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          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                     Fifth Circuit

                                                                               FILED
                                                                          March 25, 2020
                                     No. 19-60151
                                                                           Lyle W. Cayce
                                                                                Clerk
PETRO HARVESTER OPERATING COMPANY, L.L.C.; PETRO
HARVESTER LAUREL HOLDINGS, L.L.C.,

       Plaintiffs - Appellees

v.

DAVID KEITH; TERRY KEITH,

       Defendants - Appellants



                  Appeal from the United States District Court
                    for the Southern District of Mississippi


Before WIENER, HIGGINSON, and HO, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Appellants David and Terry Keith (the “Keiths”) own the surface of 4.3
acres of land sitting atop the property leased by Appellee Petro Harvester
Operating     Company      (“Petro    Harvester”). 1     Petro   Harvester’s    distant
predecessors-in-interest began leasing the Keiths’ surface land in 1988 and
Petro Harvester continued to do so until 2018. When the lease expired, Petro
Harvester sought a declaratory judgment that it could continue to operate its



      1 Appellee consists of Petro Harvester Laurel Holdings, LLC and Petro Harvester
Operating Company, LLC. Petro Harvester Laurel Holdings, LLC consists of Petro Harvester
Oil and Gas, Inc. Petro Harvester Operating Company, LLC consists of Petro Harvester Oil
and Gas, Inc. and Petro Harvester Intermediary, Inc.
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                                  No. 19-60151
oil and gas extraction activities on the Keiths’ surface land even without a
surface lease, pointing to its explicit and implicit surface rights as a mineral
lessee. The Keiths responded that the Surface Lease required Petro Harvester
to return the surface land to its pre-lease condition upon expiration, meaning
Petro Harvester was required to remove its machinery and vacate the property.
The district court granted summary judgment in favor of Petro Harvester. The
Keiths now appeal. For the reasons set forth below, we affirm the district
court’s summary judgment order.
                                       I.
                                      A.
      On June 7, 1985, the Keiths purchased the surface of approximately 4.3
acres of land in Mississippi for $1,850. Before the Keiths bought the property,
the surface rights and mineral rights had been severed. Therefore, the Keiths
do not own the mineral rights; they only own rights to the surface.
      Under a 1959 mineral lease (the “Mineral Lease”), Petro Harvester’s
predecessors-in-interest began leasing the mineral estate underlying the
Keiths’ surface property. In 2010, Petro Harvester was assigned the rights
under the Mineral Lease and became the mineral lessee and operator. The
Mineral Lease grants Petro Harvester the right to conduct oil and gas
operations on the Keiths’ property. Specifically, the Mineral Lease gives Petro
Harvester the following rights:
      [T]he exclusive right of exploring, drilling, mining, and operating
      for, producing, and owning oil, gas Sulphur and all other
      minerals . . . together with the right to make surveys on said land,
      lay pipe lines, establish and utilize facilities for surface or
      subsurface disposal of salt water, construct roads and bridges, dig
      canals, build tanks, power stations, power lines, telephone lines,
      employee houses and other structures on said land, necessary or
      useful in lessee’s operations in exploring, drilling for, producing,
      treating, storying and transporting minerals produced from the
      land covered hereby or any other lands adjacent thereto.
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                                      No. 19-60151
       Petro Harvester also leased the Keiths’ surface land from 2010 to 2018
under a 1988 surface lease (the “Surface Lease”) executed by Petro Harvester’s
predecessors-in-interest. The Mineral Lease predates the Surface Lease by
almost 30 years. The Surface Lease makes no reference to the preexisting
Mineral Lease.
       Petro Harvester operates the Laurel Oil Field, which is a large oil field
that includes the Keiths’ surface land and hundreds of additional acres. The
Keiths’ 4.3-acre plot is among over 1,000 acres of surface lands that Petro
Harvester can access to produce oil and gas. Petro Harvester’s operations on
the surface of the Keiths’ property include the operation of six wells, three
pumps, buried flowlines and piping, and an electric power panel. When the
Surface Lease was signed in 1988, the only structure on the property was a
wooden building. The wooden structure was destroyed by another operator
sometime between 1999 and 2002. 2


                                        B.
       Section 8 of the Surface Lease contains the following key provision:

       8. Tenant agrees at the end of the lease term that it shall return
       the premises to Landlord in the same or similar condition as the
       property was in at the commencement hereof except for normal
       wear.

The Surface Lease gives Petro Harvester the right to use the property for “any
lawful purpose” and the right to restrict the amount of debt the Keiths owed
on the property.
       The Surface Lease expired on March 25, 2018. When the Surface Lease
expired, Petro Harvester did not remove its equipment from the Keiths’


       2The Keiths do not allege any breach of contract arising from demolition of the wooden
structure. The Keiths only seek the removal of wells and pumps that have been installed on
the surface of the property since the Surface Lease was first executed in 1988.
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                                  No. 19-60151
property. The parties agree that Petro Harvester has complied with all other
terms of the Surface Lease.


                                       C.
      Petro Harvester filed this action seeking a declaratory judgment that,
despite the expiration of the Surface Lease, it has the right to use the
property’s surface to conduct its oil and gas operations, and that its current use
is reasonable for this purpose. The Keiths responded by filing a counterclaim
alleging that Petro Harvester breached the Surface Lease by failing to return
the property to its pre-Surface Lease condition. The Keiths also asserted
counterclaims for breach of contract, tortious breach of contract, and breach of
the implied duty of good faith and fair dealing. The Keiths sought specific
performance of the Surface Lease, eviction of Petro Harvester, and damages.
The Keiths also asserted various affirmative defenses, including waiver,
ratification, estoppel, and the statute of limitations. The parties filed cross-
motions for summary judgment. In their summary judgment briefing, neither
party contended that there were material factual disputes. Instead, the parties’
disagreements were legal. The district court granted summary judgment in
favor of Petro Harvester and denied the Keiths’ summary judgment motion.
The district court held that Petro Harvester’s surface rights as the mineral
lessee could not be superseded through the Surface Lease, relying on Reynolds
v. Amerada Hess Corp., 778 So. 2d 759 (Miss. 2000).


                                       II.
      This court has appellate jurisdiction under 28 U.S.C. § 1291 because the
Keiths timely appealed a final judgment. This court has subject matter
jurisdiction under 28 U.S.C. § 1332 because there is complete diversity of
citizenship between the parties and the amount in controversy exceeds
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                                  No. 19-60151
$75,000.
      The parties and the district court agree that Mississippi law applies. See
Kountouris v. Varvaris, 476 So. 2d 599, 606 (Miss. 1985); Tideway Oil
Programs, Inc. v. Serio, 431 So. 2d 454, 458 (Miss. 1983); Spragins v. Louise
Plantation, Inc., 391 So. 2d 97, 100 (Miss. 1980); see also Restatement (Second)
of Conflict of Laws §§ 223–24 (Am. Law Inst. 1971). When determining
Mississippi law, this court first looks to “the final decisions of the [Mississippi]
Supreme Court.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th
Cir. 2007). If these decisions provide inadequate guidance, this court must
make an Erie guess and determine “how [the Mississippi Supreme Court]
would resolve the issue if presented with the same case.” Id.
       “This court reviews a district court’s grant of summary judgment de
novo, applying the same legal standards as the district court.” Tradewinds
Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir.
2009) (quoting Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir.
2005)). “Summary judgment is appropriate when ‘the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” United States v. Nature’s Way Marine, L.L.C.,
904 F.3d 416, 419 (5th Cir. 2018) (quoting FED. R. CIV. P. 56(a)).


                                        III.
      The Keiths contend that the district court erred by rejecting their breach
of contract claim and each of their affirmative defenses. We find no error in the
district court’s holding and therefore affirm. The district court correctly held
that the Surface Lease here does not supersede the Mineral Lease. The district
court also properly rejected the Keiths’ affirmative defenses of waiver,
ratification, and estoppel. Mississippi’s statute of limitations does not bar
Petro Harvester’s declaratory judgment action. Finally, the Keiths waived any
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                                 No. 19-60151
argument that there are genuine issues of material fact that preclude
summary judgment.


                                      A.
      Under the Mineral Lease, Petro Harvester is given authority to use the
surface for its oil and gas operations. And Mississippi common law provides
that mineral lessees have “the right to use the surface of the lands for all
reasonable purposes to explore and drill for oil and gas and may use as much
of the surface as is reasonably necessary to exercise [their] rights.” Reynolds,
778 So. 2d at 762. Under the Surface Lease, Petro Harvester is required to
return the property to its pre-Surface Lease condition, which could be
interpreted to require Petro Harvester to remove the wells, pipelines, and
pumps that have been installed on the surface to assist with extraction efforts
since the Surface Lease was executed in 1988. The primary issue before us is
whether the Surface Lease limits or restricts Petro Harvester’s rights under
the Mineral Lease and under Mississippi mineral rights law.
      The district court held in favor of Petro Harvester, concluding that the
outcome of the case was largely controlled by the Mississippi Supreme Court’s
holding in Reynolds. The Keiths attempt to distinguish Reynolds and criticize
the district court opinion as overly broad because it impinges on the right to
contract freely. Petro Harvester responds by relying on Reynolds for the
proposition that the Surface Lease does not supersede the dominant mineral
estate.
      We affirm the district court and hold, consistent with Reynolds, that the
Surface Lease here, as written, did not supersede Petro Harvester’s explicit
and implicit surface rights as a mineral lessee after expiration of the Surface
Lease.


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                                              i.
      Reynolds controls the result here. In that case, the mineral owner leased
the mineral rights of the Eucutta Oil Field to Humble Oil Company in 1940.
778 So. 2d at 760. The mineral lease gave Humble rights equivalent to those
acquired by Petro Harvester under its mineral lease. 3 Id. Reynolds later
bought part of the surface land. Id. Trans-State Oil Company was eventually
designated the operator of the oil-producing units used to extract oil from
Humble’s leased property—with permission from Humble and the owner of the
mineral estate. Id.
      In 1968, long after the mineral lease was in existence, Trans-State began
leasing part of Reynolds’ surface property. Id. Under the surface lease, Trans-
State was authorized to construct exploration equipment on the Reynolds’
surface property but had to remove all equipment from the property within 90
days following termination. Id. at 760–61. The lease expired in 1988. Id. By
then, Trans-State had become Amerada Hess Corporation (“Hess”). 4 Id. When
the lease expired, Reynolds shut down the oil facilities on the surface of his
property, claiming that Hess no longer had the right to use the surface of his
property because the surface lease had expired. Id.
      Hess moved for a preliminary injunction prohibiting Reynolds from
interfering with its operations, which the trial court granted. Id. Reynolds


      3   The mineral lease granted Humble:
      [T]he right of operating for and producing therefrom oil, gas and/or other
      minerals, casinghead gas and casinghead gasoline, with right of way and
      easements for pipelines, telegraph and telephone lines, tanks, power houses,
      stations, gasoline plants and fixtures for producing, treating and caring for
      such products and any and all rights and privileges necessary, incident to or
      convenient for the economical operations of said land for oil, gas and/or other
      minerals, casinghead gas and casinghead gasoline.
       Reynolds, 778 So. 2d at 760.
       4 From this point forward, Trans-State is referred to as Hess because Hess was the

relevant party when the dispute arose.
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counterclaimed, alleging breach of contract. Id. The trial court granted
summary judgment in favor of Hess. Id. On appeal, Reynolds argued that Hess
contracted away certain surface rights granted to Humble under the 1940
mineral lease when it entered into the 1968 surface lease. Id. at 762. Hess
responded that, as the operator, it did not have the authority to bargain away
the surface rights belonging to the mineral lessee (Humble). Id.
      The Supreme Court of Mississippi began by emphasizing that Hess was
granted surface rights co-extensive with those granted to Humble under the
1940 mineral lease, along with rights implied to mineral lessees under
Mississippi common law. Id. at 762. The court went on to note that other courts
had rejected Reynolds’ argument: “The Reynoldses’ assertion that the surface
lease supersedes the existing mineral lease has been rejected time and again
in other jurisdictions.” Id. (citing Mingo Oil Producers v. Kamp Cattle Co., 776
P.2d 736, 740 (Wyo. 1989); Livingston v. Indian Territory Illuminating Oil Co.,
91 F.2d 833 (10th Cir. 1937); Ball v. Dillard, 602 S.W.2d 521 (Tex. 1980)). The
court then held that Reynolds’ “surface lease did not supersede the 1940
mineral lease.” Id. at 764. Therefore, Hess was entitled to leave its operating
equipment on Reynolds’ property. Like the operator in Reynolds, Petro
Harvester became party to the Surface Lease purporting to limit or restrict its
rights under the Mineral Lease.
      The Keiths argue, however, that Reynolds is distinguishable. The Keiths
emphasize that the operator in Reynolds was a separate entity from the
mineral lessee. Because the entities were separate, the operator signed the
surface lease but the mineral lessee did not, meaning the mineral lessee could
not be bound by it. Here, however, the operator and the mineral lessee are the
same entity—and this was true at the time the Surface Lease was signed as
well—meaning that the Surface Lease binds the mineral lessee and all
successors-in-interest, including Petro Harvester. The Keiths contend that this
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fact materially impacts the applicability of Reynolds.
       To support this proposition, the Keiths cite the Reynolds trial court order
granting summary judgment. Although the trial court in Reynolds explicitly
relied on this reasoning to justify granting summary judgment in favor of Hess,
the Supreme Court of Mississippi did not propound this rationale. Indeed,
when reaching its legal conclusions, the Reynolds court did not once refer to
the trial court’s reasoning. Nor did the Reynolds court state that its decision
turned on whether the operator was also the mineral lessee. Instead, the
Reynolds court highlighted guiding law from other jurisdictions. Reynolds, 778
So. 2d at 762–63.
       A close look at the facts of Reynolds reveals why the distinction the
Keiths draw is not determinative. The Reynolds court held in favor of the
operator, Hess, even though the operator was explicitly bound by and had
signed the surface lease. In other words, Hess was able to rely on the implied
and explicit surface rights granted to the mineral lessee in order to avoid its
contractual obligations under the surface lease. 5 As the Reynolds trial court
recognized, “[a]s Operator . . . Trans-State Oil Company was acting on behalf
of Humble . . . to develop and operate the Unit for production of oil, gas, and
water produc[tion].” See also Reynolds, 778 So. 2d at 760 (“The trial court found
that as operator under the agreements Trans-State [Hess] had authority from
Humble to use the surface in the lands leased by Humble for the economical
development, operation, and production of the fieldwide unit under the same
rights and powers . . . Humble had received under the 1940 lease.”). For these
reasons, Reynolds counsels in favor of Petro Harvester.




       5 Alternatively, the Reynolds court could have held that Hess was incapable of legally
altering the scope of Humble’s mineral rights. Even if that were the case, Hess would still be
bound by its own surface lease with Reynolds.
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                                             ii.
       The Keiths rely on several other cases that they contend support their
position. But these authorities are inapposite. In Colburn v. Parker & Parsley
Development Co., 842 P.2d 321 (Kan. Ct. App. 1992), the issue was whether an
oil and gas lessee could bargain away its explicit right to drill a salt water
disposal well on the surface of the leased property and dispose of the salt water
refuse without payment to the landowner. Id. at 323–25. The oil and gas lessee,
Rupe, entered into a salt water disposal agreement with the landowner, the
Colburns. 6 Id. at 327. Citing this agreement, Rupe sought to expand its implicit
and explicit right to dispose of salt water resulting from its own operations to
include a right to dispose of salt water produced as a result of offsite operations,
in exchange for paying the Colburn’s 1.5 cents per barrel of salt water disposed
on the property. Id. Rupe’s successor-in-interest argued that it was not
required to pay the disposal fee for salt water originating on its property
because the oil and gas lease gave it the right to build structures as necessary
for the “economical operation” of the land. Id. at 324, 329. The Kansas Court
of Appeals held in favor of the Colburns because the trial court’s interpretation
of the salt water disposal agreement was supported by substantial evidence.
Id. at 331. The court held that “[a]lthough the lessee under an oil and gas lease
has the implied right to dispose of salt water on the leased premises without
payment to the lessor, that right may be bargained away by agreement
between the parties.” Id.
       Colburn is distinguishable because the property owner in Colburn owned
a fee simple interest in the property—the mineral rights had not been severed.
Id. at 323. The Colburn court was not analyzing dueling or co-existent leases,



       6 In contrast to the facts in this case, the Colburns owned the land in fee simple and
the estate was not severed. Colburn, 842 P.2d at 327.
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                                No. 19-60151
as in Reynolds and the present case. Instead, the Colburn court was
interpreting a single contract that it held governed instead of implicit salt
water disposal rights granted to Kansas mineral lessees. The court did not
reach the question of whether a surface lease or any other type of agreement
supersedes rights given in a mineral lease. Colburn is also distinguishable
because the mineral lease contained no explicit right to dispose of salt water
on the property. Instead, “[t]his right arises by the reasonable application of
implied covenants to oil and gas leases.” Id. at 325–27 (“We hold the granting
clause in an oil and gas lease includes an implied covenant to dispose of the
salt water produced during operations by utilizing a salt water disposal well
drilled on the leased premises without additional compensation to the lessor.”
(emphasis added)). By contrast, the right the Keiths seek to supersede through
the Surface Lease is both explicitly stated in the Mineral Lease and enshrined
in Mississippi common law. For these reasons, Colburn does not provide
persuasive support for the Keiths’ argument.
      The Keiths also contend that the Reynolds court’s effort to distinguish
Colburn reveals that Reynolds turned on the fact that the mineral lessee had
not signed the at-issue surface lease. The Keiths rely on the following passage
from the Reynolds decision to support their argument:
      Although Colburn is somewhat closer to the mark than Monfort,
      it, too, is of limited applicability. First, it does not involve
      concurrent surface and mineral leases and does not address
      whether one may entirely supersede the other. Second, Colburn is
      factually distinguishable from the case at bar because in Colburn
      the mineral lessor and lessee were the same parties who executed
      the saltwater disposal agreement. A different situation exists in
      the present case in which Trans-State (Hess) and the Reynolds
      executed the 1968 surface lease, but neither was a party to the
      original 1940 mineral lease.
Reynolds, 778 So. 2d at 763.
      As this passage shows, the Reynolds court primarily distinguished
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Colburn by pointing to the fact that Colburn did not involve “concurrent
surface and mineral leases” because the property in question had not been
severed. Id. Moreover, the Reynolds court cited to three other cases to support
its reasoning. Id. at 762–63 (discussing Mingo Oil Producers, 776 P.2d at 740;
Livingston, 91 F.2d at 834–35; Ball, 602 S.W.2d at 523). In each of these cases,
the mineral lessee and the operator were the same party, as in the present
case.
        For these reasons, neither Colburn nor the Reynolds court’s discussion
of it are persuasive that Petro Harvester’s role as both operator and mineral
lessee is determinative to distinguish the Mississippi Supreme Court’s holding
that a surface lease does not supersede a preexisting mineral lease.
        Beyond Colburn, the Keiths point to one other case they contend
suggests that Reynolds is inapplicable—Mobil Oil Corp. v. Brennan, 385 F.2d
951 (5th Cir. 1967). There, a dispute arose between a surface owner and a
mineral owner on a severed piece of land. Id. at 952. The 1926 deed under
which the mineral owner took ownership stated that “all pipe lines laid across
any of said land . . . shall be placed below plow depth” and that the mineral
owner could not “interfere with the use of lands for grazing purposes.” Id. It
was this deed that initially severed the mineral rights. Id. The surface owner
eventually brought suit against the mineral owner seeking an injunction that
would require the mineral owner to comply with the terms of the 1926 deed.
Id. at 953. The mineral owner responded by pointing to a 1959 deed conveying
the surface estate to the original surface owner’s successor-in-interest. Id. at
952. The mineral owner argued that the 1959 deed expanded the mineral
owner’s surface rights as articulated in the 1926 deed because the 1959 deed
did not expressly mention the surface use limitations contained in the 1926
deed. Id.
        The legal issue was whether the covenants expressed in the 1926 deed
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                                  No. 19-60151
attached to the surface estate or the mineral estate. Id. at 953. If the covenants
attached to the surface estate, the covenants were enforceable by the surface
owner and did not need to be mentioned in the 1959 deed. If the covenants
attached to the mineral estate, the covenants could only be enforced by the
mineral owner. This court affirmed the district court’s holding that the
covenants in the 1926 deed “attached to the surface estate, and will remain
with the same forever unless expressly detached therefrom by the surface
owner.” Id. at 953–54.
      After resolving this issue—and determining that the surface owner could
enforce the covenants in the 1926 deed against the mineral owner—this court
considered the mineral owner’s argument that, as a mineral owner, it had the
“right to build the [concrete] foundations in order to explore for, develop, and
produce minerals and that under Texas law the party in charge of drilling
operations has no implied duty to restore the surface to the condition it was in
prior to the commencement of the work.” Id. at 954–55. This court rejected the
argument, pointing out that “the real question is whether covenants in the
1926 deed expressly require [the mineral owner] to remove objects no longer
needed for drilling operations.” Id. at 955. In other words, this court was
construing the deed. This court clarified that, under Texas law, “[e]xpress
language may limit the surface easement of the mineral estate and impose
upon the mineral owner a duty of restoration not otherwise present.” Id. The
Keiths rely on this quote for the proposition that “the surface owner was
entitled to enforce limitations on the mineral owner’s surface rights.”
      Mobil Oil Corp. is inapposite. The court in Mobil Oil Corp. was
construing a mineral deed, whereas here the question, as in Reynolds, is the
effect that a surface lease has on a mineral lease. Although the Keiths claim
this difference does not matter, Mississippi courts have held that a property
owner’s rights can be curtailed through a deed. See Singer v. Tatum, 171 So.
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2d 134, 149 (Miss. 1965) (noting that an owner “cannot claim any greater title
than they received” under their deed); see also Chevron U.S.A. v. State, 578 So.
2d 644, 654 (Miss. 1991) (“[A]n oil and gas lease is a ‘deed’ as such term is
usually employed. . . . The grantor of an oil and gas lease could write his
conveyance so that his grantee acquired no title except upon production, a rule
of capture, if you will, and if he did so we would be obligated to enforce it.”
(internal quotation marks and citations omitted)).
      The Keiths also rely on dicta that appears in EOG Resources, Inc. v.
Turner, 908 So. 2d 848, 854 (Miss. Ct. App. 2005). There, the Mississippi Court
of Appeals stated that “a mineral owner or a lessee of the mineral estate, in
the absence of additional rights expressly conveyed or reserved, may use as
much of the surface as is reasonably necessary to exercise its right to recover
minerals, without liability for surface damage.” Id. In the same paragraph, the
court noted that these implied surface rights “enure[] to the mineral estate in
the absence of surface leases or other agreements expressly granting the
mineral owner rights to use the surface of the land.” Id. (citing Reynolds, 778
So. 2d at 762). The court later stated, however, that “[s]urface leases, surface
damage agreements, or other contractual arrangements favoring the mineral
estate merely expand the mineral owner’s extant right to use as much of the
surface as is reasonably necessary to conduct its operations.” Id. (citing
Reynolds, 778 So. 2d at 762). Whereas, the Keiths cite EOG Resources for the
proposition that a mineral lessee can “alienate, limit, or restrict its implied
rights to use the surface lands” through contracts, EOG Resources also did not
involve any conflict between the mineral lessee’s implied surface rights and a
surface lease.


                                      iii.
      We emphasize that our holding should not be construed to preclude the
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                                 No. 19-60151
possibility that a surface owner who also owns the mineral rights could include
surface-use restrictions in the mineral lease. Indeed, an appropriately drafted
surface lease that refers explicitly to the mineral lease may be capable of
modifying the mineral lease; and a mineral deed that initially severs the
surface from the mineral rights might also establish surface-use restrictions.
But no such language is presented here, so the question is academic, and we
need not address the issue.


                                       iv.
      For the foregoing reasons, we AFFIRM the district court’s decision
granting summary judgment in favor of Petro Harvester.


                                       B.
      At summary judgment, the district court rejected each of the Keiths’
affirmative defenses: waiver, ratification, and estoppel. The Keiths appeal the
district court’s rejection of each of these affirmative defenses. The Keiths bear
the burden of proving each element of each affirmative defense by a
preponderance of the evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986); FED. R. CIV. P. 56(c).


                                       i.
      The district court rejected the Keiths’ affirmative defense of waiver. The
Keiths contend that Petro Harvester waived its right to use the surface of the
subject property beyond the term of the Surface Lease because it was aware of
its implied surface rights under Reynolds but still agreed to comply with all
terms of the Surface Lease, complied with all of those terms, and then refused
to comply with Section 8. Petro Harvester responds by distinguishing the sole
case cited by the Keiths on appeal.
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                                  No. 19-60151
      “[W]aiver is the intentional relinquishment or abandonment of a known
right.” Rolison v. Fryar, 204 So. 3d 725, 733 (Miss. 2016) (internal quotation
marks and citation omitted). First, as explained above, Petro Harvester did not
supersede or waive its implicit and explicit rights as a mineral lessee when it
signed the Surface Lease. Second, the authority cited by the Keiths is not
supportive of their position. To support their waiver theory, the Keiths point
to a 1925 case applying Louisiana law, Transcontinental Oil Co. v. Spencer, 6
F.2d 866 (5th Cir. 1925). There, the dispute arose between a mineral lessor and
a mineral lessee. Id. at 868. The mineral lease granted the lessor an option to
terminate the lease if the lessee ceased oil and gas production on the land. Id.
at 868. The lessee briefly ceased oil and gas production after concluding
(wrongly) that the land was barren. Id. at 869. Soon after ceasing production,
the lessee discovered additional oil and gas on the property and extraction
levels spiked. Id. The lessor responded by seeking to exercise its option to
terminate the lease based on the lessee’s earlier production cessation. Id. This
court held that the lessor waived its option to terminate the lease, noting that
“[a] lessor is not entitled to occupy the inconsistent position of acquiescing in
the lessee going on under the lease, and at the same time retaining the right
to rescind for a known breach of a condition by the lessee.” Id. (“[B]y
consenting, with knowledge of a default, to the continued existence of the lease,
[the lessor] waived the right to have it annulled.”).
      There are meaningful differences between Transcontinental Oil Co. and
this case. Transcontinental Oil Co. involved a dispute between a mineral lessee
and mineral lessor, but the dispute here is between a mineral lessee and
surface owner. Moreover, unlike the lease in Transcontinental Oil Co., the
Surface Lease contains no termination clause, meaning that Petro Harvester
had no choice but to comply with its terms and make lease payments to the
Keiths while the Surface Lease was in effect. The district court correctly
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                                  No. 19-60151
rejected the Keiths’ waiver affirmative defense.


                                        ii.
      The district court rejected the Keiths’ affirmative defense of ratification.
The Keiths argue that Petro Harvester ratified the Surface Lease by complying
with it from 2010 to 2018, thereby recognizing that it was bound by each of its
terms.
      “Ratification is the affirmance by a person of a prior act which did not
bind him but which was done or professedly done on his account, whereby the
act, as to some or all persons, is given effect as if originally authorized by him.”
Estate of St. Martin v. Hixson, 145 So. 3d 1124, 1131 (Miss. 2014) (citation
omitted). “[A] person ratifies an act by (a) manifesting assent that the act shall
affect that person’s legal relations, or (b) conduct that justifies a reasonable
assumption that the person so consents.” Northlake Dev. LLC v. BankPlus, 60
So. 3d 792, 797 (Miss. 2011) (alteration omitted).
      There is no dispute that the Surface Lease was enforceable, valid, and
ratified by Petro Harvester. But ratification is irrelevant. It is of no
consequence whether Petro Harvester ratified the terms of the Surface Lease
because Petro Harvester does not seek to nullify those terms. Instead, Petro
Harvester seeks a declaratory judgment that it need not comply with the
Keiths’ interpretation of Section 8 because that interpretation is inconsistent
with the mineral lease as well as Petro Harvester’s implicit rights as a mineral
lessee. The district court correctly rejected the Keiths’ ratification affirmative
defense.


                                        iii.
      The district court rejected the Keiths’ affirmative defense of estoppel.
The Keiths argue that Petro Harvester should be estopped from reaping the
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                                 No. 19-60151
benefits of the Surface Lease while evading its obligations.
      “Equitable estoppel is an extraordinary remedy to be used with caution.”
Olshan Found. Repair Co. of Jackson, LLC v. Moore, 251 So. 3d 725, 730 (Miss.
2018) (internal quotation marks and citation omitted). The doctrine “is
generally defined as the principle by which a party is precluded from denying
any material fact, induced by his words or conduct upon which a person relied,
whereby the person changed his position in such a way that injury would be
suffered if such denial or contrary assertion was allowed.” Brown v. McKee, 242
So. 3d 121, 130 (Miss. 2018) (internal quotation marks and citation omitted).
A party cannot be estopped from challenging the “legal effect of a contract.” St.
Paul Fire & Marine Ins. Co. v. Vest Transp. Co., 500 F. Supp. 1365, 1379–80
(N.D. Miss. 1980). “In order for a representation to be the basis of an estoppel
it must amount to a representation of material facts as opposed to a
representation made as to a matter of law.” Barnett v. Getty Oil Co., 266 So. 2d
581, 587 (Miss. 1972).
      Estoppel does not apply “where both parties [are] equally in possession
of all the facts pertaining to the matter relied on as an estoppel, and the
position taken thereto involved solely a question of law.” Miss. Power & Light
Co. v. Pitts, 179 So. 363, 365 (Miss. 1938); Barnett, 266 So. 2d at 587 (refusing
to apply the doctrine of estoppel to the construction of a mineral lease).
Whether Section 8 of the Surface Lease is applicable in light of the Mineral
Lease is “solely a question of law.” Therefore, even if Petro Harvester
represented that it would comply with the Keiths’ interpretation of Section 8,
and even if the Keiths relied to their detriment on this representation, the
doctrine of estoppel is inapplicable here. The district court correctly rejected
the Keiths’ estoppel affirmative defense.




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                                  No. 19-60151
                                        C.
      The district court rejected the Keiths’ argument that Petro Harvester’s
declaratory judgment action is barred by Mississippi’s statute of limitations.
The Keiths rely on a Mississippi case holding that challenges to the
enforceability or reasonableness of contractual provisions must be brought
within three years of the moment the party is put on notice about the
objectionable provisions. See CitiFinancial Mortg. Co., v. Washington, 967 So.
2d 16, 19 (Miss. 2007). Petro Harvester responds that its declaratory judgment
action relates to an underlying breach of contract action and that, therefore,
the action did not accrue until the time of the alleged breach in March 2018.
      Mississippi statutes do not identify a statute of limitations period for
declaratory judgment actions. Instead, “[a]s a general rule, an action for
declaratory judgment will be barred to the same extent that the applicable
statute of limitations bars an underlying action in law or equity.” Gulf Shore
Props., LLC v. City of Waveland, No. 1:16cv437-HSO-JCG, 2018 WL 564942,
at *4 (S.D. Miss. Jan. 25, 2018) (citing 22A Am. Jur. 2d Declaratory Judgments
§ 182 (2017)). “Because claims for declaratory relief necessarily derive from
claims for substantive relief, the statute of limitations for the underlying action
at law generally is applied to an accompanying action for declaratory relief.”
Id. (citing 22A Am. Jur. 2d Declaratory Judgments § 182 (2017)).
      The question, therefore, is what cause of action underlies Petro
Harvester’s declaratory judgment action. Petro Harvester seeks a declaration
that it is entitled to reasonably use the surface of the Keiths’ property as a
mineral   lessee     without   interference   from   the    Keiths.   The   Keiths
counterclaimed, alleging breach of contract. Therefore, the underlying action
can reasonably be classified as a breach of contract claim.
      Under Miss. Code Ann. § 15-1-49(1), breach of contract actions are
subject to a three-year statute of limitations. Levens v. Campbell, 733 So. 2d
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753, 758 (Miss. 1999). Breach of contract actions accrue at the time of the
alleged breach. E.g., Johnson v. Crisler, 125 So. 724, 724–25 (Miss. 1930). The
Keiths allege that Petro Harvester’s breach began when the Surface Lease
expired in March 2018. Therefore, Petro Harvester had until March 2021 to
file its declaratory judgment action. Petro Harvester filed in March 2018, well
within the statute of limitations. 7
       For these reasons, Petro Harvester’s declaratory judgment action is not
barred by Mississippi’s statute of limitations.


                                             D.
       The district court found that “[t]here are no disputed facts in this case.
It presents a pure legal question.” The Keiths contend that “genuine issues of
material fact preclude . . . summary judgment.” Petro Harvester responds that
the Keiths did not identify any genuine issues of material fact to the district
court and that the parties’ cross-motions for summary judgment belie the



       7   Petro Harvester’s declaratory judgment action is not time-barred under
CitiFinancial Mortg. Co., Inc. v. Washington, 967 So. 2d 16, 19 (Miss. 2007), either. There,
borrowers brought suit against a lender for breach of the covenant of good faith and fair
dealing, among other claims. Id. at 18. The borrowers signed a loan agreement under which
they received $31,480. Id. When they signed the agreement, the lender informed the
borrowers that they would satisfy the debt after making 180 monthly payments of $400.57.
Id. In reality, under the terms of the agreement, after 179 payments the borrowers would
still owe $28,878.20. Id. The trial court rejected the lender’s motion for summary judgment,
and the lender appealed. Id. The Supreme Court of Mississippi held that the statute of
limitations barred the borrowers’ claims. Id. at 19. Because the borrowers were “on notice”
about the terms of the loan (the very terms they challenged later) at the time the loan
agreement was executed, the cause of action for breach of the covenant of good faith and fair
dealing accrued upon execution of the agreement. Id. CitiFinancial is inapplicable here. The
borrowers in CitiFinancial did not allege a breach of contract—they alleged that the very
terms of the contract constituted a breach of the covenant of good faith and fair dealing. By
contrast, here, Petro Harvester does not challenge the terms of the Surface Lease as
unenforceable or against public policy or even as a breach of the covenant of good faith and
fair dealing. Petro Harvester contends that it was not in breach of those terms, and seeks a
declaratory judgment stating just that. Therefore, Petro Harvester had three years from the
time the alleged breach occurred to bring suit.
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                                        No. 19-60151
Keiths’ assertion that material factual disputes exist.
       In their summary judgment briefing before the district court, neither
party contended that there were material factual disputes. The Keiths waived
their argument that there are genuine issues of material fact when they failed
to identify those factual disputes to the district court. 8 Prince-Rivers v. Fed.
Express Ground, 731 F. App’x 298, 301 (5th Cir. 2018); Stearman v. C.I.R. 436
F.3d 533, 537 (5th Cir. 2006). Additionally, while cross-motions for summary
judgment do not automatically indicate the absence of genuine issues of
material fact, “cross-motions may be probative of the non-existence of a factual
dispute when, as here, they demonstrate a basic agreement concerning what
legal theories and material facts are dispositive.” Bricklayers Local 15 v. Stuart
Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975); Schlytter v. Baker, 580 F.2d
848, 850 (5th Cir. 1978).


                                                    IV.
       We AFFIRM the district court’s order granting summary judgment in
favor of Petro Harvester.




       8 The Keiths state that they “did not agree that Petro Laurel presented an accurate or
complete version of undisputed facts” during summary judgment briefing. But the Keiths do
not identify any portion of the record showing that they notified the district court of objections
to Petro Harvester’s factual assertions.
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