to attempted completion, and

extended the Development Deadline to July 11, 2009. Because of its experience


                                        4
with Dark Horse‘s inability to obtain a gas well permit from the City in 2007,

Rayzor wanted to expand the force majeure clause to specifically ensure that it

applied to time spent by the City in approving permit applications.       Watkins

testified that, as of July 2008, he felt that the one-year extension provided Range

with enough time to get the permits approved by the City so that drilling could

commence before the July 11, 2009 Development Deadline.

C. Pre-Permit Process

      1. Leases and Waivers

      Watkins testified that, from his perspective as a landman, the permitting

process ―really begins the day that we start evaluating a prospect‖ and that it

includes evaluating possible drill sites, determining applicable zoning and waiver

requirements, coordinating with surveyors to begin preparing surveys and plats,

researching to identify and contact any potentially affected adjacent mineral

owners, and obtaining necessary mineral leases and set-back waivers from

those mineral owners.     In this case, the title research revealed outstanding

mineral interests affecting a portion of the Property and adjacent tracts. And

because the number of Reserved Drill Sites had been reduced from four to one

by the SUA amendment, Range had to determine how to drill on the southern

portion of the Property while sufficiently accessing the northern portion of the

Property. This required a lease from the State of Texas so the wellbores could

cross beneath Highway 380 into the northern portion of the Property. Range

acquired the State of Texas lease in August 2008.


                                        5
      The Reserved Drill Site reduction also required Range to acquire leases

from mineral owners adjacent to the Property because, without leases from the

adjacent mineral owners, Range would need a spacing exception from the Texas

Railroad Commission for a wellbore to be within specified distances of the

outlying tracts.   Allegiance owned the mineral interest for a tract on the

northwestern side of the Property, Albertson‘s owned the mineral interest for a

tract on the eastern side of the Property, and another entity owned the mineral

interest to the north of the Property. Range was not ultimately able to obtain

leases for the Albertson‘s tract to the east or the tract to the north, but Range

negotiated with Allegiance for several months and obtained a lease from

Allegiance in December 2008. However, Range‘s title research revealed that a

joint venture owned a fifty percent interest in some of Allegiance‘s adjoining

property. The joint venture was in the process of dissolving, and Range obtained

curative leases for those mineral interests after several more months.2

      In addition to mineral leases and given Range‘s initial plan to drill six wells

on the Property, Range was also required to obtain set-back waivers from three

nearby homeowners because of the proximity of the Reserved Drill Site to those

residences. Range obtained the first waiver in February 2008 and the second

waiver in April 2008. These two waivers were sufficient for Range to drill five out


      2
       Range finalized the curative leases in the summer of 2009, after it had
submitted its SUP application to the City. It also applied for a spacing exception
from the Texas Railroad Commission after initially submitting plats to the City
showing the wellbores ―short‖ of their eventual locations.


                                         6
of six possible gas wells on the Reserved Drill Site. But Range believed six wells

were necessary to fully develop the minerals, and drilling six wells required the

third set-back waiver. Range continued to seek the third waiver by contacting

and negotiating with the homeowner; Range originally offered $500, the same

amount offered to and accepted by one of the other homeowners, and later

offered to lease the property for a $4,000 bonus, the same amount paid for the

second waiver. Range ultimately offered to lease the property with a bonus

payment between $5,000 and $10,000. Watkins testified that Range decided in

February 2009 that it would not get the third waiver and that Range then revised

its spacing plans to drill five rather than six wells.

      2. Surveys and Plats

      In 2008, and after it signed the Rayzor lease, Range engaged the two

surveyors that had previously worked with Dark Horse to survey the Property and

prepare the plats necessary to obtain drilling permits from the City and the State

of Texas. One surveyor prepared the plats for filing with the City, and the other

surveyor prepared the plats for obtaining State permits.     Range was able to

provide the surveyors with much of the information they needed to prepare the

plats, but the surveyors also needed information about the adjoining tracts (and

whether they would or would not be leased) before they could determine the

exact shape and size of the Property.

      Range had acquired most of the information needed by the surveyors by

early 2009.    In that regard, Patton requested on January 2 that one of the


                                            7
surveyors begin preparing plats to be submitted to the City. Watkins testified that

it generally takes a surveyor one to two months to prepare a plat but that it

depends on the circumstances. The surveyor that prepared the plat for the City

provided a preliminary plat to Patton on January 27, and the second surveyor

forwarded the plat for the State permits to Watkins on March 4. Range then filed

applications for the necessary permits from the Texas Railroad Commission and

the Texas Commission on Environmental Quality, and both were approved by

March 13. The state permits were then forwarded to the surveyor preparing the

City gas well plat, and the surveyor provided the final plat to Range in late March

2009.

D. Permit Process

        1. General Permit Process

        To drill on the Property, Range needed the City‘s approval for three things:

(1) a SUP, which is similar to a zoning ordinance; (2) a gas well permit, which is

administratively approved by City staff; and (3) a permit from the fire department,

which is issued only after the drilling rig is on site and the gas well permit has

issued. Before the SUP can be approved by the City Council, the application

must be reviewed by the Denton Development Review Committee and the

Denton Planning and Zoning Commission. The development review committee

provides comments to the applicant within ten days, the applicant addresses the

comments, and the development review committee then has another ten days to

provide additional comments. Typically, once all comments by the development


                                          8
review committee have been addressed, the application is scheduled for the next

available planning and zoning commission hearing.

         The planning and zoning commission meets two times each month in

public    hearings   that   require   ten    days‘   public   notice,    and   it   makes

recommendations to the City Council, not final decisions.               The planning and

zoning commission can hold the SUP application under advisement, table it for a

future meeting, recommend approval or denial of the application, or recommend

approval of the application provided the applicant meets additional conditions. If

not held under advisement or tabled, the application is then scheduled for the

next available City Council meeting.

         The City Council meets once each month in a public hearing that requires

fifteen days‘ public notice. Once the SUP application is before the City Council,

the process and options available to the City Council are similar to those of the

planning and zoning commission such as tabling the application, denying the

application, or recommending approval provided certain conditions are met.

Once an application is approved by the City Council, it generally takes four to five

days before the applicant can prepare the site, obtain the final permit from the

fire marshal, and actually begin drilling.




         2. City of Denton Submission Schedule




                                             9
        In January 2009, the City published its schedule of monthly City Council

meetings for the year. As relevant here, the schedule showed June 16 as the

last City Council meeting date before the Development Deadline.3 On March 2,

2009,       the   City   published   a   Planning   and   Zoning   and   City   Council

Submission/Hearing Schedule (the Submission Schedule) to provide developers

with a forecast of how long it would take to get a permit application to the City

Council for hearing.

        City Planning Supervisor Charles Russell testified that the Submission

Schedule was not a new rule or regulation but was instead an attempt to

accommodate developers by committing to writing its existing policies and

practices. Russell testified that the Submission Schedule did not lengthen the

permit application and review process, but he also testified that it could take

longer for some applications to proceed through the process under the

Submission Schedule than it may have taken in the past. 4                       Russell

acknowledged, however, that the City had hosted a luncheon with surface

developers before publishing the Submission Schedule and that mineral

developers like Range were not invited to the luncheon.


        3
        The July City Council meeting occurred on July 21, 2009.
        4
       Patton and Watkins referred to the Submission Schedule as ―new‖ in their
testimony, and Patton explained that she believed it was new because it showed
a four-month SUP process whereas Russell had informed her in April 2008 that
the SUP process took ―up to three months.‖ Patton further testified that she was
told by City staff in April 2009, after the City published the Submission Schedule,
that a SUP could be approved in as little as two months if everything was correct
when submitted.

                                            10
      As of March 2009, the Submission Schedule was posted in the City‘s

planning office, copies were made available to the public, and a copy was posted

on the City‘s website. According to the Submission Schedule, a permit filed on

March 2, 2009, would not reach the City Council for review and approval until at

least July 21, 2009. Indeed, Patton sent an e-mail to other Range personnel on

March 31 that stated: ―Looking at the City permitting schedule, we will be on the

agenda for the August 18 City Council meeting – the earliest that we can be

approved to build location. Will we be able to extend the 7/10/09 [sic] lease

obligation?‖

      On April 2, Patton e-mailed Elliott to ask for an extension of the

Development Deadline. Elliott responded that only Allegiance could grant an

extension, that Allegiance would likely ―demand more than a pound of flesh to do

it,‖ and that he was ―utterly appalled‖ that there was an issue with drilling by the

deadline after negotiating in 2008 to ―get more than enough time to file for a

permit.‖

      3. Range Files SUP Application

      On April 3, Range filed its gas well plat application with the City, but the

filing did not include a SUP application. That same day, Patton sent an internal

Range e-mail stating, ―[I]t is possible that our application for Gas Well Permit has

been accepted and that we will not have to go through the SUP process that

requires P&Z and City Council hearings. The SUP process would result in a

permit to build no sooner than 8-18-09.‖ Patton further stated that the confusion


                                        11
as to whether a SUP was required had been caused by (1) inconsistent

information from Dark Horse‘s prior application that indicated a SUP was

required and ―updated information‖ from Range‘s surveyor that indicated a SUP

was not required; (2) the City‘s ―changed‖ process ―where it takes longer to get

SUP approval‖; and (3) the City planner handling the application not knowing that

the zoning had changed. Indeed, as of April 2009, the City‘s website showed the

Drill Site as being zoned ―RCC-D,‖ which is a ―drill by right‖ classification that

does not require a SUP. However, Russell testified that there was never a time

that a SUP was not required, and he said the City‘s website contains a disclaimer

advising applicants to contact the City with any questions.

      On April 6, Russell informed Patton by e-mail that the applicable zoning

ordinance required Range to file a SUP application. On April 16, Range filed its

SUP application and met with City staff to discuss the SUP application and to ask

the City to expedite the review process. The City agreed to try to expedite the

process, and Range and the City hoped to have the SUP application heard at the

May 20 planning and zoning commission hearing and presented to the City

Council at its June 16 meeting.

      4. City Review of Range Application

      With Range‘s filing date of April 16, the SUP application would need to be

reviewed by the development review committee and the planning and zoning

commission and approved by the City Council in two months. Russell testified

that he was ―pretty concerned when we had that meeting‖ on April 16 about


                                        12
getting before the City Council on June 16, stating that it ―would be as fast as I

think we‘ve ever seen an SUP for a gas well go from start to finish.‖ Even so,

Range‘s SUP application was processed and distributed to the development

review committee with a proposed review due date of May 8 and a development

review committee meeting date of May 14. Patton e-mailed City staff on April 24

to inquire about any questions City staff may have had.

      On April 28, the City asked Range to submit a project narrative to

demonstrate how it met the SUP criteria outlined in the Denton Development

Code. Range submitted the requested project narrative to the City on April 29,

but City staff determined that Range‘s responses were not sufficient.5 The City

planning department returned the development review committee‘s comments to

Range on May 8 and informed Range that the engineering department had an

issue with the proposed driveways on the site plan and that the issue had to be

resolved before the public hearing.

      For Range‘s applications to be considered at the May 20 hearing, all

development review committee comments had to be addressed by May 12. The

driveway access issue was not resolved by that date, and the City informed

Range that the SUP application would instead be considered at the June 3

planning and zoning commission hearing.       Range met with the development

review committee on May 14 to resolve the outstanding comments, and both

agreed that Range would have to amend the project site plan and apply for a

      5
       Range submitted a revised project narrative on May 13.


                                       13
second driveway permit through the variance process at a later date. Range

submitted all recommended revisions to the development review committee on

May 21, and the development review committee released the project on May 28.

      In the meantime, the City had provided public notice on May 7 that

Range‘s SUP application would be considered at the May 20 planning and

zoning commission hearing, even though the development review committee

comments had not yet been resolved. The City would not typically send this

notice before resolving the development review committee comments, but the

City did so to try to expedite the process. Unfortunately, the City‘s May 7 notice

incorrectly listed a RCC-D zoning classification, which does not require a SUP,

instead of the correct NRMU zoning classification, which does require a SUP.

The City discovered the notification error on May 26, and Range notified

Allegiance of the City‘s notification error on May 29.

      Because public notices must be posted ten days prior to a planning and

zoning commission hearing, consideration of Range‘s SUP application had to be

postponed to the June 17 planning and zoning commission hearing, meaning the

SUP application could not be considered by the City Council until at least July 21,

ten days after the Development Deadline. At the June 17 hearing, the planning

and zoning commission recommended approval of the SUP application by a vote

of four in favor and none opposed.

E. Range Requests Extension of Development Deadline




                                         14
      On May 20, Range requested that Allegiance agree to a three-month

extension of the July 11 Development Deadline. On May 29, Watkins e-mailed

Rex Paine with Allegiance asking if there had ―been any discussions regarding

Range‘s request for an extension of the Development Deadline.‖ Paine testified

that Allegiance knew in early May that it would not grant an extension to Range

without getting something in return, and he admitted that he did not respond to

Range‘s request until June 18 when he informed Range that Allegiance did not

agree to an extension.

      On June 19, Range asked Rayzor president Elliott for help in getting an

extension of the Development Deadline from Allegiance.            Elliott contacted

Allegiance, but he testified that he felt that Range‘s inability to meet the

Development Deadline and need for an extension was ―completely the fault of

Range‖ for not timely filing the SUP application and that he would consider suing

Range if Rayzor lost its drilling rights. Similarly, Elliott stated in an e-mail to

Watkins that he had informed Allegiance of his disappointment with Range but

that he had also advised Allegiance that a short delay ―would not damage them

economically in any significant way and that they were not likely going to be able

to avoid wells on the property just by denying this extension.‖

F. Force Majeure Notice and Resulting Litigation

      On June 29, Range notified Allegiance by letter that it believed an event of

force majeure had occurred based on the City‘s failure to issue the permits.

Range‘s letter stated, in part, that the City ―has failed to issue an SUP and Gas


                                        15
Well Permit (the ―Permits‖) as required to drill a gas well at the location as set

forth in the Amended SUA.‖ The notice letter then explained that the City had

acknowledged making a notification error that required Range‘s application to be

considered at the June 17 planning and zoning commission hearing instead of

the June 3 hearing, meaning Range‘s application could not be considered by the

City Council until at least July 21.

      On July 8, Allegiance responded to the notice letter by objecting to the

requested extension, contesting whether an event of force majeure had occurred,

and informing Range that it intended to enforce the Development Deadline. On

July 10, one day before the Development Deadline, Range filed this suit seeking

a declaration that an event of force majeure had occurred and requesting

attorneys‘ fees and a temporary restraining order and injunction against

Allegiance.   The trial court granted the temporary restraining order, and the

parties subsequently agreed to extend the injunction through the time of trial.

G. The City’s Subsequent SUP Approval

      The City Council‘s first opportunity to consider and vote on Range‘s SUP

application was July 21, 2009. At that meeting, however, the City Council tabled

the application and did so again in August, eventually approving Range‘s SUP

application on October 6. The City then approved Range‘s Gas Well Plat on

November 3. Michael Middlebrook, Range‘s Vice President of Operations for the

Barnett Shale testified that if the trial court permitted Range to proceed, there

was no further impediment to Range‘s ability to drill on the Property.


                                        16
H. Bench Trial

      The case proceeded to a bench trial beginning November 9, 2009, and the

trial court signed a final judgment for Range on November 25, 2009.          In its

judgment, the trial court recited that an event of force majeure had occurred, that

Range had given proper notice to Allegiance, and that the July 11, 2009

Development Deadline would be extended to the forty-fifth day after the date of

the judgment. The trial court also awarded attorney‘s fees of $210,000 to Range.

Allegiance timely requested findings of fact and conclusions of law, and the trial

court issued sixty-seven findings of fact and twenty-one conclusions of law.

Allegiance then requested that the trial court make additional findings of fact and

conclusions of law, but the trial court did not make the requested additional

findings. Allegiance then filed notice of this appeal.

                             III. Standards of Review

      Findings of fact entered in a case tried to the court have the same force

and dignity as a jury‘s answers to jury questions. Anderson v. City of Seven

Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court‘s findings of fact are

reviewable for legal and factual sufficiency of the evidence to support them by

the same standards that are applied in reviewing evidence supporting a jury=s

answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994).

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred


                                         17
by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and

"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

      Anything more than a scintilla of evidence is legally sufficient to support the

finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996);

Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence offered

to prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.

1983). More than a scintilla of evidence exists if the evidence furnishes some

reasonable basis for differing conclusions by reasonable minds about the

existence of a vital fact. Rocor Int‘l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d

253, 262 (Tex. 2002).


                                        18
      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh‘g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

                               IV. Applicable Law

      ―[W]hen the parties have themselves defined the contours of force majeure

in their agreement, those contours dictate the application, effect, and scope of

force majeure,‖ and reviewing courts ―are not at liberty to rewrite the contract or

interpret it in a manner which the parties never intended.‖ Sun Operating Ltd.

P’ship v. Holt, 984 S.W.2d 277, 283 (Tex. App.—Amarillo 1998, pet. denied); see

Moore v. Jet Stream Invs., Ltd., 261 S.W.3d 412, 420 (Tex. App.—Texarkana

2008, pet. denied). When construing contracts and other written instruments, our

primary concern is to ascertain the true intent of the parties as expressed in the

instrument. Wood Care Ctrs., Inc. v. Evangel Temple Assembly of God, 307

S.W.3d 816, 820 (Tex. App.—Fort Worth 2010, pet. denied); NP Anderson

Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463 (Tex. App.—Fort Worth 2007,

no pet.). We examine the entire contract in an effort to harmonize and give effect

to all provisions so that none are rendered meaningless.        Wood Care, 307

S.W.3d at 820; see also J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229


                                        19
(Tex. 2003). ―We construe contracts ‗from a utilitarian standpoint bearing in mind

the particular business activity sought to be served‘ and ‗will avoid when possible

and proper a construction which is unreasonable, inequitable, and oppressive.‘‖

Frost Nat’l Bank v. L & F Dist., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (quoting

Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987)).

                                V. Force Majeure

      In its first three issues, Allegiance contends that the evidence is legally and

factually insufficient to support the trial court‘s findings (1) that Range timely

provided sufficient written notice of an event of force majeure, (2) that an event of

force majeure beyond Range‘s reasonable control occurred, and (3) that Range

timely submitted its permit applications.

A. Timely and Sufficient Notice

      Allegiance argues in its third issue that there is legally and factually

insufficient evidence to support the trial court‘s findings that Range provided

timely and sufficient written notice of an event of force majeure.

      The SUA provided that a party desiring to extend the Development

Deadline due to an event of force majeure was required to give written

notification to the other party at least five business days before the Development

Deadline. The SUA further provided that the notice ―shall include an explanation

of the claimed Force Majeure event and a good faith approximation of the date

that such matters shall be resolved, and the corresponding anticipated extension

to the Development Deadline.‖


                                            20
       The Development Deadline was July 11, 2009. Range‘s June 29, 2009

notice letter, in its entirety, stated:

       Pursuant to Section 6 of the First Amendment to Surface Use
       Agreement (―Amended SUA‖), Range Texas Production, LLC
       (―Range‖) hereby advises you that an event of Force Majeure as
       defined under the Surface Use Agreement (―SUA‖) and the
       Amended SUA has occurred and will require an extension to the
       Anticipated Development Deadline as defined in the Amended SUA.

       The City of Denton has failed to issue an SUP and Gas Well Permit
       (the ―Permits‖) as required to drill a gas well at the location as set
       forth in the Amended SUA. On May 26, 2009, Chuck Russell, AICP,
       Planning Supervisor, Planning Department of the City of Denton
       acknowledged that the City of Denton had made a notification error
       that would require rescheduling of the June 3, 2009 Planning and
       Zoning hearing, delaying the meeting until June 17, 2009 and
       causing the earliest City Council meeting that could be scheduled to
       be July 21, 2009.

       Range believes that the City of Denton will issue the Permits at the
       July 21, 2009 City Council meeting as referenced above.

       The anticipated extension to the Development Deadline as defined
       in the SUA and Amended SUA is 45 days.

       Allegiance argues that although the notice letter ―makes a reference to the

City‘s failure to issue an SUP and Gas Well Permit, that reference is clearly

within the limited context of the City‘s notification error.‖ Allegiance‘s argument

is, however, based on the incorrect premise that the City‘s failure to issue the

permit and the City‘s notification error are separate and distinct events of force

majeure. Rather, as discussed in more detail below, the City‘s notification error

allegedly prevented the City Council from considering the SUP application by the

Development Deadline.



                                          21
      The SUA required that Range, at least five business days before the July

11, 2009 Development Deadline, give Allegiance written notice containing an

explanation of the claimed event of force majeure, a good faith estimation of the

date the event would be resolved, and the corresponding anticipated extension to

the Development Deadline. The June 29, 2009 notice letter complies in each

respect.   It was sent more than five business days before the Development

Deadline, stated that the City had failed to issue the SUP and Gas Well Permit,

set forth an expected resolution date of July 21, and stated that the anticipated

Development Deadline extension would be forty-five days. Range‘s statement in

the letter concerning the City‘s notification error is the explanation of the City‘s

failure to issue the permits by the Development Deadline and is not, as

Allegiance incorrectly contends, a limitation of the claimed event of force majeure

or notice of a separate and unrelated event of force majeure.

      Applying the appropriate standards of review, we hold the evidence is

legally and factually sufficient to support the trial court‘s findings that Range

provided timely and sufficient notice to Allegiance of an alleged event of force

majeure. See Cent. Ready Mix Concrete Co., 228 S.W.3d at 651; Pool, 715

S.W.2d at 635. We overrule Allegiance‘s third issue.




B. An Event of Force Majeure Occurred




                                        22
      Allegiance argues in its first issue that the trial court erred by finding that

an event of force majeure beyond Range‘s reasonable control occurred because

no event of force majeure occurred as a matter of law and because there is

legally and factually insufficient evidence to the support the trial court‘s finding.

In its second issue, Allegiance contends that the trial court incorrectly interpreted

the meaning of ―timely‖ in the submission of Range‘s permit application and

alternatively that ―timely‖ is ambiguous, and that there is legally and factually

insufficient evidence to support the trial court‘s finding that Range timely

submitted its permit applications. Because Allegiance‘s first and second issues

are closely related, we consider them together.

      1. Relevant Contractual Provisions

      As amended, the SUA provided that the Development Deadline was July

11, 2009.   As relevant in this appeal, Range‘s right to drill on the Property

terminated if it did not drill by the July 11, 2009 Development Deadline unless the

deadline was extended by an event of force majeure.           As amended and as

relevant to Allegiance‘s first and second issues, the force majeure provision in

the SUA stated:

      ―Force Majeure‖ as used herein shall mean . . . the City of Denton‘s
      (or other governmental authority‘s) failure to issue permits (provided
      that the Permit Seeker has timely submitted permit applications and
      thoroughly     prosecuted     such     applications    to    attempted
      completion) . . . so long as such event is beyond the reasonable
      control of the Party claiming the benefit of such Force Majeure and
      only in the event such Party is taking all reasonable action to remedy
      such Force Majeure.

      2. The City Failed to Issue Permits

                                         23
      Allegiance contends that the trial court erred by finding that an event of

force majeure occurred because the City did not fail to issue the permit by the

deadline. In other words, Allegiance argues that before the City could be found

to have failed to issue the permit, the City necessarily must have had an

opportunity before the July 11 Development Deadline to ―consider and vote on

the permit application in time for Range to meet its deadline.‖ But the SUA did

not require that the City have an opportunity to consider and vote on the permit

application before it could be found to have failed to issue permits.

      The SUA defined an event of force majeure to include ―the City of Denton‘s

. . . failure to issue permits‖ so long as (1) Range timely submitted and thoroughly

prosecuted the permit application to completion, (2) the City‘s failure to issue the

permit was beyond Range‘s reasonable control, and (3) Range took ―all

reasonable action‖ to remedy the City‘s failure to issue the permit. Thus, the

City‘s failure to issue permits could qualify as an event of force majeure under

the SUA if these three conditions were met. But Allegiance‘s argument would

add a fourth condition requiring the City to have an opportunity to consider and

vote on the application before the Development Deadline. Because we are not

permitted to rewrite the SUA, we reject Allegiance‘s contention that an event of

force majeure did not, as a matter of law, occur because the City did not have an

opportunity before the Development Deadline to consider and vote on Range‘s

permit application. See, e.g., Sun Operating Ltd., 984 S.W.2d at 283 (stating that




                                         24
an appellate court is ―not at liberty to rewrite the contract or interpret it in a

manner which the parties never intended‖).

       Allegiance also argues that the City‘s notification error is not a qualifying

event of force majeure because the City‘s error did not cause Range‘s

application to be delayed beyond the Development Deadline.             Specifically,

Allegiance argues that Range‘s failure to address the driveway access issue by

May 12 caused the planning and zoning commission hearing to be rescheduled

for June 3 and that there was not sufficient time by June 3 to provide fifteen days‘

public notice before the June 16 City Council meeting, the last meeting before

the Development Deadline.          Range responds that the City would have

considered the SUP application by the Development Deadline but for the City‘s

notification error.

       Allegiance attempts to separate and individually challenge the City‘s failure

to issue permits and the City‘s notification error as separate events of force

majeure. Rather, the City‘s notification error caused the City Council to not have

the opportunity to consider the SUP application before the Development

Deadline, and legally and factually sufficient evidence supports the trial court‘s

finding that the City failed to issue the permits.

       Range filed its application for a Gas Well Permit on April 3, 2009. Russell,

the City planning supervisor, testified that the City‘s website showed at that time

that the drill site was zoned RCC-D, which did not require a SUP. The City

notified Range on April 6 that the applicable zoning ordinance did require a SUP,


                                          25
and Range filed its SUP application on April 16. Also on April 16, Range met

with City officials and requested expedited review of the SUP application, and the

City agreed to get the application through the process as quickly as possible. To

accomplish this, the City sent public notice of the May 20 planning and zoning

commission hearing on May 7, even though the City would typically have waited

to issue the notice after all comments by the development review committee

were resolved. The SUP application was tabled from the May 20 to the June 3

planning and zoning commission hearing because the development review

committee comments were not resolved, but no new additional public notice was

required. Range submitted a revised site plan on May 21, and the development

review committee released the project on May 28. Moreover, Russell testified

that the City could have sent a notice for the June 16 City Council meeting in

advance of the planning and zoning commission hearing and that the City has

given similar notices ―from time to time‖ in the past. In the interim, however,

Russell discovered on May 26 that the May 7 notice mistakenly listed a zoning

code of RCC-D instead of NRMU, and this required a new public notice before

the planning and zoning commission could consider Range‘s SUP application.

Russell testified that the notification error caused Range‘s SUP application to be

delayed from the June 3 to the June 17 planning and zoning commission hearing

and that but for the notification error, the SUP application could have been

considered by the City Council on June 16.




                                       26
      Allegiance also argues the evidence is insufficient because Range

believed on May 20 (six days before learning of the City‘s notification error) that it

could not meet the July 11 Development Deadline.            We disagree, however,

because the evidence reflects that but for the notification error, the SUP

application would have been considered at the June 3 planning and zoning

commission hearing and that the City could have timely given public notice (prior

to the June 3 planning and zoning commission hearing) that the SUP application

would be considered at the June 16 City Council meeting.              Thus, despite

Range‘s belief on May 20 that it could not meet the July 11 Development

Deadline, other evidence reflects that meeting the deadline was still possible.

      3. Range Timely Submitted Permit Applications

      Allegiance argues that the trial court incorrectly interpreted the meaning of

―timely,‖ alternatively that ―timely‖ is ambiguous, and that there is legally and

factually insufficient evidence to support the trial court‘s finding that Range timely

submitted its permit applications.

             (a) Trial Court’s Interpretation of “Timely”

      The trial court interpreted ―timely‖ to mean that the permit applications had

to be submitted ―within a reasonable time considering all the circumstances.‖

Allegiance contends the trial court‘s interpretation is erroneous because ―timely‖

must be construed ―in the context of an agree[d]-to hard and fast drilling

deadline, which, if not met, would cause the ‗immediate‘ termination of Rayzor‘s

and Range‘s right to drill at all.‖ See generally Sun Operating Ltd., 984 S.W.2d


                                         27
at 281 (holding that oil and gas lease required production to resume within sixty

days of cessation rather than within a reasonable time because the lease

provided that it terminated if production ceased for more than sixty consecutive

days).     Allegiance‘s argument is misplaced, however, because it attempts to

imply a set permit application deadline into the SUA even though the SUA did not

contain any such deadline. The SUA clearly included the July 11 Development

Deadline by which Range was required to commence actual drilling, but the SUA

did not state that time was of the essence nor set forth a deadline by which

Range was required to submit its permit applications. Instead, the SUA stated

that the City‘s failure to issue permits qualified as an event of force majeure

―provided that [Range] timely submitted permit applications and thoroughly

prosecuted such applications to attempted completion.‖

         ―[W]here no time for performance is stated in a contract, the law will imply

a reasonable time.‖ CherCo Props., Inc. v. Law, Snakard & Gambill, P.C., 985

S.W.2d 262, 266 (Tex. App.—Fort Worth 1999, no pet.) (citing Moore v. Dilworth,

142 Tex. 538, 542, 179 S.W.2d 940, 942 (1944); Fitzsimmons v. Anthony, 716

S.W.2d 719, 720 (Tex. App.—Corpus Christi 1986, no writ)). Reasonableness is

determined by the facts and circumstances of the case. CherCo Props., Inc.,

985 S.W.2d at 266 (citing Solomon v. Greenblatt, 812 S.W.2d 7, 15 (Tex. App.—

Dallas 1991, no writ); Heritage Res., Inc. v. Anschutz Corp., 689 S.W.2d 952,

955 (Tex. App.—El Paso 1985, writ ref‘d n.r.e.)). Because the force majeure

provision did not define ―timely‖ or set forth a date by which the permit


                                          28
applications had to be filed, the law implies that Range was required to file the

permit applications within a reasonable time based on the facts and

circumstances of the case.6     See CherCo Props., Inc., 985 S.W.2d at 266.

Therefore, the trial court did not err by interpreting ―timely‖ as ―within a

reasonable time considering all the circumstances,‖ nor is ―timely‖ ambiguous.

See id.

            (b) Timeliness of Range’s Permit Applications

      Allegiance also argues there is legally and factually insufficient evidence

that Range timely submitted its permit applications.      In doing so, Allegiance

points to evidence that Range believed when it signed the Rayzor lease in

February 2008 that eight months would be sufficient time to perform all tasks

necessary to drill by the original October 2008 drilling deadline; that once the

SUA was amended in July 2008, Range had a full year to begin drilling; that

Range had two set-back waivers by April 2008, the same number it had when it

decided in February 2009 to proceed without the third set-back waiver; that


      6
        Allegiance contends that the trial court should have interpreted ―timely‖ to
mean ―the submission of permit applications to the City by a date which, in the
usual and ordinary course of business, would result in the issuance of all
necessary permits in time for Range to commence drilling by July 11.‖ But
Allegiance has not provided any authority approving of its proposed
interpretation. Further, the trial court interpreted ―timely‖ to mean ―within a
reasonable time considering all the circumstances,‖ and this interpretation
necessarily includes what would be done in the usual and ordinary course of
business.      The trial court‘s interpretation also necessarily allowed for
consideration of the City‘s Submission Schedule, the apparent flexibility within
that Submission Schedule, the City‘s attempts to try to expedite the application
process, and the possibility of approval but for the City‘s notification error.


                                        29
Range was aware it could face opposition from the community at public hearings;

and that once Range‘s SUP application was approved in October 2009, it took

Range almost another month to obtain a gas well plat. Allegiance also points to

evidence that Range expected the SUP process to take at least three months;

that despite this knowledge, Range did not file the SUP application until April 16,

two months before the June 16 City Council meeting; that Range knew by the

end of March that it would have trouble meeting the Development Deadline; and

that Range had to ask the City to expedite its application once it had been filed.

      While Allegiance‘s arguments are supported by the record, there is also

other evidence supporting the trial court‘s findings that Range submitted its

permit application within a reasonable time under the circumstances.            The

evidence in the record shows that an operator such as Range must evaluate and

decide on drill sites; determine the applicable zoning and waiver requirements;

work with surveyors to prepare the necessary surveys and plats; identify, contact,

and obtain leases from nearby mineral interest owners; identify, contact, and

obtain set-back waivers from nearby homeowners within a certain distance; and

prepare, file, and prosecute the permits to completion. The complexity of each of

these tasks depends on the circumstances in each case.

      The July 2008 amendment to the SUA reduced the number of drill sites

from four to one, meaning Range could only drill on the southern portion of the

Property while attempting to sufficiently access the minerals on the northern

portion of the Property. This required that Range obtain leases from the State of


                                        30
Texas to cross Highway 380 and from other adjacent mineral owners to avoid the

need for a spacing exception from the Texas Railroad Commission.            Range

began negotiating these leases by at least August 2008.

      In order to drill the six wells on the Property that Range believed necessary

to fully develop the minerals, Range was also required to obtain set-back waivers

from three homeowners. Range acquired the first two waivers by April 2008, and

Allegiance contends that Range knew by August 2008 that it would not be able to

obtain the third waiver.   However, the record includes evidence that Range

continued negotiations beyond that time.      As of September 2008, the third

homeowner wanted Range to make its best offer without further negotiation;

Range, by November 2008, had made an offer of $4,000 to the homeowner, and

Range ultimately offered to lease the homeowner‘s property for between $5,000

and $10,000. The homeowner refused, and Range decided in February 2009

that it had to proceed with only two set-back waivers and drill five wells on the

Property instead of six.

      In the meantime, Patton had requested on January 2, 2009, that the

surveyors begin preparing the plats for submission to the City.        In addition,

Range submitted applications to and received permits from the Texas Railroad

Commission and the Texas Commission on Environmental Quality in March

2009, and the surveyor finalized the final plat for submission to the City in late

March 2009.




                                        31
      Range then filed its application for a Gas Well Plat on April 3, three months

before the Development Deadline. Although Range had believed all along that a

SUP would also be required, both the City‘s website and Range‘s surveyor had

recently indicated that a SUP was not required, and the City planner that

accepted Range‘s Gas Well Plat application told Patton on April 3 that it was at

least possible that Range would not have to go through the SUP process. But on

April 6, the City informed Range that a SUP was in fact required, and Range

submitted its SUP application ten days later. When it filed its SUP application,

Range met with City officials and requested that the City expedite the SUP

process, and the City agreed. As of April 16, the plan was to have the SUP

application before the planning and zoning commission on May 20 and before

the City Council on June 16. Thereafter, and as discussed above, Range‘s SUP

application was ultimately postponed to the June 17 planning and zoning

commission hearing and the July 21 City Council meeting because of the zoning

classification error in the City‘s May 7 public notice.

      Relying heavily on the fact that Range had acquired the second set-back

waiver in April 2008 and could have proceeded with five wells instead of six,

Allegiance argues that Range could have filed its permit applications in sufficient

time to obtain approval by the Development Deadline but instead made a

―conscious and informed business decision to delay filing its applications in order

to try to increase its profits.‖ However, Range had a duty to act as a reasonably

prudent operator under the same or similar circumstances and to reasonably


                                          32
develop the premises. See Grayson v. Crescendo Res., L.P., 104 S.W.3d 736,

739 (Tex. App.—Amarillo 2003, pet. denied) (citing Amoco Prod. Co. v.

Alexander, 622 S.W.2d 563, 567 (Tex. 1981); Clifton v. Koontz, 325 S.W.2d 684,

693 (Tex. 1959)). And there is evidence that Range believed six wells (and thus

the third set-back waiver) were necessary to fully develop the Property and that

Range decided in February 2009, five months before the Development Deadline,

to proceed with five wells instead of six after the third homeowner rejected an

offer well in excess of what had been accepted by the other two homeowners.

      Finally, Allegiance argues that ―a slew of hypothetical and improbable

events would have had to take place‖ for Range to meet the July 11

Development Deadline given its April 16 SUP application filing date.          But

Allegiance‘s argument is based on a strict application of the City‘s submission

schedule—which was first published in March 2009, and is a guideline rather

than a rule of law—and ignores the City‘s agreement to expedite Range‘s SUP

application, the City‘s advance public notice (contrary to its normal practice) of

action on Range‘s application, and the possibility—but for the City‘s May 7

notification error—that the City Council could have considered the SUP

application on June 16, almost a month before the Development Deadline.

      The facts of this case present a close call. There is, as Allegiance aptly

points out, evidence that Range may have waited too long to submit its SUP

application. But there is also evidence that Range acted reasonably under the

circumstances to obtain the necessary leases and set-back waivers, prepare the


                                       33
surveys and plats, comply with its obligations to act as a prudent operator to fully

develop the minerals, and file the permit application in time to drill by the

Development Deadline.       As the trier of fact, the trial court determines the

credibility of the witnesses and the weight to be given their testimony, and we

may not substitute our judgment for that of the fact finder simply because we

might disagree with the fact finder‘s conclusions. Pool, 715 S.W.2d at 635; see

In re Doe 4, 19 S.W.3d 322, 325 (Tex. 2000). With these principles in mind,

considering the evidence favorable to the trial court‘s findings if a reasonable

factfinder could, and disregarding evidence contrary to the finding unless a

reasonable factfinder could not, we hold that legally sufficient evidence supports

the trial court‘s findings that Range timely filed its permit applications. See Cent.

Ready Mix Concrete Co., 228 S.W.3d at 651; City of Keller, 168 S.W.3d at 807,

827. In addition, after considering and weighing all of the evidence in the record

pertinent to the trial court‘s findings, we hold that the credible evidence

supporting the finding is not so weak or contrary to the overwhelming weight of

all the evidence that the trial court‘s findings should be set aside and a new trial

ordered. See Pool, 715 S.W.2d at 635; Garza, 395 S.W.2d at 823. Thus, we

overrule Allegiance‘s first and second issues.7




      7
      In light of our holdings above, we need not address whether other events
such as the filing of this lawsuit, the City‘s submission schedule, or lack of
cooperation by third parties also constituted events of force majeure or whether
Range provided timely notice of those events. See Tex. R. App. P. 47.1.


                                         34
                   VI. Permanent Injunction and Attorney’s Fees

         Allegiance argues in its fourth issue that the trial court erred by issuing a

permanent injunction against it and awarding attorney‘s fees to Range and that

Allegiance is entitled to its attorney‘s fees because no event of force majeure

occurred. As discussed above, however, we have held that legally and factually

sufficient evidence supports the trial court‘s findings that an event of force

majeure occurred, that Range timely submitted its permit applications, and that

Range provided timely and sufficient notice to Allegiance of the event of force

majeure. Thus, the trial court did not err by issuing a permanent injunction or by

awarding attorney‘s fees to Range.8 We therefore overrule Allegiance‘s fourth

issue.

             VII. Additional Findings of Fact and Conclusions of Law

         In its final issue,9 Allegiance argues that ―this Court cannot ascertain which

events the trial court relied upon‖ because ―the trial court did not specify [in its

findings of fact and conclusions of law] which alleged event(s) constituted events

of force majeure as defined in the SUA.‖ Citing the criminal case of State v.

Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006), Allegiance contends that


         8
        Allegiance‘s only challenge to the permanent injunction and award of
attorney‘s fees is that the trial court erred by finding that an event of force
majeure occurred. Allegiance does not contend, for example, that the permanent
injunction is overly broad or that the attorney‘s fees awarded are not reasonable
and necessary.
         9
       Allegiance does not specifically list this argument as a separate issue but
does raise it in the alternative to its other four issues.


                                           35
the trial court‘s failure to grant Allegiance‘s request for additional findings of fact

and conclusions of law ―prevented Allegiance from properly presenting its

arguments on appeal.‖ However, Allegiance does not identify which requested

but refused additional finding prevented it from properly presenting its appellate

argument, nor does Allegiance explain how the trial court‘s refusal to make the

additional finding prevented Allegiance from presenting its appellate argument.

      An appellate brief must contain argument and the authorities and facts

relied upon for the appeal with references to the pages in the record where those

facts can be found. Weaver v. Sw. Nat’l Bank, 813 S.W.2d 481, 482 (Tex. 1991);

see also Tex. R. App. P. 38.1(f), (i).      An inadequately briefed issue may be

waived on appeal. Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex. App.—Fort

Worth 1996, writ denied); see also Fredonia State Bank v. Gen. Am. Life Ins.

Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (discussing the ―long-standing rule‖

that a point may be waived due to inadequate briefing). Because Allegiance‘s

final issue does not contain appropriate argument or citations to the record, we

overrule it as inadequately briefed.

                                  VIII. Conclusion

      Having overruled each of Allegiance‘s issues, we affirm the trial court‘s

judgment.

                                                     ANNE GARDNER
                                                     JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: July 28, 2011

                                          36
